Gibson v. Superior Court

Filed 10/10/06 Gibson v. Superior Court CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

ORIGINAL PROCEEDING in mandate. Joseph S. Biderman, Judge. Petition granted.

Law Offices of Henry B. La Torraca and Henry B. La Torraca for Petitioner.

No appearance for Respondent.

No appearance for Real Parties in Interest.

* * * * * * * * * *

Petitioner Keith Gibson, as the administrator of the estate of his late mother, Thelma Gibson, brought this action for wrongful death and elder abuse against the owners of a skilled nursing facility and two administrators. (All references to Gibson are to the decedent Thelma Gibson. Petitioner will be referred to as the estate.) In this writ proceeding, the estate challenges an order sustaining without leave to amend a demurrer to the elder abuse claim. We conclude the operative complaint states a cause of action for elder abuse. Accordingly, we grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND

The facts discussed below are based on the allegations contained in the first amended complaint (hereafter, the complaint).

In January 2004, Gibson underwent hip replacement surgery at Brotman Medical Center. Sometime thereafter, she was admitted to Country Villa Mar Vista Nursing Center, a 24-hour skilled nursing facility (the nursing facility).

In mid-February 2004, a physician ordered that the side rails on Gibson’s bed be raised to prevent Gibson from falling. A couple days later, a nurse at the facility signed a physical restraint form, directing that “side rails [on Gibson’s bed] be up and that an alarm be installed on her bed only, but not her wheelchair, to prevent falls and injury.”

The complaint alleges that the nursing facility “knew of Thelma Gibson’s medical history and condition and her propensity for getting up on her own, falling, breaking her hip, and of the chance of infection from such fall and second surgery, if it did not take all necessary precautions to prevent such a fall . . . .”^[1]

During the next month, numerous notes from nursing and physical therapists at the nursing home noted that Gibson had difficulty maintaining her balance, was at risk of falling, and “needed assistance for safety in transfers, gait, and balance.”

On March 9, 2004, Gibson “was found to be lethargic” and was transferred to Brotman Medical Center. She returned to the nursing facility four days later. That day, an unidentified person at the nursing home wrote that Gibson “required a wheelchair, side rails on her bed and that she needed ‘Full Assist,’ as opposed to mere ‘Supervision’ or ‘limited Assist,’ for eating, transferring, and ambulating.” Additional notes over the next few days referenced Gibson’s need for assistance with transfers, locomotion and eating.

On March 16, 2004, Gibson was sitting in her wheelchair and eating in the nursing facility’s dining room. The complaint alleges she was “totally unsupervised by any licensed or certified” nurse. After finishing her meal, Gibson tried to get out of her wheelchair “and defendant Cassidy, an administrator at [the nursing home] who was supervising . . . Thelma Gibson, saw her fall and land on her right knee with her left leg under her, again fracturing her left hip.”

Gibson was taken to the hospital, where she underwent another hip replacement operation. On April 27, 2004, Gibson was readmitted to the nursing home.

On June 17, 2004, the nursing facility obtained consent from Gibson’s daughter to restrain Gibson in a wheelchair with a self-release wheelchair belt, and also in a “geri-chair” with a tray, both of which were designed to prevent Gibson from getting up unassisted.

Sometime after returning to the nursing facility from her last hip replacement surgery, Gibson developed an infection “[a]s a result of complications from her fall and second hip surgery.” She passed away on August 11, 2004, at the age of 67.

The estate filed this action in October 2005. A first amended complaint was filed in February of this year. It contained causes of action for wrongful death based on professional negligence, and elder abuse, and it named the following as defendants: (1) RRT Enterprises, L.P., which owned and operated the nursing facility; (2) SR & DR Operating Company, LLC, the general partner of RRT; (3) Elizabeth Casso, RRT’s administrator at the nursing facility; and (4) Elizabeth Cassidy, an administrator at the nursing facility who was supervising Gibson when she fell.^[2]

The first three defendants identified in the previous paragraph demurred to the elder abuse claim in the complaint. (For simplicity, we refer to these three defendants collectively as the defendants.) They argued that the complaint failed to allege (1) facts amounting to recklessness (a required element for elder abuse claims under Welfare and Institutions Code section 15657),^[3] and (2) that an officer, director or managing agent of the nursing facility authorized or ratified the alleged abusive conduct.

Before the hearing on the demurrer, the trial court issued a tentative decision sustaining the demurrer without leave to amend because the estate failed to allege conduct amounting to recklessness. The court explained that “at bottom Plaintiff alleges a pattern of precautions on Defendants’ part, which pattern unfortunately ended with one incident where Defendants failed to take the proper precautions. Plaintiff has not properly alleged ‘recklessness’ under the Elder Abuse Act.”

The court expressed similar sentiments at the hearing. Among other things, it stated that “there’s no allegation there had been any specific factual pattern of failures to adhere to their own orders that had been made about what they were to do to protect Mrs. Gibson.” At the conclusion of the hearing, the court declared that the tentative would stand.

The estate filed this writ petition challenging the ruling. We advised the parties of our intention to issue a peremptory writ in the first instance (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171; Ng v. Superior Court (1992) 4 Cal.4th 29, 35) and invited the real parties in interest to file plenary opposition to the petition. After receiving no opposition, a clerk of this court confirmed with counsel for real parties that no opposition would be filed.

DISCUSSION

1. Standard of Review.

When considering a challenge to the sustaining of a demurrer, we independently review the pleading to determine whether the facts alleged state a cause of action under any possible legal theory. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967 (Aubry); Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 998.) We give the complaint a reasonable interpretation, “treat[ing] the demurrer as admitting all material facts properly pleaded,” but do not “assume the truth of contentions, deductions or conclusions of law.” (Aubry, at p. 967.) We liberally construe the pleading with a view to substantial justice between the parties. (Code Civ. Proc., § 452; Kotlar v. Hartford Fire Ins. Co. (2000) 83 Cal.App.4th 1116, 1120.)

2. The Complaint Stated a Claim for Elder Abuse.

A plaintiff may recover special remedies for elder abuse “[w]here it is proven by clear and convincing evidence that [1] a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and [2] that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse . . . .” (§ 15657.) In this case, the issue is whether petitioner stated sufficient facts with respect to the second of these two requirements, and specifically the recklessness prong. “Recklessness, unlike negligence, involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to take precautions’ but rather rises to the level of a ‘conscious choice of a course of action . . . with knowledge of the serious danger to others involved in it.’” (Delaney v. Baker (1999) 20 Cal.4th 23, 31-32.)

Among other things, the estate’s complaint alleges (1) the defendants were aware that Gibson needed “Full Assist[ance] . . . for eating, transferring, and ambulating”; (2) Gibson was unsupervised by any nurse at the time of the fall that is the subject of the elder abuse claim; (3) the nursing facility consciously failed to provide a geri-chair with a tray to restrain Gibson from getting up unassisted; (4) the nursing facility consciously failed to provide sufficient budget and staffing to meet patient needs; and (5) the facility had received several deficiency notices relating to the risks of patients falling. Together, these facts were sufficient to withstand a demurrer to the elder abuse claim.^[4]

DISPOSITION

The petition is granted. The respondent court is directed to vacate its May 4, 2006 order sustaining the demurrer to the second cause of action in petitioner’s first amended complaint, and to thereafter enter a new and different order overruling the demurrer. Petitioner is entitled to recover his costs in this writ proceeding. (Cal. Rules of Court, rule 56(m)(1).)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P. J.

RUBIN, J.

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^[1] The complaint also notes that Gibson suffered from, among other things, dementia and alcoholism.

^[2] While the elder abuse claim was asserted against all defendants, the wrongful death claim was asserted against only defendant RRT.

^[3] All undesignated statutory references are to the Welfare and Institutions Code.

^[4] In sustaining the demurrer, the trial court did not adopt the defendants’ alternative contention, namely, that the complaint failed to allege an officer, director or managing agent of the nursing facility authorized or ratified the alleged abusive conduct. (See § 15657, subd. (c) [before an elder abuse plaintiff may recover attorneys’ fees and costs from an employer, plaintiff must satisfy standards set forth in Civil Code section 3294, subdivision (b), which provides that an employer may held liable for punitive damages based on the conduct of an employee only where an officer, director, or managing agent of the employer engaged in the wrongful conduct that may give rise to a punitive damages claim].) We note that the complaint contains numerous allegations of manager or managing agent involvement in the alleged wrongdoing giving rise to the elder abuse claim.