Opinion
B226415
09-19-2011
JEFFREY SEIGEL, as Administrator, etc., Plaintiff and Appellant, v. RENEE SONSINO, Defendant and Respondent.
Stewart J. Levin for Plaintiff and Appellant Jeffrey Seigel, as Administrator etc. Renee Sonsino, in pro. per., for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC410469)
APPEAL from an order of the Superior Court of Los Angeles County, Ralph W. Dau, Judge. Reversed and remanded with directions.
Stewart J. Levin for Plaintiff and Appellant Jeffrey Seigel, as Administrator etc.
Renee Sonsino, in pro. per., for Defendant and Respondent.
Jeffrey Seigel, the administrator of the Estate of Marcelle Filson, filed a lawsuit against Renee Sonsino, Filson's former conservator, for elder abuse and neglect. The trial court sustained Sonsino's demurrer without leave to amend and dismissed the action. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Complaint
In 2004 Sonsino, Filson's niece, was appointed by the probate court as the conservator of Filson's person. (At that time Filson suffered from advanced Alzheimer's disease.) Seigel was appointed to be the conservator of Filson's estate. Filson died at the age of 89 in June 2008.
In 2009 Seigel, who had succeeded Filson's nephew as the administrator of Filson's estate following her death, sued Sonsino for elder abuse and neglect and elder financial abuse (Welf & Inst. Code, §§ 15657, 15610.30) and sought a judicial declaration that Sonsino was prohibited from inheriting any monies from Filson's estate pursuant to Probate Code section 259. According to the operative pleading, Seigel's second amended complaint, Sonsino had placed Filson in Sunnyside Nursing Center in Torrance, an "undesirable, inferior and low-rated" nursing home. Thereafter, Sonsino deliberately avoided contact with both Filson and the facility. In particular, she refused to return telephone calls from Filson's health care providers seeking her authorization to perform medical services for Filson. As a result of Sonsino's conscious neglect, Filson suffered physical and emotional harm. Her estate was also forced to expend time and money to remove Sonsino as conservator in the probate court in 2008. The pleading sought compensatory damages (including damages for pain and suffering), punitive damages and attorney fees.
Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Probate Code section 259 provides, "(a) Any person shall be deemed to have predeceased the decedent [if] [¶] (1) It has been proven by clear and convincing evidence that the person is liable for physical abuse, neglect, or fiduciary abuse of the decedent, who was an elder or dependent adult. . . ."
Sunnyside Nursing Center is not a party to this action.
Any claims for elder abuse or neglect or elder financial abuse that Filson may have had during her lifetime survive her death and may be pursued by the administrator of her estate. (§ 15657.3, subd. (c); see Estate of Lowrie (2004) 118 Cal.App.4th 220, 226-227.)
2. Sonsino's Demurrer and Motion to Strike
Sonsino demurred to both causes of action for elder abuse and neglect and elder financial abuse on the ground that each failed to state facts sufficient to constitute a cause of action. In the same pleading Sonsino moved to strike the punitive damage and attorney fees claims because of lack of any specific allegations in the operative complaint to support a finding of recklessness, oppression, fraud or malice. The trial court sustained the demurrer without leave to amend. The court did not rule on the motion to strike, explaining its ruling on the demurrer had mooted the motion to strike. Seigel filed a timely appeal.
The trial court also granted Sonsino's request, made in connection with the demurrer and motion to strike, to take judicial notice of the following facts reflected in probate court filings: (1) Sonsino had replaced Seigel in August 2004 as the conservator of Filson's person; (2) in June 2005 the probate court issued letters of conservatorship granting Sonsino the authority, among other things, to place Filson in a care or nursing facility described in Probate Code section 2356.5, subdivision (b); (3) at the time of her appointment and continuing to the present, Sonsino lived in Washington D.C. or New York; (4) on May 2, 2008 the probate court removed Sonsino as conservator of Filson's person and replaced her with Seigel. Seigel does not challenge the order granting the request for judicial notice.
Sonsino mistakenly contends the appeal is untimely. The order of dismissal signed by the court was entered on April 8, 2010. Seigel filed his notice of appeal on August 6, 2010, well within the 180-day deadline in this case, in which no notice of entry of judgment was served. (See Cal. Rules of Court, rule 8.104(a)(3) [absent service of a notice of entry of judgment, notice of appeal must be filed no later than 180 days after entry of judgment]; see also Code Civ. Proc., § 581d [orders of dismissal signed by court "shall constitute judgments"].)
DISCUSSION
1. Standard of Review
On appeal from an order dismissing an action after the sustaining of a demurrer, we independently review the pleading to determine whether the facts alleged state a cause of action under any possible legal theory. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) We give the complaint a reasonable interpretation, "treat[ing] the demurrer as admitting all material facts properly pleaded," but do not "assume the truth of contentions, deductions or conclusions of law." (Aubry, at p. 967; accord, Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) We liberally construe the pleading with a view to substantial justice between the parties. (Code Civ. Proc., § 452; Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; see Kotlar v. Hartford Fire Ins. Co. (2000) 83 Cal.App.4th 1116, 1120.)
"'Where the complaint is defective, "[i]n the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his [or her] complaint."'" (Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at p. 970.) Leave to amend may be granted on appeal even in the absence of a request by the plaintiff to amend the complaint. (Id. at p. 971; see Code Civ. Proc., § 472c, subd. (a).) We determine whether the plaintiff has shown "in what manner he [or she] can amend [the] complaint and how that amendment will change the legal effect of [the] pleading." (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) "[L]eave to amend should not be granted where . . . amendment would be futile." (Vaillette v. Fireman's Fund Ins. Co. (1993) 18 Cal.App.4th 680, 685; see generally Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 373-374.)
2. The Elder Abuse and Dependent Adult Civil Protection Act
The Elder Abuse and Dependent Adult Civil Protection Act (the Elder Abuse Act) (§ 15600 et seq.) was enacted in 1982 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.) To accomplish this purpose, section 15657 "makes available, to plaintiffs who prove especially egregious elder abuse to a high standard, certain remedies 'in addition to all other remedies otherwise provided by law.'" (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 779 (Covenant Care).) Thus, "[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 the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse," the Elder Abuse Act permits the plaintiff to recover enhanced remedies, such as attorney fees and costs, in addition to any other remedies provided by law. (§ 15657, subd. (a).) In addition, when the abused elder has died, the Act permits the decedent's estate to recover damages for pain and suffering that otherwise would not be recoverable in a survivorship action. (§15657, subd. (b); cf. Code Civ. Proc., § 377.34 [ordinarily in action by decedent's personal representative or successor in interest, damages recoverable are limited to loss or damage sustained or incurred before death "and do not include damages for pain, suffering or disfigurement"]; see Delaney, at p. 33 [§ 15657's authorization of attorney fees and damages for pain and suffering even after elder dies was intended to "'enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults'"]; see generally Covenant Care, at pp. 779-780.)
Section 15610.63 lists several acts constituting physical abuse, including assault, battery and rape as defined in the Penal Code.
Section 15610.57, subdivision (a)(1), defines "neglect" as "[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."
Allegations of negligence are insufficient to state a claim for heightened remedies available under the Elder Abuse Act. (Delaney v. Baker, supra, 20 Cal.4th at p. 31 [to recover the enhanced remedies under the Elder Abuse Act, the plaintiff must allege "something more than negligence"]; accord, Covenant Care, supra, 32 Cal.4th at pp. 783-785.) The plaintiff must allege the neglect or abuse was accomplished with recklessness, oppression, fraud or malice. (Delaney, at p. 31, citing § 15657; see Berkley v. Dowds (2007) 152 Cal.App.4th 518, 529 ["[a]cts of simple or even gross negligence" will not justify enhanced remedies under Elder Abuse Act; neglect or abuse "must amount to recklessness, oppression, fraud or malice, in order to justify the heightened remedies"]; Conservatorship of Kayle (2005) 134 Cal.App.4th 1, 5-6 ["relief under the heightened remedies of the Elder Abuse Act requires proof of conduct equivalent to conduct that would support recovery of punitive damages"].) In addition, the egregious conduct must be pleaded with particularity. (Covenant Care, at p. 790.)
There is some disagreement whether the Elder Abuse Act authorizes a distinct cause of action or simply permits the recovery of enhanced remedies in connection with an established cause of action. (Compare Berkley v. Dowds (2007) 152 Cal.App.4th 518, 529 [the Elder Abuse Act "does not create a cause of action as such, but provides for attorney fees, costs[, pain and suffering,] and punitive damages under certain conditions"] and ARA Living Centers—Pacific, Inc. v. Superior Court (1993) 18 Cal.App.4th 1556, 1563 [same] with Perlin v. Fountain View Management, Inc. (2008) 163 Cal.App.4th 657, 659 & fn. 9 [Elder Abuse Act authorizes separate and distinct cause of action, in which each element of the tort of elder abuse, including causation, must be proved by clear and convincing evidence].) That issue need not be resolved here because the only damages sought in this survivorship action are those authorized under the Elder Abuse Act. Accordingly, the sole question before us is whether Seigel stated a cause of action sufficient to recover the enhanced remedies authorized under the Act.
3. The Trial Court Erred in Sustaining the Demurrer to the First Cause of Action for Elder Abuse Based on Neglect
Seigel's first cause of action alleges Sonsino breached her fiduciary duties to Filson by placing her in a substandard skilled nursing facility and then disregarding all of her custodial responsibilities, including remaining in contact with the facility to ensure Filson received proper care. In particular, it is alleged Sonsino deliberately refused to return telephone calls from Filson's medical providers who required Sonsino's authorization to provide medical services and, as a result, Filson suffered physical and emotional harm. Those allegations of deliberate indifference to Filson's custodial needs, whether or not they can ultimately be proved, are sufficient to establish recklessness and, therefore, to state a claim for enhanced remedies under the Elder Abuse Act. (See Delaney v. Baker, supra, 20 Cal.4th at p. 31 ["recklessness" in the Elder Abuse Act implies a "conscious choice of action" with knowledge of the serious danger to others]; Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90 ["deliberate indifference" to elder's custodial needs sufficient to establish recklessness, oppression fraud or malice under Elder Abuse Act]; Mack v. Soung (2000) 80 Cal.App.4th 966, 970 [same]; see generally Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711 [at demurrer stage, we look only to whether facts sufficient to state a claim for relief; "[w]e do not concern ourselves with whether the plaintiff will be able to prove the facts that he or she may allege in the complaint"]; Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1521 [same].)
The second amended complaint also includes allegations that Sunnyside was indifferent to Filson's physical and hygienic needs, leaving her in a wheelchair for long periods causing her to suffer a sacral pressure sore. Those allegations of Sunnyside's neglect, as the trial court apparently recognized, do not state causes of action against Sonsino. However, as we have explained, allegations that Sonsino deliberately disregarded her custodial responsibilities by refusing to be in contact with Sunnyside or Filson's medical providers are sufficient under the Elder Abuse Act. Although Sonsino suggests the allegations against her are false and made in bad faith, at this stage of the proceedings, we must assume their truth. (See Smith v. State Farm Mutual Automobile Ins. Co., supra, 93 Cal.App.4th at p. 711.) Of course, if Sonsino is correct and the allegations against her were made in bad faith, Seigel (and, under certain circumstances, his attorney) could be subject to sanctions under Code of Civil Procedure section 128.5 or 128.7.
4. The Demurrer Was Properly Sustained as to the Second Cause of Action for Elder Financial Abuse
Prior to its amendment in 2008, former section 15610.30 provided that "financial abuse" of an elder or dependent adult occurs when a person or entity "takes, secretes, appropriates, or retains real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both," or assists in such conduct for a wrongful purpose or with an intent to defraud. (Stats. 2000, ch. 442, § 5.) The statute defined "wrongful use" as taking, appropriating or retaining property "in bad faith," which occurred when the person "knew or should have known that the elder had the right to have the property transferred or made readily available to the elder . . . ." (Ibid.; see Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 174.)
Former section 15610.30 was substantially revised in 2008 to, among other things, remove this "bad faith" requirement. (See § 15610.30, subd. (b) [financial abuse presumed if defendant "takes, secrets, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult"]; Stats. 2008, ch. 475, § 1; see Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 736 ["'[t]he financial abuse statute, as amended in 2008, presents an essentially new statute'"].) As Seigel concedes, former section 15610.30 is controlling here, as all of the alleged conduct took place before January 1, 2009, the date the 2008 amendments to section 15610.30 became effective. (See 77 West's Ann. Welf & Inst. Code (2011 supp.) effective dates, p. XXIV; see also Das, at p. 736 ["[a]s the 2008 amendments to [§ 15610.30] were substantive, rather than procedural, and the Legislature did not state that the amendments were retroactive in effect, they are inapplicable to appellant's claims"].)
The complaint alleges Sonsino's ongoing breach of her fiduciary duties as conservator forced Filson's estate to expend attorney fees to remove her from that position. Those fees were not recoverable in a surcharge action against Sonsino. (See Estate of Gerber (1977) 73 Cal.App.3d 96, 117 [attorney fees not recoverable as item of surcharge when fees are attributable to litigation for breach of fiduciary duty rather than to remedy problems caused by breach of duty]; Estate of Marre (1941) 18 Cal.2d 191, 192 [there is "no general rule which permits the recovery of attorney's fees by a successful litigant" in probate proceeding absent special agreement or statutory provision].) Thus, Seigel insists, Filson's conduct amounts to actionable elder financial abuse. The argument misapprehends the elements of elder financial abuse.
To recover heightened remedies for elder financial abuse under former section 15610.30, the plaintiff must show the defendant took, secreted, appropriated or retained the elder's property, not simply that the defendant's misconduct caused financial harm or economic loss. (See, e.g., Wood v. Jamison (2008) 167 Cal.App.4th 156, 165 [financial abuse established by showing attorney, who represented elderly client and third party posing as elderly client's nephew, knowingly assisted third party in acquiring elder's property for improper purpose].) Here, there is no allegation that Sonsino wrongfully appropriated or retained any financial interest of Filson's. (See generally Delaney v. Baker, supra, 20 Cal.4th at p. 33 [distinguishing between elder abuse based on neglect and financial abuse]; Wood, at pp. 164-165 [discussing elder financial abuse].) Arguably, attorney fees incurred to remove Sonsino as conservator may be an element of damages sustained by the estate and recoverable in a successful action for neglect or breach of fiduciary duty under the tort-of-another doctrine (cf. Prentice v. North American Title Guaranty Corp. (1963) 59 Cal.2d 618), but the loss of those sums, on its own, does not constitute elder financial abuse.
Of course, should Seigel prevail on his first cause of action for elder abuse based on neglect, he, on behalf of Filson's estate, would be statutorily entitled to recover attorney fees in connection with this action. (See § 15657.)
5. The Demurrer Was Improperly Sustained to the Third Cause of Action for Declaratory Relief
Seigel's third cause of action seeks a judicial declaration pursuant to Probate Code section 259 that Sonsino's actionable neglect under the Elder Abuse Act prohibits her from receiving monies as the named beneficiary on two annuities purchased by Filson. Because the action for elder abuse based on neglect is viable, the cause of action for declaratory relief, contingent on the successful prosecution of that first cause of action for elder neglect, survives the demurrer as well.
DISPOSITION
The order dismissing the action is reversed. The matter is remanded to the trial court with directions to enter a new order sustaining the demurrer to the second cause of action for elder financial abuse and overruling the demurrer in all other respects and to conduct further proceedings not inconsistent with this opinion. Each party to bear his or her own costs on appeal.
PERLUSS, P. J. We concur:
ZELON, J. JACKSON, J.