Condra v. Gordon Lane Healthcare, LLC

“The Elder Abuse and Dependent Adult Civil Protection Act affords certain protections to elders and dependent adults. Section 15657 of the Welfare and Institutions Code provides heightened remedies to a plaintiff who can prove ‘by clear and convincing evidence that defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57,’ and who can demonstrate that the defendant acted with ‘recklessness, oppression, fraud, or malice in the commission of [this] abuse.’ ” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152 (“Winn”).)

Welfare & Institutions Code section 15610.57(a)(1) defines neglect as “[t]he negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” Welfare & Institutions Code section 15610.57(b) states “Neglect includes, but is not limited to, all of the following: [¶¶] (3) Failure to protect from health and safety hazards.” (Wel. & Inst. Code § 15610.57(b)(3).)

“[N]eglect 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.’ [Citation.]” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404-405 (“Carter”).)

To state a cause of action for neglect within the meaning of the Elder Abuse Act and thereby trigger the enhanced remedies available under the Act, the plaintiff must allege facts establishing that: (1) defendant had responsibility for meeting the basic needs of the elder adult; (2) defendant knew of conditions that made the elder adult unable to provide for his or her own basic needs; (3) defendant denied or withheld goods or services necessary to meet the elder adult’s basic needs, either with knowledge that injury was substantially certain to befall the elder adult or with conscious disregard of the high probability of such injury; and (4) the neglect caused the elder or dependent adult to suffer physical harm, pain, or mental suffering. (Carter, supra, 198 Cal.App.4th at pp. 406-407.) “The facts constituting the neglect and establishing the causal link between the neglect and the injury ‘must be pleaded with particularity,’ in accordance with the pleading rules governing statutory claims.” (Id. at 407.)

“[O]nly acts or omissions by a skilled nursing facility in its capacity as a health care provider fall under the banner of professional negligence. [Citation.] By contrast, ‘a failure to fulfill custodial duties owed by a custodian who happens also to be a health care provider . . . is at most incidentally related to the provider’s professional health care services.’ [Citation.] The failure to provide basic necessities, such as assistance is personal hygiene, food, hydration, or clothing, are paradigmatic examples of a failure to fulfill custodian duties. [Citation.]

The same is true of a failure to provide an adequate and habitable living space or protect from routine safety hazards. [Citations.] Similarly, a failure of staff to attend to, monitor, or assist a resident in obtaining appropriate medical care generally falls on the custodial side of the line because such omissions involve ‘not . . . the undertaking of medical services, but . . . the failure to provide medical care.’ [Citation.]” (Holland v. Silverscreen Healthcare, Inc. (2025) 18 Cal.5th 364, 380.)

In the context of a skilled nursing facility, whether an action is based on the professional negligence of a health care provider turns on whether such duties are owed by virtue of being a medical services provider or by

virtue of being the custodian of a dependent adult. (Id. at p. 381.)

The court finds that the first cause of action alleges that Defendant had responsibility for meeting the basic needs of Decedent (Complaint, ¶¶ 11, 14-16, 24-26); that Defendant knew of conditions that made Decedent unable to provide for his own basic needs (Complaint, ¶¶ 12-13, 17-18, 27, 30-31); and that Defendant denied or withheld services necessary to meet Decedent’s basic needs with conscious disregard of the high probability of injuries from a fall (Complaint, ¶¶ 17-19, 27, 30-34). The alleged wrongful conduct in withholding services to prevent Decedent from falls and injuries from falls when knowing Decedent was immobile, non-ambulatory, and a fall risk do not sound in professional negligence as they arise by virtue of the duties of being the alleged custodian of a dependent elder, and the failure to fulfill the custodial duties owed by a custodian.

Accordingly, the first cause of action states facts sufficient to state a cause of action for elder abuse and neglect.

Further, the allegations in the Complaint sufficiently allege facts supporting recklessness, i.e., deliberate disregard of the high degree of probability that an injury will occur, as it alleges that Defendant knew that Decedent was immobile, non-ambulatory, and required significant assistance with his activities of daily living, knew that Decedent was a fall risk and the risk of injuries as a result of a fall, and that Decedent fell once on the afternoon of when he was admitted on May 28, 2025, and then against three days later on May 31, 2025, which fall resulted in a head injury and subdural hematoma and Decedents subsequent death on June 6, 2025, such that Defendant failed to monitor and supervise, and use proper, reasonable, and adequate measures, precautions, and accommodations to protect Decedent from a fall, and thus, failed to properly provide and/or withheld the care and services from Decedent that would keep him free from falling and from the injuries that may result from a fall.

However, Defendant additionally argues that the elder abuse cause of action fails to state facts to support

ratification. “In order to obtain the Act’s heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages. [Citations.]” Those facts must be pled with particularity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 789.) Welfare and Institutions Code section 15657 provides: “If it is proven by clear and convincing evidence, or by a preponderance of the evidence pursuant to Section 15657.02, that a defendant is liable for . . ., neglect as defined in Section 15610.57, . . ., and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law: [¶¶.] (c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney's fees permitted under this section may be imposed against an employer.” (Welf. & Inst.

Code § 15657(c).)

Civil Code section 3294(b), provides: “An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director or managing agent of the corporation.”

Here, the Complaint does not allege facts with particularity to support advance knowledge or conscious disregard, authorization, ratification or act of recklessness, oppression, fraud, or malice on the part of an officer, director, or managing agent of Defendant. On this ground, Defendant’s demurrer to the first cause of action of Plaintiffs’ Complaint is SUSTAINED, with 20 days’ leave to amend.

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal App.4th 612, 616.) Demurrers for uncertainty “are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) The allegations in the first cause of action are not so incomprehensible that Defendant cannot reasonably respond.

Plaintiffs to give notice. 102 Off calendar

103 Hamidi v. Manheim CONTINUED Investments

104 Off calendar

105 Christensen v. The DEMURRER – OVERRULED IN PART AND David & Pam Living SUSTAINED IN PART WITH 20 DAYS LEAVE TO Trust, et al., 2025- AMEND 01537249 MOTION TO STRIKE – DENIED

Cross-defendant Norm C. Christensen, as Trustee of the Norm C. Christensen 2020 Revocable Trust (“Cross- Defendant”) demurs to first through eighth causes of action in the Cross-Complaint filed by Homayoun David Hamidi and Parastoo Amjadi, individually and as trustees of The David & Pam Living Trust, dated February 21, 2013 (“Cross-Complainants”). Cross-