Opposition To Defendant Jessica Navarros Demurrer To Plaintiffs Second Amended Complaint Memorandum of Points And Authorities

Opposition

Cal. Super. - 2nd Dist.October 18, 2017

Electronically FILED by Sup eo 0 N S nt A W N = NN O N N N N N N N O N E e em m m pm p m em R N N R W D D = o O R NT R W N = OD M or Court of California, County of Los Angeles on 02/28/2019 11:23 AM Sherri R. Carter, Executive Officer/Clerk of Court, by P. Reynoso,Deputy Clerk ARNOLDO CASILLAS, ESQ., SBN 158519 DENISSE O. GASTELUM, ESQ., SBN 282771 CASILLAS & ASSOCIATES 3777 Long Beach Blvd., Third Floor Long Beach, CA 90807 Telephone: (562) 203-3030 Facsimile: (323) 725-0350 Attorneys for Plaintiffs, ESTATE OF ABIGAIL FELIX, by and through successors in interest, Felipe Felix, George Felix, Cynthia Felix, Elizabeth Felix, and Michelle Felix; FELIPE FELIX, GEORGE FELIX, CYNTHIA FELIX, ELIZABETH FELIX, CESAR FELIX and MICHELLE FELIX, individually and as successors in interest SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, CHATSWORTH COURTHOUSE ESTATE OF ABIGAIL FELIX, by and ) CASE NO. BC680119 through successors in interest, Felipe Felix, ) [Assigned to the Hon. Stephen P. Pfahler, Dept. George Felix, Cynthia Felix, Elizabeth Felix, ) F49] Cesar Felix and Michelle Felix; FELIPE ) FELIX, GEORGE FELIX, CYNTHIA ) PLAINTIFFS’ OPPOSITION TO FELIX, ELIZABETH FELIX, CESAR ) DEFENDANT JESSICA NAVARRO’S FELIX and MICHELLE FELIX, individually) = DEMURRER TO PLAINTIFFS’ SECOND and as successors in interest; ) AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Plaintiffs, VS. Date: March 13, 2019 Time: 8:30 a.m. JACOB WINTNER, individually; MEGAN Dept.: F49 HEREK, individually; IRA SMEDRA, individually; 13333 FENTON AVE, LLC dba MOUNTAIN VIEW CONVALESCENT HOSPITAL, a California limited liability company; SUMAN PATEL, M.D., individually; MUHAMMAD ANWAR, M.D., individually; and DOES 1 through 100, inclusive, Trial Date: November 7, 2019 Complaint Filed: October 18, 2017 Defendants. N r N r N e N e N e N e N e N e N e N N N e N e N e N N 1" 1" 1 PLAINTIFFS’ OPPOSITION TO DEFENDANT JESSICA NAVARRO’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES eo 0 N S nt A W N = NN O N N N N N N N O N E e em m m pm p m em R N N R W D D = o O R NT R W N = OD MEMORANDUM OF POINTS AND AUTHORITIES COME NOW Plaintiff Estate of Abigail Felix, by and through successors in interest, Felipe Felix, George Felix, Cynthia Felix, Elizabeth Felix, Cesar Felix and Michelle Felix, and Plaintiffs Felipe Felix, George Felix, Cynthia Felix, Elizabeth Felix, Cesar Felix and Michelle Felix, individually and as successors in interest (hereinafter collectively “Plaintiffs”), and oppose the Demurrer of Defendant Jessica Navarro (hereinafter “Defendant”) to Plaintiffs’ Second Amended Complaint as follows: I. INTRODUCTION On February 3, 2016, Abigail Felix was an elderly and dependent 65-year-old adult and was admitted to Mountain View Convalescent Hospital. She had suffered a heart attack and needed 24- hour supportive care. She could not feed herself and was fed through a gastric tube that was surgically inserted through her abdominal wall into her stomach. The tube was also used for the administration of medication. From February 3, 2016 through July 29, 2016, Abigail Felix was a resident patient at Mountain View Convalescent Hospital, which is owned, operated and managed by Jacob Wintner, Megan Herek, and Ira Smedra. Due to Mrs. Felix’s recent hospitalization, surgery and disabilities, Mrs. Felix depended on the care and treatment provided to her by employees and agents of Mountain View Convalescent Hospital, as well as its owners, operators, controllers, managers and/or supervisors including Jacob Wintner, Megan Herek, and Ira Smedra, Suman Patel, M.D., Defendant DOE 1 Sabita Malla, M.D., Defendant DOE 2 “Joey”, Defendant DOE 3 Hera Lim, Defendant DOE 4 Jocelyn Hipolito, Defendant DOE 5 Rosabelle Llacer, Defendant DOE 6 Jessica Navarro, and Defendant DOE 7 “Marcia” (hereinafter collectively referred to as “Mountain View Defendants”) to provide her with the necessary supportive care as she was completely dependent upon them for her health, safety and welfare. While Mrs. Felix was under the care of Mountain View Convalescent Hospital, including its 2 PLAINTIFFS’ OPPOSITION TO DEFENDANT JESSICA NAVARRO’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES eo 0 N S nt A W N = NN O N N N N N N N O N E e em m m pm p m em R N N R W D D = o O R NT R W N = OD employees, agents, owners and supervisors, Mrs. Felix’s feeding tube was improperly removed or dislodged, and thereafter the feeding tube was improperly reinserted in Mrs. Felix’s abdomen. The tube end was not placed into her stomach. Thereafter, liquid food, water and liquid medication were administered through the tube. This liquid collected in her abdomen and caused a severe infection. Mrs. Felix suffered a severe a large purulent abscess in her abdominal. This infection led to Mrs. Felix death. II. STATEMENT OF FACTS On February 3, 2016, Abigail Felix (hereinafter also “Mrs. Felix” and “decedent”) was an elderly and dependent 65-year-old adult and was admitted to the convalescent home, Defendant 13333 Fenton Ave, Sylmar, California dba Mountain View Convalescent Hospital (hereinafter “Mountain View Convalescent Hospital”), which is located at 13333 Fenton Ave, Sylmar, California. Second Amended Complaint (“SAC”) qq 15, 28. Mrs. Felix suffered from physical and mental infirmities which placed her in a dependent and vulnerable position. SAC 24. These infirmities and impairments left Mrs. Felix incapable of asking for help and protection. Id. Mountain View Convalescent Hospital is and was a “skilled nursing facility,” “health care facility” and/or “long term — facility”, as defined by California Health & Safety Code § 1250, which skilled nursing and supportive care to persons who need this type of care on an extended basis. SAC { 15. Mountain View Convalescent Hospital is and was owned, operated, controlled and/or supervised by Defendants 13333 Fenton Ave, LLC, Jacob Wintner, Megan Herek, and Ira Smedra. SAC 16. Defendant DOE 6 Jessica Navarro was responsible for the operation, control, management and/or supervision of Mountain View Convalescent Hospital. SAC | 17. From February 3, 2016 through July 29, 2016, Mrs. Felix was a resident patient at Mountain View Convalescent Hospital. SAC 3. She had suffered a heart attack and needed 24-hour supportive care because she could not feed herself and was fed through a tube that was surgically inserted through her abdominal wall into her stomach for feeding and for the administration of medication. Id. During this time period, the employees, agents, officers, owners, managers and 3 PLAINTIFFS’ OPPOSITION TO DEFENDANT JESSICA NAVARRO’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES eo 0 N S nt A W N = NN O N N N N N N N O N E e em m m pm p m em R N N R W D D = o O R NT R W N = OD supervisors of Defendants Mountain View Convalescent Hospital, including Defendants Jacob Wintner, Megan Herek, and Ira Smedra, Suman Patel, M.D., Defendant DOE 1 Sabita Malla, M.D., Defendant DOE 2 “Joey”, Defendant DOE 3 Hera Lim, Defendant DOE 4 Jocelyn Hipolito, Defendant DOE 5 Rosabelle Llacer, Defendant DOE 6 Jessica Navarro, and Defendant DOE 7 “Marcia” were to provide Mrs. Felix with the necessary supportive care as she was completely dependent upon them for her health, safety and welfare. SAC (4. Due to Mrs. Felix’s recent hospitalization, surgery and disabilities, the Mountain View Defendants knew and understood, or reasonably should have known and understood, that Mrs. Felix required special equipment, care and attention to her medical condition. SAC { 29. During Mrs. Felix hospitalization at Mountain View Convalescent Hospital, Mrs. Felix was an “elder” and a “dependent adult”, as those terms are defined under the Elder Abuse and Dependent Adult Civil Protection Act. SAC 30. During Mrs. Felix hospitalization at Mountain View Convalescent Hospital, Defendant DOE 6 Jessica Navarro was a “caretaker” as defined in California Welfare & Institutions Code § 15610.1. Id. This meant that the Mountain View Defendants owed a duty of utmost good faith and fairness to Mrs. Felix in all matters pertaining to her health, care and comfort. Id. In other words, the Mountain View Defendants were fiduciaries of Mrs. Felix and stood in a position of trust and confidence with her and her family members, namely her husband Felipe Felix, and her children George Felix, Elizabeth Felix, Cynthia Felix, Cesar Felix and Michelle Felix, all of whom are the Plaintiffs in the present action. SAC {{ 11, 12, 30. As such, Mrs. Felix depended on the employees, agents, officers, owners, managers and supervisors of Defendants Mountain View Convalescent Hospital, including Jacob Wintner, Megan Herek, and Ira Smedra, Suman Patel, M.D., Defendant DOE 1 Sabita Malla, M.D., Defendant DOE 2 “Joey”, Defendant DOE 3 Hera Lim, Defendant DOE 4 Jocelyn Hipolito, Defendant DOE 5 Rosabelle Llacer, Defendant DOE 6 Jessica Navarro, and Defendant DOE 7 “Marcia” to provide her with the necessary supportive care and she was completely dependent upon them for her health, safety and welfare. SAC (4. The Mountain View Defendants, including Defendant DOE 6 Jessica Navarro, willingly undertook such care for pay and were in a special relationship with Mrs. Felix as 4 PLAINTIFFS’ OPPOSITION TO DEFENDANT JESSICA NAVARRO’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES eo 0 N S nt A W N = NN O N N N N N N N O N E e em m m pm p m em R N N R W D D = o O R NT R W N = OD her medical treaters. Id. The Mountain View Defendants, including Defendant DOE 6 Jessica Navarro, grossly failed to provide such care. SAC {5. During the relevant time period that Mrs. Felix was under the care of Mountain View Defendants, including their employees, officers and agents, Mrs. Felix’s feeding tube was improperly removed or dislodged. SAC {5. Thereafter, and also during the relevant time period that Mrs. Felix was under the care of Mountain View Defendants, including Defendant DOE 6 Jessica Navarro, the feeding tube was improperly reinserted or improperly repositioned in Mrs. Felix’s stomach as the tube was reinserted or repositioned onto Mrs. Felix’s abdominal wall. Id. As aresult, for an extended period which ended on July 22, 2016, during the relevant time period that Mrs. Felix was under the care of Mountain View Defendants, including Defendant DOE 6 Jessica Navarro, liquid feeding formulas, water and medications were improperly inserted into Mrs. Felix’s abdominal wall through the feeding tube. SAC ] 6. While Mrs. Felix was a patient at Mountain View Convalescent Hospital from February 3, 2016 through July 29, 2016, the Mountain View Defendants, including Defendant DOE 6 Jessica Navarro, failed to properly monitor such feedings and administrations of medications and failed to utilize the proper interventions and practices that were required by the standard of care for such facilities, by the care plan created for Mrs. Felix and by facilities’ own policies and procedures. SAC {7. The failures of the Mountain View Defendants, including Defendant DOE 6 Jessica Navarro, included: (a) failure to ensure appropriate placement of her feeding tube; (b) failure to detect that the feeding tube was not properly positioned; (c) failure to check the subject feeding tube for residual fluid contents that remain in the stomach; (d) failure to implement the facilities’ policies and procedures to confirm the placement of feeding tubes by checking the pH level of the feeding residual liquid; (e) failure to train nursing staff as to the facilities’ policies and procedures to confirm the placement of feeding tubes by checking the pH level of the feeding residual liquid; (f) failure to have the appropriate testing materials and equipment to carry out the facilities’ policies and procedures to confirm the placement of feeding tubes by checking the pH level of the feeding 5 PLAINTIFFS’ OPPOSITION TO DEFENDANT JESSICA NAVARRO’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES eo 0 N S nt A W N = NN O N N N N N N N O N E e em m m pm p m em R N N R W D D = o O R NT R W N = OD residual liquid; (g) failure to monitor Abigail Felix wellbeing so as to prevent infection; and (h) failure to detect obvious abdominal distention which was a clear sign of the misplacement of the feeding tube. SAC 7. Further, while Mrs. Felix was a patient at Mountain View Convalescent Hospital from February 3, 2016 through July 29, 2016, Mrs. Felix and her family, the present Plaintiffs, trusted and confided in the Mountain View Defendants, including Defendant DOE 6 Jessica Navarro, and consequently, believed and were assured that they would properly care for Mrs. Felix. SAC { 31. However, Mountain View Defendants, including Defendant DOE 6 Jessica Navarro, failed to provide Mrs. Felix with the needed services and assistance by, among other things: (a) not following, implementing, and adhering to all physician orders; (b) not protecting Mrs. Felix from sustaining injuries to her person; (¢) not monitoring and accurately recording Mrs. Felix’s condition in her medical records, and not notifying her attending physician and family members of any meaningful change in her condition; (d) not establishing, updating or implementing a patient care plan for Mrs. Felix, based upon an ongoing process of identifying her health care needs and making sure that such needs were timely met; (e) not accurately monitoring and providing for Mrs. Felix’s health, comfort and safety; (f) not maintaining accurate records of Mrs. Felix’s condition and activities; (g) not providing Mrs. Felix with appropriate medical and nursing care, equipment and supplies; (h) not maintaining trained, qualified, and licensed nursing and other staffing at levels adequate to meet Mrs. Felix’s needs; (i) not providing sufficient supervision to Mrs. Felix, a vulnerable patient, to ensure her safety; and (j) not treating Mrs. Felix with dignity and respect, and without abuse or neglect. Id. Because of the failures of the Mountain View Defendants, including Defendant DOE 6 Jessica Navarro, Mrs. Felix suffered a severe gastrostomy infection which resulted in a large abscess in her abdominal-rectus wall. SAC { 8. By the time the Mountain View Defendants, including Defendant DOE 6 Jessica Navarro, discovered her infection, Mrs. Felix’s condition was so advanced that emergency surgery had to be performed. SAC 9. That surgery found that the feeding tube had been improperly placed. Id. This large abscess resulted from the insertion of 6 PLAINTIFFS’ OPPOSITION TO DEFENDANT JESSICA NAVARRO’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES eo 0 N S nt A W N = NN O N N N N N N N O N E e em m m pm p m em R N N R W D D = o O R NT R W N = OD feeding liquids, water, and medications into Mrs. Felix’s abdominal wall. Id. The surgery removed four liters of purulent liquid material from her abdominal wall. Id. Mrs. Felix remained hospitalized in hospice care and eventually died on August 20, 2016. Id. From February 3, 2016 through July 29, 2016, Mrs. Felix was a patient at Mountain View Convalescent, where she was denied adequate and reasonable medical care and treatment by the Mountain View Defendants, including Defendant DOE 6 Jessica Navarro, causing her to suffer neglect, abuse, infection, and serious injuries, including but not limited to gastrostomy infection, malnutrition, gastrostomy malfunction, abscess in abdominal-rectus wall, and vomiting and fevers. SAC {21. Mrs. Felix eventually died from complications caused by the Mountain View Defendants, including their employees, officers and agents, denial of adequate and reasonable nursing and medical care at Mountain View. Id. In owning, operating, controlling, managing, supervising, and/or working at the subject facility, the Mountain View Defendants, including Defendant DOE 6 Jessica Navarro, were required to provide health care, room and board, 24-hour supervision, and personal care and assistance to the patients, including Mrs. Felix. SAC 23. The care and supervision of the Mountain View Defendants, including Defendant DOE 6 Jessica Navarro, included, among other things, the assistance with supplies, equipment, medication and personal care, assistance with instrumental activities of daily life and monitoring Mrs. Felix’s activities so as to ensure her health, safety and welfare. Id. III. ARGUMENT A. Standard of Review. The purpose of a demurrer is to test the sufficiency of the complaint, not to determine the likelihood of proving such facts. Accordingly, in ruling on a demurrer, this Court must accept as true all facts alleged by plaintiffs, even if such facts are unlikely or improbable. See Meyer v. Graphic Arts Int’l Union (1979) 88 Cal.App.3d 176. In addition, the test on demurrer is whether the complaint states any valid cause of action, even if it is not the one intended by plaintiffs. See 7 PLAINTIFFS’ OPPOSITION TO DEFENDANT JESSICA NAVARRO’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES eo 0 N S nt A W N = NN O N N N N N N N O N E e em m m pm p m em R N N R W D D = o O R NT R W N = OD Saunders v. Cariss (1990) 224 Cal.App.3d 905. A demurrer cannot be sustained if the complaint states facts sufficient to constitute a cause of action. See Carlin v. Superior Ct. (1996)13 Cal.4th 1104. B. Plaintiff Estate of Abigail Felix Has Pled Sufficient Facts to Support the First Cause of Action for Elder Abuse & Neglect — Willful Misconduct/Recklessness (Cal. Wel. & Inst. Code § 15600, ef seq.) Against Defendant DOE 6 Jessica Navarro. The Elder Abuse Act defines abuse as “[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering” or “[t]he deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” Cal. Wel. & Inst. Code §§ 15610.07(a), 15610.07(b) (emphasis added). The Act 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.” Cal. Wel. & Inst. Code § 15610.57(a)(1). “Neglect includes, but is not limited to, all of the following: (1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter. (2) Failure to provide medical care for physical and mental health needs. ...(3) Failure to protect from health and safety hazards. (4) Failure to prevent malnutrition or dehydration.” Id., Cal. Wel. & Inst. Code § 15610.57(b). In short, neglect as a form of abuse under the Elder Abuse Act refers “to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.” Delaney v. Baker (1999) 20 Cal.4th 23, 34. Thus, when the medical care of an elder is at issue, “the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783 — 786 (“statutory elder abuse may include the egregious withholding of medical care for physical and mental health needs 2). In order for conduct to constitute neglect within the meaning of the Elder Abuse Act and thereby trigger the enhanced remedies available under the Act, a plaintiff must at the pleading stage 8 PLAINTIFFS’ OPPOSITION TO DEFENDANT JESSICA NAVARRO’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES eo 0 N S nt A W N = NN O N N N N N N N O N E e em m m pm p m em R N N R W D D = o O R NT R W N = OD prove by clear and convincing evidence facts establishing that the defendant (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; and (3) denied or withheld goods or services necessary to meet the elder or dependent adult’s basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness). Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App.4th 396, 406-407. In crafting these five factors, the Carter court considered the following case examples: “—A skilled nursing facility (1) failed to provide an elderly man suffering from Parkinson’s disease with sufficient food and water and necessary medication; (2) left him unattended and unassisted for long periods of time; (3) left him in his own excrement so that ulcers exposing muscle and bone became infected; and (4) misrepresented and failed to inform his children of his true condition. (Covenant Care, supra, 32 Cal 4th at p. 778.) —An 88-year-old woman with a broken ankle “was frequently left lying in her own urine and feces for extended periods of time” and she developed pressure ulcers on her ankles, feet and buttocks that exposed bone, “despite plaintiff’s persistent complaints to nursing staff, administration, and finally, to a nursing home ombudsman.” (Delaney, supra, 20 Cal. 4th at pp. 27, 41.) —A facility caring for a dependent adult with a known condition causing progressive dementia, requiring nutrition and hydration through a gastrostomy tube, and subjecting her to skin deterioration, ignored a medical care plan requiring the facility to check the dependent adult’s skin on a daily basis and failed to notify a physician when pressure ulcers and other skin lesions developed. (Sababin, supra, 144 Cal. App.4th at pp. 83-87, 90.) —A 78-year-old man admitted to a skilled nursing facility “was abused, beaten, unlawfully restrained, and denied medical treatment.” (Smith, supra, 133 Cal. App.4th atp. 1512.) —The staff of a nursing home (1) failed to assist a 90-year-old, blind and demented woman with eating; (2) used physical and chemical restraints to punish the elder and prevent her from obtaining help; and (3) physically and emotionally abused the elder by bruising her, “withholding food and water, screaming at her, and threatening her.” (Benun v. Superior Court (2004) 123 Cal. App.4th 113, 116-117 [20 Cal. Rptr. 3d 26] (Benun).) —A skilled nursing facility (1) failed to provide adequate pressure relief to a 76-year- old woman with severe pain in her left leg and identified as at high risk for developing pressure ulcers; (2) dropped the patient; (3) left “her in filthy and unsanitary conditions”; and (4) failed to provide her the proper diet, monitor food intake and assist her with eating. (Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal. App.4th 426, 430, 434-435 [15 Cal. Rptr. 3d 315].) 9 PLAINTIFFS’ OPPOSITION TO DEFENDANT JESSICA NAVARRO’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES eo 0 N S nt A W N = NN O N N N N N N N O N E e em m m pm p m em R N N R W D D = o O R NT R W N = OD —A physician “conceal[ed] the existence of a serious bedsore on a nursing home patient under his care, oppose[d] her hospitalization where circumstances indicate[d] it [was] medically necessary, and then abandon[ed] the patient in her dying hour of need.” (Mack v. Soung (2000) 80 Cal. App.4th 966, 973 [95 Cal. Rptr. 2d 830] (Mack).)” Carter, supra, 198 Cal.App.4th 396, 405-406 (emphasis added). In the present case, the allegations pled in the Second Amended Complaint are sufficiently egregious to constitute neglect within the meaning of the Elder Abuse Act. Similar to the egregious conduct in Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 83-87, i.e., facility ignoring a medical care plan requiring the facility to check the dependent adult’s skin on a daily basis, the Mountain View Defendants, including Defendant DOE 6 Jessica Navarro, ignored their own policy and procedure titled “Confirming Placement of Feeding Tubes”. SAC { 34. The purpose of the policy “Confirming Placement of Feeding Tubes” was to ensure the proper placement of the feeding tube to prevent aspiration during feeding. SAC 34. The policy included the following method of checking the placement of the gastrostomy feeding tube: “4. Check pH of aspirate gastrostomy feeding tube. a. If feeding has been interrupted for a few hours, aspirate a small amount from the stomach or small bowel, observe the aspirate and then measure the pH (using the pH strips). (1) Fasting stomach acid will have a pH of five or less ... A pH of five or less suggest that the tube is placed in the stomach. However, a pH of six or greater is not definite of placement outside the stomach. If any of the above suggests improper tube positioning, do not administer feeding or medication. Notify the Charge Nurse or Physician.” SAC { 34. Notwithstanding, the Mountain View Defendants, including Defendant DOE 6 Jessica Navarro, failed to confirm that the feeding tubes were properly placed by checking the pH level of the feeding residual liquid as required by the Mountain View policy and procedure titled “Confirming Placement of Feeding Tubes”. SAC 32. The Mountain View Defendants further failed to have the appropriate testing materials and equipment available to its employees, agents, and officers to carry out the Mountain View’s policy and procedure titled “Confirming Placement of Feeding Tubes”. SAC 32. 10 PLAINTIFFS’ OPPOSITION TO DEFENDANT JESSICA NAVARRO’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES eo 0 N S nt A W N = NN O N N N N N N N O N E e em m m pm p m em R N N R W D D = o O R NT R W N = OD Like the egregious conduct in Covenant Care, supra, 32 Cal.4th 771, 778 and Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal. App.4th 426, 430, 434-435, 1.e., facilities failing to provide proper food, water and medication to incapacitated patients, the Second Amended Complaint also alleges egregious conduct pertaining to the severe malnutrition Mrs. Felix suffered while under the care of the Mountain View Defendants, including Defendant DOE 6 Jessica Navarro, SAC |] 21, 36. Finally, the conduct alleged in the Second Amended Complaint is analogous the egregious conduct alleged in Sababin, supra, 144 Cal.App.4th 81, 83-87, 90 pertaining to the failure to notify a physician when pressure ulcers and other skin lesions developed. Plaintiff Estate of Abigail Felix alleged that the Mountain View Defendants, including Defendant DOE 6 Jessica Navarro, failed to provide Mrs. Felix with the needed services and assistance by “[n]ot monitoring and accurately recording Abigail Felix’s condition in her medical records, and not notifying her attending physician and family members of any meaningful change in her condition.” SAC {31(c)(emphasis added). Based thereon, and because the facts pleaded in the complaint are assumed to be true, the Court should conclude that Plaintiff Estate of Abigail Felix has pled sufficient facts to establish the first cause of action for elder abuse and neglect pursuant to California Welfare & Institutions Code § 15600, et seq. as against Defendant DOE 6 Jessica Navarro. C. Plaintiffs Have Pled Sufficient Facts to Support Their Second Cause of Action for Unlawful & Deceptive Business Practices/ Unfair Competition (Cal. Bus. & Prof. Code §17200, et. seq.) Against Defendant DOE 6 Jessica Navarro. The Unfair Competition Law prohibits unfair competition, which includes any unlawful or unfair business act or practice. See Cal. Bus. Prof. Code § 17200 ef seq. A claim for “unlawful” conduct under the Unfair Competition Law may be supported by a violation of “‘any practices forbidden by law, be it civil or criminal, federal, state, or municipal, statutory, regulatory, or court- made.’” Stevens v. Superior Court (1999) 75 Cal. App.4th 594, 606 (1999) (quoting Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 838-839) (emphasis in original). In the Second Amended Complaint, Plaintiffs alleged that the Mountain View Defendants, 11 PLAINTIFFS’ OPPOSITION TO DEFENDANT JESSICA NAVARRO’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES eo 0 N S nt A W N = NN O N N N N N N N O N E e em m m pm p m em R N N R W D D = o O R NT R W N = OD including Defendant DOE 6 Jessica Navarro, engaged in conduct which violated the California Welfare Institutions Code § 15600, et seq., California Health & Safety Code § 1430, and numerous Code of Federal Regulations. SAC { 44. Plaintiffs further alleged as to the second cause of action for unlawful and deceptive business practices, that in owning, operating, controlling, managing, and/or supervising the Mountain View Defendants, including Defendant DOE 6 Jessica Navarro, held themselves out to the general public, including Mrs. Felix and her family, as being in compliance with all applicable federal and state laws and further advertisement on their website http://mviewch.com/ that: “Mountain View Convalescent Hospital is ideal for those who have been hospitalized for a sudden condition” and “specialize[d] in providing rehabilitation services on site and employ an in-house rehabilitation team to help our residents regain their prior independence and return to their home, if practicable.” SAC q{45, 46. However, this was a sham. The Mountain View Defendants, including Defendant DOE 6 Jessica Navarro, knew that Mountain View Hospital was not designed, administered, staffed, trained, supervised, monitored, equipped, or funded to comply with their legal responsibilities to provide adequate care to the patient. SAC {{47. One such shortcoming was the constant failure on the part of the Mountain View Defendants to have adequate supplies and equipment to satisfy the minimum legal standards, and lack of training, protocols and supplies to care for persons such as Mrs. Felix. Id. Plaintiffs alleged that prior to February 3, 2016 and through July 29, 2016, the Mountain View Defendants, including Defendant DOE 6 Jessica Navarro, intentionally, and deliberately conceived, developed, and implemented a plan to wrongfully increase their business profits, at the expense of patients such as Mrs. Felix, which was part of Defendants’ pattern and practice at many of its other facilities. SAC 50. Integral to this plan as the practice and pattern of undersupplying and under equipping Mountain View Convalescent Hospital and not having sufficient supplies. Id. By failing to provide competent and adequate nursing care, the Mountain View Defendants, including Defendant DOE 6 Jessica Navarro, have engaged in an unlawful and unfair business 12 PLAINTIFFS’ OPPOSITION TO DEFENDANT JESSICA NAVARRO’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES eo 0 N S nt A W N = NN O N N N N N N N O N E e em m m pm p m em R N N R W D D = o O R NT R W N = OD practice, in violation of California Business & Professions Code §§ 17200, et. seq. Further, Defendant DOE 6 Jessica Navarro’s conduct, as alleged by Plaintiffs in the Second Amended Complaint also constitute unfair competition, and as such Plaintiffs and those members of the general public similarly situated, are entitled to restitution of all funds paid to the present defendants by them or on their behalf. Based there on, this Court should deny Defendant DOE 6 Jessica Navarro’s Demurrer to Plaintiffs’ second cause of action for unlawful and deceptive business practices as alleged in their Second Amended Complaint. D. Plaintiffs Have Pled Sufficient Facts to Support Their Third Cause of Action for Wrongful Death (Medical Malpractice/Medical Damages). In the Second Amended Complaint, Plaintiffs Felipe Felix, George Felix, Elizabeth Felix, Cynthia Felix, Cesar Felix, and Michelle Felix alleged sufficient facts to support their third cause of action for wrongful death based on Mountain View Defendants’ professional negligence, i.e., medical malpractice. “The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305. The first element, standard of care, is the key issue in a malpractice action and can only be proved by expert testimony, unless the circumstances are such that the required conduct is within the layperson’s common knowledge. Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001. In those cases where a medical specialist is alleged to have acted negligently, the “specialist must possess and use the learning, care and skill normally possessed and exercised by practitioners of that specialty under the same or similar circumstances.” Carmichael v. Reitz (1971) 17 Cal.App.3d 958, 976. As for the employees and agents of Mountain View Defendants, including Defendant DOE 6 Jessica Navarro, most of whom were registered nurses and licensed vocational nurses, “[i]t is also established that a nurse’s conduct must not be measured by the standard of care required of a physician or surgeon, but by that of other nurses in the same or similar locality and under similar 13 PLAINTIFFS’ OPPOSITION TO DEFENDANT JESSICA NAVARRO’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES eo 0 N S nt A W N = NN O N N N N N N N O N E e em m m pm p m em R N N R W D D = o O R NT R W N = OD circumstances.” Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215. Just as with physicians and surgeons, however, “expert opinion testimony is required to prove that a defendant nurse did not meet the standard of care and therefore was negligent, ‘except in cases where the negligence is obvious to [laypersons]. Massey v. Mercy Medical Center Redding (2009) 180 Cal.App.4th 690, 694-695. Defendants seek to establish at the demurrer phase that Plaintiffs must prove causation “within a reasonable medical probability based upon expert testimony”. See Defendant DOE 6 Jessica Navarro’s Demurrer to Plaintiffs’ Second Amended Complaint, page 16, lines 8-12. Defendant’s legal arguments are wholly premature as we are not yet at the summary judgment phase of litigation. Plaintiffs’ Second Amended Complaint pleads sufficient facts in support of their wrongful death claim as against the Mountain View Defendants, including Defendant DOE 6 Jessica Navarro. Plaintiffs allege that from “from February 3, 2016 through July 29, 2016, Abigail Felix was a patient at the subject facility and was subject to the neglectful, abusive, intentional, reckless and/or negligent conduct, which resulted in injuries, including gastrostomy infection, malnutrition, gastrostomy malfunction, abscess in abdominal-rectus wall, vomiting and fevers.” SAC 60. Plaintiffs further allege that the Mountain View Defendants, including Defendant DOE 6 Jessica Navarro, engaged in the following acts and omissions which resulted in Mrs. Felix’s gastrostomy infection, malnutrition, gastrostomy malfunction, and an abscess in her abdominal-rectus wall resulting in her death: (a) Failure to ensure appropriate placement of her feeding tube; (b) Failure to detect that the feeding tube was not properly positioned; (c) Failure to check the subject feeding tube for residual fluid contents that remain in the stomach; (d) Failure to implement the facilities’ policies and procedures to confirm the placement of feeding tubes by checking the pH level of the feeding residual liquid; (e) Failure to train nursing staff as to the facilities’ policies and procedures to confirm the placement of feeding tubes by checking the pH level of the feeding residual liquid; (f) Failure to have the appropriate testing materials and equipment to carry out the facilities’ policies and procedures to confirm the placement of feeding tubes by checking the pH level of the 14 PLAINTIFFS’ OPPOSITION TO DEFENDANT JESSICA NAVARRO’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES eo 0 N S nt A W N = NN O N N N N N N N O N E e em m m pm p m em R N N R W D D = o O R NT R W N = OD feeding residual liquid; (g) Failure to monitor Abigail Felix wellbeing so as to prevent infection; and (h)Failure to detect obvious abdominal distention which was a clear sign of the misplacement of the feeding tube. SAC 61, 62. Further, Plaintiffs alleged that the Mountain View Defendants, including Defendant DOE 6 Jessica Navarro, negligently and carelessly failed to competently assess and treat Abigail Felix’s physical and mental conditions; negligently and carelessly failed to exercise the proper degree of knowledge and skill in examining, diagnosing, treating and caring for Abigail Felix, and negligently failed to contact, consult or refer her to safe and competent specialists, physicians and/or health care providers, among other things. SAC 66. Lastly, and relevant to Defendants’ causation argument, Plaintiffs alleged that had the Mountain View Defendants, including Defendant DOE 6 Jessica Navarro, properly rendered medical care and treatment to Abigail Felix, she would not have developed a gastrostomy infection, malnutrition, gastrostomy malfunction, and an abscess in abdominal-rectus wall and she would not have died. SAC | 64, 70. Based thereon, and because the facts pleaded in the complaint are assumed to be true, the Court should conclude that Plaintiff Estate of Abigail Felix has pled sufficient facts to establish the third cause of action for Wrongful Death as against Defendant DOE 6 Jessica Navarro. E. In the Alternative, Plaintiffs Respectfully Request the Court’s Leave to Amend Their Complaint. The Code of Civil Procedures grants that court liberal authority to permit a plaintiff to amend a complaint. See Cal. Civ. Proc. Code §§472, 472a, 473, 576. Where there is a reasonable possibility an amendment will cure a defective pleading, it is ordinarily an abuse of discretion to deny party the chance to cure the defect. Greenburg v. Equitable Life Assur. Society (1973) 34 Cal.App.3d 994, 998. As stated above, Plaintiffs have sufficiently alleged facts in the Second Amended Complaint to allege causes of action for elder abuse and neglect, unlawful and deceptive business practices and unfair competition and wrongful death. Notwithstanding, should the Court find merit in the present Defendant’s arguments as to the sufficiency of the allegations in the Second Amended Complaint, Plaintiffs hereby request this Court’s leave to amend their complaint. 15 PLAINTIFFS’ OPPOSITION TO DEFENDANT JESSICA NAVARRO’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES eo 0 N S nt A W N = NN O N N N N N N N O N E e em m m pm p m em R N N R W D D = o O R NT R W N = OD IV. CONCLUSION For all the reasons set forth herein, together with the record of this case, Plaintiffs respectfully submit that Defendant Jessica Navarro’s Demurrer should be denied. Dated: February 28, 2019 “0 & ARSCICIATES by onisae, O Hitieom DENISSE O. GASTELUM ARNOLDO CASILLAS Attorneys for Plaintiffs, ESTATE OF ABIGAIL FELIX, by and through successors in interest, Felipe Felix, George Felix, Cynthia Felix, Elizabeth Felix, Cesar Felix and Michelle Felix; FELIPE FELIX, GEORGE FELIX, CYNTHIA FELIX, ELIZABETH FELIX CESAR FELIX and MICHELLE FELIX, individually and as successors in interest 16 PLAINTIFFS’ OPPOSITION TO DEFENDANT JESSICA NAVARRO’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES