Preview
ELECTRONICALLY FILED
Superior Court of California
County of Santa Barbara
Hugh S. Spackman, SBN 150204 Darrel E. Parker, Executive Officer
J, Lynn Stokes-Pena, SBN 223300 4/22/2024 1:42 PM
CLINKENBEARD, RAMSEY SPACKMAN & CLARK, LLP By: Norma Willoughby , Deputy
Post Office Box 21007
Santa Barbara, California, 93121
Telephone: (805) 965-0043
Facsimile: (805) 965-8894
Attorneys for Defendant Dignity Health dba
Marian Regional Medical Center
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA BARBARA
10 COOK DIVISION
il 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, REPLY TO OPPOSITION TO DEMURRER
TO COMPLAINT ON BEHALF OF
14 Vv. DEFENDANT DIGNITY HEALTH dba
MARIAN REGIONAL MEDICAL CENTER
15 DIGNITY HEALTH dba MARIAN REGIONAL
MEDICAL CENTER, AND DOES 1-100, inclusive Date: April 30, 2024
16 Time: 8:30 a.m.
Defendants. Dept: SM-2
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21 COMES NOW defendant DIGNITY HEALTH dba MARIAN REGIONAL MEDICAL
22 CENTER and hereby replies to plaintiff's opposition to demurrer to the Elder Abuse cause of
23 action in her complaint.
24 ARGUMENT
25 I PLAINTIFF’S COMPLAINT DOES NOT CONTAIN SUFFICIENT.
26 FACTS TO SUPPORT CLAIMS OF ELDER ABUSE
27 The facts provided in plaintiff's complaint are factually insufficient to support an Elder
28 Abuse cause of action against defendant. Failing to adequately supervise plaintiff, including failure
Reply to Opposition to Demurrer to Complaint on Behalfof Defendant DH dba MRMC — Page I
to take proper procedures to protect plaintiff from falling, does not constitute elder abuse or neglect
under Welfare and Institutions Code § 15657. Patients of any age could be admitted for care at a
hospital and considered a “high fall risk”. The facts in this case do not rise to the heightened level
required under Welfare and Institutions Code § 15657; at best, plaintiff's factual allegations are
sufficient to plead a professional negligence cause of action.
Nor do plaintiffs allegations rise to the level under Welfare and Institutions Code §15657
which authorizes recovery of heightened remedies when it is proven by “clear and convincing
evidence” that a defendant is liable for physical abuse, neglect or fiduciary abuse and that the
defendant has been guilty of recklessness, oppression, fraud or malice in the commission of the
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abuse. Defendant was providing care to plaintiff to help her recover from a series of recent falls.
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Absent physically restraining plaintiff, the plaintiff could have attempted to get out of bed either in
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the hospital or when she returned to her home to go to the bathroom. The injury sustained by
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plaintiff from falling could have happened anywhere, at any time, despite her admission to the
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hospital for observation. A hospital cannot assign a designated nurse to sit with a single patient 24
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hours a day.
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It is important to note that “the Act, neglect refers not to the substandard performance of
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medical services, but, rather, to the ‘failure of those responsible for attending to the basic needs and
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comforts of elderly or dependent adults, regardless of their professional standing, to carry out their
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custodial obligations.’ Thus, the statutory definition of “neglect” speaks not to the undertaking of
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medical services, but of the failure to provide medical care. (Covenant Care, Inc. v. Superior
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Court (2004) 32 Cal.4th 771. 783]).” In plaintiffs case, the doctors and nurses were attending to
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plaintiffs medical needs at the hospital. Defendant Dignity Health was providing medical services
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to plaintiff, not withholding care. If that care was done negligently, that care does not amount to
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Elder Abuse as alleged by plaintiff.
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II. CONCLUSION
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Plaintiffs cause of action for Elder Abuse/Neglect does not meet the heightened
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requirements under the Act. As such, the demurrer to the Elder Abuse cause of action should
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Reply to Opposition to Demurrer to Complaint on Behalfof Defendant DH dba MRMC — Page 2
be sustained without leave to amend.
Dated: April 22, 2024. CLINKENBE won vet & CLARK, LLP
By
Hugh S. Shacketfan.
J. Lynn Stokes-Pena
Attorneys for Defendant DIGNITY HEALTH dba
MARIAN REGIONAL MEDICAL CENTER
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Reply to Opposition to Demurrer to Complaint on Behalfof Defendant DH dba MRMC ~ Page 3
PROOF OF SERVICE
[C.C.P. §1013a]
COUNTY OF SANTA BARBARA
STATE OF CALIFORNIA
Iam 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
3938 State St., P.O. Box 21007, Santa Barbara, CA 93121
On the date set forth below, I served the foregoing document described as REPLY TO OPPOSITION
TO DEMURRER TO COMPLAINT ON BEHALF OF DEFENDANT DIGNITY HEALTH dba
MARIAN REGIONAL MEDICAL CENTER by placing copies thereof in sealed envelopes
addressed as follows
Attorneys For Plaintiff
Adam Feldman, Esq.
10 Adam Feldman Law, APC
5850 Canoga Avenue, Suite 400
ll Woodland Hills, CA 91367
Tel.: 818 710 3833
12 Fax: 818 710 3802
13 Emails
dam@adamfeldmanlaw.com
14 nfo@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) | 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).
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I declare under penalty of perjury under the laws of the State of California that the foregoing is true and
25 correct. Executed on April 22, 2024, at Santa Barbara, California.
Ae
26
4y
My
27 Doreen Wienecke
28
Preview
ELECTRONICALLY FILED Superior Court of California County of Santa Barbara Hugh S. Spackman, SBN 150204 Darrel E. Parker, Executive Officer J, Lynn Stokes-Pena, SBN 223300 4/22/2024 1:42 PM CLINKENBEARD, RAMSEY SPACKMAN & CLARK, LLP By: Norma Willoughby , Deputy Post Office Box 21007 Santa Barbara, California, 93121 Telephone: (805) 965-0043 Facsimile: (805) 965-8894 Attorneys for Defendant Dignity Health dba Marian Regional Medical Center SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA BARBARA 10 COOK DIVISION il 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, REPLY TO OPPOSITION TO DEMURRER TO COMPLAINT ON BEHALF OF 14 Vv. DEFENDANT DIGNITY HEALTH dba MARIAN REGIONAL MEDICAL CENTER 15 DIGNITY HEALTH dba MARIAN REGIONAL MEDICAL CENTER, AND DOES 1-100, inclusive Date: April 30, 2024 16 Time: 8:30 a.m. Defendants. Dept: SM-2 17 18 19 20 21 COMES NOW defendant DIGNITY HEALTH dba MARIAN REGIONAL MEDICAL 22 CENTER and hereby replies to plaintiff's opposition to demurrer to the Elder Abuse cause of 23 action in her complaint. 24 ARGUMENT 25 I PLAINTIFF’S COMPLAINT DOES NOT CONTAIN SUFFICIENT. 26 FACTS TO SUPPORT CLAIMS OF ELDER ABUSE 27 The facts provided in plaintiff's complaint are factually insufficient to support an Elder 28 Abuse cause of action against defendant. Failing to adequately supervise plaintiff, including failure Reply to Opposition to Demurrer to Complaint on Behalfof Defendant DH dba MRMC — Page I to take proper procedures to protect plaintiff from falling, does not constitute elder abuse or neglect under Welfare and Institutions Code § 15657. Patients of any age could be admitted for care at a hospital and considered a “high fall risk”. The facts in this case do not rise to the heightened level required under Welfare and Institutions Code § 15657; at best, plaintiff's factual allegations are sufficient to plead a professional negligence cause of action. Nor do plaintiffs allegations rise to the level under Welfare and Institutions Code §15657 which authorizes recovery of heightened remedies when it is proven by “clear and convincing evidence” that a defendant is liable for physical abuse, neglect or fiduciary abuse and that the defendant has been guilty of recklessness, oppression, fraud or malice in the commission of the 10 abuse. Defendant was providing care to plaintiff to help her recover from a series of recent falls. 11 Absent physically restraining plaintiff, the plaintiff could have attempted to get out of bed either in 12 the hospital or when she returned to her home to go to the bathroom. The injury sustained by 13 plaintiff from falling could have happened anywhere, at any time, despite her admission to the 14 hospital for observation. A hospital cannot assign a designated nurse to sit with a single patient 24 15 hours a day. 16 It is important to note that “the Act, neglect refers not to the substandard performance of 17 medical services, but, rather, to the ‘failure of those responsible for attending to the basic needs and 18 comforts of elderly or dependent adults, regardless of their professional standing, to carry out their 19 custodial obligations.’ Thus, the statutory definition of “neglect” speaks not to the undertaking of 20 medical services, but of the failure to provide medical care. (Covenant Care, Inc. v. Superior 21 Court (2004) 32 Cal.4th 771. 783]).” In plaintiffs case, the doctors and nurses were attending to 22 plaintiffs medical needs at the hospital. Defendant Dignity Health was providing medical services 23 to plaintiff, not withholding care. If that care was done negligently, that care does not amount to 24 Elder Abuse as alleged by plaintiff. 25 II. CONCLUSION 26 Plaintiffs cause of action for Elder Abuse/Neglect does not meet the heightened 27 requirements under the Act. As such, the demurrer to the Elder Abuse cause of action should 28 Reply to Opposition to Demurrer to Complaint on Behalfof Defendant DH dba MRMC — Page 2 be sustained without leave to amend. Dated: April 22, 2024. CLINKENBE won vet & CLARK, LLP By Hugh S. Shacketfan. J. Lynn Stokes-Pena Attorneys for Defendant DIGNITY HEALTH dba MARIAN REGIONAL MEDICAL CENTER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Reply to Opposition to Demurrer to Complaint on Behalfof Defendant DH dba MRMC ~ Page 3 PROOF OF SERVICE [C.C.P. §1013a] COUNTY OF SANTA BARBARA STATE OF CALIFORNIA Iam 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 3938 State St., P.O. Box 21007, Santa Barbara, CA 93121 On the date set forth below, I served the foregoing document described as REPLY TO OPPOSITION TO DEMURRER TO COMPLAINT ON BEHALF OF DEFENDANT DIGNITY HEALTH dba MARIAN REGIONAL MEDICAL CENTER by placing copies thereof in sealed envelopes addressed as follows Attorneys For Plaintiff Adam Feldman, Esq. 10 Adam Feldman Law, APC 5850 Canoga Avenue, Suite 400 ll Woodland Hills, CA 91367 Tel.: 818 710 3833 12 Fax: 818 710 3802 13 Emails dam@adamfeldmanlaw.com 14 nfo@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) | 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 April 22, 2024, at Santa Barbara, California. Ae 26 4y My 27 Doreen Wienecke 28