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1 Hugh S. Spackman, SBN 150204
J. Lynn Stokes-Pena, SBN 223300
2 CLINKENBEARD, RAMSEY SPACKMAN & CLARK, LLP
Post Office Box 21007
3 Santa Barbara, California, 93121
Telephone: (805) 965-0043
4 Facsimile: (805) 965-8894
5 Attorneys for Defendant Dignity Health dba
Marian Regional Medical Center
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SANTA BARBARA
10 COOK DIVISION
11 GABRIELA ANACONA through her guardian ad CASE NO. 24CV00455
litem DENISSE ANACONA MARTINEZ, an Complaint Filed: 01-29-24
12 individual, Assigned: Honorable James F. Rigali
13 Plaintiff, NOTICE OF DEFENDANT DIGNITY
HEALTH dba MARIAN REGIONAL
14 V. MEDICAL CENTER'S DEMURRER TO
PLAINTIFF'S COMPLAINT;
15 DIGNITY HEAL TH dba MARIAN REGIONAL MEMORANDUM OF POINTS AND
MEDICAL CNETER, AND DOES 1-100, AUTHORITIES
16 inclusive
Date: April 30, 2024
17 Defendants. Time: 8:30 a.m.
Dept: SM-2
18
[Declaration, RF JN filed concurrently]
19
20 TO ALL PARTIES HEREIN AND THEIR ATTORNEYS OF RECORD:
21 PLEASE TAKE NOTICE that on April 30, 2024, at 8:30 a.m., or as soon thereafter as
22 counsel may be heard in Dept. SM-2 of the above-entitled court, located at 312-C East Cook
23 Street, Santa Maria, California, defendant DIGNITY HEAL TH dba MARIAN REGIONAL
24 MEDICAL CENTER will demur to plaintiffs Complaint on file herein. This demurrer is based
25 upon the following grounds that Plaintiffs Second Cause of Action for Elder Abuse/Neglect
26 fails to state facts sufficient to state a cause of action [Code of Civil Procedure §430.10(e) ].
27 Ill
28 Ill
Notice of Defendant DH dba MRMC's Demurrer to Pltfs Complaint; Memo of P&A's- Page I
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This demurrer is based upon this notice, the attached memorandum of points and
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authorities, all pleadings, records and papers on file herein, and upon such oral and documentary
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evidence as may be presented at the time of hearing on this matter.
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Dated: March 27, 2024. Y, SPACKMAN & CLARK, LLP
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By:
H gh . Spackrn ,
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J. Lynn Stokes-Pena
Attorneys for Defendant DIGNITY HEALTH dba
9
MARIAN REGIONAL MEDICAL CENTER
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Notice of Defendant DH dba MRMC's Demurrer to Pltf's Complaint; Memo of P&A's - Page 2
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 This action has been brought by plaintiff Gabriela Anacona through her
4 guardian ad litem Denise Anacona Martinez, for Medical Negligence, and Elder
5 Abuse/Neglect, arising from injuries allegedly sustained by plaintiff while hospitalized at
6 MARIAN REGIONAL MEDICAL CENTER ("MRMC") on February 9, 2023. Plaintiffs
7 complaint seeks general and special damages, attorney's fees, costs of suit, prejudgment
8 interest and punitive and exemplary damages. As is more particularly discussed below,
9 MRMC's demurrer to the complaint is based on the fact that plaintiff has failed to allege
10 sufficient facts to state causes of action for Elder Abuse/Neglect. A true and correct copy of
11 plaintiffs complaint is attached as Exhibit A to the declaration of attorney J. Lynn Stokes-
12 Pena.
13 II. FACTUAL BACKGROUND
14 Plaintiff Anacona, 83 years old, was brought to MRMC on February 4, 2023
15 after sustaining injuries from falling at home. After an examination, x-rays and pain
16 medication were administered in the emergency department, plaintiff was sent home with her
17 family. Plaintiff returned to MRMC emergency department on February 7, 2023 complaining
18 of worsening back pain and inability to walk. A CT scan, examination and medication were
19 administered. Medical personnel decided to admit plaintiff for observation for a couple of
20 days. Plaintiff was deemed a "high risk fall" patient since she had a history of falling. Medical
21 personnel identified plaintiff as a high risk fall patient by placing a yellow wristband on
22 plaintiffs wrist and a notice on plaintiff hospital room door.
23 On February 9, 2023, plaintiff was sitting on the edge of her bed in an agitated state,
24 refusing to lay down in her bed. According to the medical records and the nurse in attendance,
25 the nurse left plaintiffs room to attend to an emergency in the next room. When the nurse
26 returned to plaintiffs room a few minutes later, plaintiff had fallen out of the hospital bed
27 sustaining a fracture to her right subtrochanteric femur, requiring surgical intervention.
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Notice of Defendant DH dba MRMC's Demurrer to Pltfs Complaint: Memo of P&A's- Page 3
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III. MEET AND CONFER
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On March 20, 2024, defense counsel, J. Lynn Stokes-Pena, sent plaintiffs counsel,
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Adam Feldman, a meet and confer letter requesting the withdrawal of the Elder Abuse/Neglect
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cause of action (A true and correct copy of this letter is attached as Exhibit B to the declaration
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of attorney J. Lynn Stokes-Pena). On March 25, 2024, counsel had a telephone conference call
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discussing the Elder Abuse/Neglect cause of action. Counsel disagreed on whether the facts in
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this present case amounted to the level of care, custody and conduct protected under the Elder
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Abuse/Neglect statute and case precedent. Therefore, we request the court to rule on this
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pending demurrer.
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IV. THE COMPLAINT IS SUBJECT TO DEMURRER
11
A defendant may demur to a complaint or any cause of action therein if a defect
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appears on the face thereof. Code of Civil Procedure §§430.30 and 430.50. Code of Civil
13
Procedure §430. IO provides:
14
"The party against whom a complaint or cross-
15 complaint has been filed may object, by demurrer
... to the pleading on any one or more of the
16 following grounds:
(e) the pleading does not state facts sufficient to
17 constitute a cause of action ... "
18 V. PLAINTIFF'S CAUSE OF ACTION FAILS TO STATE FACTS
19 SUFFICIENT TO STATE A CAUSE OF ACTION FOR ELDER ABUSE
20 A. Allegations of Professional Negligence are Insufficient to Support A Cause o[Action for
21 Elder Abuse
22 Welfare and Institutions Code § 15657 authorizes recovery of heightened remedies when
23 it is proven by "clear and convincing evidence" that a defendant is liable for physical abuse,
24 neglect or fiduciary abuse and that the defendant has been guilty of recklessness, oppression,
25 fraud or malice in the commission of the abuse.
26 "In order to obtain the remedies available in Welfare and Institutions Code§ 15657, a
27 plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of
28 something more than negligence; he or she must show reckless, oppressive, fraudulent, or
Notice of Defendant DH dba MRMC's Demurrer to Pltfs Complaint; Memo of P&A's- Page 4
malicious conduct. The latter three categories involve "intentional," "willful," or conscious"
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wrongdoing of a "despicable" or "injurious" nature." "Recklessness" refers to a subjective
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state of culpability greater than simple negligence, which has been described as a "deliberate
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disregard" of the "high degree of probability" that an injury will occur (BAJ! No. 12. 77
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[defining "recklessness" in the context of intentional infliction of emotional distress action]);
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see also Rest.2d Torts, § 500.) Recklessness, unlike negligence, involves more than
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"inadvertence, incompetence, unskillfulness, or a failure to take precautions" but rather rises to
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the level of a "conscious choice of a course of action ... with knowledge of the serious danger
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to others involved in it." (Delaney v. Baker (1999) 20 Cal. 4th 23, 32.)
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In Delaney, the court affirmed the Elder Abuse cause of action finding sufficient
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evidence that the defendants acted with reckless neglect of plaintiff, an elder patient at its
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nursing home. At the time of decedents death, she had bedsores on her ankles, feet, and
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buttocks down to the bone. It was clear from the evidence that decedent had suffered from
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months of neglect at the defendant's nursing home. (Delaney v. Baker (1999) 20 Cal. 4th 23,
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32.)
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In this case, Plaintiff alleges in paragraph 53 of her Complaint, that MRMC withheld
16
the necessary safety measures required to protect plaintiff from falling, including placing safety
17
mats on the floor, moving the patient to a room closer to the nurses POD, activating the bed and
18
chair alarm, and for nurses to remain within the patients arm length when toileting. Plaintiff
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claims that the nurse made a choice to leave the room for several minutes with Plaintiff in a
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compromised position, sitting on the edge of her hospital bed, knowing that plaintiff was a high
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risk fall patient. However, failing to supervise plaintiff, including failure to take proper
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procedures to protect plaintiff from falling, does not constitute elder abuse or neglect under
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Welfare and Institutions Code § 15657. Patients of any age could be admitted for care at a
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hospital and considered a "high fall risk". The facts in this case do not rise to the heightened
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level required under Welfare and Institutions Code§ 15657; at best, plaintiff's factual
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allegations are sufficient to plead a professional negligence cause of action.
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Notice of Defendant DH dba MRMC's Demurrer to Pltfs Complaint; Memo of P&A's - Page 5
The court in Winn stated that "neglect requires a caretaking or custodial relationship
1
that arises where an elder or dependent adult depends on another for the provisions of some or
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all of his or her fundamental needs." (Winn v Pioneer Medical Group Inc, (2016) 63 Cal. 4 th
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148, 1019). Elder Abuse/Neglect "refers to the failure of those responsible for the basic needs
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and comforts of elderly or dependent adults, ... In both Delaney and in Covenant Care, the
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defendant's explicitly assumed responsibility for attending to the elders' most basic needs. In
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Delaney, the elder resided at a skilled nursing facility where she had been left laying in her own
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urine and feces for extended periods of time because the defendants, upon whom she had relied
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to provided basic care failed to carry out their caretaking and custodial obligations. (Delaney
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supra, 20 Cal. 4 th at p. 27) .... The elder in Covenant Care relied on the defendants to provide
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nutrition, hydration, and medication-needs that an able-bodied and fully competent adult
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would ordinarily be capable of handling on his or her own. (See ibid.) Our prior case law thus
12
illustrates the type of caretaking or custodial relationship that the Act requires: one where a
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party has accepted responsibility for attending to the basic needs of an elder or dependent
14
adult." (Covenant Care, supra, 32 Cal.4th at p. 778).
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The Court of Appeals in Worsham v. O'Connor Hospital (2014) 226 Cal.App. 4 th 331,
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affirmed the superior court's decision sustaining the hospital's demurrer to a patient's elder
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abuse cause of action under California's Elder Abuse Act (Welf. & Inst. Code, § 15600 et seq.).
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The Court reasoned that patient suffered a fall while she was at the hospital's transitional care
19
unit for rehabilitative care following hip surgery. The patient's allegations concerned the
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hospital's alleged negligent undertaking of medical services, rather than a failure of those
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responsible for attending to the patient's basic needs and comforts to carry out their custodial or
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caregiving obligations. The patient alleged the hospital was chronically understaffed, and did
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not adequately train the staff it did have. The allegations included the fact that the hospital was
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aware that the patient had a risk of falling, and failed to have the proper staffing in place to
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prevent the patient's fall. As a result of the hospital's insufficient staffing, the patient suffered a
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fall that resulted in a broken arm and a rebreak of her right hip. The court concluded that the
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allegations were not sufficient to render the hospital's conduct in failing to provide adequate
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Notice of Defendant DH dba MRMC's Demurrer to Pltfs Complaint; Memo of P&A's- Page 6
staffing anything more than professional negligence. The Worsham court noted "Thus, when
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the medical care of an elder is at issue, 'the statutory definition of "neglect" speaks not of
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the undertaking of medical services, but of the failure to provide medical care.' (Covenant
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Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783]); 'statutory elder abuse may include
4
the egregious withholding of medical care for physical and mental health needs ... '].)" (Carter
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v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404-405])".;(Worsham
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v. O'Connor Hospital (2014) 226 Cal.App. 4 th 331,337).
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In (Covenant, supra p. 783), the Supreme Court explained that, "[a]s used in the Act,
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neglect refers not to the substandard performance of medical services, but, rather, to the 'failure
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of those responsible for attending to the basic needs and comforts of elderly or dependent
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adults, regardless of their professional standing, to carry out their custodial obligations.' Thus,
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the statutory definition of "neglect" speaks not to the undertaking of medical services, but of
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the failure to provide medical care."
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Like Worsham and Covenant, it is clear that plaintiff Anacona's allegations in this case
14
are based on negligent performance of medical care and not the withholding of medical
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services. Plaintiff Anacona was admitted to the hospital for observation after a fall at her
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home. The medical staff at MRMC rendered medical care to plaintiff during her admission to
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the hospital with the intent to discharge her after two days. Plaintiff Anacona' s complaint
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alleges MRMC failed to comply with proper care requirements for "high risk fall" patients
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which would be covered under a claim for professional negligence. These facts do not support
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plaintiffs cause of action for Elder Abuse/Neglect.
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B. Insufficient Facts Are Alleged to Support Malice, Oppression or Fraud
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"As we have noted, the Legislature apparently concluded that the high standard
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imposed by Welfare and Institutions Code§ 15657--clear and convincing evidence of (i)
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liability and (ii) recklessness, malice, oppression or fraud-adequately protects health care
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providers from liability under the statute for acts of simple or even gross negligence.
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( Delaney, supra, at p. 32.). (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771,
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783)1. Under Cal Civ Code§ 3294, with respect to a corporate employer, the advance
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Notice of Defendant DH dba MRMC's Demurrer to Pltfs Complaint; Memo of P&A's - Page 7
knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or
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malice must be on the part of an officer, director, or managing agent of the corporation, none of
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which has been proven by clear and convincing evidence in plaintiff complaint. (1) "Malice"
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means conduct which is intended by the defendant to cause injury to the plaintiff or despicable
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conduct which is carried on by the defendant with a willful and conscious disregard of the
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rights or safety of others. (2) "Oppression" means despicable conduct that subjects a person to
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cruel and unjust hardship in conscious disregard of that person's rights. (3) "Fraud" means an
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intentional misrepresentation, deceit, or concealment of a material fact known to the defendant
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with the intention on the part of the defendant of thereby depriving a person of property or legal
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rights or otherwise causing injury. Here, plaintiff's conclusion that defendant acted recklessly is
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without factual support.
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C. Plaintiff was NOT in the Care and Custody of MRMC under the definition of Welfare
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and Institutions Code § 15657
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In the Kruthanooch v. Glendale Adventist Medical Center (2022) 83 Cal. App. 5th 1109,
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1130, the court emphasized, "As the Supreme Court explained in Winn, the Act does not apply
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unless the caretaking relationship is "robust" and the measure of responsibility assumed by the
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caretaker is "significant." (Winn, supra, 63 Cal.4th at p. 158). Winn established that the
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"substantial relationship" must involve "ongoing responsibility for one or more basic needs ...
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with the elder patient," that "a party with only circumscribed, intermittent, or episodic
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engagement" is not among those who has care or custody of a vulnerable person, and "that the
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distinctive relationship contemplated by the Act entails more than casual or limited
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interactions." (Id. at pp. 152, 158, italics added.) Whether we look at the parties' relationship at
22
the time of the alleged neglect prior to the MRI scan or at Kruthanooch's hospital stay in its
23
entirety, substantial evidence fails to support that the relationship was robust or that GAMC
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assumed ongoing responsibility for Kruthanooch's basic needs.
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"However, Winn does not state that the protections and heightened remedies available
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under the Act are available to any inpatient who receives assistance, however briefly, with one
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or more basic needs. This would result in a "lumping together" of professional negligence and
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Notice of Defendant DH dba MRMC's Demurrer to Pltfs Complaint; Memo of P&A's - Page 8
neglect claims, contrary to the Supreme Court's pronouncement that the Act was intended to
1
distinguish between such claims (Winn, supra, 63 Cal.4th at p. 159.) As discussed, the Supreme
2
Court rejected the assertion that "circumscribed engagement" and "limited interactions" are
3
sufficient to establish the caretaking relationship required under the law. (Id. at p. 158.) Thus,
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GAMC's assistance with these needs on a limited basis during its provision of medical
5
treatment to Kruthanooch is not substantial evidence of the custodial or caretaking relationship
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required by Winn. (Kruthanooch supra at p. 1133).
7
In Kruthanooch, plaintiffs injuries occurred due to a mistake made by the MRI
8
technologist. The court states in it's rational, that "Every patient undergoes an MRI scan, no
9
matter their age or cognitive and physical abilities, is reliant upon the MRI technologist to
10
ensure that the scan is conducted in a safe manner. Just as "[w]ound care ... is not a "basic
11
need". (Kruthanooch, supra pg 924). The same can be said about "high fall risk" patient care
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and precautions, which are not directly related to Elder care or an Eider's basic needs. The
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precautions taken for "high risk fall" patients is part of the hospitals medical treatment of the
14
patient. Therefore, plaintiff Anacona's cause of action for Elder Abuse/Neglect fails due to
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lack of a custodial or caretaking relationship. Even in plaintiffs complaint, it states she was
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only admitted to the hospital for a couple days for observation for injuries sustained when she
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fell at home. Plaintiff has not presented facts that MRMC was responsible for her basic needs
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such as hygiene, nutrition, hydration, or other basic needs on a long-term relationship, she was
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there for treatment from a fall.
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III. CONCLUSION
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Plaintiffs complaint is replete with conclusory language and barren of specific
22
factual allegations to support a claim for Elder Abuse/Neglect. As such, the demurrer to causes
23
of action should be sustained without leave to amend.
24
Dated: March 27, 2024. CLINKENBEARD, RAMSEY, SPACKMAN & CLARK, LLP
25
By:
26 Hugh S. Spackman,
J. Lynn Stokes-Pena,
27 Attorneys for Defendant DIGNITY HEALTH dba
MARIAN REGIONAL MEDICAL CENTER
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Notice of Defendant DH dba MRMC's Demurrer to Pltfs Complaint; Memo of P&A's- Page 9
1 PROOF OF SERVICE
[C.C.P. §1013a]
2 COUNTY OF SANTA BARBARA:
3 STA TE OF CALIFORNIA:
4 I am a citizen of the United States and am employed in the County of Santa Barbara, State of California.
I am over the age of eighteen ( 18) years and not a party to the within action. My business address is
5 3938 State St., P.O. Box 21007, Santa Barbara, CA 93121.
6 On the date set forth below, I served the foregoing document described as NOTICE OF DEFENDANT
DIGNITY HEALTH dba MARIAN REGIONAL MEDICAL CENTER'S DEMURRER TO
7 PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES by placing copies
thereof in sealed envelopes, addressed as follows:
8
9 Attorneys For Plaintiff
Adam Feldman, Esq.
10 Adam Feldman Law, APC
5850 Canoga Avenue, Suite 400
11 Woodland Hills, CA 91367
Tel.: 818 710 3833
12 Fax: 818 710 3802
13 Emails:
adam@adamfeldmanlaw.com
14 info@adamfeldmanlaw.com
peggy@adamfeldmanlaw.com
15
16
17 _ _ (By Mail) I am "readily familiar" with the firm's practice of collection and processing
correspondence for mailing. Under that practice, it would be deposited with the U.S. postal service on
18 that same day with postage thereon fully prepaid First Class at Santa Barbara, California in the ordinary
course of business. I am aware that, on motion of party served, service is presumed invalid if postal
19 cancellation date or postage meter date is more than one day after the date of deposit for mailing in
affidavit.
20
xx (By E-Mail) I caused all of the pages of the above-entitled document to be sent to the
21 recipient(s) noted above via e-mail at the respective e-mail address indicated above.
22 __ (By Federal Express/Overnight Mail) I caused the above-described document to be served on
the interested parties noted above by Federal Express/Overnight Mail.
23
(By Personal Service) I delivered such envelope(s) by hand to the offices of the addressee(s).
24
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and
25 correct. Executed on March 27, 2024, at Santa Barbara, California.
26
27
f(/Ji
Doreen Wienecke
28
Preview
1 Hugh S. Spackman, SBN 150204 J. Lynn Stokes-Pena, SBN 223300 2 CLINKENBEARD, RAMSEY SPACKMAN & CLARK, LLP Post Office Box 21007 3 Santa Barbara, California, 93121 Telephone: (805) 965-0043 4 Facsimile: (805) 965-8894 5 Attorneys for Defendant Dignity Health dba Marian Regional Medical Center 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SANTA BARBARA 10 COOK DIVISION 11 GABRIELA ANACONA through her guardian ad CASE NO. 24CV00455 litem DENISSE ANACONA MARTINEZ, an Complaint Filed: 01-29-24 12 individual, Assigned: Honorable James F. Rigali 13 Plaintiff, NOTICE OF DEFENDANT DIGNITY HEALTH dba MARIAN REGIONAL 14 V. MEDICAL CENTER'S DEMURRER TO PLAINTIFF'S COMPLAINT; 15 DIGNITY HEAL TH dba MARIAN REGIONAL MEMORANDUM OF POINTS AND MEDICAL CNETER, AND DOES 1-100, AUTHORITIES 16 inclusive Date: April 30, 2024 17 Defendants. Time: 8:30 a.m. Dept: SM-2 18 [Declaration, RF JN filed concurrently] 19 20 TO ALL PARTIES HEREIN AND THEIR ATTORNEYS OF RECORD: 21 PLEASE TAKE NOTICE that on April 30, 2024, at 8:30 a.m., or as soon thereafter as 22 counsel may be heard in Dept. SM-2 of the above-entitled court, located at 312-C East Cook 23 Street, Santa Maria, California, defendant DIGNITY HEAL TH dba MARIAN REGIONAL 24 MEDICAL CENTER will demur to plaintiffs Complaint on file herein. This demurrer is based 25 upon the following grounds that Plaintiffs Second Cause of Action for Elder Abuse/Neglect 26 fails to state facts sufficient to state a cause of action [Code of Civil Procedure §430.10(e) ]. 27 Ill 28 Ill Notice of Defendant DH dba MRMC's Demurrer to Pltfs Complaint; Memo of P&A's- Page I 1 2 This demurrer is based upon this notice, the attached memorandum of points and 3 authorities, all pleadings, records and papers on file herein, and upon such oral and documentary 4 evidence as may be presented at the time of hearing on this matter. 5 Dated: March 27, 2024. Y, SPACKMAN & CLARK, LLP 6 7 By: H gh . Spackrn , 8 J. Lynn Stokes-Pena Attorneys for Defendant DIGNITY HEALTH dba 9 MARIAN REGIONAL MEDICAL CENTER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Notice of Defendant DH dba MRMC's Demurrer to Pltf's Complaint; Memo of P&A's - Page 2 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 This action has been brought by plaintiff Gabriela Anacona through her 4 guardian ad litem Denise Anacona Martinez, for Medical Negligence, and Elder 5 Abuse/Neglect, arising from injuries allegedly sustained by plaintiff while hospitalized at 6 MARIAN REGIONAL MEDICAL CENTER ("MRMC") on February 9, 2023. Plaintiffs 7 complaint seeks general and special damages, attorney's fees, costs of suit, prejudgment 8 interest and punitive and exemplary damages. As is more particularly discussed below, 9 MRMC's demurrer to the complaint is based on the fact that plaintiff has failed to allege 10 sufficient facts to state causes of action for Elder Abuse/Neglect. A true and correct copy of 11 plaintiffs complaint is attached as Exhibit A to the declaration of attorney J. Lynn Stokes- 12 Pena. 13 II. FACTUAL BACKGROUND 14 Plaintiff Anacona, 83 years old, was brought to MRMC on February 4, 2023 15 after sustaining injuries from falling at home. After an examination, x-rays and pain 16 medication were administered in the emergency department, plaintiff was sent home with her 17 family. Plaintiff returned to MRMC emergency department on February 7, 2023 complaining 18 of worsening back pain and inability to walk. A CT scan, examination and medication were 19 administered. Medical personnel decided to admit plaintiff for observation for a couple of 20 days. Plaintiff was deemed a "high risk fall" patient since she had a history of falling. Medical 21 personnel identified plaintiff as a high risk fall patient by placing a yellow wristband on 22 plaintiffs wrist and a notice on plaintiff hospital room door. 23 On February 9, 2023, plaintiff was sitting on the edge of her bed in an agitated state, 24 refusing to lay down in her bed. According to the medical records and the nurse in attendance, 25 the nurse left plaintiffs room to attend to an emergency in the next room. When the nurse 26 returned to plaintiffs room a few minutes later, plaintiff had fallen out of the hospital bed 27 sustaining a fracture to her right subtrochanteric femur, requiring surgical intervention. 28 Notice of Defendant DH dba MRMC's Demurrer to Pltfs Complaint: Memo of P&A's- Page 3 1 III. MEET AND CONFER 2 On March 20, 2024, defense counsel, J. Lynn Stokes-Pena, sent plaintiffs counsel, 3 Adam Feldman, a meet and confer letter requesting the withdrawal of the Elder Abuse/Neglect 4 cause of action (A true and correct copy of this letter is attached as Exhibit B to the declaration 5 of attorney J. Lynn Stokes-Pena). On March 25, 2024, counsel had a telephone conference call 6 discussing the Elder Abuse/Neglect cause of action. Counsel disagreed on whether the facts in 7 this present case amounted to the level of care, custody and conduct protected under the Elder 8 Abuse/Neglect statute and case precedent. Therefore, we request the court to rule on this 9 pending demurrer. 10 IV. THE COMPLAINT IS SUBJECT TO DEMURRER 11 A defendant may demur to a complaint or any cause of action therein if a defect 12 appears on the face thereof. Code of Civil Procedure §§430.30 and 430.50. Code of Civil 13 Procedure §430. IO provides: 14 "The party against whom a complaint or cross- 15 complaint has been filed may object, by demurrer ... to the pleading on any one or more of the 16 following grounds: (e) the pleading does not state facts sufficient to 17 constitute a cause of action ... " 18 V. PLAINTIFF'S CAUSE OF ACTION FAILS TO STATE FACTS 19 SUFFICIENT TO STATE A CAUSE OF ACTION FOR ELDER ABUSE 20 A. Allegations of Professional Negligence are Insufficient to Support A Cause o[Action for 21 Elder Abuse 22 Welfare and Institutions Code § 15657 authorizes recovery of heightened remedies when 23 it is proven by "clear and convincing evidence" that a defendant is liable for physical abuse, 24 neglect or fiduciary abuse and that the defendant has been guilty of recklessness, oppression, 25 fraud or malice in the commission of the abuse. 26 "In order to obtain the remedies available in Welfare and Institutions Code§ 15657, a 27 plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of 28 something more than negligence; he or she must show reckless, oppressive, fraudulent, or Notice of Defendant DH dba MRMC's Demurrer to Pltfs Complaint; Memo of P&A's- Page 4 malicious conduct. The latter three categories involve "intentional," "willful," or conscious" 1 wrongdoing of a "despicable" or "injurious" nature." "Recklessness" refers to a subjective 2 state of culpability greater than simple negligence, which has been described as a "deliberate 3 disregard" of the "high degree of probability" that an injury will occur (BAJ! No. 12. 77 4 [defining "recklessness" in the context of intentional infliction of emotional distress action]); 5 see also Rest.2d Torts, § 500.) Recklessness, unlike negligence, involves more than 6 "inadvertence, incompetence, unskillfulness, or a failure to take precautions" but rather rises to 7 the level of a "conscious choice of a course of action ... with knowledge of the serious danger 8 to others involved in it." (Delaney v. Baker (1999) 20 Cal. 4th 23, 32.) 9 In Delaney, the court affirmed the Elder Abuse cause of action finding sufficient 10 evidence that the defendants acted with reckless neglect of plaintiff, an elder patient at its 11 nursing home. At the time of decedents death, she had bedsores on her ankles, feet, and 12 buttocks down to the bone. It was clear from the evidence that decedent had suffered from 13 months of neglect at the defendant's nursing home. (Delaney v. Baker (1999) 20 Cal. 4th 23, 14 32.) 15 In this case, Plaintiff alleges in paragraph 53 of her Complaint, that MRMC withheld 16 the necessary safety measures required to protect plaintiff from falling, including placing safety 17 mats on the floor, moving the patient to a room closer to the nurses POD, activating the bed and 18 chair alarm, and for nurses to remain within the patients arm length when toileting. Plaintiff 19 claims that the nurse made a choice to leave the room for several minutes with Plaintiff in a 20 compromised position, sitting on the edge of her hospital bed, knowing that plaintiff was a high 21 risk fall patient. However, failing to supervise plaintiff, including failure to take proper 22 procedures to protect plaintiff from falling, does not constitute elder abuse or neglect under 23 Welfare and Institutions Code § 15657. Patients of any age could be admitted for care at a 24 hospital and considered a "high fall risk". The facts in this case do not rise to the heightened 25 level required under Welfare and Institutions Code§ 15657; at best, plaintiff's factual 26 allegations are sufficient to plead a professional negligence cause of action. 27 28 Notice of Defendant DH dba MRMC's Demurrer to Pltfs Complaint; Memo of P&A's - Page 5 The court in Winn stated that "neglect requires a caretaking or custodial relationship 1 that arises where an elder or dependent adult depends on another for the provisions of some or 2 all of his or her fundamental needs." (Winn v Pioneer Medical Group Inc, (2016) 63 Cal. 4 th 3 148, 1019). Elder Abuse/Neglect "refers to the failure of those responsible for the basic needs 4 and comforts of elderly or dependent adults, ... In both Delaney and in Covenant Care, the 5 defendant's explicitly assumed responsibility for attending to the elders' most basic needs. In 6 Delaney, the elder resided at a skilled nursing facility where she had been left laying in her own 7 urine and feces for extended periods of time because the defendants, upon whom she had relied 8 to provided basic care failed to carry out their caretaking and custodial obligations. (Delaney 9 supra, 20 Cal. 4 th at p. 27) .... The elder in Covenant Care relied on the defendants to provide 10 nutrition, hydration, and medication-needs that an able-bodied and fully competent adult 11 would ordinarily be capable of handling on his or her own. (See ibid.) Our prior case law thus 12 illustrates the type of caretaking or custodial relationship that the Act requires: one where a 13 party has accepted responsibility for attending to the basic needs of an elder or dependent 14 adult." (Covenant Care, supra, 32 Cal.4th at p. 778). 15 The Court of Appeals in Worsham v. O'Connor Hospital (2014) 226 Cal.App. 4 th 331, 16 affirmed the superior court's decision sustaining the hospital's demurrer to a patient's elder 17 abuse cause of action under California's Elder Abuse Act (Welf. & Inst. Code, § 15600 et seq.). 18 The Court reasoned that patient suffered a fall while she was at the hospital's transitional care 19 unit for rehabilitative care following hip surgery. The patient's allegations concerned the 20 hospital's alleged negligent undertaking of medical services, rather than a failure of those 21 responsible for attending to the patient's basic needs and comforts to carry out their custodial or 22 caregiving obligations. The patient alleged the hospital was chronically understaffed, and did 23 not adequately train the staff it did have. The allegations included the fact that the hospital was 24 aware that the patient had a risk of falling, and failed to have the proper staffing in place to 25 prevent the patient's fall. As a result of the hospital's insufficient staffing, the patient suffered a 26 fall that resulted in a broken arm and a rebreak of her right hip. The court concluded that the 27 allegations were not sufficient to render the hospital's conduct in failing to provide adequate 28 Notice of Defendant DH dba MRMC's Demurrer to Pltfs Complaint; Memo of P&A's- Page 6 staffing anything more than professional negligence. The Worsham court noted "Thus, when 1 the medical care of an elder is at issue, 'the statutory definition of "neglect" speaks not of 2 the undertaking of medical services, but of the failure to provide medical care.' (Covenant 3 Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783]); 'statutory elder abuse may include 4 the egregious withholding of medical care for physical and mental health needs ... '].)" (Carter 5 v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404-405])".;(Worsham 6 v. O'Connor Hospital (2014) 226 Cal.App. 4 th 331,337). 7 In (Covenant, supra p. 783), the Supreme Court explained that, "[a]s used in the Act, 8 neglect refers not to the substandard performance of medical services, but, rather, to the 'failure 9 of those responsible for attending to the basic needs and comforts of elderly or dependent 10 adults, regardless of their professional standing, to carry out their custodial obligations.' Thus, 11 the statutory definition of "neglect" speaks not to the undertaking of medical services, but of 12 the failure to provide medical care." 13 Like Worsham and Covenant, it is clear that plaintiff Anacona's allegations in this case 14 are based on negligent performance of medical care and not the withholding of medical 15 services. Plaintiff Anacona was admitted to the hospital for observation after a fall at her 16 home. The medical staff at MRMC rendered medical care to plaintiff during her admission to 17 the hospital with the intent to discharge her after two days. Plaintiff Anacona' s complaint 18 alleges MRMC failed to comply with proper care requirements for "high risk fall" patients 19 which would be covered under a claim for professional negligence. These facts do not support 20 plaintiffs cause of action for Elder Abuse/Neglect. 21 B. Insufficient Facts Are Alleged to Support Malice, Oppression or Fraud 22 "As we have noted, the Legislature apparently concluded that the high standard 23 imposed by Welfare and Institutions Code§ 15657--clear and convincing evidence of (i) 24 liability and (ii) recklessness, malice, oppression or fraud-adequately protects health care 25 providers from liability under the statute for acts of simple or even gross negligence. 26 ( Delaney, supra, at p. 32.). (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 27 783)1. Under Cal Civ Code§ 3294, with respect to a corporate employer, the advance 28 Notice of Defendant DH dba MRMC's Demurrer to Pltfs Complaint; Memo of P&A's - Page 7 knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or 1 malice must be on the part of an officer, director, or managing agent of the corporation, none of 2 which has been proven by clear and convincing evidence in plaintiff complaint. (1) "Malice" 3 means conduct which is intended by the defendant to cause injury to the plaintiff or despicable 4 conduct which is carried on by the defendant with a willful and conscious disregard of the 5 rights or safety of others. (2) "Oppression" means despicable conduct that subjects a person to 6 cruel and unjust hardship in conscious disregard of that person's rights. (3) "Fraud" means an 7 intentional misrepresentation, deceit, or concealment of a material fact known to the defendant 8 with the intention on the part of the defendant of thereby depriving a person of property or legal 9 rights or otherwise causing injury. Here, plaintiff's conclusion that defendant acted recklessly is 10 without factual support. 11 C. Plaintiff was NOT in the Care and Custody of MRMC under the definition of Welfare 12 and Institutions Code § 15657 13 In the Kruthanooch v. Glendale Adventist Medical Center (2022) 83 Cal. App. 5th 1109, 14 1130, the court emphasized, "As the Supreme Court explained in Winn, the Act does not apply 15 unless the caretaking relationship is "robust" and the measure of responsibility assumed by the 16 caretaker is "significant." (Winn, supra, 63 Cal.4th at p. 158). Winn established that the 17 "substantial relationship" must involve "ongoing responsibility for one or more basic needs ... 18 with the elder patient," that "a party with only circumscribed, intermittent, or episodic 19 engagement" is not among those who has care or custody of a vulnerable person, and "that the 20 distinctive relationship contemplated by the Act entails more than casual or limited 21 interactions." (Id. at pp. 152, 158, italics added.) Whether we look at the parties' relationship at 22 the time of the alleged neglect prior to the MRI scan or at Kruthanooch's hospital stay in its 23 entirety, substantial evidence fails to support that the relationship was robust or that GAMC 24 assumed ongoing responsibility for Kruthanooch's basic needs. 25 "However, Winn does not state that the protections and heightened remedies available 26 under the Act are available to any inpatient who receives assistance, however briefly, with one 27 or more basic needs. This would result in a "lumping together" of professional negligence and 28 Notice of Defendant DH dba MRMC's Demurrer to Pltfs Complaint; Memo of P&A's - Page 8 neglect claims, contrary to the Supreme Court's pronouncement that the Act was intended to 1 distinguish between such claims (Winn, supra, 63 Cal.4th at p. 159.) As discussed, the Supreme 2 Court rejected the assertion that "circumscribed engagement" and "limited interactions" are 3 sufficient to establish the caretaking relationship required under the law. (Id. at p. 158.) Thus, 4 GAMC's assistance with these needs on a limited basis during its provision of medical 5 treatment to Kruthanooch is not substantial evidence of the custodial or caretaking relationship 6 required by Winn. (Kruthanooch supra at p. 1133). 7 In Kruthanooch, plaintiffs injuries occurred due to a mistake made by the MRI 8 technologist. The court states in it's rational, that "Every patient undergoes an MRI scan, no 9 matter their age or cognitive and physical abilities, is reliant upon the MRI technologist to 10 ensure that the scan is conducted in a safe manner. Just as "[w]ound care ... is not a "basic 11 need". (Kruthanooch, supra pg 924). The same can be said about "high fall risk" patient care 12 and precautions, which are not directly related to Elder care or an Eider's basic needs. The 13 precautions taken for "high risk fall" patients is part of the hospitals medical treatment of the 14 patient. Therefore, plaintiff Anacona's cause of action for Elder Abuse/Neglect fails due to 15 lack of a custodial or caretaking relationship. Even in plaintiffs complaint, it states she was 16 only admitted to the hospital for a couple days for observation for injuries sustained when she 17 fell at home. Plaintiff has not presented facts that MRMC was responsible for her basic needs 18 such as hygiene, nutrition, hydration, or other basic needs on a long-term relationship, she was 19 there for treatment from a fall. 20 III. CONCLUSION 21 Plaintiffs complaint is replete with conclusory language and barren of specific 22 factual allegations to support a claim for Elder Abuse/Neglect. As such, the demurrer to causes 23 of action should be sustained without leave to amend. 24 Dated: March 27, 2024. CLINKENBEARD, RAMSEY, SPACKMAN & CLARK, LLP 25 By: 26 Hugh S. Spackman, J. Lynn Stokes-Pena, 27 Attorneys for Defendant DIGNITY HEALTH dba MARIAN REGIONAL MEDICAL CENTER 28 Notice of Defendant DH dba MRMC's Demurrer to Pltfs Complaint; Memo of P&A's- Page 9 1 PROOF OF SERVICE [C.C.P. §1013a] 2 COUNTY OF SANTA BARBARA: 3 STA TE OF CALIFORNIA: 4 I am a citizen of the United States and am employed in the County of Santa Barbara, State of California. I am over the age of eighteen ( 18) years and not a party to the within action. My business address is 5 3938 State St., P.O. Box 21007, Santa Barbara, CA 93121. 6 On the date set forth below, I served the foregoing document described as NOTICE OF DEFENDANT DIGNITY HEALTH dba MARIAN REGIONAL MEDICAL CENTER'S DEMURRER TO 7 PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES by placing copies thereof in sealed envelopes, addressed as follows: 8 9 Attorneys For Plaintiff Adam Feldman, Esq. 10 Adam Feldman Law, APC 5850 Canoga Avenue, Suite 400 11 Woodland Hills, CA 91367 Tel.: 818 710 3833 12 Fax: 818 710 3802 13 Emails: adam@adamfeldmanlaw.com 14 info@adamfeldmanlaw.com peggy@adamfeldmanlaw.com 15 16 17 _ _ (By Mail) I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. postal service on 18 that same day with postage thereon fully prepaid First Class at Santa Barbara, California in the ordinary course of business. I am aware that, on motion of party served, service is presumed invalid if postal 19 cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit. 20 xx (By E-Mail) I caused all of the pages of the above-entitled document to be sent to the 21 recipient(s) noted above via e-mail at the respective e-mail address indicated above. 22 __ (By Federal Express/Overnight Mail) I caused the above-described document to be served on the interested parties noted above by Federal Express/Overnight Mail. 23 (By Personal Service) I delivered such envelope(s) by hand to the offices of the addressee(s). 24 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and 25 correct. Executed on March 27, 2024, at Santa Barbara, California. 26 27 f(/Ji Doreen Wienecke 28