KERRY PORTER, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO CHARLES PORTER, ET AL. VS AFFINITY HEALTHCARE CENTER, ET AL.

Tentative Rulings

Case Number: *******9341 Hearing Date: March 29, 2022 Dept: 32

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged). Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

TENTATIVE RULING

MOTIONS

Plaintiffs Kerry Porter, individually and as successor in interest to Charles Porter (“Decedent”), Freda Porter, Kelly Porter, and Charles Porter, Jr. (collectively, “Plaintiffs”) sued Defendant PIH Health Hospital - Downey based on allegations of elder abuse leading to Decedent’s death. Defendant demurs to the second of action in Plaintiffs’ first amended complaint. Defendant also moves to strike Plaintiffs’ claim and prayer for punitive damages against Defendant. Plaintiffs oppose the motion and demurrer. Defendant replies to the oppositions.

ANALYSIS

1. DEMURRER

   “It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint. (Code Civ. Proc., 452.) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

   A. Second Cause of Action: Elder Abuse

   Defendant demurs to Plaintiffs’ second cause of action for elder abuse for failure to state facts sufficient to constitute a cause of action. Defendant argues that the complaint alleges legal conclusions rather than material facts to support the claim, and the allegations amount only to negligence. In opposition, Plaintiffs contend paragraphs 46-47, 49, and 54 of the first amended complaint allege the ultimate facts necessary at the pleading stage.

   “To recover the enhanced remedies available under the Elder Abuse Act from a health care provider, a plaintiff must prove more than simple or even gross negligence in the provider's care or custody of the elder.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405 (hereafter, Carter).)

   The Elder Abuse Act defines abuse as physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering; or the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. The Act defines neglect as the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise. Neglect includes, but is not limited to, all of the following: (1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter. (2) Failure to provide medical care for physical and mental health needs. (3) Failure to protect from health and safety hazards. (4) Failure to prevent malnutrition or dehydration. In short, neglect as a form of abuse under the Elder Abuse Act refers 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. Thus, when the medical care of an elder is at issue, the statutory definition of neglect speaks not of the undertaking of medical services, but of the failure to provide medical care.

   (Carter, supra, 198 Cal.App.4th at pp. 404–405 [cleaned up].) To that end, the Carter court held in part:

   The plaintiff must allege (and ultimately prove by clear and convincing evidence) facts establishing that the defendant: (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; and (3) denied or withheld goods or services necessary to meet the elder or dependent adult's basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness). The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. Finally, the facts constituting the neglect and establishing the causal link between the neglect and the injury must be pleaded with particularity, in accordance with the pleading rules governing statutory claims.

   (Carter, supra,198 Cal.App.4th at p. 406–407 [cleaned up].)[1] In short, Carter is instructive to determining whether Plaintiffs’ allegations of elder abuse are sufficient to withstand scrutiny.

   Here, the Court has reviewed the first amended complaint in its entirety, and recounts the pertinent facts alleged against Defendant as follows:

   On March 9, 2020, decedent Charles Porter was transferred to PIH Health from defendant Affinity due to cellulitis to his arms and a rash. He was readmitted to Affinity on March 13, 2020. On May 13, 2020, decedent Charles Porter was transferred to PIH Health due to abnormal labs. Upon admission he had a stage II decubitus ulcer to his buttocks and was dehydrated. Decedent Charles Porter was transferred back to defendant Affinity on May 22, 2020. At the time of decedent Charles Porter's readmission to Affinity on May 22, 2020, he had a sacrococcyx open wound measuring 6.5 cm. x 4 cm. with necrotic tissue. On May 29, 2020 decedent Charles Porter was transferred to PIH Health due to congestive heart failure and pneumonia. Upon admission he had a stage IV decubitus ulcer to the sacral-coccyx area. On June 15, 2020 decedent Charles Porter was transferred from PIH Health to Barlow Respiratory Hospital. At the time of the admission to Barlow Respiratory Hospital he had a stage IV decubitus ulcer to his sacral area measuring 16 cm. x 6 cm. and had moisture associated skin damage to his perineum measuring 14.9 cm. x 3.7 cm., right thigh measuring 12.2 cm. x 11.7 cm., left thigh measuring 11.3 cm. x 8.0 cm., right groin measuring 15.1 cm. x 3.0 cm., left groin measuring 19.2 cm. x 4.2 cm., right ischial tuberosity measuring 11.5 cm. x 6.5 cm. and left ischial tuberosity measuring 10.8 cm. x 9.8 cm. He also had wounds to both of his ears. Decedent Charles Porter was also suffering from malnutrition. The decubitus ulcer(s) to decedent Charles Porter's sacral/coccyx area further deteriorated and he developed additional decubitus ulcers and moisture associated skin damage due to PIH Health's failure to provide hygiene, failure to turn/reposition decedent Charles Porter every two hours, and to provide intervention to promote healing of the decubitus ulcer(s) and further skin breakdown.

   (See First Amended Complaint, 41-45.)

   The Court finds that Plaintiffs’ allegations are insufficient. The balance of the allegations asserted against Defendant in the second cause of action continue to be couched as conclusions, lacking the factual specificity required when alleging elder abuse. (See First Amended Complaint, 46-57.) Specifically lacking are allegations pled with particularity that Defendant “denied or withheld goods or services necessary to meet the” Decedent’s “basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult or with conscious disregard of the high probability of such injury.” For example, though Plaintiffs have alleged Defendant failed to act according to Decedent’s care plan, Plaintiffs do not allege that such failure was due to Defendant’s choice or deliberate indifference. (See First Amended Complaint, 53-54; Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90 [“A significant pattern is one that involves repeated withholding of care and leads to the conclusion that the pattern was the result of choice or deliberate indifference”].)

   In sum, Plaintiffs’ allegations are again no different than the allegations in Carter in which the Court of Appeal held did not constitute elder abuse. Accordingly, Plaintiffs’ allegations, as currently pled, fail to state a claim of elder abuse.

   B. Leave to Amend

   A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See The Inland Oversight Committee, supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].) Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action. (Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 92.)

   Here, the burden is on Plaintiffs to establish that the second cause of action can be amended successfully. At this juncture, Plaintiffs were unable to cure the defects in the original complaint, and Plaintiffs have failed to identify how they can cure the defects in the first amended complaint. Accordingly, the demurrer to the second cause of action is sustained without leave to amend.

2. MOTION TO STRIKE

   Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof. (Code Civ. Proc., 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) On a motion to strike, the court may: (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. (Code Civ. Proc., 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

   In ruling on a motion to strike punitive damages, “judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294. (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, 3294, subd. (a).)

   A plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud or malice. To wit, there is a heightened pleading requirement regarding a claim for punitive damages. (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.) “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice. When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].) In Anschutz Entertainment Group, Inc. v. Snepp, the Court of Appeal noted that the plaintiffs’ assertions related to their claim for punitive damages were “insufficient to meet the specific pleading requirement.” (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [plaintiffs alleged “the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights. Plaintiff's injuries were exacerbated by the malicious conduct of Defendants. Defendants' conduct justifies an award of exemplary and punitive damages”]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim”].)

   Here, Defendant move to strike Plaintiffs’ request for punitive damages as it relates to the second cause of action. Given the Court’s ruling on the demurrer, the motion to strike is denied as moot.

   CONCLUSION AND ORDER

   Therefore, the Court sustains Defendant’s demurrer to the second cause of action in the complaint without leave to amend. Further, the Court denies Defendant’s motion to strike Plaintiff’s prayer for punitive damages against Defendant as moot.

   Defendant shall provide notice of the Court’s ruling and file a proof of service of such.

b"

Case Number: *******9341 Hearing Date: December 9, 2021 Dept: 32

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged). Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

TENTATIVE RULING

MOTIONS

Plaintiffs Kerry Porter, individually and as successor in interest to Charles Porter (“Decedent”), Freda Porter, Kelly Porter, and Charles Porter, Jr. (collectively, “Plaintiffs”) sued Defendant PIH Health Hospital - Downey based on allegations of elder abuse leading to Decedent’s death. Defendant demurs to the second of action in Plaintiffs’ complaint. Defendant also moves to strike Plaintiffs’ claim and prayer for punitive damages against Defendant. Plaintiffs oppose the motion and demurrer. Defendant replies to the opposition.

ANALYSIS

1. DEMURRER

   “It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint. (Code Civ. Proc., ; 452.) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

   Defendant demurs to Plaintiffs’ second cause of action for elder abuse for failure to state facts sufficient to constitute a cause of action. Defendant argues that the complaint alleges legal conclusions rather than material facts to support the claim. In opposition, Plaintiff contends paragraphs 42-46 and 48-54 of the complaint allege the ultimate facts necessary at the pleading stage. The Court agrees.

   To state a claim for dependent adult neglect under Welfare and Institutions Code section 15610.57, Plaintiff must allege “[t]he negligent failure of any person having the care or custody of an elder or dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” (Welf. & Inst. Code, ; 15610.57, subd. (a)(1).) “Neglect includes, but is not limited to, all of the following: (1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter. (2) Failure to provide medical care for physical and mental needs …. (3) Failure to protect from health and safety hazards. (4) Failure to prevent malnutrition or dehydration ….” (Welf. & Inst. Code, ; 15610.57, subd. (b).)

   Paragraphs 45 of the complaint alleges, “[t]he decubitus ulcer(s) to decedent Charles Porter's sacral/coccyx area further deteriorated and he developed additional decubitus ulcers and moisture associated skin damage due to PIH Health's failure to provide hygiene, failure to turn/reposition decedent Charles Porter every two hours, and to provide intervention to promote healing of the decubitus ulcer(s) and further skin breakdown.” (Complaint, ¶ 45.)

   Paragraphs 49-50 of the complaint allege, “[d]espite knowing that decedent Charles Porter was totally dependent on defendants for his basic needs, defendant PIH Health and Does 26 through 50 failed to provide decedent Charles Porter with basic care. As a result of defendant PIH Health and Does Does [sic] 26 through 50's failure to provide adequate pressure relief, provide adequate personal hygiene, and adequate nutrition and hydration, decedent Charles Porter suffered skin breakdown while under the care of defendants.” (Complaint, ¶¶ 49-50.)

   Finally, paragraph 52 of the complaint alleges, “[t]he injuries suffered by decedent Charles Porter were the result of the misconduct of defendants PIH Health and Does 26 through 50. The misconduct of the defendants included, but was not limited to, the failure to provide nutrition, failure to provide adequate hydration, and failure to provide adequate pressure relief to prevent further and additional skin breakdown.” (Complaint, ¶ 52.)

   For pleading purposes, Plaintiffs’ allegations are sufficient to establish Defendant failed to assist Decedent in personal hygiene, failed to provide medical care for Decedent’s physical needs, and failed to prevent malnutrition or dehydration. The Court therefore overrules Defendant’s demurrer.

2. MOTION TO STRIKE

   Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof. (Code Civ. Proc., ; 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) On a motion to strike, the court may: (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. (Code Civ. Proc., ; 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

   In ruling on a motion to strike punitive damages, “judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294. (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, ; 3294, subd. (a).)

   A plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud or malice. To wit, there is a heightened pleading requirement regarding a claim for punitive damages. (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.) “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice. When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].) In Anschutz Entertainment Group, Inc. v. Snepp, the Court of Appeal noted that the plaintiffs’ assertions related to their claim for punitive damages were “insufficient to meet the specific pleading requirement.” (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [plaintiffs alleged “the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights. Plaintiff's injuries were exacerbated by the malicious conduct of Defendants. Defendants' conduct justifies an award of exemplary and punitive damages”]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim”].)

   Here, Defendant asserts that Plaintiffs’ claim for punitive damages is improper under Code of Civil Procedure section 425.13. In opposition, Plaintiffs correctly argue section 425.13 does not apply to claims brought under the Elder Abuse and Dependent Adult Civil Protection Act. (See Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783 [“[W]e agree with the Court of Appeal that section 425.13’s limitations on actions for damages arising out of professional negligence (; 425.13(a)) were not meant to burden those who pursue the cause of abused elderly persons (Welf. & Inst. Code, ; 15600, subd. (j)) under the Elder Abuse Act.”].)

   CONCLUSION AND ORDER

   Therefore, the Court overrules Defendant’s demurrer to the second cause of action in the complaint. Further, the Court denies Defendant’s motion to strike Plaintiff’s prayer for punitive damages against Defendant. The Court orders Defendant to file and serve an answer to the complaint within 10 days of the hearing.

   Defendant shall provide notice of the Court’s ruling and file a proof of service of such.