This case was last updated from Los Angeles County Superior Courts on 11/08/2022 at 13:05:00 (UTC).

JOSE HERNANDEZ, BY AND THROUGH HIS POWER OF ATTORNEY MARIA G. HERNANDEZ, ET AL. VS TARZANA HEALTH AND REHABILITATION CENTER A CORPORATION, ET AL.

Case Summary

On 03/19/2020 JOSE HERNANDEZ, BY AND THROUGH HIS POWER OF ATTORNEY MARIA G HERNANDEZ, filed a Personal Injury - Elder/Dependant Adult Abuse lawsuit against TARZANA HEALTH AND REHABILITATION CENTER A CORPORATION,. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are KRISTIN S. ESCALANTE and PATRICIA D. NIETO. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******1576

  • Filing Date:

    03/19/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Elder/Dependant Adult Abuse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

KRISTIN S. ESCALANTE

PATRICIA D. NIETO

 

Party Details

Plaintiffs

HERNANDEZ MARIA G

HERNANDEZ MARIA D

Defendants

COLE MARY

CUNNINGHAM SHERRI

19 More Parties Available

Attorney/Law Firm Details

Plaintiff Attorney

BURNS NIGEL

Defendant Attorneys

MCGIRR BRADLEY J.

SITAR LAURA K

SACCOMANO JENNIFER BICKNELL

LAMB MICHAEL V

KHONSARI AREZOU

PACKER ROBERT B.

TROTTER MICHAEL J.

 

Court Documents

Complaint

3/19/2020: Complaint

Notice - NOTICE OF REMOTE APPEARANCE

11/4/2022: Notice - NOTICE OF REMOTE APPEARANCE

Opposition - OPPOSITION TO PLAINTIFFS' MOTION FOR TRIAL PREFERENCE

11/3/2022: Opposition - OPPOSITION TO PLAINTIFFS' MOTION FOR TRIAL PREFERENCE

Response - RESPONSE TO THE DECLARATION OF STEVEN F. FUGARO SUBMITTED IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION

11/3/2022: Response - RESPONSE TO THE DECLARATION OF STEVEN F. FUGARO SUBMITTED IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION

Objection - OBJECTION DEFENDANTS AMENDED EVIDENTIARY OBJECTIONS TO THE DECLARATION OF STEVEN H. FUGARO, MD

11/3/2022: Objection - OBJECTION DEFENDANTS AMENDED EVIDENTIARY OBJECTIONS TO THE DECLARATION OF STEVEN H. FUGARO, MD

Motion for Trial Preference

10/18/2022: Motion for Trial Preference

Proof of Service (not Summons and Complaint)

10/18/2022: Proof of Service (not Summons and Complaint)

Proof of Service (not Summons and Complaint)

10/13/2022: Proof of Service (not Summons and Complaint)

Declaration - DECLARATION COMBINED DECLARATION OF STEVEN H. FUGARO, M.D.'S ISO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

10/13/2022: Declaration - DECLARATION COMBINED DECLARATION OF STEVEN H. FUGARO, M.D.'S ISO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

Notice of Ruling

8/24/2022: Notice of Ruling

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

8/24/2022: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE...)

8/24/2022: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE...)

Notice - NOTICE NOTICE OF REMOTE APPEARANCE

9/6/2022: Notice - NOTICE NOTICE OF REMOTE APPEARANCE

Proof of Service (not Summons and Complaint)

9/9/2022: Proof of Service (not Summons and Complaint)

Motion in Limine - MOTION IN LIMINE NO. 15

9/9/2022: Motion in Limine - MOTION IN LIMINE NO. 15

Motion in Limine - MOTION IN LIMINE NO. 8

9/9/2022: Motion in Limine - MOTION IN LIMINE NO. 8

Motion in Limine - MOTION IN LIMINE NO. 18

9/9/2022: Motion in Limine - MOTION IN LIMINE NO. 18

Motion in Limine - MOTION IN LIMINE NO. 1

9/9/2022: Motion in Limine - MOTION IN LIMINE NO. 1

432 More Documents Available

 

Docket Entries

  • 03/20/2023
  • Hearing03/20/2023 at 10:00 AM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 03/13/2023
  • Hearing03/13/2023 at 09:30 AM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 11/17/2022
  • Hearing11/17/2022 at 08:30 AM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 11/17/2022
  • Hearing11/17/2022 at 08:30 AM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 11/17/2022
  • Hearing11/17/2022 at 08:30 AM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 11/17/2022
  • Hearing11/17/2022 at 08:30 AM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Trial Preference

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  • 11/04/2022
  • DocketNotice of Remote Appearance; Filed by: Jose Hernandez, by and through his power of attorney Maria G. Hernandez (Plaintiff)

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  • 11/03/2022
  • DocketResponse TO THE DECLARATION OF STEVEN F. FUGARO SUBMITTED IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION; Filed by: Grancell Village of The Los Angeles Jewish Home for The Aging, Inc. Erroneously Sued As The Los Angles Jewish Home for the Aging Inc. (Defendant); Brandman Centers for Senior Care, Inc. (Defendant); Sandra Wang, M.D. (Defendant)

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  • 11/03/2022
  • DocketOpposition TO PLAINTIFFS' MOTION FOR TRIAL PREFERENCE; Filed by: Grancell Village of The Los Angeles Jewish Home for The Aging, Inc. Erroneously Sued As The Los Angles Jewish Home for the Aging Inc. (Defendant); Brandman Centers for Senior Care, Inc. (Defendant); Sandra Wang, M.D. (Defendant)

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  • 11/03/2022
  • DocketObjection DEFENDANTS AMENDED EVIDENTIARY OBJECTIONS TO THE DECLARATION OF STEVEN H. FUGARO, MD; Filed by: Grancell Village of The Los Angeles Jewish Home for The Aging, Inc. Erroneously Sued As The Los Angles Jewish Home for the Aging Inc. (Defendant); Brandman Centers for Senior Care, Inc. (Defendant); Sandra Wang, M.D. (Defendant)

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776 More Docket Entries
  • 04/23/2020
  • DocketUpdated -- Tarzana Health and Rehabilitation Center (Defendant): Organization Name changed from Tarzana Health and Rehabilitation Center a corporation to Tarzana Health and Rehabilitation Center

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  • 04/23/2020
  • DocketUpdated -- SCC Tarzana Operating Gp, LLC (Defendant): Organization Name changed from SCC Tarzana Operating Gp LLC A corporation to SCC Tarzana Operating Gp, LLC

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  • 04/23/2020
  • DocketUpdated -- SSC Tarzana Management Company LP (Defendant): Organization Name changed from SSC Tarzana Management Company LP a corporation to SSC Tarzana Management Company LP

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  • 04/23/2020
  • DocketUpdated -- Northridge Hospital Foundation (Defendant): Organization Name changed from Northridge Hospital Foundation , a corporation to Northridge Hospital Foundation

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  • 03/27/2020
  • DocketSummons on Complaint; Issued and Filed by: Jose Hernandez, by and through his power of attornery Maria G. Hernandez (Plaintiff); Maria G Hernandez (Plaintiff); Maria D Hernandez (Plaintiff); As to: Tarzana Health and Rehabilitation Center a corporation (Defendant); SCC Tarzana Operating Gp LLC A corporation (Defendant); SSC Tarzana Management Company LP a corporation (Defendant) et al.

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  • 03/24/2020
  • DocketCase assigned to Hon. Patricia D. Nieto in Department 24 Stanley Mosk Courthouse

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  • 03/24/2020
  • Docket** Case Name changed from JOSE HERNANDEZ, BY AND THROUGH HIS POWER OF ATTORNERY MARIA G. HERNANDEZ, et al. vs TARZANA HEALTH AND REHABILITATION CENTER A CORPORATION, et al. to JOSE HERNANDEZ, BY AND THROUGH HIS POWER OF ATTORNEY MARIA G. HERNANDEZ, et al. vs TARZANA HEALTH AND REHABILITATION CENTER A CORPORATION, et al.

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  • 03/19/2020
  • DocketComplaint; Filed by: Jose Hernandez, by and through his power of attornery Maria G. Hernandez (Plaintiff); Maria G Hernandez (Plaintiff); Maria D Hernandez (Plaintiff); As to: Tarzana Health and Rehabilitation Center a corporation (Defendant); SCC Tarzana Operating Gp LLC A corporation (Defendant); SSC Tarzana Management Company LP a corporation (Defendant) et al.

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  • 03/19/2020
  • DocketCivil Case Cover Sheet; Filed by: Jose Hernandez, by and through his power of attornery Maria G. Hernandez (Plaintiff); Maria G Hernandez (Plaintiff); Maria D Hernandez (Plaintiff)

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  • 03/19/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by: Clerk

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Tentative Rulings

Case Number: *******1576 Hearing Date: April 14, 2022 Dept: 24

I. Defendant Adel Jabour, M.D.’s Motion for Summary Judgment is GRANTED. Moving parties are to submit a proposed judgment within 5 days.

Defendant Jabour moves for summary judgment on the second cause of action for medical malpractice and third cause of action for loss of consortium asserted against Jabour in Plaintiff’s operative TAC.

Second Cause of Action for Medical Malpractice

A prima facie case for medical malpractice consists of (1) a duty to conform to the relevant standard of care; (2) a breach of that duty, i.e., the negligent conduct; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting damage. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.)?

Duty is measured by the standard of care in the medical community. (Munro v. Regents of the University of California?(1989) 215 Cal.App.3d 977.) A healthcare provider is negligent if the provider fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful healthcare providers of the same type would use in the same or similar circumstances. (Landeros v. Flood (1976) 17 Cal.3d 399, 408; see Elam v. College Park Hospital (1982) 132 Cal. App. 3d 332 [every hospital is responsible for acting with due care to investigate and confirm the competency of physicians and to monitor those physicians to assure that patients receive the proper care].) As the practice of medicine is not within the common knowledge of lay persons, expert opinion testimony is necessary to establish the standard of care. (Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844.) An expert declaration, if uncontradicted, is conclusive proof as to the prevailing standard of care and the propriety of the particular conduct of the health care provider. (Starr v. Mooslin (1971) 14 Cal.App.3d 988, 999.)

“The law is well settled that in a personal injury action, causation must be proven within a reasonable medical probability based upon competent expert testimony.” (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.) “Mere possibility alone is insufficient to establish a prima facie case.” (Id.) “There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease.” (Id. at 403.) “A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.” (Id.)

The TAC alleges that Jabour fell below the standard of care by prematurely discharging Plaintiff Jose from the hospital at several points when it was unsafe to do so and without adequate instructions and procedures in place to avoid foreseeable risk of further injury or complication. (TAC, 49, 50, 52, 53, 56, 57, 65, 66, 69, 109.) The TAC further alleges that Jabour ignored Jose’s very high risk in attempting first to do a transmetatarsal amputation, subjecting Jose to unnecessary and unreasonable pain and suffering. (Id., 65, 109.) Jose allegedly suffered damages as a result of Jabour’s negligence. (Id., 123-124.)

Defendant Jabour has submitted a declaration from David Cossman, M.D., a board-certified vascular surgeon. (Cossman Decl., 1, 5.) Dr. Cossman opines that, based on a review of Plaintiffs’ TAC, Plaintiff Jose’s medical records and radiology studies, Jabour’s discovery requests and Plaintiffs’ responses to the discovery requests, as well as his background and experience, Jabour complied with the standard of care. (Id., 3, 7, 10.) Dr. Cossman explains that, as the percutaneous interventional attempts to improve distal perfusion were performed by cardiology and no open procedure was performed by Jabour, the only legitimate allegation against Jabour is that Jabour should have tried to perform an open bypass from the popliteal artery to a distal target at the ankle of the foot. (Id., 10(a).) Dr. Cossman states that the angiograms which show the distal tibial circulation at the ankle and pedal circulation of the foot clearly demonstrate that there is no legitimate target vessel to bypass to such that Jabour was within the standard of care in not attempting a procedure that had zero chance of success and would have compounded Jose’s clinical situation by placing distal incisions at the ankle and foot that could not heal, would have become rapidly infected and gangrenous, and would have placed Jose’s life at risk. (Id., 10(d).) According to Dr. Cossman, some vascular surgeons advocate primary amputation as definitive treatment to avoid the protracted and ultimately fruitless attempts at revascularization and that, even if a distal bypass is doable, it should not be done to preserve the leg in a bed ridden patient with no chance of ambulation or use of a prosthesis. (Id., 10(e).) Dr. Cossman thus states that Jabour, after good faith and complete evaluations of Jose’s clinical situation, complied with the standard of care by not attempting to perform a bypass or any other open procedure that had no chance of success. (Id., 10(f).) Dr. Cossman further opines that nothing Jabour did harmed Jose in any way and in fact gave him more good days than he would have had with ischemic, nonhealing post-surgical wounds on his legs. (Id., 11.)

The Court finds Defendant Jabour has met Defendant’s burden of demonstrating Defendant did not breach the duty of care or cause Plaintiff Jose’s injuries.

As Plaintiffs have not filed an opposition, Plaintiffs have failed to meet their burden of demonstrating triable issues of material fact exist as to breach of duty and causation.

Accordingly, Jabour is entitled to judgment on the second cause of action for medical malpractice.

Third Cause of Action for Loss of Consortium

“A cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse.” (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927.)

As Jabour is entitled to judgment on the second cause of action for medical malpractice, Jabour is also entitled to judgment on the third cause of action for loss of consortium.

Based on the foregoing, Defendant Jabour’s motion for summary judgment is granted.

II. Defendant Shawki Saad, M.D.’s Motion for Summary Judgment is GRANTED. Moving parties are ordered to submit a proposed judgment within 5 days.

Defendant Saad moves for summary judgment on the second cause of action for medical malpractice and third cause of action for loss of consortium asserted against Saad in Plaintiff’s operative TAC.

Second Cause of Action for Medical Malpractice

A prima facie case for medical malpractice consists of (1) a duty to conform to the relevant standard of care; (2) a breach of that duty, i.e., the negligent conduct; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting damage. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.)

Duty is measured by the standard of care in the medical community. (Munro v. Regents of the University of California?(1989) 215 Cal.App.3d 977.) A healthcare provider is negligent if he or she fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful healthcare providers of the same type would use in the same or similar circumstances. (Landeros v. Flood (1976) 17 Cal.3d 399, 408; see Elam v. College Park Hospital (1982) 132 Cal. App. 3d 332 [every hospital is responsible for acting with due care to investigate and confirm the competency of physicians and to monitor those physicians to assure that patients receive the proper care].) As the practice of medicine is not within the common knowledge of lay persons, expert opinion testimony is necessary to establish the standard of care. (Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844.) An expert declaration, if uncontradicted, is conclusive proof as to the prevailing standard of care and the propriety of the particular conduct of the health care provider. (Starr v. Mooslin (1971) 14 Cal.App.3d 988, 999.)

“The law is well settled that in a personal injury action, causation must be proven within a reasonable medical probability based upon competent expert testimony.” (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.) “Mere possibility alone is insufficient to establish a prima facie case.” (Id.) “There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease.” (Id. at 403.) “A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.” (Id.)

The TAC alleges that Saad fell below the standard of care by failing to properly diagnose and/or treat Jose’s conditions while Jose was treated, examined, and cared for by and under Saad’s supervision, which caused future and lasting complications and injuries to Jose’s lower extremities. (TAC, 52, 54, 55, 109, 115.) Saad also fell below the standard of care by prematurely discharging Plaintiff Jose from the hospital at several points when it was unsafe to do so and without adequate instructions and procedures in place to avoid foreseeable risk of further injury or complication. (TAC, 49, 50, 52, 53, 56, 57, 65, 66, 69, 109.) The TAC further alleges that Saad ignored Jose’s very high risk in attempting first to do a transmetatarsal amputation, subjecting Jose to unnecessary and unreasonable pain and suffering. (Id., 65, 109.) Jose allegedly suffered damages as a result of Saad’s negligence. (Id., 123-124.)

Defendant Saad has submitted a declaration from David Cossman, M.D., a board-certified vascular surgeon. (Cossman Decl., 1, 5.) Dr. Cossman opines that, based on a review of Plaintiffs’ TAC, Plaintiff Jose’s medical records and radiology studies, Saad’s discovery requests and Plaintiffs’ responses to the discovery requests, as well as his background and experience, Saad complied with the standard of care. (Id., 3, 7, 10.) Dr. Cossman explains that, as the percutaneous interventional attempts to improve distal perfusion were performed by cardiology and no open procedure was performed by Saad, the only legitimate allegation against Saad is that Saad should have tried to perform an open bypass from the popliteal artery to a distal target at the ankle of the foot. (Id., 10(a).) Dr. Cossman states that the angiograms which show the distal tibial circulation at the ankle and pedal circulation of the foot clearly demonstrate that there is no legitimate target vessel to bypass to such that Saad was within the standard of care in not attempting a procedure that had zero chance of success and would have compounded Jose’s clinical situation by placing distal incisions at the ankle and foot that could not heal, would have become rapidly infected and gangrenous, and would have placed Jose’s life at risk. (Id., 10(d).) According to Dr. Cossman, some vascular surgeons advocate primary amputation as definitive treatment to avoid the protracted and ultimately fruitless attempts at revascularization and that, even if a distal bypass is doable, it should not be done to preserve the leg in a bed ridden patient with no chance of ambulation or use of a prosthesis. (Id., 10(e).) Dr. Cossman thus states that Saad, after good faith and complete evaluations of Jose’s clinical situation, complied with the standard of care by not attempting to perform a bypass or any other open procedure that had no chance of success. (Id., 10(f).) Dr. Cossman further opines that nothing Saad did harmed Jose in any way and in fact gave him more good days than he would have had with ischemic, nonhealing post-surgical wounds on his legs. (Id., 11.)

The Court finds Defendant Saad has met Defendant’s burden of demonstrating Defendant did not breach the duty of care or cause Plaintiff Jose’s injuries.

As Plaintiffs have not filed an opposition, Plaintiffs have failed to meet their burden of demonstrating triable issues of material fact exist as to breach of duty and causation.

Accordingly, Saad is entitled to judgment on the second cause of action for medical malpractice.

Third Cause of Action for Loss of Consortium

“A cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse.” (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927.)

As Saad is entitled to judgment on the second cause of action for medical malpractice, Saad is also entitled to judgment on the third cause of action for loss of consortium.

Based on the foregoing, Defendant Saad’s motion for summary judgment is granted.

Defendant Saad is ordered to give notice of the court's ruling on both motions.



Case Number: *******1576    Hearing Date: January 21, 2021    Dept: 24

Defendant Mehrded Ariani’s demurrer to the First Amended Complaint is SUSTAINED without leave as to the second and fifth causes of action; SUSTAINED with leave as to the third, fourth, and sixth causes of action, and OVERRULED as to the first. The motion to strike is MOOT per the ruling on demurrer.

On March 19, 2020, Plaintiffs Jose Hernandez (“Jose”), though his power of attorney Maria G. Hernandez (“Maria G.”); Maria G., individually; and Maria D. Hernandez (“Maria D.”), individually, (collectively “Plaintiffs”) brought the instant Elder Abuse suit against Defendants Tarzana Health and Rehabilitation Center, SSC Tarzana Operating Company LP, SSC Tarzana Operating GP LLC, SSC Tarzana Management Company LP (collectively “Tarzana”), Northridge Hospital Medical Center (“NHMC”), Northridge Hospital Foundation, Dignity Health, the Los Angeles Jewish Home for the Aging (“LAJHA”), Brandman Centers for Senior Care, Inc. (“Brandman”), Mary Cole, Sherri Cunningham, Sandra Wang (“Wang”), Michael Damavandi, Casey Ott, Anthony Murphy, Mehrded Ariani, Adel JabourShawici Edel

On October 22, 2020, Ariani filed a demurrer and motion to strike against the FAC. On January 7, 20212, Plaintiffs filed an opposition. On January 13, 2021, Ariani filed a reply.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP ;; 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [internal citations omitted].)

A special demurrer for uncertainty, CCP section 430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP ; 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP ;; 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

Meet and Confer

Before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (CCP ;; 430.41, 435.5.) Counsel’s declaration satisfies the meet and confer requirement. (Saccomano Decl. ¶ 3.)

Duplicative Causes of Action

Defendant demurs to the first and third causes of action on the grounds that they are duplicative of the seventh and fifth causes of action, respectively. At the pleading stage, plaintiffs are the master of their pleading and may assert a cause of action for each theory they believe they are entitled to relief. The fact that one cause of action is duplicative or mirrors another cause of action is not a ground on which a demurrer must be sustained under section 430.10, in part because “it is a waste of time and judicial resources to entertain a motion challenging part of a pleading on the sole ground of repetitiveness.” (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC Ibid.; see Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135 [a court may sustain a demurrer for “duplicative pleading which adds nothing to the complaint by way of fact or theory”].).) Here, Plaintiffs’ causes of action state alternative legal theories. Thus, the Court does not find these causes of action to be purely duplicative such that they add nothing by way of theory. 

Accordingly, Defendant’s demurrer on these grounds are OVERRULED.

Second Cause of Action for Willful Misconduct

Willful misconduct is not a separate tort from negligence, but rather an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care. (Doe v. United States Youth Soccer Association, Inc. (2017) 8 Cal.App.5th 1118, 1140; Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526; see also New v. Consolidated Rock Products Co. ;(1985) 171 Cal.App.3d 681, 689.) Because willful misconduct is not a recognized independent cause of action, but instead an enhanced pleading of negligence, the demurrer to the second cause of action should be sustained on that sole basis. Instead, it is merely an aspect of the negligence claim, and the factual allegations pertaining to willful misconduct should simply be alleged therein.

The Court will also discuss the validity of the willful misconduct allegations.  In order to establish willful misconduct, a plaintiff must prove not only the elements of a negligence cause of action, that is, duty, breach of duty, causation, and damage, but also (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril. (Doe, supra, 8 Cal.App.5th at 1140.) Willful misconduct is not marked by a mere absence of care, rather, it involves a more positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences. (Ibid.) Willful misconduct’s pleading requirements are similar to negligence, but stricter. (Berkley, supra, 152 Cal.App.4th at 526.)  “The act or omission must be even more specifically described in order to raise it to the level of willful misconduct. No claim of willful misconduct can be stated without alleging the specific act or omission that caused the injury.” (Id. at 528 [Citations Omitted].) 

Relevantly, the Complaint alleges the following facts. Ariani practices medicine at NHMC. (FAC ¶ 13.) On February 24, 2019, Hernandez was admitted to NHMC with complaints of burning pain in both of his feet, where he was treated, examined and cared for by Ariani, who performed a lower right extremity angiogram with angioplasty on his right lower extremity and discharged him on February 27, 2019. (FAC ¶ 40.) On March 15, 2019, Hernandez was readmitted to NHMC with complaints of lower extremity pain, and Ariani performed another lower right extremity angiogram. (FAC ¶ 42.) On March 26, 2019, Hernandez was readmitted to NHMC with acute occlusion of his right proximal superficial femoral artery. (FAC, ¶ 43.) During his 9-day stay, Hernandez was under the care and supervision of Ariani. (Id.) Hernandez’s blood flow had stopped and required repeated thrombolysis. (Id.) From February to March 2019, Ariani failed to properly diagnose, and treat Hernandez's conditions, causing future and lasting complications and injuries to his lower extremities. (FAC ¶ 44.) After his discharge, he returned to Brandman, under the supervision of Wang. Brandman and Wang mismanaged Hernandez’s diabetes and hydration. (FAC ¶¶ 45-46.)

On April 16, 2019, Hernandez was again readmitted to NHMC with complaints of severe pain in his right foot. (FAC ¶ 47.) Ariani and others treated and operated on him for acute gangrene. (Id.) He was discharged on April 21, 2019. (Id.) He had to be readmitted again three days later with symptoms of sepsis, general weakness, fatigue, and wet gangrene in his right heel, and was discharged the following day. (FAC ¶ 48.) On April 30, 2019, Hernandez was admitted to NHMC, suffering from gangrene in his right toes, an unstageable ulceration on his right heel, had unstageable ulceration, and gangrene in his entire left forefoot necessitating amputation. (FAC ¶ 50.) Hernandez underwent a transmetatarsal amputation at NHMC and was discharged shortly thereafter on May 6, 2019 to Tarzana’s facility. (FAC ¶¶ 51-52.) At Tarzana’s facility, Hernandez suffered from several falls, necessitating more visits to NHMC but was not apparently treated by Ariani. (FAC ¶¶ 53-79.) Hernandez allegedly suffered from these falls due to the negligence of Taranza Defendants, Wang, Brandman, and NHMC defendants, not including Ariani. (See FAC ¶¶ 63, 74.) On July 26, 2019 Mr. Hernandez was readmitted to Northridge hospital again after another fall caused the surgical wound from his second left leg amputation to reopen, necessitating a third amputation. (FAC ¶ 79.)

Further, Plaintiff generally alleges that each defendant knew Hernandez was likely to sustain serious injury including but not limited to pain, infection, amputation, or even death, if they did not provide adequate care. (FAC ¶ 93.) They knew of Hernandez’s particular needs, and that because Hernandez was elderly and diabetic, he had a heightened risk for such injuries. (Id.) Defendants provided inadequate care for Hernandez intentionally and/or with conscious disregard of the peril. (FAC ¶ 94.)

Plaintiffs assert that the foregoing amounts to willful misconduct. The Court disagrees. Beyond the conclusory allegations found in paras. 93-94, Plaintiffs fail to allege particular facts as to Ariani’s duty regarding the falls at issue. At the time of the falls, Hernandez was not allegedly under Ariani’s care. Instead, he was at the Tarzana facility. (FAC ¶¶ 52-64; 66-79.) The FAC alleges that Northridge Defendants, which does not include Ariani, caused these injuries by failing to ensure appropriate fall preventions were in place at the Tarzana facility following discharge. (See FAC ¶ 68.) Further, there are no specific facts to suggest that Ariani undertook any duty with regard to Hernandez’s nutrition. Thus, no duty or breach are stated. The FAC also fails to describe the negligent conduct with sufficient particularity as to Ariani. (See Berkley, supra, Plaintiffs assert that Ariani willfully discharged Herndandez “prematurely” at some unspecified point. However, there are no allegations that Ariani discharged Hernandez at all, let alone prematurely which created an increased fall risk. (See FAC ¶¶ 47-52.)

Accordingly, Defendant’s demurrer is SUSTAINED without leave to amend.

Third Cause of Action for Elder Abuse

Defendants demurs to the Elder Abuse cause on the grounds that the FAC does not allege that he is a care custodian or that he performed any qualifying acts of neglect or physical abuse under the Act. 

To establish a claim for Elder Abuse and Neglect under the statute, a plaintiff must allege the following: (1) plaintiff is an elder or dependent adult; (2) defendant had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (3) defendant knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; (4) defendant denied or withheld goods or services necessary to meet the elder or dependent adult’s basic needs, either: (a) with knowledge that injury was substantially certain to befall the elder or dependent adult malice, oppression, or fraud; or (b) with conscious disregard of the high probability of such injury recklessness; and (5) the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 407; Welf. & Inst. Code, ; 15610.07.) Elder abuse must be pleaded with particularity in accordance with the pleading rules governing statutory claims. (Ibid.

Neglect covers misconduct that is distinct from, but potentially overlapping with, professional negligence. (See Delaney v. Baker (1999) 20 Cal.4th 23, 33.) Neglect refers not to the substandard performance of medical services but, rather, to the ‘failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.’” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.) The Act requires a caretaking or custodial relationship where a person has assumed significant responsibility for attending to one or more of those basic needs of the elder or dependent adult that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance, which entails more than casual or limited interactions. (Winn v. Pioneer Medical Group, Inc (2016) 63 Cal.4th 148, 158.) Claims under the Elder Abuse Act are not brought against health care providers in their capacity as providers but, rather, against custodians and caregivers that abuse elders and that may or may not, incidentally, also be health care providers. (Covenant Care, supra, 32 Cal.4th at 786.)

Plaintiffs do not allege that Ariani had a custodial relationship with Herndandez. There are no facts alleged suggesting that Ariani undertook responsibility for attending to one or more of Hernandez’s basic needs, beyond the limited interactions of hospital visits for the purpose of rendering specific medical care. Plaintiffs assert that Ariani was Hernandez’s treating physician and therefore had the responsibility of meeting the basic needs of Hernandez. Plaintiffs provide no authority that Ariani’s status as a treating physician would automatically establish a caregiving/custodial relationship. Plaintiffs point to the fact that Ariani treated Hernandez with emergency thrombolysis. (FAC ¶ 43.) Emergency thrombolysis is not a basic need that an able-bodied adult would be capable of managing without assistance; instead, it is a limited interaction. (See Winn, supra, 63 Cal.4th at 158.) Ariani also did not allegedly withhold this medical care.

Accordingly, Defendant’s demurrer is SUSTAINED with leave to amend.

Fourth Cause of Action for Intentional Infliction of Emotional Distress

Defendant demurs to the IIED claim on the grounds that the FAC does not allege any outrageous conduct on his part.

A cause of action for intentional infliction of emotional distress exists when there is: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.) A defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Id. at 1051.) The defendant must either intend his or her conduct to inflict injury or engaged in it with the realization that injury will result. (Ibid.) Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Ibid.) Generally, the question of whether the conduct is in fact outrageous is a question of fact to be determined beyond the pleading stage. (So v. Shin (2013) 212 Cal.App.4th 652; Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004.) Nonetheless, “[w]hile Mintz

The FAC alleges that Defendants engaged in outrageous conduct by failing to implement appropriate fall prevention measures despite a high fall risk, left Hernandez unattended resulting in him falling to the floor, allowing Hernandez’s glucose to reach and remain dangerously high, failing to adequately provide food and hydration to Hernandez, and yelling at/verbally abusing Hernandez. (FAC ¶ 113.) None of these specific allegations/conduct includes any alleged acts by Ariani. The FAC alleges that the falls pertained to the Tarzana and Northridge defendants’ conduct. (See FAC ¶¶ 55-67.) The FAC alleges that Wang, Brandman, and Tarzana Defendants undertook the duty to monitor Hernandez’s nutrition outside of NHMC. (FAC ¶¶ 37-52.) The FAC alleges that Tarzana Defendants denigrated and verbally abused Hernandez. (FAC ¶¶ 77-78.) Thus, the FAC does not allege any facts supporting the element of outrageous conduct as to Ariani.

Accordingly, Defendant’s demurrer is SUSTAINED with leave to amend.

Fifth Cause of Action for Pen. Code ; 368 Violation

First, the above discussion regarding the Elder Abuse cause of action applies equally to this cause. Plaintiffs have failed to allege that the allegations of abuse/neglect are attributable to Ariani, or that Ariani had the requisite custodial relationship with Hernandez.

Further, Plaintiff lacks standing to bring this cause of action. Pen. Code section 368 provides criminal liability where:

(b)(1) A person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed six thousand dollars ($6,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years.

Alleged criminal actions involve public offenses against the people of a state and these violations are intended to be prosecuted by the State of California. (Pen. Code ; 683.) Penal Code section 15 explains a “crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, either of the following punishments: (1) Death; (2) Imprisonment; (3) Fines…” Crimes and public offenses include both misdemeanors and felonies, and no person can be punished for a public offense except “upon a legal conviction in a court having jurisdiction thereof.” (Pen. Code ;; 16, 681.) Criminal acts are to be “prosecuted in the name of the People of the State of California, as a party, against the person charged with the offense.” (Pen. Code ; 684.)

Plaintiffs cite no provision in the statute or caselaw that would provide him standing to assert this criminal statute. Plaintiff asserts that this is negligence per se. However, negligence per se is not an independent cause of action. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285.) Under the doctrine of negligence per se, the plaintiff “borrows” statutes to prove the duty of care and standard of care. (Id.; See California Service Station and Auto. Repair Ass’n

Accordingly, Defendant’s demurrer is SUSTAINED without leave to amend.

Sixth Cause of Action for Negligent infliction of Emotional Distress

Plaintiffs concede that the NIED claim is not well-pled. Accordingly, Defendant’s demurrer is SUSTAINED with leave to amend.

Motion to Strike

The motion to strike is DENIED as to the duplicative causes of action. The motion to strike is otherwise moot per the ruling on demurrer.

Moving party is ordered to give notice.



Case Number: *******1576    Hearing Date: September 01, 2020    Dept: 24

Defendants’ motions to compel Plaintiff’s claims to arbitration are DENIED.

On March 19, 2020, Plaintiffs Jose Hernandez (“Jose”), though his power of attorney Maria G. Hernandez (“Maria G.”); Maria G., individually; and Maria D. Hernandez (“Maria D.”), individually, (collectively “Plaintiffs”) brought the instant Elder Abuse suit against Defendants Tarzana Health and Rehabilitation Center, SSC Tarzana Operating Company LP, SSC Tarzana Operating GP LLC, SSC Tarzana Management Company LP (collectively “Tarzana”), Northridge Hospital Medical Center, Northridge Hospital Foundation, Dignity Health, the Los Angeles Jewish Home for the Aging (“LAJHA”), Brandman Centers for Senior Care, Inc., Mary Cole, Sherri Cunningham, Sandra Wang, Michael Damavandi, Casey Ott, Anthony Murphy, Mehrded Ariani, Adel Jabour, Shawici Saad, Anne Panganiban, Marie Edel Goodman, Michael Wheeler, and Ronald Tang. The Complaint states seven causes of action for: 1) negligence; 2) willful misconduct; 3) elder abuse; 4) intentional infliction of emotional distress; 5) violation of Pen. Code section 368; 6) negligent infliction of emotional distress; and 7) medical malpractice.

On May 11, 2020, LAJHA filed a motion to compel Plaintiffs’ claims to arbitration. On August 19, 2020, Plaintiffs filed an opposition. On August 26, 2020, LAJHA filed a reply.

On June 16, 2020, Tarzana filed a motion to compel Plaintiffs’ claims to arbitration. On August 19, 2020, Plaintiffs filed an opposition. On August 26, 2020, Tarzana filed a reply.

Legal Standard

Under California and federal law, public policy favors arbitration as an efficient and less expensive means of resolving private disputes. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 8-9; AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339.) Accordingly, whether an agreement is governed by the California Arbitration Act (“CAA”) or the Federal Arbitration Act (“FAA”), courts resolve doubts about an arbitration agreement’s scope in favor of arbitration. (Moncharsh, supra, at 9; Comedy Club, Inc. v. Improv West Assocs. (9th Cir. 2009) 553 F.3d 1277, 1284; see also Engalla v. Permanente Med. Grp., Inc. (1997) 15 Cal.4th 951, 971-972 [“California law incorporates many of the basic policy objectives contained in the Federal Arbitration Act, including a presumption in favor of arbitrability [citation] and a requirement that an arbitration agreement must be enforced on the basis of state law standards that apply to contracts in general [citation]”].) “[U]nder both the FAA and California law, ‘arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.’ ” (Higgins v. Sup. Ct. (2006) 140 Cal.App.4th 1238, 1247.)

“Code of Civil Procedure section 1281.2 requires a trial court to grant a petition to compel arbitration ‘if the court determines that an agreement to arbitrate the controversy exists.’” (Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 59, quoting Code Civ. Proc., ; 1281.2.) Accordingly, “when presented with a petition to compel arbitration, the court’s first task is to determine whether the parties have in fact agreed to arbitrate the dispute.” (Ibid.) A petition to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Id. at 71.) As with any other specific performance claim, “a party seeking to enforce an arbitration agreement must show the agreement’s terms are sufficiently definite to enable the court to know what it is to enforce.” (Ibid. [internal citations omitted].) “Only the valid and binding agreement of the parties, including all material terms well-defined and clearly expressed, may be ordered specifically performed.” (Ibid.) An arbitration agreement “must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” (Civ. Code, ; 1636.) The language of the contract governs its interpretation if it is clear and explicit. (Civ. Code, ; 1368.) If uncertainty exists, “the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist.” (Civ. Code, ; 1654.)

The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) It would then be plaintiff’s burden, in opposing the motion, to prove by a preponderance of the evidence any fact necessary to her opposition. (See Ibid.) “In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination.” (Ibid.)

Existence of a Valid Arbitration Agreement

As with any contract, mutual assent or consent is necessary for the formation of a valid arbitration agreement. (Civ. Code, ;; 1550, 1565.) “Consent is not mutual, unless the parties all agree upon the same thing in the same sense.” (Civ. Code, ; 1580.) The moving party bears the initial burden of showing the existence of an agreement to arbitrate by a preponderance of the evidence. (Mitri v. Arnel Mgmt. Co. (2007) 157 Cal.App.4th 1164, 1169 (Mitri) [“Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.”].)

LAJHA and Tarzana present their respective agreements with Plaintiffs. LAJHA presents the following facts. On April 3, 2019, at the time of Jose’s admission to LAJHA, Admission Analyst, Tali Pentz (“Pentz”) met with Jose and his wife, Maria D. Before reviewing any paperwork, Jose confirmed he would allow his wife to sign on his behalf. Jose signed a statement to that effect. (Pentz Decl., Ex. A.) Maria D. then executed the admission paperwork which included the arbitration agreement. (Pentz Decl., Ex. B [“LAJHA agreement”].) Pentz explained each page of the LAJHA agreement to Maria D. with Jose present, informing them that the agreement was optional and that they would be giving up their right to jury trial. (Pentz Decl., ¶¶ 6-9.)

Tarzana presents the following evidence. Upon Plaintiff’s admission, Jose authorized Maria D. to enter into a binding Dispute Resolution Program (“DRP”). (Drake Decl., Ex. A [the “DRP”].) The DRP agreement was not part of Jose’s admissions agreement. (DRP at 1.) The DRP contains provisions stating that the parties would resolve all disagreements involving the facility through mediation and binding arbitration in accordance with the FAA. (DRP at 1, 6.) The DRP also included provisions binding Plaintiff’s family, heirs, successors, assigns, agents, insurers, trustees, and/or legal representatives to the arbitration agreement. (DRP at 2.)

Both contracts regard arbitration of the claims asserted against them, including elder abuse and, specifically, medical malpractice.

Plaintiffs first dispute whether Maria D. had authority to bind Jose. Even when written authorization is absent, agency relationship may arise by oral consent or by implication from the conduct of the parties. (Flores v. Evergreen at San Diego, LLC (2007) 148 Cal.App.4th 581, 587-88. "Agency can be founded on ostensible authority, that is, some intentional conduct or neglect on the part of the alleged principal creating a belief in the minds of third persons that an agency exists, and a reasonable reliance thereon by such third persons.'" (Ibid.) “Ostensible agency cannot be established by the representations or conduct of the purported agent; the statements or acts of the principal must be such as to cause the third party to believe that the agency exists. (Milrot v. Stamper Medical Corp. (1996) 44 Cal.App.4th 182, 187; see also Young v. Horizon West, Inc. (2013) 220 Cal.App.4th 1122 [no direct evidence that principal’s conduct demonstrated ostensible authority to bind him]; Pagarigan v. Libby Care Center, Inc. (2002) 99 Cal.App.4th 298 [finding no agency where patient, who was “comatose and mentally incompetent,” had done nothing that “caused [the defendants] to believe [that] either of her daughters was authorized to act as her agent in any capacity”].)

The Court finds that Maria D. had ostensible authority as to LAJHA. As to the LAJHA agreement, LAJHA first obtained Plaintiff’s written consent to have Maria D. act as his agent. (See Pentz Decl., Ex. A.) Thus, ostensible or actual authority is well-established there. Plaintiffs provide no substantive evidence to rebut this delegation of authority. Maria D. only declares that she never had a durable power of attorney for her husband but does not state whether she was never given authority to sign the agreements.

As to Tarzana, Tarzana cites a provision within the contract itself which purports Tarzana argues shows Jose agreed to have Maria D. bind him. Tarzana cites two witness signatures below a section of the DRP which indicates: “Sign where mentally competent resident is unable to physically execute the Agreement and authorizes a Representative as his/her Agent to sign Agreement on the resident’s behalf.” (DRP at 8.) However, there is no declaration explaining whether who authorized Maria D. to sign that section of the contract. Nothing about the contract itself implies that Jose made any particular act or representation that he caused Tarzana to believe that agency existed. The declaration does not state what the “witnesses” were precisely witnessing, such that the Court could conclude that the witness signatures show that Jose gave authority to Maria D. through any means. What statement or act led Tarzana to believe that Maria D. had an agency relationship with Jose? The evidence and DRP are insubstantial, as they only provide for their own conduct or Maria D.’s conduct, but not Jose’s conduct.

Accordingly, the Court finds that the LAJHA agreement applies to the claims against moving Defendants. Plaintiff therefore has the burden to demonstrate that the LAJHA should otherwise not be enforced. Tarzana fails to meet its initial burden. For the purpose further of discussion, the Court will assume that Tarzana has a valid agreement, but otherwise denies Tarzana’s motion for this reason.

Unconscionability

Plaintiffs assert that the contracts at issue are unconscionable.

The doctrine of unconscionability refers to “an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.” (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1133.) It consists of procedural and substantive components, “the former focusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh or one-sided results.” (Ibid.) Although both components of unconscionability must be present to invalidate an arbitration agreement, they need not be present in the same degree. (Armendariz v. Found Health Psychcare Servs., Inc. (2000) 24 Cal.4th 83, 114 (Armendariz).) “Essentially a sliding scale is invoked which disregards the regularity of the procedural process of the contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves. [Citations.] In other words, the more substantively unconscionable the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” (Ibid.) “The party resisting arbitration bears the burden of proving unconscionability.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Dev. (US), LLC (2012) 55 Cal.4th 223, 247.)

First, moving Defendants posit that the agreements cannot be held as unconscionable due to their compliance with procedural requirements of medical malpractice arbitration agreements. Specifically, CCP section 1295(e) provides that a medical services arbitration agreement that meets the statute’s specified wording and font requirements as set forth in subdivisions (a), (b), and (c) “is not a contract of adhesion nor unconscionable nor otherwise improper….” This section “insulates certain medical service contracts containing arbitration clauses against attack on grounds they are adhesive, unconscionable or otherwise improper.” (Dinong v. Superior Court (1980) 102 Cal.App.3d 845, 849.)

The DRP is black and white. The Court therefore cannot conclude that it complies with section 1295(b), which requires red type. Thus, the record does not show section 1295(e) applies to the DRP.

LAJHA agreement provides for the necessary text in the appropriate places on the agreement, and the contract was apparently never rescinded by either party. Notably, LAJHA submits a color copy of the agreement, demonstrating that the requirements of subsections (b) are accounted for. However, LAJHA does not adequately explain the applicability of this section and its interaction with the unconscionability analysis as a whole.

Moving parties cited cases do not state that the language found in subsection (e) would make the contract bullet proof as to all causes and under any circumstance. Instead, the cases cited only permit the enforceability of a medical malpractice-related arbitration agreement as to third parties for wrongful death. (See e.g. Ruiz v. Podolsky (2010) 50 Cal.4th 838, 849 [permitted patients who consented to arbitration to bind their heirs in actions for wrongful death].) This is not a contested issue here. Some only mention this aspect of the statute in passing, and do not discuss the extent that this provision is applicable to non-medical malpractice claims that are also subject to the contract.

By its terms, the statute only applies to agreements for “medical services which contains a provision for arbitration of any dispute as to professional negligence of a health care provider...” (CCP ; 1295(e).) The statute defines “professional negligence” as “a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.” (CCP ; 1295(g)(2).)

The Court finds it difficult to believe that a court cannot find an arbitration agreement substantively unconscionable so long as those requirements are procedurally met. If this were true, then a potential elder care defendant may put purposefully unconscionable terms (e.g. moratoriums on types of relief, unfair rules of procedure, etc.) into the arbitration agreement and avoid an unconscionability finding per section 1295. Such a contract would still have to pass muster under Armendariz, at least as to the non-medical malpractice claims. Absent contrary authority, the Court will discuss whether the contracts pass muster per Armendariz.

Procedural Unconscionability

Plaintiff poses the following issues as to both contracts: 1) the contract is a contract of adhesion; 2) the agreements incorporate sets of rules that the arbitration may follow but fails to attach them; and 3) Maria D. could not understand the agreement and it was not adequately explained to her.

As to the adhesiveness of the contracts, the Court disagrees. As discussed, the agreements provide numerous indications that the agreement was not a pre-requisite to treatment or admittance. Further, both agreements provided for a 30-day cooling off period where Plaintiffs could have rescinded the contract. Thus, the agreements were not adhesive.

Plaintiffs fail to demonstrate that a failure to attach arbitration rules, by itself, creates procedural unconscionability. (See Fitz v. NCR Corp. (2004) 118 Cal.App.4th 702 [agreement's incorporation of American Arbitration Association (AAA) rules failed to relieve effect of unlawful discovery provisions]; Harper v. Ultimo (2003) 113 Cal.App.4th 1402 [remedy-limiting Better Business Bureau arbitration rules that were not attached to the contract].) In those cases, it was not that the drafting party failed to attach the rules, but that they were using this omission to hide damaging terms. Courts have recognized that a failure to attach the arbitration rules to an arbitration agreement requires courts to scrutinize the substantive unconscionability of terms that were “artfully hidden” but does not otherwise add to the procedural unconscionability of the agreement. (E.g., Baltazar, supra, 62 Cal.4th at 1246; Nguyen v. Applied Medical Resources Corp. (2016) 4 Cal.App.5th 232, 248 -249.) Plaintiffs do not argue that the rules any artfully hidden terms.

As to Maria D.’s understanding of the agreement, simply because she did not fully read or subjectively understand the terms of the agreement she signed does not mean that the agreement is procedurally unconscionable. Courts have held that a party is “bound by the provisions of [an arbitration] agreement regardless of whether [she] read it or [was] aware of the arbitration clause when [she] signed the document.” (Brookwood v. Bank of America, NT&SA (1996) 45 Cal. App. 4th 1667, 1673-74.) “[T]he law effectively presumes that everyone who signs a contract has read it thoroughly, whether or not that is true.” (Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87, 93; see In re Tobacco Cases I (2010) 186 Cal. App. 4th 42, 47 [courts presume that the parties understood the agreements they sign, and that the parties intended whatever the agreement objectively provides].) “The fact that [a party] either chose not to read or take the time to understand these provisions is legally irrelevant.” (Harris v. TAP Worldwide, LLC (2016) 248 Cal.App.4th 373, 383.) Further, the evidence shows that LAJHA provided her with a translator who explained the terms of the contracts to her. (Pentz Decl., ¶¶ 7-9.) Maria D.’s declaration confirms this, as she relied on a translator to describe the contract terms, but argues it was not “fully” explained to her. (Maria D. Decl., ¶ 13.) Further, Plaintiffs had a cooling off period to fully examine the contract if they had any concerns.

Thus, the Court finds a modest to light amount of procedural unconscionability.

Substantive Unconscionability

An agreement is substantively unconscionable if it imposes terms that are “overly harsh,” “unduly oppressive,” “unreasonably favorable,” or “so one-sided as to ‘shock the conscience.’ ” (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 910-911.) “All of these formulations point to the central idea that unconscionability doctrine is concerned not with ‘a simple old-fashioned bad bargain’ [citation], but with terms that are ‘unreasonably favorable to the more powerful party.’ [Citation.]” (Id. At 911.) “These include ‘terms that impair the integrity of the bargaining process or otherwise contravene the public interest or public policy; terms (usually of an adhesion or boilerplate nature) that attempt to alter in an impermissible manner fundamental duties otherwise imposed by the law, fine-print terms, or provisions that seek to negate the reasonable expectations of the nondrafting party, or unreasonably and unexpectedly harsh terms having to do with price or other central aspects of the transaction.’ ” (Ibid.)

As to the LAJHA agreement, Plaintiff points to a single provision which purportedly disrupts Plaintiffs’ rights to enhanced remedies under the act, and that the contract terms lack mutuality. Specifically, the agreement applies to "any action for injury or death arising from negligence, intentional tort and/or statutory causes of action (including all California Welfare and Institutions Code sections)" and on the other hand "[t]his Agreement shall be binding for any dispute, except for disputes pertaining to collections or evictions brought by the parties hereto." (LAJHA Agreement, Art. 2, 4.) Further, that "[t]he expenses and fees of the arbitrator(s) shall be apportioned equally among the parties to this Agreement, except as otherwise permitted by law." (LAJHA Agreement, Art. 6.)

As to the lack of mutuality, courts have found an arbitration agreement to be substantively unconscionable when it requires one party to arbitrate the claims he or she is mostly likely to bring, but allows the other party to go to court to pursue the claims it is most likely to bring. (Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 248; Serafin v. Balco Properties Ltd., LLC (2015) 235 Cal.App.4th 165, 181.) In Carbajal, the court found that the arbitration agreement at issue was substantively unconscionable “on its face because it requires [the employee] to arbitrate ‘any and all disputes’ she has with [the employer], but it authorizes [the employer] to ‘obtain an injunction from a court of competent jurisdiction’ to restrain [the employee] from breaching the Agreement’s nondisclosure and exclusive use provisions.” (Id. at 249.) Similarly, in Stirlen, the court concluded that the mandatory arbitration provision could “can only realistically be seen as applying primarily if not exclusively to claims arising out of the termination of employment, which are virtually certain to be filed against, not by [the employer.]” (Stirlen, supra, 235 Cal.App.4th. at 1540-1541.) The Stirlen court reached this conclusion on the basis that “[e]mployer claims may be brought in court or submitted to arbitration while claims for violation of employee rights must be arbitrated.” (Id. at 1541-1542.)

The Court finds that the instant terms where Plaintiffs give up all their claims, and LAJHA reserves their claims for eviction and rent, are carves outs that only the moving parties could have brought. This is substantially identical to the term discussed in Lopez v. Bartlett Care Center, LLC (2019) 39 Cal.App.5th 311. There, the Fourth District upheld the trial court in a finding of unconscionability on identical terms. (Id. at 321-322.) The court reasoned the arbitration agreement lacked mutuality because it requires residents to arbitrate those claims they are most likely to bring against the facility, while allowing the facility to pursue in court the actions it was most likely to bring against residents (evictions and collections). (Ibid.) Here, an identical term allows for LAJHA to bring unlawful detainer-type actions to court, which certainly only benefits them, while forbidding all other causes. The arbitration provision is one sided and only benefits LAJHA.

Plaintiff's second claim is less compelling. First, this is not a limitation on fees as Plaintiffs assert. Instead, it is an allocation of arbitration costs. The term apportioning unique arbitration costs equally among the parties also states “except as otherwise permitted by law.” Thus, to the extent that the unique costs are violative of Armendariz, LAJHA agreement would not require those costs to be shared.

Plaintiffs offer no support for their contention that the FAA provisions in the contracts would render the contracts unconscionable.

Thus, the Court finds that the terms of the LAJHA agreement lack mutuality and are thus unconscionable. LAJHA has not requested severance, and cite no severance clause. The Court is therefore unable to sever the offensive clause. Therefore, the Court cannot enforce the LAJHA agreement and must deem the contract unconscionable.

As to the DPR, the Court finds no unconscionable terms. Plaintiff cites an apparent limitation on attorneys fees, which states "each party shall be responsible for their own attorney's fees." However, the term goes on to state that an exception exists where this provision would contradict federal/state law, federal/state law would control. Thus, the contract does not impinge on the enhanced remedies for elder abuse.

Accordingly, the Court finds that LAJHA is unconscionable. Were the Court to reach the question of whether the DPR is unconscionable, it would hold that because no substantive terms are unconscionable, the contract is not unconscionable.

Risk of Conflicting Rulings

Assuming that the contracts were enforceable, or to the extent that the medical malpractice cause could not be held unconscionable per CCP section 1295, the Court would not compel arbitration here where there is no evidence that the FAA applies and there exists risks of conflicting rulings.

CCP section 1281.2 provides:

The court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that… [a] party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact.

In other words, courts may refuse arbitration where a party to the arbitration agreement is involved in litigation with a third party, if the litigation arises out of the same transaction or series of transactions as the arbitration; and there is a possibility of conflicting rulings on common issues of law or fact. To avoid inconsistent results and the possibility that each defendant will seek to escape liability by blaming the other, the court can refuse to compel arbitration and order all parties joined in a single action. (See Mercury Ins. Group v. Superior Court (1998)19 Cal.4th 332, 339–340; Prudential Property & Cas. Ins. Co. v. Superior Court (1995) 36 Cal.App.4th 275, 279.) In such cases, the parties to the arbitration agreement are forced to litigate a dispute that they had agreed to arbitrate. (Mercury Ins. Group, supra, 19 Cal.4th at pp. 347–350.) The right to arbitration, created by agreement, is not absolute: “it may have to yield if there is an issue of law or fact common to the arbitration and a pending action or proceeding with a third party and there is a possibility of conflicting rulings thereon.” (Id. at 348.)

Moving parties argue that the FAA applies. Notably, the applicability of the FAA determines whether the above CCP provisions apply. The FAA contains no provision analogous to section 1281.2, subdivision (c), and therefore that subdivision cannot be applied to deny the enforcement of arbitration clauses governed by the FAA. (Gloster v. Sonic Automotive, Inc. (2014) 226 Cal.App.4th 438, 446.)

Plaintiff contests that the FAA does not apply. “A party seeking to enforce an arbitration agreement has the burden of showing FAA preemption.” (Lane v. Francis Capital Mgmt. LLC (2014) 224 Cal.App.4th 676, 684.) Here, Defendants have this burden. In pertinent part, the FAA provides that a “written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (9 U.S.C. ; 2.) To give effect to the intent of Congress in enacting the FAA, courts broadly construe the term “involving commerce.” (See Allied-Bruce Terminix Cos. v. Dobson (1995) 513 U.S. 265, 268.) The FAA applies to arbitration agreements if the economic activity at issue, when considered in the aggregate, bears on interstate commerce in a substantial way, even if the particular conduct of the parties does not itself affect interstate commerce. (Citizens Bank v. Alafabco, Inc. (2003) 539 U.S. 52, 56-57.)

For example, in Khalatian v. Prime Time Shuttle, Inc. (2015) 327 Cal.App.4th 651, the court held that the arbitration agreement regarding plaintiff’s employment, driving shuttles only in California, involved interstate commerce because “the passengers using the employer’s service often traveled from other states[ ] [and] passengers purchased package deals on the Internet which included hotel accommodations, airfare, and vouchers for free airport transportation which the customers used to board the employer’s airport shuttles.” (Id. at pp. 657-658.) Therefore, the phrase commerce has an exceptionally broad interpretation.

Moving parties contend that the FAA applies as to both contracts, because the contracts say so. This is true, as both agreements cite the FAA. However, they provide no authority that simply because the contract declares that the FAA applies, they have no burden to show with admissible evidence that the contract involves commerce under the FAA. While this term is broadly construed, the Court currently has no evidentiary basis to hold that the FAA applies to either contract. Moving parties provide no evidence to this end. Thus, they have failed to meet their burden to show that the FAA applies. Thus, the Court may exercise its discretion to decline enforcement.

Here, it is undisputed that this case involves multiple parties with related claims and defenses who are not bound by the arbitration clause between Plaintiffs and the moving parties. Indeed, the same substantive facts and issues will be litigated in both forums (perhaps multiple forums with multiple arbitration agreements), which creates a high likelihood for conflicting rulings. There is a potential that an arbitrator can find liability against Tarzana, while another could attribute the same injuries inconsistently with the Northridge Hospital. To avoid the possibility of conflicting rulings on common issues of law or fact, the Court is inclined to deny the instant motions.

Conclusion

LAJHA meets its burden to demonstrate the existence of an arbitration agreement between the parties that covers Plaintiff’s claims. Tarzana fails to do so. Plaintiff demonstrates that the LAJHA agreement contains unconscionable terms that cannot be severed. Further, the Court is inclined to decline enforcement per CCP section 1281.2.

Accordingly, moving parties’ motions are DENIED.

Moving party is ordered to give notice.



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