On 02/14/2017 TY BADGER filed a Personal Injury - Other Personal Injury lawsuit against COUNTRY VILLA NORTH CONVALESCENT CENTER. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are YOLANDA OROZCO, DEBRE KATZ WEINTRAUB, LAURA A. SEIGLE, AMY D. HOGUE and SAMANTHA JESSNER. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
DEBRE KATZ WEINTRAUB
LAURA A. SEIGLE
AMY D. HOGUE
COUNTRY VILLA NORTH CONVALESCENT CENTER
DOES 1 THROUGH 50
KATTAN M.D. DAVID
UOMOTO M.D. KIRK
OLYMPIC MEDICAL CENTER
GHECCEA ANTHONY D.
GHECEA ANTHONY DANIEL
WILSON WILLIAM C.
WEND CHRISTOPHER P
WILSON WILLIAM CRAWFORD
6/27/2019: Minute Order
11/15/2018: Motion for Order
11/20/2018: Minute Order
1/16/2019: Amendment to Complaint (Fictitious/Incorrect Name)
1/16/2019: Amendment to Complaint (Fictitious/Incorrect Name)
3/19/2019: Notice and Acknowledgment of Receipt
4/18/2019: Notice of Deposit - Jury
6/13/2019: Minute Order
9/14/2018: DECLARATION OF ANTHONY D. GHECEA IN SUPPORT OF MOTION FOR PARTIAL CONSOLLDATION
2/14/2017: APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM - CIVIL
2/14/2017: COMPLAINT FOR DAMAGES FOR ELDER ABUSE/NEGLECT, PROFESSIONAL NEGLIGENCE, WRONGFUL DEATH AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
Hearingat 08:30 AM in Department 4B at 312 North Spring Street, Los Angeles, CA 90012; : OSC RE DismissalRead MoreRead Less
Hearingat 08:30 AM in Department 4B at 312 North Spring Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearingat 10:00 AM in Department 4B at 312 North Spring Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Docketat 08:30 AM in Department 1, Samantha Jessner, Presiding; Non-Appearance Case Review - Not Held - Vacated by CourtRead MoreRead Less
DocketORDER TRANSFERRING PERSONAL INJURY (PI) CASE TO INDEPENDENT CALENDAR (IC) COURT; Filed by ClerkRead MoreRead Less
Docketat 1:30 PM in Department 4B, Laura A. Seigle, Presiding; Hearing on Motion to Dismiss - HeldRead MoreRead Less
DocketCertificate of Mailing for (Minute Order (Hearing on Motion to Dismiss) of 07/01/2019); Filed by ClerkRead MoreRead Less
DocketMinute Order ( (Hearing on Motion to Dismiss)); Filed by ClerkRead MoreRead Less
DocketNotice (of Order Transferring Personal Injury (PI) Case to Independent Calendar (IC) Court); Filed by TY Badger (Plaintiff)Read MoreRead Less
Docketat 09:00 AM in Department 1, Samantha Jessner, Presiding; Hearing on Motion - Other (Order Deeming Cases Related) - Held - Motion DeniedRead MoreRead Less
DocketFirst Amended Complaint; Filed by TY Badger (Plaintiff); Yvonne Little (Plaintiff)Read MoreRead Less
DocketDEMAND FOR JURY TRIAL AND NOTICE OF POSTING OF JURY FEES.Read MoreRead Less
DocketDemand for Jury Trial; Filed by TY Badger (Plaintiff); Yvonne Little (Plaintiff)Read MoreRead Less
DocketReceipt; Filed by TY Badger (Plaintiff); Yvonne Little (Plaintiff)Read MoreRead Less
DocketCIVIL DEPOSITRead MoreRead Less
DocketNOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEMRead MoreRead Less
DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM - CIVILRead MoreRead Less
DocketComplaint; Filed by TY Badger (Plaintiff); Yvonne Little (Plaintiff)Read MoreRead Less
DocketCOMPLAINT FOR DAMAGES FOR ELDER ABUSE/NEGLECT, PROFESSIONAL NEGLIGENCE, WRONGFUL DEATH AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESSRead MoreRead Less
DocketApplication ; Filed by Plaintiff/PetitionerRead MoreRead Less
Case Number: BC650388 Hearing Date: August 25, 2020 Dept: 36
Superior Court of California
County of Los Angeles
TY BADGER, Individually, as Successor-in-Interest to and as Personal Representative of the Estate of ETHEL LITTLE, Deceased,
COUNTRY VILLA NORTH
CONVALESCENT CENTER, OLYMPIC
MEDICAL CENTER (DOE 1), DAVID
KATTAN, M.D. (DOE 2), KIRK UOMOTO,
M.D. (DOE 3) and DOES 1 through 50,
Case No.: BC650388
Hearing Date: 8/24/2020
[TENTATIVE] RULING RE: DEFENDANT DAVID KATTAN, M.D. AND KIRK UOMOTO, M.D.’S DEMURRER TO THE SECOND AMENDED COMPLAINT
Moving Defendants’ demurrer is sustained with ten days’ leave to amend.
Moving Defendants’ motion to strike is moot.
A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal 3d 311, 318.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)
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. 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].)
Ordinarily, a general demurrer may not be sustained as to a portion of a cause of action; if there are sufficient allegations to entitle a plaintiff to relief, other allegations cannot be challenged by a general demurrer. (See Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1167.)
“If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 [77 Cal.Rptr.2d 709, 715, 960 P.2d 513, 519], as modified (Sept. 23, 1998).)
Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).
A defendant may demur to a complaint within 30 days after service of the complaint. (CCP § 430.40(a).) An untimely demurrer may be considered by the court in its discretion. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.)
Plaintiff Ty Badger, individual, as Successor-in-Interest to and as Personal Representative of the Estate of Ethel Little, deceased’s Second Amended Complaint (“SAC”) in this action was filed on March 20, 2020 and attaches proof of service showing service by U.S. Mail on March 20, 2020. The demurrer by Moving Defendants David Kattan, M.D. and Kirk Uomoto, M.D. was filed on April 16, 2020. The motion is thus timely.
Meet & Confer
Before filing a demurrer, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (CCP §§ 430.41.)
Counsel for Moving Defendants attaches a declaration to the demurrer demonstrating the meet and confer requirements were met by telephone on April 10, 2020. (Ozeran Decl. ¶ 3.)
Second Cause of Action: Elder Abuse / Neglect
Each of Plaintiff Ty Badger’s allegations arise out of the death of Ethel Little (“Decedent”) while in the care of Defendant Country Villa North Convalescent Center (“Country Villa”) between March 15, 2016 to July 15, 2016. (See SAC ¶ 7.) Plaintiff, individually and as successor-in-interest to and personal representative of the estate of Ethel Little, alleges Defendants’ care of Decedent led to unnecessary injury, pain, and suffering.
Plaintiff’s second cause of action alleges violation of the Elder Abuse and Dependent Adult Civil Protection Act (“EADACPA”) against Drs. Kattan and Uomoto. (SAC, ¶¶ 18-29.)
(i) Egregious Acts of Misconduct
Moving Defendants assert Plaintiff has not alleged “egregious acts of misconduct” sufficient for liability for neglect under the EADACPA, and that Plaintiff’s causes of action are conclusory. Plaintiff opposes that there are sufficient factual allegations to state a claim.
Welfare & Institutions Code, Section 15657 provides for a plaintiff to recover:
[w]here it is proven by clear and convincing evidence that a defendant is liable for . . . neglect as defined in Section 15610.57 . . . and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse . . . .
“Neglect” means “[t]he 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.” (Welf. & Inst. Code, § 15610.57(a).) The definition includes but is not limited to:
(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. . . .
(Welf. & Inst. Code, § 15610.57(b).)
As used in the EADACPA, “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 (Covenant Care).) “Thus, the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Id.) However, “the failure to provide medical care” does not exclusively mean a “total absence of care.” (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90.) Instead:
If some care is provided, that will not necessarily absolve a care facility of dependent abuse liability. For example, if a care facility knows it must provide a certain type of care on a daily basis but provides that care sporadically, or is supposed to provide multiple types of care but only provides some of those types of care, withholding of care has occurred. In those cases, the trier of fact must determine whether there is a significant pattern of withholding portions or types of care. 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.
Here, Plaintiff correctly notes that 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.) However, statutory causes of action such as under the EADACPA must be pleaded with particularity. (Covenant Care, supra, at 790.)
The SAC brings some further detail to Plaintiff’s allegations against Moving Defendants. The SAC alleges Moving Defendants’ knowledge of Decedent’s medical condition with some particularity. (See SAC, ¶ 22.) With respect to Moving Defendants’ conduct Plaintiff alleges Moving Defendants made a “repeated choice not to provide necessary monitoring, care and related orders to decedent, not to seek the aid of related professionals, and not to transfer patients (including decedent) to a higher level of care if and when the needed it” leaving “nurses chronically unable to respond to patient care needs, and resulted in . . . repeated failure (day after day, shift after shift) to provide necessary care to decedent . . . .” (SAC, ¶ 23.) Plaintiff alleges repeated failure to ensure decedent received necessary monitoring and aid regarding consumption of food and fluids; toileting and hygiene; close supervision of the state of decedent’s skin, including failure to assess decedent’s skin routinely and monitor her for signs of pain; and ambulation, bed mobility, repositioning and pressure relief. (See SAC, ¶ 23 (a)-(c).) Plaintiff alleges Moving Defendants repeatedly failed to “provide and enforce  orders for decedent to receive necessary monitoring and aid regarding ambulation, bed mobility, repositioning and pressure relief” and to “address the causes of a decline in the condition of decedent’s skin,” for example by seeking assistance from decedent’s dietitian or nursing staff specialized in such care. (See SAC, ¶ 23(d)-(e).)
The foregoing provides does not provide sufficient particularity through ultimate facts to “to apprise the defendant of the factual basis for the claim against him.” (See Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) As this court discussed in its prior ruling, there are not “detailed and specific factual allegations” including several particular instances and descriptions of the Decedent’s neglect, by, for example, a particular instance of ordering discharge of the decedent, along with asserted lack of care, as in Covenant Care, supra, at 777. There is also not an allegation of any particular instance of alleged misconduct, as in Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795-96.
Next, the Act distinguishes between claims of professional negligence, which do not fall under the EADACPA, and neglect, which does. (See Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 159.) Said otherwise, “if the neglect is if the neglect is ‘reckless,’ or done with ‘oppression, fraud or malice,’ then the action falls within the scope of section 15657 and as such cannot be considered simply ‘based on ... professional negligence’ within the meaning of section 15657.2.” (Delaney v. Baker .) “Recklessness” is conduct that rises to the level of a “conscious choice of a course of action ... with knowledge of the serious danger to others involved in it.” (Id. at 31-32.)
Plaintiff alleges Moving Defendants had knowledge of decedent’s needs by means of assessments of her condition, and acknowledged risks. (See, e.g., SAC ¶ 22(a).) Plaintiff alleges the risks to decedent’s health resulting from failure to provide aid included dehydration, malnutrition, infections, and skin breakdown. (See SAC ¶ 22(a)-(e).) Plaintiff alleges the foregoing alleged failures were made “in conscious disregard of decedent’s rights and safety.” (SAC ¶ 22(a)-(e).) Despite its essentially conclusory nature, the foregoing allegation suffices as an averment of conscious disregard. (Cf. Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 317 (general allegation of intent is sufficient for punitive damages).)
(ii) Caretaking or Custodial Relationship
Moving Defendants assert Plaintiff may not recover against them because each physician defendant did not have a caretaking or custodial relationship with Decedent, as the relationship alleged between Drs. Kattan and Uomoto and Decedent is purely physician-patient.
“[C]laims 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, Inc. v. Superior Court (2004) 32 Cal.4th 771, 786.) As
The EADACPA “does not apply unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152.) Neglect under the Act “requires a caretaking or custodial relationship that arises where an elder or dependent adult depends on another for the provision of some or all of his or her fundamental needs” and that other person “has accepted responsibility for attending to the basic needs of an elder or dependent adult.” (Id. at 160, 161.)
Plaintiff has not pleaded facts in support of such relationship. The basis of Plaintiff’s claims are for Moving Defendants’ failure to adequately plan decedent’s treatment, ensure decedent received services in accordance with this plan, provide initial assessment and ongoing periodic assessments, order others to provide sufficient care, failure to adequately supervise decedent’s care, and seek transfer to a higher level of care. (See, e.g., SAC ¶¶ 20, 25.)
Based on the foregoing, demurrer to the second cause of action is sustained as to Moving Defendants with leave to amend.
Motion to Strike
In light that the court has sustained Defendant’s demurrer, Defendant’s motion to strike with respect to the same cause of action is moot.
Superior Court Judge
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