Walter White vs. Spring Valley Post Acute LLC

Opposition

Cal. Super. - 4th Dist.May 15, 2017

G A R C I A , A R T I G L I E R E & M E D B Y O N E W O R L D T R A D E C E N T E R , S U I T E 1 9 5 0 L O N G B E A C H , C A L I F O R N I A 9 0 8 3 1 T E L E P H O N E ( 5 6 2 ) 2 1 6 - 5 2 7 0 + F A C S I M I L E ( 5 6 2 ) 2 1 6 - 5 2 7 1 Oo 0 3 O N n t A W N = N O O N N N N N N N N ee em m a em ee d e m em e d e m e m W 3 S N Wn Ae W N m S 8 0 g S N RB W N = O GARCIA, ARTIGLIERE & MEDBY Stephen M. Garcia, State Bar No. 123338 edocs@lawgarcia.com ELECTRONICALLY FILED One World Trade Center, Suite 1950 superior Court of Califomnia, Long Beach, California 90831 neni Bf HEnge Telephone: (562) 216-5270 09/27/2017 at 05:32:00 PM Facsimile: (562) 216-5271 Clerk of the Superior Court By & Clerk, Deputy Clerk Attorneys for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER WALTER WHITE, by and through his | CASE NO. 30-2017-00920252-CU-MC-CJC Successor in Interest, Toni Cunningham PLAINTIFF’S NOTICE OF OPPOSITION Plaintiff, AND OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF THE Vs. COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES SPRING VALLEY POST ACUTE LLC; MERIDIAN MANAGEMENT SERVICES | Date: October 12, 2017 LLC; and DOES 1 through 250, inclusive, Time: 1:30 p.m. Department: C-33 Defendants. Assigned to Hon. James Crandall, Dept. C-33 Action Filed: May 15, 2017 Trial Date: May 14,2018 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Plaintiff hereby opposes the motion to strike portions of the Complaint filed by Defendants SPRING VALLEY POST ACUTE LLC and MERIDIAN MANAGEMENT SERVICES LLC as follows: [11] I 111 1 PLAINTIFF’S NOTICE OF OPPOSITION AND OPPOSITION M:\White, Walter (17-059)\Pleadings\Opp.MTS.Complaint.docx G A R C I A , A R T I G L I E R E & M E D B Y O N E W O R L D T R A D E C E N T E R , S U I T E 1 9 5 0 L O N G B E A C H , C A L I F O R N I A 2 0 8 3 1 T E L E P H O N E ( 5 6 2 ) 2 1 6 - 5 2 7 0 + F A C S I M I L E ( 5 6 2 ) 2 1 6 - 5 2 7 1 oo 0 Nu S N Wn As W N N O O N N N N N N N N ee em em e m e m je m p m e d e d e d WW 9 A WN A W N E S C NN S N E W N = This opposition is based upon this notice of opposition, the attached memorandum of points and authorities, the pleadings and papers filed herein, and such other and further oral and documentary evidence as may be presented at the time of the hearing on this motion. DATED: September 27, 2017 GARCIA, ARTIGLIERE & MEDBY By: gp A odd ad wa fir Stephen M. Garcia Attorneys for Plaintiff 2 PLAINTIFF'S NOTICE OF OPPOSITION AND OPPOSITION M:\White, Walter (17-059)\Pleadings\Opp.MTS.Complaint.docx G A R C I A , A R T I G L I E R E & M E D B Y O N E W O R L D T R A D E C E N T E R , S U I T E 1 9 8 0 L O N G B E A C H , C A L I F O R N I A 2 0 8 3 1 + F A C S I M I L E ( 5 6 2 ) 2 1 6 - 5 2 7 1 T E L E P H O N E ( 8 6 2 ) 2 1 6 - 5 2 7 0 No 0 uN S N n t A W N N O N O N N N N N N N em em je m em pe ed ee d fu se d fe m ml ee d WW J A NN A W R N em O O 0 N a N R W = D TABLE OF CONTENTS Page MEMORANDUM OF POINTS AND AUTHORITIES ...c.coiiiriiienieieineiresre nesses 1 L BACKGROUND.......ccctnriimitiiritctneeieeeeseseesssesresisssetsresiessessessessssessssessessenssssssssessssesssas 1 IL. PLAINTIFF HAS SUFFICIENTLY PLED A N ELDER ABUSE CLAIM.......c.cccceceevvnee. 2 A. Plaintiff Has Pleaded The Carter Standard For Alleging An Elder Abuse CLAIM c e asass ae sees tbe seers sean enna ae 2 B. The Complaint Contains Sufficient Allegations Of Recklessness.........cccceveruenenn 6 C. The Complaint Also Contains Sufficient Allegations Of Fraud..........cccccceoveveuennee. 8 D. The Complaint Contains Sufficient Allegations Of Malice And Oppression........... 8 E. Plaintiff Has Alleged Employer Liability .......cccccooeririiinieninieiiniececieneneeeennns 8 I. THE COVENANT CARE CASE MAKES IT CLEAR THAT PUNITIVE DAMAGES ARE AN AVAILABLE REMEDY IN ELDER ABUSE CASES........cccocoenviniininienne. 10 IV. PLAINTIFF'S PRAYER FOR ATTORNEY'S FEES IS PERMITTED BY STATUTE...11 VW. | CONCLUSION... ores 5555.05 5555 5.5.58555.55 50.85 Gh 5.555 548 3555550535555 3505840 MERE Ks EDA SES TETRA 12 i PLAINTIFF'S NOTICE OF OPPOSITION AND OPPOSITION M:\White, Walter (17-059)\Pleadings\Opp.MTS.Complaint.docx G A R C I A , A R T I G L I E R E & M E D B Y O N E W O R L D T R A D E C E N T E R , S U I T E 1 9 8 0 L O N G B E A C H , C A L I F O R N I A 9 0 8 3 1 T E L E P H O N E ( 5 6 2 ) 2 1 6 - 5 2 7 0 + F A C S I M I L E ( 6 6 2 ) 2 1 6 - 5 2 7 1 oo 0 NN S N n n AE W N N O O N N O N N N N N N ke em em je e je m e d m d je k je m ee d WW N S N Nn A W O N m S 0 0 d N N A W N = D TABLE OF AUTHORITIES Page(s) Cases Conservatorship of Gregory v. Beverly Enterprises, Inc. (2000) 80 Cal ADPPAH 514.....cu00 messmo smssvins sme oem cms masses imi 6 swe Hama isi 4,6 Covenant Care, Inc. v. Superior Court (2004) 32 CalAth 771 coercive sess sess sae sre aes nase ese ess enn ene enesbens 10 Delaney v. Baker (1999) 20 Cal.dth 23 ....ceoeiieieeerereereteeet ters eres ester eee se r eevee ence ba astern 6,7,8,10 Fenimore v. Regents of the University of California (2016) 245 Cal. APPEL 1339.....cocreresenmmnion bio anns (5880 5hen 4045 55m GEE 0 NE HAD HH 341 4,6,7 Ferraro v. Pacific Finance Corporation (1970) 8 Cal. ADDI 339in susmussmmssrsssammnnesammnsessimmsss tis sis sass sas as es aam mies ams 10 Grieves v. Superior Court (1984) 157 Cal. APP. 3d 159 cece st encase ener 12 Mack v. Soung (2000) 80 Cal. APP.Ath 960......ccueruiireniiieniiieriere sic senses resents esac sbe nesses serene saea 8 McInerney v. United Railroads of San Francisco, et al. (1920) 50 Call. ATT: BF usmmussssmmmmsannsmmsss ss sams sss a s as as asia ass ss a sam 9 Norman v. Life Care Centers of America, Inc. (2003) 107 CalLAPP.Ath 1233... reste sees nese serene 4,6 Sababin v. Superior Court (2006) 144 Cal.APD.Ath 81...c.eciieieieeiiieieeee serrate sees esterase beste e eases 7 Schanafelt v. Seaboard Finance Co. C1951) 108 Cal APD. 2 B20 cciuninsinisismssnmssssiminscssian ons 5005855450685 385005 85 00885 RSA SAIS 9 Worsham v. O'Connor Hospital (2014) 226 Cal. APP.Ath 331. reece esterase sree erecta stesso te sae ssn ennans 3,4 Statutes California. Civil Code §3299(D)susmmmssrsusssssmmmsssassrsamnmssnsiasassssss syusessmsasssmsssanssmesssss sms snes ses eas 8 California Welfare & Institution Code § 15600(h) ..ccc.uiirriiieriiiiirieiiieereececsire cre r esre esr ee 11 California Welfare & Institutions Code §15610.57 ..c..oovieeoieorieciiieniinieenitsse cesarean ese ena 4,6 California Welfare and Institutions Code §15657 .....ccuvervevvuirrieiieeireniesiieeerestreaeeesesesssenees 8, 11 ii PLAINTIFF’S NOTICE OF OPPOSITION AND OPPOSITION M:\White, Walter (17-059)\Pleadings\Opp.MTS.Complaint.docx G A R C I A , A R T I G L I E R E & M E D B Y O N E W O R L D T R A D E C E N T E R , S U I T E 1 8 5 0 L O N G B E A C H , C A L I F O R N I A 9 0 8 3 1 T E L E P H O N E ( 5 6 2 ) 2 1 6 - 5 2 7 0 + F A C S I M I L E ( 5 6 2 ) 2 1 6 - 5 2 7 1 Lo 0 93 n t A W N N O N N N O N N R N N N ee em md p m mk me md pee d e d e d XL 3 S n A W O N = S O 0 N S N E W N =e Other Authorities California Elder Law (CEB 2001), §TZA.T4 .....o..eeeeeiioeencsroseonisssissnsansasiisbasansne sosiiibnessossssmensanseansssesssensasorsnssnsrrss 10 Judicial Council of California Civil Jury Instructions UCBICIE ) | 2mm sm ot cents tN RAR SR 0% 8 Judicial Council of California Civil Jury Instructions CACTI 3115 ce e eters sess ete ates ete ae bests aber e sbeebs seen aas anaes anbases 8 Judicial Council of California Civil Jury Instructions CACTINO. 3113 eerste erecta eset estes aes b ese b ease besten esta ss abestesansasen 7 Judicial Council of California Civil Jury Instructions CATT ING: BL scission ssmssasinnns conens oosssten 69854573550 5008S 5855555 55 CERN 45 nH 550 Fama 2h aman savas idabusnns 8 Restatement of TOTS, § S00 ..c...eoeiviiviieiiiiiecict esters reese erecta see ae seston beast esas este ssa ere sreessassnans 7 iii PLAINTIFF'S NOTICE OF OPPOSITION AND OPPOSITION M:\White, Walter (17-059)\Pleadings\Opp.MTS.Complaint.docx G A R C I A , A R T I G L I E R E & M E D B Y O N E W O R L D T R A D E C E N T E R , S U I T E 1 9 5 0 L O N G B E A C H , C A L I F O R N I A 9 0 8 3 1 = F A C S I M I L E ( 5 6 2 ) 2 1 6 - 5 2 7 1 T E L E P H O N E ( 5 6 2 ) 2 1 6 - 5 2 7 0 No 0 9 S N Wn A W N ee . N O O N N N N N N N N ee ed m k p m e m ee e d ed mk je W@W J AN WN EA W N ee S O 0 NN S N ERE W N = e MEMORANDUM OF POINTS AND AUTHORITIES I. BACKGROUND At the time Mr. White was admitted to Defendants’ Facility, it was well-known by Defendants that Mr. White suffered from conditions that rendered Mr. White a high risk for the development of pressure sores. (Please see Complaint § 18.) Notwithstanding this knowledge, and notwithstanding Defendants’ knowledge that the failure to accurately record, create and implement proper care plans in violation of their own policies and procedures put in place in an acknowledgement of the need to provide required care to prevent residents such as Plaintiff from developing and suffering pressure sores created a high probability that Plaintiff would develop and suffer pressure sores and resulting injury, Defendants consciously disregarded this risk. (Please see Complaint 4 20, 21, 23 and 51.) The neglect did not end there. In addition to the avoidable pressure ulcers, Mr. White also suffered from dehydration and multiple urinary tract infections, as a direct result of Defendants’ wrongful withholding of required care. The neglect was so severe and pervasive, that Mr. White had to be sent to the hospital on multiple occasions for treatment of the dehydration and urinary tract infections. (Please see Complaint § 27.) The last time he was rushed to the hospital, he was diagnosed with dehydration, another urinary tract infection, sepsis, aspiration pneumonia, acute renal failure and respiratory failure. Although CPR was performed to the point of breaking his breast plate, he eventually succumbed and died on or about December 21, 2016. (Please see Complaint § 28.) The Defendants’ efforts to prod this Court into ignoring these clear allegations of the Complaint are an invitation by the Defendants to not only reward their chronic knowing and wrongful withholding of required care causing injury to Plaintiff, but also an invitation that this Court adopt the role of judicial activism and literally abrogate, and ignore not only the case law the defense cites to, but the legislatively pronounced goals of the Elder Abuse and Deponent Adult Civil Protection Act (EADACPA). In sum, the defense predictably says, “hey ignore the particularized factual allegations of the Complaint which very clearly establish each element, because they are so particularly pled in bb] the complaint that we just want it to be medical malpractice.” The impropriety of the effort is transparent. The fact of the matter is that the Complaint very particularly pleads incredibly specific facts precisely consistent not only with the EADACPA but also the Carter standard the defense holds so dear. The assertion of the defense that the Carter standard of pleading was not met is simply false. And yet, the defense persist in this baseless effort with audacity in then stating, “well right, sure the Complaint pleads wrongful withholding of required care but hey we do not care about that as we the abuser declare these are not allegations of elder abuse.” The assertion of the defense that sufficient 1 PLAINTIFF'S NOTICE OF OPPOSITION AND OPPOSITION M:\White, Walter (17-059)\Pleadings\Opp.MTS.Complaint.docx G A R C I A , A R T I G L I E R E & M E D B Y O N E W O R L D T R A D E C E N T E R , S U I T E 1 9 5 0 L O N G B E A C H , C A L I F O R N I A 9 0 8 3 1 T E L E P H O N E ( 5 6 2 ) 2 1 6 - 5 2 7 0 + F A C S I M I L E ( 5 6 2 ) 2 1 6 - 5 2 7 1 No 9 S N n t A W N N O N N N N N N N R N em em e d e d m d mk em je m pe d e d XL 3 AN Nn E W N em D g N N R W N = facts are not alleged to support attorney fees and punitive damages is false. Defendants’ motion to strike should be denied. IL. PLAINTIFF HAS SUFFICIENTLY PLED A N ELDER ABUSE CLAIM Plaintiff has sufficiently alleged a claim for elder abuse. The elder abuse claim supports an award of attorney fees and punitive damages in this action. A. Plaintiff Has Pleaded The Carter Standard For Alleging An Elder Abuse Claim The Complaint very clearly sets forth the factors described by the court in a case Defendants cite in their demurrer (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App.4th 396): (1) That the Defendant had responsibility for meeting the basic needs of Plaintiff, such as nutrition, hydration, hygiene or medical care—Please see Complaint {J 14 and 15. (2) That the Defendant knew of conditions that made Plaintiff unable to provide for Plaintiff’s own basic needs—Please see Complaint §9 17 and 18. (3) That the Defendant denied or withheld goods or services necessary to meet Plaintiff’s basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult or with conscious disregard of the high probability of such injury—Please see Complaint 9 20, 21, 22, 23, 26, 27, 32, 33, 35, 37, 38, 39, 40, 43 and 51. (4) The Plaintiff must also allege that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering—~Please see Complaint 9 18, 24, 25, 26, 27, 43, 44, 45, 46, 47, 49, 50 and 51. At this pleading stage of the proceedings the Defendants’ arguments are now exposed as baseless as each element of the Carter standard of pleading has been clearly satisfied in the Complaint notwithstanding the ignorance of this very plain reality. And even had the Complaint not met the Carter standard of pleading, which it clearly does, Carter is distinguishable. In Carter, the plaintiff failed to allege a denial or withholding of care. Although there were three hospital admissions, the plaintiff failed to allege a denial or withholding of care with respect to each admission. “As to the first hospitalization . . . [n]othing is alleged about the Hospital’s denial or withholding of any care or about any injury Grant suffered during this hospitalization.” (/d. at p. 407.) With regard to the second admission, the court found “[a]gain, no facts are alleged as to any care or treatment the Hospital denied or withheld from Grant. ...” (Id. at p. 408.) And with respect to the final admission, the court stated the allegations “indicate the Hospital did not deny services to or 2 PLAINTIFF’S NOTICE OF OPPOSITION AND OPPOSITION M:\White, Walter (17-059)\Pleadings\Opp.MTS.Complaint.docx G A R C I A , A R T I G L I E R E & M E D B Y O N E W O R L D T R A D E C E N T E R , S U I T E 1 9 5 0 L O N G B E A C H , C A L I F O R N I A 9 2 0 8 3 1 * F A C S I M I L E ( 6 6 2 ) 2 1 6 - 5 2 7 1 T E L E P H O N E ( 5 6 2 ) 2 1 6 - 5 2 7 0 Le 0 3 S N n n A W N N O N NN N N N O N N N em em em e d mk e m em pee d e d ee O ~~ AN nh AE W N E S S n E W N = withhold treatment from Grant. ...” (/d.) In stark contrast, and as set forth above in detail, Plaintiff has specifically alleged a continuing pattern of withholding necessary care. The Complaint also contains detailed allegations that Defendants failed to protect Plaintiff from health and safety hazards and violated multiple regulations in their care of Plaintiff. (Please see Complaint { 20, 24, 27, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40,41,42,43, 44,45, 46,47, 48, 49 and 50.) To summarize, there are very detailed allegations of a persistent and pervasive failure to provide basic and necessary care in this case. There are also detailed allegations of a persistent and pervasive failure to comply with important regulations and a failure to protect Plaintiff from well- known safety hazards. Consequently, the allegations in this case are much different and much broader than the allegations in Carter. Another case Defendants might rely on in their reply is Worsham v. O'Connor Hospital (2014) 226 Cal. App.4th 331." In Worsham, the plaintiff alleged a hospital’s “Transitional Care Unit” was understaffed and undertrained, and as a result of the insufficient staffing, the plaintiff suffered a fall.? The plaintiff asserted claims for elder abuse and negligence. The trial court sustained the hospital’s demurrer to the elder abuse claim and the Court of Appeal affirmed, holding that the allegations of failing to provide adequate staffing were not sufficient to state an elder abuse claim. (Id. at 338.) The instant case is very different. Although there are allegations of inadequate staffing here, there is much more. As set forth above, Plaintiff has alleged a fundamental failure to provide much needed care and specific misconduct that caused Plaintiff's serious injuries. The Complaint also contains specific allegations that Defendants failed to follow Plaintiff’s care plan and that they knew the failure to do so would cause harm to Plaintiff. In addition, the Complaint contains detailed allegations that Defendants failed to protect Plaintiff from health and safety hazards and violated multiple regulations in their care of Plaintiff. As a result, the allegations in this case are much different than the mere staffing allegations in Worsham. A recent opinion by the Court of Appeal makes it clear that Worsham is not applicable to the detailed facts alleged in a case such as this. (Fenimore v. Regents of the University of California !' Plaintiffs counsel here was counsel for the Plaintiff in Worsham. 2 Here the Defendant is not an acute care facility as in Worsham but rather a skilled nursing facility relating to which, unlike the acute care setting, the California Supreme Court provides guidance in Delaney and Covenant Care. A distinction and reality with significant importance. 3 PLAINTIFF'S NOTICE OF OPPOSITION AND OPPOSITION M:\White, Walter (17-059)\Pleadings\Opp.MTS.Complaint.docx G A R C I A , A R T I G L I E R E & M E D B Y O N E W O R L D T R A D E C E N T E R , S U I T E 1 9 5 0 L O N G B E A C H , C A L I F O R N I A 9 0 8 3 1 T E L E P H O N E ( 5 6 2 ) 2 1 6 - 5 2 7 0 + F A C S I M I L E ( 5 6 2 ) 2 1 6 - 5 2 7 1 eo 0 3 A N E W N BN O N N O N N N N N N em e m em je md em be d j d je m ed PX J AN WN RA W N mE D Y 0 g N N T E W N = o (2016) 245 Cal. App.4th 1339, 1350-1351.) The following is instructive from the Fenimore case: Worsham’s determination that understaffing constitutes no more than negligence may be true absent further allegations showing recklessness. But the Fenimores have alleged more than a simple understaffing here. The FAC identified the staffing regulation the Hospital allegedly violated and suggested a knowing pattern of violating it constituted recklessness. * * * In addition, while Worsham focused on a ‘“fundamental “[f]ailure to provide medical care’ as the way to show neglect under the Act, that is not the only way to prove neglect. . . . As Norman and Gregory teach, violations of standards of care set by health facility regulations may provide a basis for finding the requisite negligent failure. Reckless understaffing might be neglectful under the Act even if it is not a fundamental failure to provide medical care. (Id.) Simply stated, Plaintiff has sufficiently alleged “neglect” as that term is defined in the Elder Abuse Act by specifically alleging Defendants (1) failed to provide medical care and (2) failed to protect Plaintiff from health and safety hazards. Either allegation alone is sufficient. Welfare & Institutions Code §15610.57 defines neglect and states in relevant part: (a) “Neglect” means . . . (1) The 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. (b) Neglect includes, but is not limited to, all of the following: (2) Failure to provide medical care for physical and mental health needs. No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment. (3) Failure to protect from health and safety hazards. (California Welfare & Institutions Code §15610.57 (emphasis added).) The Complaint contains specific allegations Defendants failed to protect Plaintiff from health and safety hazards, and that they failed to provide Plaintiff with much needed care. For example, the following is alleged in the Complaint: And notwithstanding the knowledge outlined above on the part of the DEFENDANTS as to the care WALTER WHITE required, the DEFENDANTS wrongfully withheld required care to WALTER WHITE, and throughout the entirety of the stay of WALTER WHITE in the FACILITY, the DEFENDANTS wrongfully withheld required care to WALTER WHITE including, and without limitation to that 3 Plaintiff's counsel here served as the Appellants counsel in Fenimore. 4 PLAINTIFF’S NOTICE OF OPPOSITION AND OPPOSITION M:\White, Walter (17-059)\Pleadings\Opp.MTS.Complaint.docx G A R C I A , A R T I G L I E R E & M E D B Y O N E W O R L D T R A D E C E N T E R , S U I T E 1 9 5 0 L O N G B E A C H , C A L I F O R N I A 9 0 8 3 1 T E L E P H O N E ( 5 6 2 ) 2 1 6 - 5 2 7 0 + F A C S I M I L E ( 6 8 2 ) 2 1 6 - 5 2 7 1 S N nn es W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to be adduced through discovery and according to proof at time of trial, failing to use appropriate pressure-reducing devices, failing to timely and competently provide adequate and proper assistance with personal hygiene, failing to timely and competently ensure that WALTER WHITE was turned and repositioned at least every two hours so as to relieve pressure from WALTER WHITE’s bony prominences, failing to timely and competently provide WALTER WHITE with adequate nutrition and hydration so as to stave off skin breakdown, failing to timely and competently evaluate WALTER WHITE as to clinical conditions, failing to timely and competently provide and implement defined interventions to address the likelihood of pressure sore development and once developed to prevent worsening of the pressure sores, failing to timely and competently revise defined interventions to address the likelihood of pressure sore development and once developed to prevent worsening of the pressure sores where, as was the case here, were clearly not working, failing to timely and competently ensure adherence to physician orders and failing to timely and competently communicate as to emergent medical conditions with the physician. As a predictable result of the DEFENDANTS’ wrongful withholding of required care to WALTER WHITE as detailed above, WALTER WHITE developed severe and “avoidable” pressure ulcers at the FACILITY. The sores had a foul odor, and some of them were open, contained puss and had black skin around the edges. When WALTER WHITE'S family asked the staff how and why the pressure sores developed, the staff said they did not know, and never provided an answer. WALTER WHITE'S injuries would not have occurred had the DEFENDANTS simply adhered to applicable rules, laws and regulations, as well as the acceptable standards of practice governing the operation of a skilled nursing facility. As a direct result of the chronic understaffing at the FACILITY in both number and training, the FACILITY failed to ensure that WALTER WHITE received adequate care, hydration and nutrition to stave off infections and skin breakdown, and failed to timely react to WALTER WHITE’S emergent conditions including the development of an entirely preventable and treatable pressure ulcer. WALTER WHITE suffered these injuries, because FACILITY staff simply did not have adequate time or the inclination to provide WALTER WHITE with the required care and to document and address WALTER WHITE'S emergent conditions. These injuries were entirely preventable had there been sufficient staff on duty, in both number and competency, to actually implement the protections required by the FACILITY’S own Plan of Care and physician orders and assessments for WALTER WHITE. Unfortunately, there was not sufficient staff on duty at the FACILITY to implement the protections called for in the FACILITY’S Plan of Care and physician orders and assessments for WALTER WHITE, and as a result, WALTER WHITE suffered the painful and preventable injuries alleged herein. In addition to the avoidable pressure ulcers, WALTER WHITE also suffered from dehydration and multiple urinary tract infections, as a direct result of DEFENDANTS’ wrongful withholding of required care. The neglect was so severe 5 PLAINTIFF’S NOTICE OF OPPOSITION AND OPPOSITION M:\White, Walter (17-059)\Pleadings\Opp.MTS.Complaint.docx G A R C I A , A R T I G L I E R E & M E D B Y O N E W O R L D T R A D E C E N T E R , S U I T E 1 9 5 0 L O N G B E A C H , C A L I F O R N I A 2 0 8 3 1 + F A C S I M I L E (5 86 2) 2 1 6 - 5 2 7 1 T E L E P H O N E ( 5 6 2 ) 2 1 6 - 5 2 7 0 eo 0 9 S N nn A W N N O N N N N N N N N ee e k e m em e k f m j m mk mek he s 0 NN A WN hE W N me S O N S N N R W N = and pervasive, that WALTER WHITE had to be sent to the hospital on multiple occasions for treatment of the dehydration and urinary tract infections. On December 20, 2016, WALTER WHITE’S family was informed he went into respiratory failure and was rushed to the hospital emergency room. At the hospital, WALTER WHITE was diagnosed with dehydration, another urinary tract infection, sepsis, aspiration pneumonia, acute renal failure and respiratory failure. Although CPR was performed to the point of breaking his breast plate, he eventually succumbed and died on or about December 21, 2016. (Please see Complaint 923, 24,25, 26,27 and 28.) Additional significant, continuing and troubling allegations of the wrongful withholding of required care from Plaintiff are alleged throughout the Complaint. There are also allegations throughout the Complaint of regulatory violations causing injury to Plaintiff. (Please see Complaint 9 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47,48, 49 and 50.) These systemic violations and their causing injury to Plaintiff constitute neglect within the meaning of Welfare & Institutions Code §15610.57. (California Welfare & Institutions Code §15610.57(b)(1); see also Norman v. Life Care Centers of America, Inc. (2003) 107 Cal. App.4th 1233, 1246 (violation of regulations in caring for elder “constitutes elder abuse neglect under the Act”); Conservatorship of Gregory v. Beverly Enterprises, Inc. (2000) 80 Cal.App.4th 514, 521 (administrative regulations included “specific examples of what constituted neglect in the treatment and care of nursing home patients”); Fenimore, supra, 245 Cal.App.4th at p. 1348-1349 (“a violation of staffing regulations . . . may provide a basis for finding neglect™).) In short, the Complaint contains more than sufficient allegations that Defendants neglected Plaintiff as that term is defined in section 15610.57 of the Welfare and Institutions Code. B. The Complaint Contains Sufficient Allegations Of Recklessness In the seminal elder abuse case of Delaney v. Baker (1999) 20 Cal.4th 23, the California Supreme Court defined “recklessness” in the context of an elder abuse cause of action and stated: ‘Recklessness’ refers to a subjective state of culpability greater than simple negligence, which has been described as a ‘deliberate disregard’ of the ‘high degree of probability’ that an injury will occur. Recklessness, unlike negligence, involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to take precautions’ but rather rises to the level of a ‘conscious choice of a course of action . . . with knowledge of the serious danger to others involved in it.’ (Delaney, supra, 20 Cal.4th at pp. 31-32 (internal citations omitted) (emphasis added).) Relying in part on Delaney, the Judicial Council of California Civil Jury Instructions define 6 PLAINTIFF’S NOTICE OF OPPOSITION AND OPPOSITION M:\White, Walter (17-059)\Pleadings\Opp.MTS.Complaint.docx G A R C I A , A R T I G L I E R E & M E D B Y O N E W O R L D T R A D E C E N T E R , S U I T E 1 9 5 0 L O N G B E A C H , C A L I F O R N I A 2 0 8 3 1 T E L E P H O N E ( 5 6 2 ) 2 1 6 - 5 2 7 0 + F A C S I M I L E ( 6 6 2 ) 2 1 6 - 5 2 7 1 Lo LL 9 S&S Un A W N N O N N N N N N N O N e e em em j m mk md ed pe pe d 0 N S N nh As W N em D O 0 N N N Em W N =e “recklessness” in the context of an elder abuse action as follows: “[[Name of individual defendant]/[Name of employer defendant]'s employee] acted with ‘recklessness’ if [he/she] knew it was highly probable that [his/her] conduct would cause harm and [he/she] knowingly disregarded this risk. []] ‘Recklessness’ is more than just the failure to use reasonable care.” (CACI No. 3113.) The Restatement of Torts is also highly instructive. It states: The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent. (Restatement of Torts, § 500.) The Complaint in this action contains numerous allegations that Defendants’ conduct in their care of Plaintiff was at least reckless. Such allegations include allegations (1) Defendants failed to put in place specific interventions, despite knowing Plaintiff was at risk of developing pressure ulcers (please see Complaint 9 20, 21, 23, 26, 32, 33, 35, 37, 38, 39, 43 and 51); (2) Defendants failed to follow Plaintiffs care plan and knew the failure to do so would cause harm to Plaintiff (please see Complaint 9 26 and 49); (3) Defendants allowed Mr. White to become so dehydrated and infected that he had to be hospitalized multiple times (please see Complaint §{ 27 and 28); and (4) Defendants consciously chose to understaff the facility, despite knowing that it was highly probable the understaffing and ensuing failure to provide care would cause harm to patients such as Plaintiff (please see Complaint § 51, 53, 56, 59 and 62). The failure to follow a patient’s care plan, as Defendants did here, has been found to be sufficiently egregious to constitute a triable issue of fact with respect to reckless neglect. (See Sababinv. Superior Court (2006) 144 Cal.App.4th 81, 90.) In Sababin, the court stated that a trier of fact could find that when a facility’s employees ignore a care plan such conduct shows a deliberate disregard of the high degree of probability that the plaintiff will suffer injury. (/d.) Consciously understaffing to cut costs may also constitute recklessness. (Fenimore, supra, 245 Cal.App.4th at pp. 1349-1350.) In Fenimore, the Court of Appeal held that the operative complaint contained allegations of recklessness, because it alleged the facility “had a pattern and knowing practice of improperly understaffing to cut costs, and had the [facility] been staffed sufficiently, [the plaintiff] would have been properly supervised and would not have suffered injury.” (Id.) The Court of Appeal reversed the sustaining of a demurrer by the trial court, concluding that “if 7 PLAINTIFF'S NOTICE OF OPPOSITION AND OPPOSITION M:\White, Walter (17-059)\Pleadings\Opp.MTS.Complaint.docx G A R C I A , A R T I G L I E R E & M E D B Y O N E W O R L D T R A D E C E N T E R , S U I T E 1 9 5 0 L O N G B E A C H , C A L I F O R N I A 9 0 8 3 1 T E L E P H O N E ( 5 6 2 ) 2 1 8 - 5 2 7 0 « F A C S I M I L E ( 5 6 2 ) 2 1 6 - 5 2 7 1 Lo 0 NN S N n t A W N N O N N N N N N N N N em e m md em e d mm p e d mk e d pe a RX 3 SN nN AE W N E O N 0 d S N N R W N m a jury were to find the [facility] knew of the staffing regulations, violated them, and had a significant pattern of doing so, it could infer recklessness, i.e., a ‘conscious choice of a course of action . . . with 999 knowledge of the serious danger to others involved init.” (/d. at p. 1350 (quoting Delaney, supra, 20 Cal.4th at pp. 31-32).) C. The Complaint Also Contains Sufficient Allegations Of Fraud Aside from recklessness, the complaint also alleges fraudulent conduct on the part of Defendant. CACI No. 3116 defines “fraud” in the context of elder abuse and states: “‘[f]raud’ means an intentional misrepresentation, deceit, or concealment of a material fact with the intention of depriving [name of plaintiff] of property or of a legal right or otherwise to cause [name of plaintiff] injury.” Here, the Complaint contains sufficient allegations that Defendants are guilty of fraud in their neglect and abuse of Plaintiff. (Please see Complaint J 41 and 52.) Allegations of fraud in other cases have been held sufficient to constitute fraudulent neglect and warrant the award of enhanced remedies under the Elder Abuse Act. (See, e.g., Mack v. Soung (2000) 80 Cal. App.4th 966, 973.) D. The Complaint Contains Sufficient Allegations Of Malice And Oppression CACI 3114 defines “malice” in the context of an elder abuse action and states in pertinent part: ‘Malice’ means that [name of defendant] acted with intent to cause injury or that [name of defendant]’s conduct was despicable and was done with a willful and knowing disregard of the rights or safety of another. A person acts with knowing disregard when he or she is aware of the probable dangerous consequences of his or her conduct and deliberately fails to avoid those consequences. CACI 3115 defines “oppression” in the context of an elder abuse action as: ‘Oppression’ means that [name of defendant]’s conduct was despicable and subjected [name of plaintiff/decedent] to cruel and unjust hardship in knowing disregard of [his/her] rights. Plaintiff has alleged ample facts constituting malicious and oppressive conduct on the part of the Defendants. (Please see Complaint at §f 8, 9, 51, 53, 56, 59, 62, 64 and 65.) E. Plaintiff Has Alleged Employer Liability Civil Code §3294(b), as referenced in Welfare and Institutions Code §15657, sets forth four separate grounds for recovering enhanced remedies from an employer. Please see CACI 3102(B), which provides as follows: [Name of plaintiff] also claims that [name of defendant] is responsible for [attorney fees and costs/ [and] [name of decedent]'s pain and suffering before death]. To establish this claim, [name of plaintiff] must prove by clear and convincing evidence [insert one or more of the following four options] 8 PLAINTIFF’S NOTICE OF OPPOSITION AND OPPOSITION M:\White, Walter (17-059)\Pleadings\Opp.MTS.Complaint.docx G A R C I A , A R T I G L I E R E & M E D B Y O N E W O R L D T R A D E C E N T E R , S U I T E 1 9 5 0 L O N G B E A C H , C A L I F O R N I A 9 0 8 3 1 T E L E P H O N E ( 5 6 2 ) 2 1 6 - 5 2 7 0 + F A C S I M I L E ( 6 6 2 ) 2 1 6 - 5 2 7 1 oO 0 uN S N n n RA W N B N O N O N O N N N N O N N e m em e k em em ee k em md e d 0 J S N Wn A W O N E S 0 a S N A W N = D 1. [That the employee who committed the acts was an officer, a director, or a managing agent of [name of defendant] acting on behalf of [name of defendant]]; (Alleged in Complaint § 8, 9, 11, 56, 60 and 62) [or] 2. [That an officer, a director, or a managing agent of [name of defendant] had advance knowledge of the unfitness of the employee who committed the acts and employed [him/her/] with a knowing disregard of the rights or safety of others;] (Alleged in Complaint §f 62 and 69) [or] 3. [That an officer, a director, or a managing agent of [name of defendant] authorized the conduct of the employee who committed the acts;] (Alleged in Complaint § 57 and 63) [or] 4. [That an officer, a director, or a managing agent of [name of defendant] knew of the wrongful conduct of the employee who committed the acts and adopted or approved the conduct after it occurred.] (Alleged in Complaint §f 7 and 55) Clearly, Plaintiff has alleged that the Defendants authorized the wrongful conduct. “A corporation may become liable [under §3294] where an act of one of its employees, done in ill will or in actual malice or under circumstances of fraud or oppression, is done with the knowledge or under the express direction of its superior officials having power to bind the corporation. ...” (McInerney v. United Railroads of San Francisco, et al. (1920) 50 Cal.App. 538, 549; see also Schanafelt v. Seaboard Finance Co., (1951) 108 Cal. App.2d 420, 423-424 (corporation liable for the oppressive conduct of its employee repossessing furniture: “If this was his customary practice it must have been known to and authorized by those who dictated the collection policies of the corporation.”).) Clearly, Plaintiff has alleged that the Defendants conceived and implemented a plan to maximize profits at the expense of the patients’ care thereby jeopardizing each patient’s health, safety and welfare. Specifically, Plaintiff alleges Defendants enacted, established and implemented the financial plan and scheme which led to the facility being understaffed, in both number and training, and that these decisions were made at the express direction of Defendants. (See, e.g., Complaint at 8,9, 56, 60 and 62.) Such allegations are sufficient to allege authorization pursuant to McInerney, supra. Clearly, Plaintiff has alleged that the Defendants’ managing agents are personally guilty of fraud, oppression and malice. It is well settled that “[w]here malice, fraud, or oppression is evident in the acts of an employer’s managing agents, or is the product of policies or practices established by the corporate management, such misconduct is said to be the act of the corporation.” (California Elder Law (CEB 2001), §12A.74.) No issue of ratification need exist in such a case. “The issue is corporate action, authorization or direction, not after-the-fact ratification.” (/d.) Similarly, in Ferraro v. Pacific Finance Corporation (1970) 8 Cal.App.3d 339, the court affirmed an award of punitive damages 9 PLAINTIFF'S NOTICE OF OPPOSITION AND OPPOSITION M:AWhite, Walter (17-059)\Pleadings\Opp.MTS.Complaint.docx G A R C I A , A R T I G L I E R E & M E D B Y O N E W O R L D T R A D E C E N T E R , S U I T E 1 9 2 5 0 L O N G B E A C H , C A L I F O R N I A 9 0 8 3 1 « F A C S I M I L E ( 6 6 2 ) 2 1 6 - 5 2 7 1 T E L E P H O N E ( 5 6 2 ) 2 1 6 - 5 2 7 0 oO 0 a9 S N n t A W N M O N O N N N R N N N DN em em e m je m e m e m je m me e d j d QW NN S N Nn A W O N = Oo 0 d N N E W N = o against a finance company for its conduct in repossessing the plaintiff's automobile. The court reasoned that the corporation had adopted a company policy that whenever some person rightfully or otherwise claims ownership or right to possession of a vehicle, the car should be seized by stealth or by force, after which the company would “ask questions.” The court concluded that “[s]uch a policy is malicious and oppressive; it is in the public interest that it be curbed.” Id. at 353. Plaintiff's Complaint contains extensive allegations that, if proven, will easily support a finding of recklessness, fraud, oppression and/or malice on the part of the officers, directors and/or managing agents themselves, including allegations of Defendants deliberately understaffing the facility with unqualified personnel at the expense of resident care, wholly ignoring the needs of the Plaintiff. (See, e.g., Complaint at 8, 9, 56, 62, 64 and 65.) III. THE COVENANT CARE CASE MAKES IT CLEAR THAT PUNITIVE DAMAGES ARE AN AVAILABLE REMEDY IN ELDER ABUSE CASES Defendants’ assertion punitive damages are not an available remedy in this case is erroneous. As set forth above, the elder abuse claim supports the prayer for punitive damages. And the California Supreme Court has made it clear that punitive damages are appropriate in such cases. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 776.) In Covenant Care, the court granted review to resolve a conflict among the Courts of Appeal as to whether the procedural prerequisites to seeking punitive damages in an action arising out of the professional negligence of a health care provider apply to punitive damage claims in elder abuse cases. (Covenant Care, supra, 32 Cal.4th at 776.) The court concluded the procedural prerequisites for seeking punitive damages do not apply in an action under the Elder Abuse Act. (/d. at 790.) In other words, the California Supreme Court rejected the effort by the defendants in Covenant Care to make it more difficult to assert punitive damages in elder abuse cases against health care providers. The court’s holding was consistent with its recognition in a previous case that “one of the major objectives of the [Elder Abuse Act] was the protection of residents of nursing homes and other health care facilities.” (Delaney v. Baker (1999) 20 Cal.4th 23, 37.) It is important to recognize the result reached in Covenant Care is based in large part on the California Supreme Court’s recognition of the Legislature’s intent to incentivize attorneys to prosecute elder abuse cases. (Covenant Care, supra, 32 Cal.4th at 787 (citing Cal. Welf. & Inst. Code, § 15600(j).) As stated by the court, “[t]o burden such causes with section 425.13’s procedural requirements when claims are made for punitive damages would undermine the Legislature’s intent to foster [elder abuse] actions by providing litigants and attorneys with incentives to bring them.” 10 PLAINTIFF’S NOTICE OF OPPOSITION AND OPPOSITION M:\White, Walter (17-059)\Pleadings\Opp.MTS.Complaint.docx G A R C I A , A R T I G L I E R E & M E D B Y O N E W O R L D T R A D E C E N T E R , S U I T E 1 9 5 0 L O N G B E A C H , C A L I F O R N I A 9 0 8 3 1 + F A C S I M I L E ( 6 6 2 ) 2 1 6 - 5 2 7 1 T E L E P H O N E ( 5 6 2 ) 2 1 6 - 5 2 7 0 Ko 0 N a N Nt EA W N No ro No No N O N No nN No nk os i J d i fo J J k f t — PR J S N WN RA W N = D 8 d S N Nl E W N (Covenant Care, supra, 32 Cal.4th at 787.) The court reiterated the importance of incentivizing attorneys to take on such cases when it stated “making it more difficult for Elder Abuse Act plaintiffs to plead punitive damages would as a general matter, likely diminish the willingness of attorneys to undertake such cases on a contingency basis.” (Id. (citing Cal. Welf. & Inst. Code, § 15600(h).) Thus, Covenant Care indicates trial courts should be hesitant to create roadblocks in elder abuse cases—particularly at the pleading stage. IV. PLAINTIFF’S PRAYER FOR ATTORNEY’S FEES IS PERMITTED BY STATUTE Welfare & Institutions Code §15657 provides that the court shall award to the plaintiff reasonable attorney's fees and costs “[w]here it is proven by clear and convincing evidence that a defendant is liable for physical abuse ... or neglect ... and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse ....” As set forth above, and in opposition to Defendants’ demurrer, Plaintiff has alleged Defendants are guilty of recklessness, oppression, fraud and malice in the commission of the abuse and neglect at issue in this action. The Legislature has made it abundantly clear that the Defendants are liable for attorney's fees if Plaintiff proves her allegations. Aside from Welfare & Institutions Code section 15657, Code of Civil Procedure section 1021.5 also allows a court to award attorneys’ fees to a successful party against one or more opposing parties "in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or non-pecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement . . . are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.” The California Legislature has made a clear finding that elders and dependents are a disadvantaged class of the population. See Welfare & Institutions Code §15600 ef seq. Consequently, section 1021.5 provides an additional basis for fees in this action. 1 1 1 11 1 11 nn 1 11 PLAINTIFF’S NOTICE OF OPPOSITION AND OPPOSITION M:\White, Walter (17-059)\Pleadings\Opp.MTS.Complaint.docx G A R C I A , A R T I G L I E R E & M E D B Y O N E W O R L D T R A D E C E N T E R , S U I T E 1 9 6 0 L O N G B E A C H , C A L I F O R N I A 9 0 8 3 1 + F A C S I M I L E ( 5 6 2 ) 2 1 6 - 5 2 7 1 T E L E P H O N E ( 5 6 2 ) 2 1 6 - 5 2 7 0 L O 9 n t As W N N O N N N N R N N N N ee em e m e m p m em em mk em je GC 9 A WN Es W N m= S e N N A W N = o V. CONCLUSION Based on the foregoing, the motion to strike should be denied. Ifthe Court is inclined to grant any portion of the motion to strike, however, Plaintiff should be given an opportunity to amend the Complaint. (See Grieves v. Superior Court (1984) 157 Cal. App. 3d 159, 168 (recognizing that leave to amend should be freely granted if a motion to strike is granted).) DATED: September 27, 2017 GARCIA, ARTIGLIERE & MEDBY } f 0 By: sn po A A | od, Fo Stephen M. Garcia Attorneys for Plaintiff 12 PLAINTIFF’S NOTICE OF OPPOSITION AND OPPOSITION M:\White, Walter (17-059)\Pleadings\Opp.MTS.Compiaint.docx G A R C I A , A R T I G L I E R E & M E D B Y O N E W O R L D T R A D E C E N T E R , S U I T E 1 9 5 0 L O N G B E A C H . C A L I F O R N I A 2 0 8 3 1 T E L E P H O N E ( 5 8 2 ) 2 1 6 - 5 2 7 0 - F A C S I M I L E ( 5 6 2 ) 2 1 6 - 5 2 7 1 No 0 3 S N Nn A W N N O O N N N N N N N N ee es e m je m em mm em e d he d QL NN S N Wn Aa W N mE S Y 0 a S n Re W N = o PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, | was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is One World Trade Center, Suite 1950, Long Beach, California 90831. On September 27, 2017, I served true copies of the following document(s) described as PLAINTIFF'S NOTICE OF OPPOSITION AND OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF THE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES on the interested parties in this action as follows: Brian Washburn, Esq. Lewis, Brisbois, Bisgaard & Smith, LLP 633 West 5th Street, Ste. 4000 Los Angeles, CA 90071 Attorneys for Defendants Telephone: (213) 580-3963 Facsimile: (213) 250-7900 BY FEDEX: I enclosed said document(s) in an envelope or package provided by FedEx and addressed to the persons at the addresses listed in the Service List. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of FedEx or delivered such document(s) to a courier or driver authorized by FedEx to receive documents. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on September 27, 2017, at Long Beach, California. Ce Thins Le. J ofe easly |