Padilla vs. Del Rosa Villaidence et al

TENTATIVE RULING(S) FOR August 27, 2026 Department S37 – Judge Winston Keh This court follows California Rules of Court, rule 3.1308(b) for tentative rulings. (See San Bernardino Superior Court Local Emergency Rule 8.) Tentative rulings for each law & motion will be posted on the internet (https://www.sb-court.org) by 3:00 p.m. on the court day immediately before the hearing.

You may appear in person at the hearing although remote appearance by CourtCall is preferred. (See www.sb-court.org/general-information/remote-access).

If you do not have Internet access or if you experience difficulty with the posted tentative ruling, you may obtain the tentative ruling by calling the department (S-37) at (909) 708-8707 or the Administrative Assistant (909) 708-8756, who prepared the ruling.

If you (or both parties) wish to submit on the Tentative, notify the other party and call the department by 4:00 pm the day before and your appearance may be excused unless the Court orders you to appear.

You must appear at the hearing if you are so directed by the court in the tentative ruling. Be prepared to address those issues set forth by the court in its ruling.

UNLESS OTHERWISE NOTED, THE PREVAILING PARTY IS TO GIVE NOTICE OF THE

RULING.

Padilla vs. Del Rosa Villaidence et al (1 of 2)

__________________________________________________________________________

MOTION TO STRIKE OR TAX COSTS

Analysis

Plaintiff separately moves to strike or tax the memoranda of costs filed by dismissed Defendants

Providence Group, Inc., Providence Group of Southern California, LLC, and 2018 N. Del Rosa

Avenue Propco, LLC.

The original memoranda sought identical or substantially identical costs, and Plaintiff argued that

permitting each dismissed Defendant to recover the same jointly incurred expenses would result

in an impermissible multiple recovery. Plaintiff’s motion identifies deposition, service, and

interpreter expenses among the challenged items.

At the August 4, 2026 hearing, the Court found that the memoranda of costs filed by 2018 N. Del

Rosa Avenue Propco, LLC and Providence Group of Southern California, LLC had been

withdrawn. The motion was therefore moot as to those Defendants. The Court ordered

Providence Group, Inc. to file a supplemental memorandum of costs with supporting exhibits or

invoices and permitted Plaintiff to renew its challenge if necessary. The matter was continued to

August 27, 2026.

Accordingly, the only remaining cost issue is Providence Group, Inc.’s memorandum of costs.

A dismissed defendant qualifies as a prevailing party for purposes of Code of Civil Procedure

section 1032 and ordinarily is entitled to allowable costs. Plaintiff’s argument that all costs must

be stricken merely because Providence Group participated in a joint defense is too broad. Filing

fees, necessary deposition costs, service expenses, and qualifying interpreter costs are

potentially allowable under Code of Civil Procedure section 1033.5.

The issue, therefore, is not whether Providence Group was entitled to seek costs, but whether

the particular costs claimed were actually incurred by Providence Group and were reasonably

necessary to its defense.

Shared representation does not permit several defendants to recover the same expense multiple

times. Charton v. Harkey (2016) 247 Cal.App.4th 730, 743-744, makes clear that jointly

represented prevailing parties do not lose their entitlement to costs, but the trial court must

examine whether shared costs were actually incurred for the prevailing defendant and were

reasonably necessary; neither automatic duplication nor mechanical per-capita allocation is

appropriate.

Thus, Providence Group’s participation in a joint defense does not, standing alone, establish that

the costs it claims are unrecoverable. At the same time, Providence Group must establish its

entitlement to the particular costs claimed. Where, as here, Plaintiff challenges shared expenses

as potentially duplicative, the Court must have a sufficient evidentiary basis to determine that the

claimed expenses were actually incurred for Providence Group and were reasonably necessary

to its defense.

In Plaintiff’s Notice of Non-Opposition, Plaintiff cites “California Rules of Conduct rule 8.54(c),”

apparently intending to cite California Rules of Court, rule 8.54(c), and argues that Providence

Group, Inc.’s failure to oppose constitutes consent to granting the motion. Rule 8.54(c), however,

governs appellate motion practice and does not apply to motions in the superior court. Non-

opposition does not eliminate this Court’s obligation to determine whether claimed costs are

allowable.

The Court’s August 4, 2026 minute order provided Providence Group with an express

opportunity to substantiate its claimed costs. The Court ordered Providence Group, Inc. to file a

supplemental memorandum of costs with supporting exhibits and/or invoices. That order

afforded Providence Group an opportunity to address Plaintiff’s contention that certain expenses

were jointly incurred and potentially duplicative and to provide documentation establishing its

entitlement to those costs. As of August 24, 2026, Providence Group has not filed the

supplemental memorandum or supporting documentation. The record therefore remains limited

to Providence Group’s original memorandum of costs.

Providence Group’s original memorandum seeks $3,361.47, consisting of $935 in filing and

motion fees, $1,854.19 in deposition costs, $347.28 in service of process costs, and $225 in

interpreter fees.

The $935 in filing and motion fees is attributable to Providence Group’s answer and motion for

summary judgment and constitutes an allowable category of costs. Plaintiff has not established a

sufficient basis on the present record to tax that amount.

The remaining expenses—$1,854.19 in deposition costs, $347.28 in service of process costs,

and $225 in interpreter fees—require a different analysis. Plaintiff specifically challenged these

expenses as duplicative costs associated with the joint defense of multiple defendants. In

response to that challenge, the Court gave Providence Group an opportunity to substantiate the

expenses through a supplemental memorandum and supporting documentation.

Providence Group did not do so.

As a result, the present record does not establish that the $1,854.19 in deposition costs, $347.28

in service costs, and $225 interpreter fee were actually incurred on behalf of Providence Group

rather than being expenses incurred jointly for multiple defendants. Nor does the present record

permit the Court to determine what portion, if any, of those expenses was reasonably necessary

to Providence Group’s individual defense. The Court therefore does not conclude that

deposition, service, or interpreter expenses incurred in a joint defense are categorically

unrecoverable. Rather, the Court taxes the challenged expenses because Providence Group,

after being expressly afforded an opportunity to substantiate them, has failed to provide sufficient

documentation establishing its entitlement to recover them.

Accordingly, Plaintiff’s Motion to Strike or Tax Costs is GRANTED IN PART as to Providence

Group, Inc. The Court taxes $1,854.19 in deposition costs, $347.28 in service of process costs,

and $225 in interpreter fees, for a total reduction of $2,426.47. The Court allows the $935 in filing

and motion fees.

RULING

The Court rules as follows:

1. As to Defendants 2018 N. Del Rosa Avenue Propco, LLC and Providence Group of

Southern California, LLC, Plaintiff’s Motion to Strike or Tax Costs is MOOT because

those Defendants withdrew their respective Memoranda of Costs.

2. As to Defendant Providence Group, Inc., Plaintiff’s Motion to Strike and/or Tax Costs is

GRANTED IN PART.

3. Providence Group, Inc. has not filed the supplemental Memorandum of Costs or

supporting documentation as ordered by the Court on August 4, 2026.

4. The Court TAXES $1,854.19 in deposition costs, $347.28 in service of process costs,

and $225 in interpreter fees, for a total reduction of $2,426.47.

5. The Court ALLOWS $935 in filing and motion fees.

6. Accordingly, of Providence Group, Inc.’s original memorandum of costs totaling

$3,361.47, the Court allows $935 and taxes $2,426.47.

TENTATIVE RULING(S) FOR August 27, 2026 Department S37 – Judge Winston Keh This court follows California Rules of Court, rule 3.1308(b) for tentative rulings. (See San Bernardino Superior Court Local Emergency Rule 8.) Tentative rulings for each law & motion will be posted on the internet (https://www.sb-court.org) by 3:00 p.m. on the court day immediately before the hearing.

You may appear in person at the hearing although remote appearance by CourtCall is preferred. (See www.sb-court.org/general-information/remote-access).

If you do not have Internet access or if you experience difficulty with the posted tentative ruling, you may obtain the tentative ruling by calling the department (S-37) at (909) 708-8707 or the Administrative Assistant (909) 708-8756, who prepared the ruling.

If you (or both parties) wish to submit on the Tentative, notify the other party and call the department by 4:00 pm the day before and your appearance may be excused unless the Court orders you to appear.

You must appear at the hearing if you are so directed by the court in the tentative ruling. Be prepared to address those issues set forth by the court in its ruling.

UNLESS OTHERWISE NOTED, THE PREVAILING PARTY IS TO GIVE NOTICE OF THE

RULING.

Padilla vs. Del Rosa Villaidence et al (2 of 2)

__________________________________________________________________________

TENTATIVE RULING

I. FACTUAL AND PROCEDURAL BACKGROUND

On February 20, 2024, Plaintiff Jose Sencion Padilla filed this action against Defendants Del

Rosa Villa, LLC (dismissed); Del Rosa Villaidence Opco, LLC (Defendant or “Del Rosa”);

Providence Group of Southern California, LLC (dismissed); Providence Group, Inc. (dismissed);

and 2018 N. Del Rosa Avenue Propco, LLC (dismissed). Plaintiff asserts causes of action for (1)

elder abuse and neglect, (2) statutory violations of the Patient Bill of Rights, and (3) wrongful

death.

Plaintiff, on behalf of decedent Maria Sencion, alleges that between September 4, 2022 and

September 6, 2022, Defendants failed to provide adequate staffing, appropriate diet and feeding

assistance, monitoring for choking, and timely medical intervention, and failed to follow physician

orders and document changes in Ms. Sencion’s condition. (Compl. ¶¶ 12-23.) Plaintiff alleges

that, as a result of these omissions, Ms. Sencion was left unattended, given improper food, and

ultimately choked to death. (Compl. ¶¶ 24-27.)

Del Rosa now moves for summary judgment or, alternatively, summary adjudication of each

cause of action and Plaintiff’s prayer for punitive damages.

The motion was originally scheduled for hearing on May 4, 2026. Plaintiff thereafter applied ex

parte for a continuance to permit additional discovery, including depositions Plaintiff contended

were necessary to oppose the motion. On April 30, 2026, the Court granted the application, took

the May 4 hearing off calendar, and continued the motion to August 4, 2026. The motion was

subsequently reset to August 27, 2026. Plaintiff opposes and Defendant replies.

II. EVIDENTIARY OBJECTIONS

A. Plaintiff’s Objections to Lyndsay Sklenka’s Declaration

Plaintiff objects to Sklenka’s authentication of Exhibits A through E and separately objects to the

Del Rosa, AMR, and hospital records as hearsay lacking a business-records foundation. Plaintiff

also objects derivatively to material facts and expert opinions that rely upon those records. (Pl.’s

Evid. Obj. Nos. 1-3.)

Although Sklenka is Defendant’s counsel rather than a records custodian, the supplemental

record establishes that Defendant produced the Del Rosa, St. Bernardine, and AMR records to

Plaintiff in discovery, and Plaintiff independently submitted and relied upon those same records

in opposing the motion. (Apodaca Decl. ¶¶ 13, 16-17.)

Plaintiff relies on Garibay v. Hemmat (2008) 161 Cal.App.4th 735 (Garibay), where the

defendant’s expert relied upon medical records and an operative note that were not in evidence

or otherwise properly before the trial court. The Court of Appeal held that, absent those records

and an adequate evidentiary foundation for the facts upon which the expert relied, the defendant

failed to satisfy its initial burden on summary judgment. (Id. at pp. 742-743.)

The circumstances here are materially different. The records before the Court were produced by

Defendant during discovery, and were submitted and relied upon by Plaintiff. Plaintiff therefore

does not meaningfully dispute that these are the records produced in this litigation. Moreover,

Plaintiff’s generalized hearsay objection does not identify particular statements within the

records that lack an applicable exception or otherwise require exclusion.

Accordingly, Garibay does not require exclusion of the records or of Dr. Steinke’s opinions based

upon them. An expert may rely upon materials reasonably considered in forming an opinion,

although that reliance does not independently establish the admissibility for their truth of every

case-specific statement contained within those materials.

The Court OVERRULES Plaintiff’s Evidentiary Objections Nos. 1-3.

B. Plaintiff’s Objections to Dr. Gary W. Steinke’s Declaration

Plaintiff’s amended objections principally challenge Dr. Steinke’s qualifications and foundation,

his reliance on medical records, and the reasoning supporting his standard-of-care and

causation opinions.

Dr. Steinke is a licensed physician who establishes experience with geriatric patients and skilled

nursing facilities and sufficient familiarity with the applicable standard of care. The challenges to

the factual basis and persuasiveness of his opinions generally concern the weight to be afforded

the opinions rather than their admissibility.

The Court OVERRULES Objections Nos. 1-7 and 9.

As to Objection No. 8, the Court SUSTAINS the objection to Dr. Steinke’s statement in

paragraph 29 that there is “no merit whatsoever” to Plaintiff’s elder abuse and neglect claims.

Whether the evidence establishes a statutory cause of action for elder abuse or neglect is a

legal determination for the Court and, where appropriate, the trier of fact. It is not a proper

subject for expert opinion.

As to Objection No. 10, the Court SUSTAINS the objection to Dr. Steinke’s opinion in paragraph

31 that Defendant did not violate Health and Safety Code section 1430 or applicable regulatory

standards. Dr. Steinke may testify concerning the applicable standard of care and the care

provided to Ms. Sencion, but he may not offer a legal conclusion concerning whether Defendant

violated a statute or regulation.

C. Defendant’s Objections to George Barnes’s First Amended Declaration

Defendant asserts 25 objections to the First Amended Declaration of Plaintiff’s expert, George

Barnes, MS, CCC-SLP, BCS-S. Although Defendant’s July 24, 2026 filing is captioned as

objections to the “Declaration of George Barnes,” the objections are directed to Barnes’s First

Amended Declaration filed July 15, 2026, as demonstrated by Objections Nos. 23-25, which

address opinions newly added in paragraphs 45-47.

The objections also contain several paragraph-numbering errors. The Court therefore rules upon

the numbered objections and the testimony actually challenged, rather than the paragraph

numbers stated in Defendant’s filing.

The First Amended Declaration supplies greater foundation than the declaration previously

before the Court. Barnes is a licensed speech language pathologist, is board certified in

swallowing and swallowing disorders, has more than a decade of clinical experience involving

dysphagia and medically complex patients, and has worked in subacute care, acute

rehabilitation, critical illness recovery, and interdisciplinary clinical settings. (Barnes Am. Decl. ¶¶

6-7, 10, 12-15.) His curriculum vitae is attached.

The Court finds that Barnes possesses sufficient expertise to offer opinions concerning

dysphagia, swallowing function, aspiration and choking risk, feeding safety, and related

dysphagia management.

Objection No. 1: OVERRULED. Barnes establishes sufficient education, training, certification,

and experience to testify within his identified areas of expertise.

Objection No. 2: SUSTAINED. Barnes’s statement that he has never had his opinions excluded

or been excluded or limited as an expert witness is not relevant to whether his opinions in this

case are admissible.

Objections Nos. 3-11: OVERRULED. The challenged opinions concern dysphagia, airway

compromise, and the education, certification, clinical experience, and professional background

supporting Barnes’s expertise.

Objections Nos. 12-15: OVERRULED. The challenged opinions concern whether Ms. Sencion

experienced dysphagia-related choking, whether the identified risks warranted an SLP

consultation or swallowing evaluation, and whether such an evaluation could have been pursued

despite her COVID-19 status. These subjects fall within Barnes’s demonstrated expertise.

Objection No. 16: SUSTAINED IN PART. Barnes may testify concerning safe feeding practices,

recognition of dysphagia and aspiration, and individualized feeding strategies. The objection is

sustained as to the statements: “Ms. Olivia Hall’s admitted lack of training since 1998 is an

egregious violation of these CMS and DHHS requirements” and “This reveals an institutional

disregard for the essential training standards required to protect resident health and safety at Del

Rosa Villa—a failure originating from the highest levels of management.” The first statement

constitutes an improper legal conclusion, and the second attributes an institutional state of mind

beyond Barnes’s clinical expertise. The objection is otherwise overruled.

Objections Nos. 17-18: OVERRULED. Barnes may explain the clinical significance of

communication, documentation, and medical history to the assessment and management of

dysphagia and swallowing risk.

Objection No. 19: SUSTAINED IN PART. Barnes may testify concerning the clinical importance

of obtaining a patient’s baseline swallowing and choking history. The objection is sustained as to

the phrase “making it a regulatory standard” and the statements: “Either Mrs. Sencion’s

swallowing issues came up during these discussions, and it was never documented and never

addressed or the discussion never took place. In both of these scenarios, it shows the team at

Del Rosa Villa acted below the standard of care.” The former is an improper legal conclusion;

the latter is speculative because Barnes lacks personal knowledge concerning which event

occurred. The objection is otherwise overruled.

Objection No. 20: OVERRULED. Barnes identifies specific discrepancies between the accounts

and the contemporaneous AMR and hospital records.

Objection No. 21: SUSTAINED IN PART. Barnes may compare the original and subsequent

entries and explain the clinical significance of the differences. The objection is sustained only as

to the phrase “seemingly to change the way the incident is perceived,” because Barnes lacks

personal knowledge concerning the purpose or intent behind any modification. The objection is

otherwise overruled.

Objection No. 22: SUSTAINED IN PART. Barnes may explain signs of dysphagia,

circumstances warranting an SLP referral or swallowing evaluation, and appropriate feeding

precautions. The objection is sustained only as to the statement: “This underscores a facility

culture that prioritized minimal training over individual patient safety.” That statement improperly

attributes an institutional state of mind beyond Barnes’s clinical expertise. The objection is

otherwise overruled.

Objection No. 23: OVERRULED. Barnes’s expertise in dysphagia, swallowing, airway

protection, and choking, together with his clinical experience with medically complex patients,

provides sufficient foundation for the challenged opinions concerning recognition and response

to a choking event.

Objection No. 24: SUSTAINED. Barnes’s opinion that the care provided represented a

“systemic breakdown of basic support” extends beyond his demonstrated expertise in dysphagia

and swallowing care.

Objection No. 25: SUSTAINED IN PART. Barnes may testify concerning the texture and

consistency of the food served and whether chopped rather than ground chicken was consistent

with the prescribed soft diet. The objection is sustained as to the statements: “Ms. Sencion was

also not supposed to be provided with potatoes, being on a renal diet” and “The inclusion of at

least two food items inconsistent with her dietary orders strongly suggests that Ms. Sencion was

served the wrong tray for the lunch meal during which she choked.” Barnes has not established

expertise in renal nutrition. The objection is otherwise overruled.

D. Defendant’s Objections to the Declarations of Ruben Sencion and Olga Sencion

Defendant previously objected to the Declarations of Ruben Sencion and Olga Sencion

submitted with Plaintiff’s original opposition. Plaintiff relies upon the same declarations and

testimony in the First Amended Opposition and Amended Separate Statement.

Defendant’s objection to the Declaration of Ruben Sencion is OVERRULED. His material

testimony concerning Ms. Sencion’s diet, swallowing history, and his communications with Del

Rosa is based upon personal knowledge.

Defendant’s objection to the Declaration of Olga Sencion is OVERRULED. Her material

testimony concerning Ms. Sencion’s diet and swallowing history is based upon personal

knowledge as her caregiver.

III. UNDISPUTED AND DISPUTED MATERIAL FACTS

Ms. Sencion, an 81-year-old patient with significant comorbidities, including pneumonia, COVID-

19, end-stage renal disease requiring dialysis, diabetes, atrial fibrillation, and a prior stroke, was

admitted to Del Rosa on September 4, 2022, following hospitalization. (UFs 4-5.)

Plaintiff does not materially dispute Ms. Sencion’s admission or underlying conditions. Plaintiff

does, however, present evidence that Ms. Sencion had longstanding swallowing difficulties

following her stroke, required a pureed or liquified diet for approximately seven years, and had

previously choked on non-pureed food. Plaintiff contends Del Rosa failed to obtain this history

from family and failed to perform a swallowing evaluation or dysphagia screening despite

multiple risk factors for aspiration. (AFs 1-21.)

Defendant contends Ms. Sencion was appropriately assessed upon admission, required only

partial assistance with feeding, and was placed on a physician-ordered no-salt-added renal,

mechanical-soft diet with thin liquids, with no documented swallowing problem before September

6. (UFs 6-12, 21-27.)

Plaintiff disputes the adequacy of that assessment and care planning. Plaintiff also presents

evidence that Del Rosa failed to provide or document appropriate care for Ms. Sencion’s active

COVID-19 infection, including evidence that a COVID-monitoring order was not entered until

September 8, two days after her death. (AFs 9-26.)

Plaintiff further disputes that Del Rosa appropriately assessed Ms. Sencion’s dietary needs or

complied with her physician’s diet order. Plaintiff presents evidence that no dietary assessment

or profile card was completed, that Defendant produced no meal-intake or feeding records

documenting what Ms. Sencion was served or consumed, and that the September 6 meal may

not have complied with the ordered mechanical-soft and renal diet. Plaintiff also presents

testimony concerning whether the chicken served should have been ground rather than chopped

and whether the meal presented a choking or aspiration risk. Plaintiff contends CNA Olivia Hall

had not reviewed Ms. Sencion’s diet order and lacked recent training in proper feeding

techniques. (AFs 27-48.)

On September 6, 2022, Ms. Sencion developed difficulty swallowing while being fed. Defendant

asserts that staff repositioned her, prepared to perform the Heimlich maneuver, suctioned her,

administered oxygen, initiated CPR when she became unresponsive, and transported her to the

hospital. Defendant further asserts that Ms. Sencion expelled food from her mouth and that no

airway obstruction was observed upon intubation. (UFs 13-20.)

Plaintiff disputes the adequacy of that response and relies upon testimony concerning the

choking event, interventions that were and were not performed, Defendant’s choking-response

policy, and staff training. (AFs 49-54.)

Causation is sharply disputed. Defendant relies upon Dr. Steinke’s opinion that Ms. Sencion did

not die from choking and that no act or omission by Del Rosa caused or contributed to her

death. Plaintiff relies upon Barnes’s contrary opinions concerning dysphagia-related airway

compromise, together with the death certificate, AMR records, and St. Bernardine records

documenting aspiration, dysphagia, choking, and a foreign body in the respiratory tract. (AFs 55-

57.)

Plaintiff also identifies alleged deficiencies and inconsistencies in Del Rosa’s post-incident

documentation, including differences between Barrios’s original and subsequent entries,

statements concerning whether paramedics restored a pulse, later documentation reflecting no

swallowing disorder or difficulty, and alleged gaps in meal, medication, and skilled-charting

records. (AFs 58-71.)

Finally, Plaintiff presents evidence concerning Director of Nursing Tina Arteaga’s authority over

staffing, policy compliance, hiring, discipline, and training; CNA staffing levels on September 6;

and a CDPH deficiency issued approximately one month before Ms. Sencion’s death concerning

compliance with abuse-reporting procedures. (AFs 72-74.)

IV. LEGAL STANDARD

Summary judgment is appropriate only where the papers submitted demonstrate that there is no

triable issue as to any material fact and the moving party is entitled to judgment as a matter of

law.

A defendant moving for summary judgment bears the initial burden of showing that one or more

elements of the plaintiff’s cause of action cannot be established or that there is a complete

defense. Once that burden is met, the burden shifts to the plaintiff to demonstrate the existence

of a triable issue of material fact.

The Court does not weigh competing evidence or resolve credibility disputes on summary

judgment. Rather, the evidence must be viewed in the light most favorable to the nonmoving

party, and all reasonable inferences must be drawn in that party’s favor.

With those principles in mind, the Court addresses each issue presented by the motion.

V. DISCUSSION

1. First Cause of Action — Elder Abuse and Neglect

The abuse of an elder or dependent adult under the Elder Abuse and Dependent Adult Civil

Protection Act (“Act”) includes neglect. (Welf. & Inst. Code, § 15610.07, subd. (a)(1).)

A neglect elder abuse claim requires: (1) that the defendant had care or custody of the plaintiff,

(2) that the plaintiff was an elder or dependent adult while in the defendant’s care or custody, (3)

that the defendant failed to use the degree of care that a reasonable person in the same

situation would have used, (4) that the defendant’s conduct harmed the plaintiff, and (5) that the

defendant’s conduct was a substantial factor in causing the plaintiff’s harm. (CACI 3103; see

also Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-07.)

Neglect is not merely the failure to provide the knowledge, skill, and care possessed by other

nurses of a hospital; rather, it concerns the failure to provide basic needs and comfort to a

dependent adult. (Delaney v. Baker (1999) 20 Cal.4th 23, 34.)

Neglect may include failure to assist with personal hygiene or provide food, clothing, or shelter;

failure to provide medical care for physical and mental health needs; failure to protect against

health and safety hazards; and failure to prevent malnutrition or dehydration. (Welf. & Inst. Code,

§ 15610.57, subd. (b)(1)-(4).)

There is no dispute that Ms. Sencion was an elder and dependent adult residing in a skilled

nursing facility and receiving custodial care.

A. Neglect

The principal issue is whether the evidence, viewed in Plaintiff’s favor, permits a finding that Del

Rosa failed to provide basic custodial care, as opposed to merely providing care that Plaintiff

contends fell below the professional standard of care.

Defendant relies upon evidence that Ms. Sencion was assessed upon admission, placed on a

physician-ordered mechanical-soft diet, and monitored during her stay. (UFs 6-12, 21-27.)

Defendant further relies upon evidence that, after Ms. Sencion exhibited difficulty swallowing on

September 6, staff repositioned her, prepared to perform the Heimlich maneuver, suctioned her,

administered oxygen, and initiated CPR when she became unresponsive. (UFs 13-20.)

Defendant also presents evidence that Ms. Sencion expelled food from her mouth and that no

airway obstruction was observed upon intubation. (UFs 18-20.)

Dr. Steinke opines that Del Rosa’s conduct did not fall below the applicable standard of care and

did not cause or contribute to Ms. Sencion’s death, and that her death resulted from

cardiopulmonary arrest rather than choking. (Steinke Decl. ¶¶ 28, 30.)

Plaintiff, however, presents evidence supporting a materially different account of the care

provided.

Plaintiff’s expert, George Barnes, identifies multiple pre-existing aspiration and dysphagia risk

factors, including prior stroke, recurrent pneumonia, cardiopulmonary disease, malnutrition,

cognitive impairment, and feeding dependence, yet no speech-language pathology consultation

or swallowing evaluation was ordered. (Barnes Decl. ¶ 36.)

Plaintiff also presents evidence that Ms. Sencion had required a fully pureed diet for years and

had previously choked on non-pureed food, but that Del Rosa allegedly failed to obtain this

information from family upon admission. (Olga Sencion Decl. ¶¶ 6-7, 9; Ruben Sencion Decl. ¶¶

6-7, 9-10.) Barnes further opines that, given Ms. Sencion’s swallowing and choking risk factors,

Del Rosa should have obtained an SLP consultation or performed a swallowing evaluation or

screening. (Barnes Decl. ¶¶ 36, 44(a).)

This evidence is sufficient to create a triable issue. A reasonable trier of fact could conclude that

the alleged failures were not limited to a disagreement concerning a professional medical

judgment but instead involved the provision of basic custodial necessities to a highly dependent

resident—including safe feeding, appropriate monitoring, and protection from a known health

and safety hazard.

Plaintiff additionally relies upon evidence concerning alleged failures in feeding assistance and

staff training (AFs 42-48), the response to the choking event (AFs 49-54), and the absence of

adequate documentation concerning Ms. Sencion’s meals and care.

Defendant relies upon Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th

396, and Cochrum v. Costa Victoria Healthcare, LLC (2018) 25 Cal.App.5th 1034. Plaintiff

distinguishes Carter as a pleading-stage case and Cochrum as involving a resident who

received care for 19 days, underwent a bedside swallowing evaluation, and was periodically

monitored while eating.

The Court need not determine at this stage whether Plaintiff will ultimately prove elder neglect.

The question is whether the evidence presents a triable issue. Plaintiff’s evidence concerns

multiple alleged failures involving assessment, diet, feeding, training, monitoring, and emergency

response during Ms. Sencion’s admission. Those allegations, if proven, could support a finding

that Del Rosa failed to provide basic custodial care.

Accordingly, the Court finds a triable issue of material fact as to whether Defendant’s conduct

constituted neglect under the Act.

B. Mandatory Reporter Argument

Defendant argues that no mandated reporter identified or reported suspected abuse or neglect

and contends that the absence of a report demonstrates that no elder abuse occurred.

The argument is not dispositive. The reporting statute is triggered by a “reasonable suspicion”

standard. (Welf. & Inst. Code, § 15630, subd. (b)(1).) That standard does not require proof that

abuse or neglect actually occurred, nor does it determine whether the underlying conduct

ultimately constituted actionable neglect.

The statutory reporting obligation is therefore distinct from the elements of liability under the

Elder Abuse Act. Whether a mandated reporter possessed reasonable suspicion sufficient to

trigger a reporting obligation is different from whether the evidence establishes that Defendant

failed to provide necessary care.

The absence of a report may be considered with other evidence, but it does not establish as a

matter of law that neglect did not occur.

C. Conclusion as to Elder Abuse

The evidence presents two materially different factual accounts. Defendant presents evidence of

appropriate care and a non-choking cardiac death. Plaintiff presents evidence of multiple alleged

failures in basic custodial care involving a highly vulnerable, dependent resident with significant

swallowing and aspiration risk.

Because a reasonable trier of fact could find that Defendant failed to provide necessary care and

that such conduct caused harm, summary adjudication of the first cause of action is not

warranted.

Thus, the Court DENIES summary adjudication as to the first cause of action.

2. Second Cause of Action — Statutory Violations of the Patient Bill of Rights

Health & Safety Code section 1430, subdivision (b), provides that a “current or former resident or

patient, or the legal representative, personal representative, or successor in interest ... may

bring a civil action against the licensee of a facility who violates any rights of the resident or

patient as set forth in Section 72527 or 73523 of Title 22 of the California Code of Regulations,

or any other right provided for by federal or state law or regulation.”

Defendant contends Plaintiff has not presented competent evidence establishing a violation of a

protected patient right.

The argument depends largely upon Defendant’s position that the underlying care was

appropriate. As discussed above, however, triable issues of material fact exist concerning the

adequacy of Ms. Sencion’s assessment, diet, feeding assistance, monitoring, emergency

response, and documentation.

Plaintiff identifies alleged violations arising from that disputed care, including rights relating to

participation in care planning, receipt of ordered services, a safe environment, freedom from

neglect, and accurate records.

On this record, Defendant has not established as a matter of law that Plaintiff cannot prove a

violation of a protected statutory or regulatory right.

The Court therefore DENIES summary adjudication as to the second cause of action.

3. Third Cause of Action — Wrongful Death

Defendant contends the wrongful death claim fails because no act or omission by Del Rosa was

a substantial factor in causing Ms. Sencion’s death.

The elements of a medical malpractice claim are: “‘(1) the duty of the professional to use such

skill, prudence, and diligence as other members of his profession commonly possess and

exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent

conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s

negligence.’ [Citation.]” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.)

In medical malpractice actions, the standard of skill, knowledge, and care prevailing in a medical

community is ordinarily a matter within the knowledge of experts. Whether the standard of care

has been breached generally must be established by expert testimony unless the medical issue

is within the common knowledge of laypersons. (Jambazian v. Borden (1994) 25 Cal.App.4th

836, 844; Landeros v. Flood (1976) 17 Cal.3d 399, 410.)

Expert testimony is ordinarily required to establish the prevailing standard of care and whether

the health care provider’s conduct complied with that standard. (Starr v. Mooslin (1971) 14

Cal.App.3d 988, 999.) Where a defendant supports summary judgment with competent expert

testimony and the plaintiff fails to submit opposing expert testimony on a matter requiring expert

opinion, summary judgment may be appropriate. (Jambazian, supra, 25 Cal.App.4th at 850.)

Plaintiff must present competent expert testimony establishing, to a reasonable medical

probability, that the defendant’s acts or omissions were a substantial factor in causing the injury.

(See Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1492-1493.)

Here, Defendant has met its initial burden by presenting Dr. Steinke’s opinion that no act or

omission by Del Rosa was a substantial factor in causing or contributing to Ms. Sencion’s death.

(Steinke Decl. ¶ 28.) Defendant also presents evidence that Ms. Sencion developed difficulty

swallowing, after which staff repositioned her, prepared to perform the Heimlich maneuver,

suctioned her, administered oxygen, and initiated CPR when she became unresponsive. (UFs

13-20.) Defendant contends that Ms. Sencion expelled food from her mouth, had no airway

obstruction upon intubation, and did not choke. (UFs 18-20.) Defendant instead attributes her

death to cardiopulmonary arrest unrelated to choking. (Steinke Decl. ¶ 30.)

Plaintiff, however, has submitted competing expert testimony and other evidence sufficient to

create a triable issue.

Barnes opines that Del Rosa failed to properly assess Ms. Sencion’s swallowing function,

implement appropriate dysphagia precautions, and ensure safe feeding practices despite known

risk factors for choking. (Barnes Decl. ¶¶ 4, 36.) He further opines that Del Rosa failed to obtain

an appropriate speech-language pathology evaluation and failed adequately to monitor and

respond to signs of swallowing distress, which Barnes contends constituted departures from

accepted standards for dysphagia management in a skilled nursing setting. (Id. at ¶¶ 4, 36.)

Barnes also identifies alleged deficiencies in caregiver training, feeding assistance, and dietary

precautions. (Id. at ¶¶ 38, 44.)

Defendant argues Barnes is not a physician and therefore cannot offer competent opinions

concerning medical issues. The argument is not persuasive as to subjects within Barnes’s

demonstrated expertise.

Barnes is a licensed speech language pathologist and board certified specialist in swallowing

and swallowing disorders with clinical experience involving dysphagia and medically complex

patients. (Barnes Decl. ¶¶ 6-15.) His opinions concerning swallowing function, choking and

aspiration risk, feeding safety, airway compromise related to dysphagia, and the need for

speech-language pathology evaluation fall within that expertise. (Id. at ¶¶ 4, 34-36.)

The Court does not rely upon Barnes for opinions outside his demonstrated expertise. He is not

qualified to opine on unrelated cardiac pathology or independently determine a cardiac cause of

death. He may, however, offer opinions within his area of expertise concerning whether Ms.

Sencion’s clinical presentation was consistent with dysphagia-related airway compromise and

whether the alleged departures in swallowing and dysphagia management caused or contributed

to choking during the September 6 meal. (Id. at ¶¶ 4, 34-35.)

The competing expert opinions create a genuine factual dispute concerning both breach and

causation. Those disputes cannot properly be resolved on summary judgment.

The Court therefore DENIES summary adjudication as to the third cause of action.

4. Punitive Damages

Civil Code section 3294, subdivision (b), requires evidence that an officer, director, or managing

agent of a corporate defendant authorized, ratified, or had advance knowledge of the alleged

wrongful conduct before punitive damages may be imposed against the corporation.

A managing agent is an employee who exercises substantial discretionary authority over

decisions that ultimately determine corporate policy. (White v. Ultramar, Inc. (1999) 21 Cal.4th

563, 577.)

Ratification requires actual knowledge of the wrongful conduct and its outrageous nature,

followed by approval or adoption of that conduct. (College Hospital Inc. v. Superior Court (1994)

8 Cal.4th 704, 726.)

In determining summary adjudication of punitive damages, the Court considers the evidence with

the clear and convincing burden of proof in mind. (Basich v. Allstate Ins. Co. (2001) 87

Cal.App.4th 1112, 1119.)

Plaintiff now presents evidence concerning Director of Nursing Tina Arteaga’s authority that was

not before the Court in the original opposition. Defendant’s job description assigns the Director

of Nursing responsibility for facility staffing levels, policy development and compliance, hiring,

discipline, and staff in-service training. (AF 72.)

Viewed in Plaintiff’s favor, this evidence is sufficient to create a triable issue concerning whether

Arteaga exercised substantial discretionary authority over significant aspects of Del Rosa’s

operations and therefore qualified as a managing agent. (See White v. Ultramar, Inc. (1999) 21

Cal.4th 563, 577.)

Plaintiff also relies upon post-incident documentation that was part of the original record. Plaintiff

previously identified evidence that Arteaga documented the family’s report of prior choking

incidents and the ER physician’s statement that choking caused Ms. Sencion’s death but

thereafter verified an MDS reflecting “no swallowing disorder” and later signed documentation

reflecting no swallowing difficulty or choking. (AFs 65-68.)

Plaintiff also identifies discrepancies between post-incident nursing documentation and

contemporaneous AMR and hospital records. (AFs 58-64.) The supplemented record now

contains additional evidence concerning Arteaga’s authority and testimony bearing upon the

preparation and verification of the documentation.

Taken together and viewed in Plaintiff’s favor, the evidence permits a reasonable inference that

Arteaga had actual knowledge of circumstances surrounding the choking event and thereafter

approved or adopted documentation inconsistent with that knowledge.

The Court does not find that the evidence establishes intentional falsification or ratification as an

undisputed fact. Nor does the Court resolve the competing inferences concerning the

documentation. Those are matters for the jury.

The question at this stage is whether Plaintiff has produced sufficient evidence to create a triable

issue when the clear and convincing standard is considered. The Court concludes that Plaintiff

has done so.

The Court therefore DENIES summary adjudication as to Plaintiff’s prayer for punitive

damages.

VI. RULING

Based on the foregoing analysis, the Court rules as follows:

1. Defendant Del Rosa Villaidence Opco, LLC’s Motion for Summary Judgment is

DENIED.

2. Defendant’s alternative Motion for Summary Adjudication is DENIED as to the First

Cause of Action for Elder Abuse and Neglect. Triable issues of material fact exist

concerning whether Defendant failed to provide necessary custodial care to Ms. Sencion.

(See UFs 4-27; Steinke Decl. ¶¶ 10-28, 30; AFs 1-57; Barnes Am. Decl. ¶¶ 4, 34-37;

Ruben Sencion Decl. ¶¶ 5-10; Olga Sencion Decl. ¶¶ 3-10; Apodaca Decl. ¶¶ 4-6, 11-13,

16-17, 19, Exhs. B-E, H-J, R-S.)

3. Defendant’s Motion for Summary Adjudication is DENIED as to the Second Cause

of Action for Statutory Violations of the Patient Bill of Rights. Triable issues exist

concerning the care, diet, feeding, monitoring, and documentation provided to Ms.

Sencion and the resulting alleged violations of her statutory and regulatory rights.

4. Defendant’s Motion for Summary Adjudication is DENIED as to the Third Cause of

Action for Wrongful Death. The parties have presented conflicting evidence and expert

opinions concerning the applicable standard of care, breach, and whether Defendant’s

conduct was a substantial factor in causing or contributing to Ms. Sencion’s death.

5. Defendant’s Motion for Summary Adjudication is DENIED as to Plaintiff’s prayer for

punitive damages. Viewed in Plaintiff’s favor and with the clear and convincing burden

in mind, the supplemented record creates a triable issue concerning whether Director of

Nursing Tina Arteaga was a managing agent and knowingly ratified wrongful conduct

committed with oppression, fraud, or malice. (See AFs 58-68, 72; Apodaca Decl. ¶¶ 4,

12-13, 16-17, 26, Exhs. B, E, H-I, S, V.)

6. Plaintiff’s First Amended Evidentiary Objections Nos. 1-3 to the Declaration of

Lyndsay Sklenka and the medical records submitted therewith are OVERRULED.

7. Plaintiff’s First Amended Evidentiary Objections Nos. 1-7 and 9 to the Declaration

of Dr. Gary W. Steinke are OVERRULED.

8. Plaintiff’s First Amended Evidentiary Objections Nos. 8 and 10 to the Declaration of

Dr. Gary W. Steinke are SUSTAINED.

9. Defendant’s Evidentiary Objections Nos. 1, 3-15, 17-18, 20, and 23 to the First

Amended Declaration of George Barnes, MS, CCC-SLP, BCS-S are OVERRULED.

10. Defendant’s Evidentiary Objections Nos. 2 and 24 to the First Amended Declaration

of George Barnes are SUSTAINED.

11. Defendant’s Evidentiary Objection No. 16 to the First Amended Declaration of

George Barnes is SUSTAINED IN PART. The objection is sustained as to: “Ms. Olivia

Hall’s admitted lack of training since 1998 is an egregious violation of these CMS and

DHHS requirements” and “This reveals an institutional disregard for the essential training

standards required to protect resident health and safety at Del Rosa Villa—a failure

originating from the highest levels of management.” The objection is otherwise overruled.

12. Defendant’s Evidentiary Objection No. 19 to the First Amended Declaration of

George Barnes is SUSTAINED IN PART. The objection is sustained as to the phrase

“making it a regulatory standard” and the statements: “Either Mrs. Sencion’s swallowing

issues came up during these discussions and it was never documented and never

addressed or the discussion never took place. In both of these scenarios, it shows the

team at Del Rosa Villa acted below the standard of care.” The objection is otherwise

overruled.

13. Defendant’s Evidentiary Objection No. 21 to the First Amended Declaration of

George Barnes is SUSTAINED IN PART. The objection is sustained as to the phrase

“seemingly to change the way the incident is perceived.” The objection is otherwise

overruled.

14. Defendant’s Evidentiary Objection No. 22 to the First Amended Declaration of

George Barnes is SUSTAINED IN PART. The objection is sustained as to: “This

underscores a facility culture that prioritized minimal training over individual patient

safety.” The objection is otherwise overruled.

15. Defendant’s Evidentiary Objection No. 25 to the First Amended Declaration of

George Barnes is SUSTAINED IN PART. The objection is sustained as to: “Ms. Sencion

was also not supposed to be provided with potatoes, being on a renal diet” and “The

inclusion of at least two food items inconsistent with her dietary orders strongly suggests

that Ms. Sencion was served the wrong tray for the lunch meal during which she choked.”

The objection is otherwise overruled.

16. Defendants’ previously filed objections to the Declarations of Ruben Sencion and

Olga Sencion are OVERRULED.

The Court’s rulings above are without prejudice to appropriate evidentiary objections at trial

based upon the evidence and foundation actually presented at that time.