Los Angeles County Superior Court – GGD Courthouse

Case Number: BC577276??? Hearing Date: April 28, 2016??? Dept: S27

INTRODUCTION
Defendants Sunnyside Nursing Center, Inc. (?Sunnyside?) and Family Health and Housing Foundation ? Torrance I, LLC (?Family Health?) demur to each Cause of Action in Plaintiff Robert Orist?s complaint:
1. Wrongful Death (Negligence);
2. Elder Abuse;
3. Wrongful Death (Elder Abuse);
4. Negligence Per Se;
5. ?Fraud and Concealment;?
6. Breach of Contract; and
7. Violation of Health and Safety Code section 1430.

Defendants move to strike various portions of the complaint including allegations that conduct was abusive, intentional, reckless and malicious; the prayer for punitive damages and associated allegations; references to Penal Code section 368; prayers for attorney fees and treble damages; the prayer for injunctive relief; the prayer for emotional distress damages of decedent.

FACTUAL OVERVIEW
Plaintiff is the surviving spouse of Judy Young who died while a resident of Sunnyside Nursing Center, a skilled nursing facility. She was age 67.

Both Defendants are alleged to have owned and operated the facility.

Plaintiff alleges there were signed orders in place that Ms. Young only be provided with ?soft food.? Defendants were aware that anything other than soft food presented a choking hazard.

On April 1, 2013 Ms. Young was provided ?non-soft food.? It may reasonably be inferred that this caused her death, but there is no express allegation to this effect.

The allegations of Elder Abuse do not depend exclusively on the events of April 1, 2013. Plaintiff also alleges the facility was not in compliance with ?state mandated minimum staffing requirements? which allegedly caused the injury.

THE DEMURRER
FIRST CAUSE OF ACTION: WRONGFUL DEATH (NEGLIGENCE)
Plaintiff sues as an individual and in his capacity as Ms. Young?s successor in interest. The caption of the First Cause of Action indicates he sues in both capacities for Wrongful Death.

Defendant correctly notes that only heirs have standing to sue for Wrongful Death and Plaintiff has no standing in his capacity as successor in interest ? this is not a ?survival claim.?

A demurrer does not lie to only part of a cause of action. Plaintiff contends the demurrer should be overruled because he has standing one way or the other. The Court agrees.

The demurrer is overruled, but the Court on its own motion, pursuant to CCP section 436, strikes the words ?as Successor in Interest? from the caption of the First Cause of Action.

THE SECOND CAUSE OF ACTION: ELDER ABUSE/NEGLECT
Defendants argue that the single incident alleged does not demonstrate anything other than negligence.

?In order to obtain the remedies available in section 15657, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve ?intentional,? ?willful,? or ?conscious? wrongdoing of a ?despicable? or ?injurious? nature.?
Delaney v. Baker (1999) 20 Cal. 4th 23, 31

?Under Delaney, an elder abuse claim involves reckless neglect (or intentional abuse) by the custodian of an elder. Thus, it is simply not encompassed within ?professional negligence.? Moreover, the legislative history of the Elder Abuse Act, as discussed in Delaney, indicates that it was intended to apply to acts of egregious abuse, while leaving acts of professional negligence not involving such egregious abuse to be dealt with under other law.? Smith v. Ben Bennett, Inc. (2005) 133 Cal. App. 4th 1507, 1522

As Defendants note, even gross negligence is distinct from elder abuse. They argue that failure to provide soft food on a single day cannot be considered egregious misconduct or a pattern of withholding necessary care and services.

Defendants also contend that the requirements pertaining to a corporate employer under Welfare & Institutions Code section 15657(c) are not satisfied. This section pertains to the availability of heightened remedies after neglect or abuse is proven and is more appropriately addressed in the motion to strike, which advances the same arguments.

Plaintiff argues that recklessness, malice, oppression and fraud have been pled. This portion of the opposition recites definitions which he does not apply to the allegations in the complaint. Mere recitation of these terms is insufficient. The analysis depends on whether the facts alleged support the ultimate conclusion. The Court concludes they do not. The fact that ?non-soft food? was provided despite written orders does not establish recklessness. The very term ?non-soft? food is vague. It may be debatable, for instance, whether certain foods are soft or not. An oversight by the staff is not necessarily reckless even when it results in a fatality. Plaintiff argues ?malice? may be found because he alleges Defendants ?violated pertinent and applicable regulations.? The complaint fails to identify the pertinent regulations. Even if identified, a violation of a statute, even by a fiduciary, is not the equivalent of malice. The ?fraud? is alleged concealment of understaffing. Despite a conclusion that understaffing was partly the cause of injury, the facts pled do not support this contention. There is no apparent connection between staffing levels and the provision of a ?non-soft food.?

The demurrer is sustained without leave to amend.

THIRD CAUSE OF ACTION: WRONGFUL DEATH (ELDER ABUSE)
Defendants raise the same issues as in the First and Second Causes of Action, to wit:
1. Plaintiff has no standing as a Successor in Interest; and
2. The complaint fails to state facts of Elder Abuse or Neglect.

As the Court concludes that Elder Abuse is not stated, the standing issue is moot.

The demurrer is sustained with 10 days leave to amend. In amending this Cause of Action, Plaintiff may only proceed in his individual capacity.

FOURTH CAUSE OF ACTION: ?NEGLIGENCE PER SE?
The Court notes that the opposition refers to the Fourth Cause of Action as one for ?Unfair Business Practices.? The opposition then discusses the elements of Wrongful Death. (Opposition 4:2-14) Unfair Business Practices is not a theory included in the complaint and the Court assumes this is clerical error. ?Negligence Per Se? is an evidentiary presumption (Evidence Code section 669) whereby violation of a statute establishes breach of a legal duty if the Plaintiff is a member of the class the statute was designed to protect.

Defendants are correct that Plaintiff does not identify the statutes and regulations allegedly violated. There is a reference to Penal Code section 368 which states in relevant part:

?Any 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.?

The facts alleged do not fit into the ambit of his statute. The allegation of Paragraph 54 that the facts previously alleged ?constitute the willful causing and permitting an elder?to offer severe infliction of pain and mental suffering? is a legal conclusion which cannot be deemed true on demurrer. The facts reflect a choking episode, not the willful causing of injury, death or emotional suffering. Neither of these Defendants is a ?person? within the meaning of the statute because neither, as corporations or LLCs, is subject to imprisonment.

The demurrer is sustained with 10 days leave to amend. If amended, specific statutes or regulations other than Penal Code section 368 must be identified.

FIFTH CAUSE OF ACTION: FRAUD AND CONCEALMENT
Defendants cite standard authorities that deceit must be pled with heightened factual specificity.

The elements are:
?(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppression of the fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage. (BAJI No. 12.35 (7th ed. 1986).)?
Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal. App. 4th 603, 612-613

Defendants argue that the third element, intentional concealment with intent to defraud, is not supported by the facts alleged. It is true that pleading fraud against a corporation has more stringent requirements. Normally, the identity of persons perpetrating the fraud and their capacities must be alleged. This rule, however, has no application where the gravamen is concealment rather than affirmative misrepresentation. Plaintiff cannot fairly be required to know the identities of who concealed what.

Nevertheless, there are no facts as to how anything was concealed or suppressed.

Plaintiff identifies affirmative misrepresentations such as Defendants were ?willing and able? to comply with unidentified statutes, that Defendants offered superior services, and that Defendants would be attentive to health needs. This argument reveals that Plaintiff has conflated two distinct theories into one. Fraudulent Misrepresentation and Fraudulent Concealment are two different things.

Insofar as Plaintiff?s theory is affirmative misrepresentation, the complaint runs afoul of the rule requiring identification of who made these statements and their capacity to speak. A more serious defect is that none of the three statements are actionable misrepresentations of present facts. ?Superior Services? is opinion and puffery. ?Attentiveness? is also a subjective term. Being ?willing and able? to comply with unidentified statutes is too vague and too subjective to withstand scrutiny. A violation of a statute does not mean the violator was unable or unwilling to comply.

The demurrer is sustained with 10 days leave to amend. In amending, Plaintiff must separate misrepresentation and concealment into separate causes of action.

SIXTH CAUSE OF ACTION (ERRONEOUSLY LABELED AS THE SEVENTH CAUSE OF ACTION): BREACH OF CONTRACT
Defendants argue that the contract is not appended and the terms are not set forth in haec verba.

Plaintiff refers to Paragraph 37 is about ?abuse? and ?neglect.? The Court assumes Plaintiff refers to Paragraph 74 which alleges the written orders for ?soft foods only? which Plaintiff contends were incorporated into the contract ?that governed Decedent?s care at the facility.? This is a legal conclusion. A physician?s orders are not automatically incorporated into contracts for treatment. They can govern the standard of care, but they do not become new terms of a previously executed agreement absent some expression of mutual intent. The contract which ?governed Decedent?s care at the facility? is not attached or set forth in haec verba.

The demurrer is sustained without leave to amend.

SEVENTH CAUSE OF ACTION: VIOLATION OF HEALTH AND SAFETY CODE SECTION 1430 (WHICH PERMITS A CIVIL ACTION) A licensee [Defendants] who ?commits a ?Class A? or ?Class B? violation may be enjoined from permitting the violation to continue and damage not exceeding the civil penalties which may be assessed.

Plaintiff alleges on information and belief that violations of both Class A and Class B have been committed. The violations are not identified and hence the allegation is a legal conclusion.

Defendants contend this claim is time barred. CCP section 340(a) states:

?Within one year:
(a) An action upon a statute for penalty or forfeiture, if the action is given to an individual, or to an individual and the state, except if the statute imposing it prescribes a different limitation?

The complaint was filed on April 1, 2015 which is more than one year after any violation occurred with respect to Plaintiff?s decedent. The opposition does not address the statute of limitations.

The demurrer is sustained without leave to amend.

The only portion to which the demurrer was overruled is the First Cause of Action for Wrongful Death (Negligence). By itself it does not support punitive damages, attorney fees or other heightened remedies. In light of the ruling on demurrer, the motion to strike is moot except as the prayer for injunctive relief. The Seventh Cause of Action is the only theory which supports this prayer. The motion is granted as to injunctive relief without leave to amend.

As leave is granted as to Causes of Action 2 and 3, Plaintiff is granted leave to amend as to any remedy for Elder Neglect, including punitive damages and attorney fees, and supporting allegations or malice, fraud, or oppression.