Case Number: BC529500??? Hearing Date: August 29, 2016??? Dept: J
Re: Richard A. Mumford v. San Dimas Retirement Center, Inc., et al. (BC529500)
MOTION FOR JUDGMENT ON THE PLEADINGS
Moving Party: Defendant Atul Aggarwal, M.D. (Joinder by Defendant Ultimate Care Hospice, Inc.)
Respondent: Plaintiff Richard A. Mumford
POS: Moving OK; Opposing papers served by regular mail contrary to CCP ? 1005(c); Joinder not timely filed and served
In this action for elder abuse and wrongful death, Plaintiff alleges that Plaintiff?s decedent was a resident at San Dimas Retirement Center, Inc., that she received hospice care at the facility by Ultimate Care Hospice, Inc. and Atul Aggarwal, M.D., and that Defendant abandoned and neglected the decedent. Plaintiff commenced this action on 12/4/13. The operative First Amended Complaint, filed on 7/31/14, asserts causes of action for:
1. Elder Neglect & Abuse
2. Fraud?Concealment
3. Specific Relief (CC ? 3367)
4. Wrongful Death (CCP ? 377.60)
On 9/16/14, Plaintiff dismissed Defendants San Dimas Retirement Center, Inc. and Longwood Management Corp. with prejudice.
Defendant Atul Aggarwal, M.D. (?defendant?) now moves the court, pursuant to CCP ? 438 and the applicable case law, for judgment on the pleadings in his favor and against Plaintiff Richard A. Mumford (?plaintiff?) as to the first cause of action (Elder Neglect & Abuse) in plaintiff?s First Amended Complaint (?FAC?).
?A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. Except as provided by CCP ? 438?, the rules governing demurrers apply. [Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 (citing text); County of Orange v. Association of Orange County Deputy Sheriffs (2011) 192 Cal.App.4th 21, 32; Southern Calif. Edison Co. v. City of Victorville (2013) 217 Cal.App.4th 218, 227].? Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2016) ? 7:275. ?The nonstatutory motion [can] be made at any time during the lawsuit, even during trial, since the grounds for general demurrer are never waived. [See Sofias v. Bank of America (1985) 172 Cal.App.3d 583, 586 ? motion made shortly before trial].? Id. at ? 7:285 (emphasis theirs).
?A motion by defendant (or cross-defendant) can be made on the ground that: ? the court ?lacks jurisdiction of the subject of one or more of the causes of action alleged?; or ? the complaint (or any cause of action therein) ?does not state facts sufficient to constitute a cause of action against that defendant.? [CCP ? 438(c)].? Id. at ? 7:290.
The first cause of action in Plaintiff Richard A. Mumford?s First Amended Complaint (?FAC?) is for Elder Neglect & abuse (Welf. & Inst. Code ? 15600 et seq.). Defendant Atul Aggarwal, M.D. claims that he is entitled to judgment on the pleading relative to this cause of action, on the basis that plaintiff cannot establish a ?custodial relationship? pursuant to Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal. 4th 148 between Dona Mumford (?decedent?) and himself.
Winn determined that the definition of neglect (Welfare & Institutions Code ?15610.57) under The Elder Abuse and Dependent Adult Civil Protection Act ?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. It is the nature of the elder or dependent adult’s relationship with the defendant ? not the defendant’s professional standing ? that makes the defendant potentially liable for neglect.? Id. It did not, however, determine that the definition of physical abuse (Welfare & Institutions Code ? 15610.63) required ?a caretaking or custodial relationship.? Plaintiff, via his first cause of action, has sued Defendant Atul Aggarwal, M.D. (?defendant?) under both of these foregoing provisions. (See FAC, ? 101).
Additionally, plaintiff has adequately alleged the existence of a ?substantial caretaking or custodial relationship? between the decedent and defendant. Plaintiff elected hospice services for the decedent from Ultimate Care Hospice. (Id., ?? 39-43). Defendant was Ultimate Care Hospice?s Medical Director. (Id., ? 47). Defendant allegedly falsely certified decedent as terminally ill (Id., ?? 47 and 50-52) and wrote orders for the decedent on July 22, 2011 and October 2011. (Id., ?? 54 and 55). He was made aware of the decedent?s April 2012 hand trauma and October 2012 fall (Id., ?? 56 & 57) and, in October 2012, assessed the decedent as a ?fall risk.? (Id., ? 58). Defendant requested that a physician at San Dimas Community Hospital evaluate the decedent?s condition following her October 9, 2012 emergency room visit. (Id., ? 59) and, on October 11, 2012, issued a physician?s telephone order regarding the decedent?s care in which he discontinued Dr. Gold?s previous order regarding use of the lap tray (Id., ? 60). Defendant failed to recommend that the decedent be evaluated on December 17, 2012 following a serious fall and broken hip. (Id., ? 67). On December 20, 2012, defendant issued a physician?s telephone order regarding the decedent?s care, wherein he ordered x-rays of the decedent?s left hip area and of her left knee. (Id., ? 78). Given the allegations in the FAC, defendant has a continuous responsibility to provide and supervise hospice care to the decedent both with respect to her terminal illness and conditions related to those terminal illnesses.
Defendant Atul Aggarwal, M.D.?s motion for judgment on the pleadings is denied. Defendant Ultimate Care Hospice, Inc.?s joinder was served just seven court days prior to the hearing, and filed just six court days prior to the hearing, and is denied on timeliness grounds for failure to comply with CCP ? 1005(b).