Case Name: Barba v. Santa Cruz Skilled Nursing Center, Inc., et al.
Case No.: 17CV309185
I. Background
This action arises from alleged elder abuse that occurred while plaintiff Tiburcio Barba (“Barba”) was a resident of a 24-hour skilled nursing facility. The pleading at issue is the First Amended Complaint (“FAC”) filed by Plaintiff and his wife (collectively, “Plaintiffs”) against defendants Santa Cruz Skilled Nursing Center, Inc. dba Hearts & Hands, Post Acute Care and Rehab Center (“SCSNC”), the nursing facility; AJ Rana (“Rana”) and Trilochan Singh (“Singh”), corporate officers, directors and shareholders of SCSNC; various SCSNC physicians; and various SCSNC nurses, including Leticia Bautisa Salim, Annie Mande Dapito, Maria L. Flores, Fortunato Beronilla, Jr., Tenzin Choney, Tracy Lynn Rivers and Eva Pineda (the “Nurses”) (collectively “Defendants”).
According to the allegations in the FAC, Barba was in the hospital around May 3, 2016 and, upon discharge, was admitted to SCSNC’s facility as an inpatient for 24-hour health care as his medical conditions prevented him from caring for himself. (FAC, ¶ 29, 31-32.) SCSNC, Rana, and Singh represented that SCSNC would provide Barba with excellent 24-hour inpatient care, including assistance with daily living (i.e. hydration, nutrition and hygiene) along with medical, nursing, health and behavioral care. (FAC, ¶ 29.) They further represented Barba would be assessed to ensure proper care, adequate staffing would be maintained to provide for his daily needs, and a care plan would be implemented that would include supervised one-on-one care related to his uncontrolled type two diabetes, alcohol withdrawal delirium and dementia. (FAC, ¶ 30.)
Despite Defendants’ knowledge of Barba’s medical conditions, elderly age and general condition of infirmity, between May 3 and 8, 2016, Defendants repeatedly failed to provide him with food and water necessary to meet his basic needs and he became seriously dehydrated. (FAC, ¶ 37.) Defendants also failed to: conduct assessments of Barba; maintain records of his blood glucose and hydration levels; test his glucose levels to assess his diabetes medication needs; administer prescribed medications to control his blood sugar level; timely respond to his emergent conditions when he became ill; provide one-on-one supervision necessary to protect him against burns, bruises, and abrasions occasioned by his delirium and dementia; and meet his hygiene, movement and position needs. (FAC, ¶ 38.) Defendants further failed to provide sufficient, adequately trained staff to care for him. (FAC, ¶ 39.)
As a result, Barba suffered physical and mental harm in the form of dangerously high blood sugar, acute respiratory failure, hypoxia, acute renal failure, dehydration, shock, failure of skin integrity, burns, bruises, abrasions, body pain, anxiety, exhaustion and overall deterioration to his physical health. (FAC, ¶ 40.) On or around May 8, 2016, Barba became unconscious due to diabetic ketoacidosis and was transferred to the Dominican Hospital. (FAC, ¶ 41.)
Plaintiffs’ FAC asserts six causes of action for: (1) elder abuse; (2) violation of the Patient’s Bill of Rights; (3) fraud; (4) professional negligence; (5) loss of consortium; and (6) violation of Business and Professions Code section 17200 (the “UCL”).
The Nurses now demur to the first cause of action. They also move to strike various portions of the FAC. Plaintiffs oppose both matters.
II. Demurrer
Plaintiffs’ first cause of action is for violation of the Elder Abuse and Dependent Adult Civil Protection Act (“Elder Abuse Act”), codified in Welfare and Institutions Code section 15600 et seq. Plaintiffs allege that Defendants repeatedly and continuously failed to fulfill their care and custodial duties to Barba by depriving him of food and/or water, medication, one-on-one care, hygiene care, medical care, assessments of his condition and a timely response to his emergent medical condition.
The Nurses demur to this cause of action on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action.
A. Uncertainty
The first cause of action is asserted against fourteen defendants. The Nurses argue the claim is uncertain because it is “impossible for [them] to ascertain the alleged wrongful conduct that plaintiffs are alleging was committed by [them] because every allegation is lodged generally against ‘defendants.’” (Dem. at p. 3:10-12.)
Demurrers for uncertainty are disfavored and will be sustained only where the allegations of the pleading are so unintelligible the defendant cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Ibid.; see also Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 fn. 2.)
Here, Plaintiffs’ allegations are far from unintelligible. As Plaintiffs point out in their opposition, the title of this cause of action specifically names the Nurses individually as defendants against whom the claim is being brought. Moreover, the allegations of the claim set out the specific misconduct the Nurses purportedly committed, including the failure to provide Barba with food, water, medication, and one-on-one care. (See FAC, ¶ 44.) These allegations are sufficient to apprise the Nurses of what claims and misconduct are alleged against them. The fact that Plaintiffs frequently refer to the defendants collectively does not render this claim uncertain.
The demurrer to the first cause of action on the ground of uncertainty is therefore OVERRULED.
B. Failure to State Sufficient Facts to Constitute a Cause of Action
The Nurses argue the allegations in the first cause of action are of insufficient quality to state an elder abuse claim under Welfare and Institutions Code section 15657 (“Section 15657”) because they do not allege anything more than negligence, are not pled with particularity and do not establish a causal link between their conduct and the injuries Barba suffered. In opposition, Plaintiffs argue they stated a viable elder abuse claim because they allege the Nurses were not merely negligent but reckless in their withholding of care necessary to meet Barba’s basic needs. This argument is well-taken.
“The purpose of the [Elder Abuse Act] is essentially to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33.) “The elements of a cause of action under the [Elder Abuse Act] are statutory, and reflect the Legislature’s intent to provide enhanced remedies to encourage private, civil enforcement of laws against elder abuse and neglect.” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82.) The general rule for statutory causes of action is that they must be pled with particularity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) Under Section 15657, a plaintiff may recover enhanced remedies “[w]here it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or 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.”
In order to obtain the remedies available under section 15657, the plaintiff must allege the defendant is “guilty of something more than negligence.” (Delaney, supra, 20 Cal.4th at 31.) “[H]e 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. Recklessness involves ‘deliberate disregard’ of the ‘high degree of probability that an injury will occur’ and ‘rises to the level of a conscious choice of a course of action … with knowledge of the serious danger to others involved in it.’” (Carter, supra, 198 Cal.App.4th at 405, citing Delaney at p. 31-32.) “Thus, the enhanced remedies are available only for ‘acts of egregious abuse’ against elder and dependent adults.” (Carter, supra, at p. 405.) Such acts of egregious abuse “may include the egregious withholding of medical care for physical and mental health needs.” (Covenant, supra, 32 Cal.4th at 786, emphasis added.) Examples of neglect, as explicitly listed under Section 15657, include the failure to provide medical care for physical and mental needs, assist with personal hygiene, provide food, and prevent dehydration. (See e.g. Delaney, supra, 20 Cal.4th at 33; Carter, supra, 198 Cal.App.4th at 405.)
Here, Plaintiffs do not merely allege the Nurses undertook to provide medical services and did so negligently. Instead, they allege the Nurses fundamentally failed to provide Barba with necessary care. Moreover, Plaintiffs allege specific facts relating to the types of care Barba did not receive, contrary to the Nurses’ position that the allegations consist only of generalized conclusions of poor care. Among other things, Plaintiffs aver the Nurses repeatedly failed to provide Barba with food and water; failed to meet his hygiene, movement and position needs; and failed to provide him with the medical care he required for his diabetes, including glucose level tests, assessments of his diabetes medication needs, and administering prescribed medications to control his blood sugar level. (FAC, ¶ 37-39.) These are not, as the Nurses assert, allegations that can be made “against any defendant in any line of business in the health care industry” or facts that merely demonstrate inadvertence, incompetence, unskillfulness or failure to take precautions to prevent injuries. (Dem. at p. 5:27-29; 7:6-7.) Rather, they are facts demonstrating neglect and the actual denial or egregious withholding of necessary care.
Plaintiffs also sufficiently allege the Nurses’ conduct was reckless because they knew of Barba’s medical conditions (i.e. uncontrolled type 2 diabetes, alcohol withdrawal delirium and dementia) yet took no measures to provide him with care. (FAC, ¶¶ 35, 37-39.) This allegation is sufficient to demonstrate the Nurses had knowledge of a “high degree of probability” that injuries, like Barba’s resulting diabetic ketoacidosis and dangerously high blood sugar, would result and yet “deliberate[ly] disregarded” this risk. (See Carter, supra, 198 Cal.App.4th at 405; see also Covenant, supra, 32 Cal.4th at 778 [Section 15657 remedies available where skilled nursing facility knew elderly man suffered from Parkinson’s disease yet failed to provide sufficient care, nutrition, hydration and medication, and left him unattended and unassisted for long periods of time]; Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal.App.4th 426, 430, 434–435 [Section 15657 remedies available where skilled nursing facility knew elderly woman to be at high risk for developing pressure ulcers yet failed to provide her with pressure relief as well as proper diet, food intake monitoring and assistance with eating.])
The Nurses argue that in order to demonstrate “recklessness,” Plaintiffs were required to plead a “significant pattern of withholding care” but failed to do so, citing Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90 in support. (Dem. at p. 5:7-10) Their reliance on this case is misplaced. Sababin refers to a pattern of withholding care solely in the context of addressing a defendant’s argument that liability for elder abuse does not exist unless there is a total absence of care. (Sababin, supra, 144 Cal.App.4th at 90.) The court disagreed and held that even where some care was provided, elder abuse liability could exist if there is a “significant pattern of withholding portions or types of care.” (Ibid.) Here, Plaintiffs are not alleging the Nurses provided some forms of care and not others but that there was a total absence of care. As such, Sababin does not apply. However, even if it did, Plaintiffs do in fact allege a significant pattern of withholding care as they allege the Nurses “repeatedly withheld” basic and necessary care from Barba. (FAC, ¶¶ 37-38.)
The Nurses’ contention the elder abuse claim is not alleged with sufficient particularity also fails. As already discussed, the first cause of action alleges specific facts related to the particular medical conditions from which Barba suffered along with the concrete ways in which the Nurses deprived him of care. (See FAC, ¶¶ 35, 37-39.) Moreover, contrary to their assertion, the fact these allegations are brought against the defendants collectively does render them insufficiently particular. The Nurses cite no authority supporting this contention and the Court otherwise observes that the particularity requirement of statutory claims is generally satisfied when there are sufficiently specific facts to support an inference that each of the statutory elements of liability has been satisfied. (See e.g. Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5.)
Finally, the Court is not persuaded by the contention that Plaintiffs insufficiently alleged a causal link between the Nurses’ alleged neglect and Barba’s resulting injuries. The Nurses frame this argument solely in reference to Plaintiffs’ allegation of understaffing at SCSNC, which they say did not cause Barba’s injuries and does not implicate them as they did not make staffing decisions at the facility. This argument is myopic as it focuses on one alleged failure to the exclusion of the numerous other failures Plaintiffs allege against the Nurses (i.e. the failure to provide Barba with food, water, glucose monitoring, assessment of diabetes medication needs, diabetes medication, and one-on-one supervision). These allegations are sufficient to establish a causal link between the Nurses’ alleged neglect and Barba’s dangerously high blood sugar and diabetic ketoacidosis that resulted. Even assuming the Nurses are correct in their contention the understaffing did not cause Barba’s injuries, a demurrer does not lie to a portion of a cause of action. (See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.)
For these reasons, the demurrer to the first cause of action on the ground of failure to state facts sufficient to constitute a claim is OVERRULED.
III. Motion to Strike
A court may strike out any irrelevant, false, or improper matter inserted into any pleading or strike out all or part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.)
Pursuant to this statute, the Nurses move to strike Plaintiffs’ request for punitive damages and attorney’s fees in connection with the first cause of action on the ground they are improper.
As a preliminary matter, the notice of motion only refers to the requests for punitive damages and attorney’s fees. In their supporting memorandum, the Nurses also reference striking the prayer for interest and “all improper conclusory references that [their] conduct was despicable, reckless and/or fraudulent.” (Mtn. at p. 1:20-24; 4:25-27.) Because these requests were not included in the notice with a full quotation of the portions to be stricken, they are fatally flawed. (See Cal. Rules of Court, rule 3.1322.) Moreover, with respect to the request to strike the prayer for interest, the Nurses do not discuss it. Accordingly, the Court will not further address it. (See e.g. People v. Dougherty (1982) 138 Cal.App.3d 278, 282 [a point asserted without argument or citation to authority requires no response from the court].)
In support of the request to strike the request for attorney’s fees, the Nurses reiterate arguments advanced in their demurrer that Plaintiffs failed to plead a viable claim under the Elder Abuse Act. They conclude Plaintiffs are therefore not entitled to the enhanced remedies, including attorney’s fees, available under Section 15657. As already discussed, the Nurses have not demonstrated that the first cause of action is insufficiently pled or the allegations of reckless conduct are factually unsubstantiated. As such, the motion to strike the request for attorney’s fees is without merit.
In support of the request to strike the prayer for punitive damages, the Nurses argue Plaintiffs’ request for punitive damages is insufficiently pled because the FAC lacks specific facts demonstrating malice, oppression or fraud, and the allegations do not demonstrate conduct intended to cause harm. This argument is not well-taken.
In order to allege an elder abuse claim and recover remedies under Section 15657, a plaintiff is required to plead a defendant has been “guilty of recklessness, oppression, fraud, or malice” in the abuse or neglect of an elder. (Welf. & Inst. Code, § 15657.) In short, “[i]n order to obtain the [Elder Abuse] Act’s heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.” (Covenant Care, supra, 32 Cal.4th at 789.) Under Civil Code section 3294, punitive damages are recoverable where there is clear and convincing evidence the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) For purposes of this statute, fraud is a misrepresentation intended to cause injury. (Civ. Code, § 3294, subd. (c)(3).) As to oppression and malice, oppression is despicable conduct that subjects a person to cruel and unjust hardship, and malice is conduct which is intended by the defendant to cause injury or despicable conduct carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1)-(2).) “Used in its ordinary sense, the adjective ‘despicable’ is a powerful term that refers to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’” (Coll. Hosp. Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) Here, the parties only seem to take issue with whether or not the Nurses’ conduct constituted malice.
For the reasons already discussed, Plaintiffs sufficiently alleged egregious conduct sufficient to support an elder abuse claim, including the Nurses’ failure to provide Barba with food, water, glucose monitoring, and diabetes medication despite their knowledge of his uncontrolled type two diabetes, alcohol withdrawal delirium, dementia and inability to care for himself. These facts are sufficient to allege conduct that is vile, contemptible and, therefore, despicable for purposes of alleging malice under Plaintiffs’ punitive damages claim.
The Nurses’ reliance on Woolstrum v. Mailloux (1983) 141 Cal.App.3d Supp. 1 (“Woolstrum”) to support a contrary conclusion is unavailing. Even under the principle discussed in Woolstrum, Plaintiffs’ request for punitive damages is supportable. In Woolstrum, the court stated that a recovery of punitive damages requires knowledge of the probable injurious consequences of one’s conduct coupled with a deliberate failure to avoid them. (Id. at 5.) Here, as already discussed, the FAC alleges just that – namely, that the Nurses knew of the medical conditions that made Barba unable to care for himself yet repeatedly withheld care with knowledge of the probable injury that would result.
Accordingly, Defendants’ motion to strike is DENIED.