Ruling
DOROTHY MATTIA, ET AL. VS VINELAND POST ACUTE, LLC, ET AL.
Jul 26, 2024 |
23BBCV02597
Case Number:
23BBCV02597
Hearing Date:
July 26, 2024
Dept:
NCB
Superior Court of California
County of Los Angeles
North Central District
Department B
dorothy mattia,
by and through her Successor-in-Interest, Elizabeth White,
et al.
,
Plaintiffs,
v.
vineland post acute, llc
, dba Vineland Post Acute,
et al.
,
Defendants.
Case No.:
23BBCV02597
Hearing Date:
July 26, 2024
[
TENTATIVE] order RE:
motion to compel arbitration; and demurrer and motion to strike
BACKGROUND
A.
Allegations
Plaintiff Dorothy Mattia (Mattia, born May 31, 1928) died on July 6, 2023 and brings this action through her Successor-in-Interest and daughter Plaintiff Elizabeth White (White).
Plaintiffs allege that Defendant Vineland Post Acute, LLC dba Vineland Post Acute (Vineland) provided long-term custodial care as a licensed 24-hour skilled nursing facility located at 10830 Oxnard Street in North Hollywood.
Plaintiffs allege that Defendants Belmont Village Burbank Tenant, LLC dba Belmont Village Burbank and Belmont Three, LLC dba Belmont Village Burbank (collectively Belmont Defendants) provide long-term custodial care and are located at 455 E. Angeleno Avenue in Burbank.
Plaintiffs allege that Mattia was admitted into the Belmont Defendants facility on September 6, 2022 for care and that Belmont Defendants knew at all times that Mattia was a high risk for falls, had limited mobility, and needed a walker with an escort to ambulate.
Plaintiffs allege that Mattia had unwitnessed falls on January 15, 2023 and April 3, 2023, and that she was found on her bathroom floor on May 10, 2023.
Plaintiffs allege that Mattia complained of severe back pain on May 11, 2023 and was sent to the emergency department at Providence St. Joseph Medical Care (Providence) for her bathroom fall and was then admitted to Vineland for rehabilitation on May 17, 2023.
On May 17, 2023, Plaintiff sustained another fall and was admitted to Providence.
On May 18, 2023, Plaintiff had surgery to repair a closed displaced spiral fracture of her right femur.
On July 6, 2023, Plaintiff passed away.
The complaint, filed November 3, 2023, alleges causes of action for: (1) elder abuse (Welfare & Institutions Code §§ 15600
et al.
) against all Defendants; (2) negligence against all Defendants; (3) violation of Resident Rights (Health & Safety Code § 1430(b)) against Vineland; and (4) wrongful death against all Defendants.
B.
Motions on Calendar
On December 12, 2023, Belmont Defendants filed a motion to compel binding arbitration and to stay the Superior Court matter pending the hearing on the petition.
On May 13, 2024, Plaintiff filed an opposition brief.
On July 24, 2024, Belmont Defendants filed a reply brief.
On January 23, 2024, Vineland filed a demurrer and motion to strike portions of the complaint.
On May 13, 2024, Plaintiff filed opposition briefs.
On June 24, 2024, Vineland filed reply briefs.
DISCUSSION RE MOTION TO COMPEL ARBITRATION
Belmont Defendants move to compel arbitration against Plaintiffs and for a stay.
A.
Terms of the Agreement to Arbitration
Belmont Defendants provide the declaration of counsel Jeffrey S. Healey, which includes a copy of the Belmont Village Residence and Services Agreement pertaining to Mattia.
(Mot., Ex. A.)
Appendix I includes the ALTERNATIVE DISPUTE RESOLUTION AGREEMENT, which states in relevant part:
OPTIONAL
Signing this alternate dispute resolution agreement is not a precondition of the admission to or furnishing of services by Belmont Village.
ALTERNATIVE DISPUTE RESOLUTION (ADR)
It is understood that any and all legal claims or civil actions arising out of or relating to care or services provided to you at Belmont Village Burbank, LP (Belmont Village) (including but not limited to claims for negligence, elder or dependent adult abuse/neglect, unfair business practices, refund, breach of contract, intentional tort) & will be determined by good faith mediation and, if necessary, followed by submission to arbitration as provided by:
(1) the Judicial Arbitration and Mediation Services ("Hereinafter referred to JAMS") or (2) pursuant to California law, in the event a court determines that the JAMS does not apply. This includes claims and actions regarding whether the care or services you received, or lack of care or services, was unnecessary or unauthorized or was improperly, negligently, or incompetently rendered. This includes claims or actions against Belmont Village, its employees, agents, directors, or any parent, subsidiary, or affiliate of the Belmont Village (Hereinafter referred to "affiliates"). &
The parties to this Alternative Dispute Resolution Agreement, by entering into it, are giving up their constitutional right to have any such dispute decided in a court of law before a judge or jury, and instead are accepting the use of mediation and arbitration.
&
This Agreement is binding on all parties hereto, including the Resident's representatives, agents, executors, family members, and heirs who execute this Agreement below on the "Resident Representative/Agent Signature" line. Those who execute this Agreement on the "Resident Representative/Agent Signature" line are doing so not only in their representative capacity for the Resident, but also in their individual capacity and thus agree that any claims subject to binding arbitration.
RULES OF ADR
&
The parties agree that California Code of Civil Procedure §1281.2(c) is excluded from this Agreement as the parties mutually desire to have any and all disputes submitted to binding arbitration. The parties do not want any claims not subject to arbitration to impede any and all other claims from being adjudicated in binding arbitration.
&
NOTICE: BY SIGNING THIS ALTERNATIVE DISPUTE RESOLUTION AGREEMENT YOU ARE AGREEING TO HAVE ANY LEGAL CLAIM OR CIVIL ACTION ARISING OUT OF OR RELATING TO YOUR RESIDENCE OR ANY SERVICES RENDERED UNDER THE RSA DECIDED BY NEUTRAL MEDIATION AND ARBITRATION. YOU ARE GIVING UP YOUR RIGHT TO A COURT TRIAL OR JURY.
(Residence and Services Agreement, Appendix I at I-1, I-2, I-3, I-5 [bold in original] [underline added].)
The arbitration agreement is electronically signed by Elizabeth White, Responsible Person for Dorothy Mattia on August 30, 2022.
Under the signature line, the arbitration agreement states:
By virtue of the Resident's consent, instruction and/or durable power of attorney, I hereby
certify I am authorized to act as Resident's agent in executing and delivering this Agreement. If signed by a Legal Representative, the representative certifies that Belmont Village may reasonably rely upon the validity and authority of the representative's signature based upon actual, implied or apparent authority to execute this Agreement as granted by the Resident.
(
Id.
at I-5.)
White electronically signed this portion of the agreement as the Legal Representative.
Belmont Defendants argue that the arbitration agreement should be enforced because White voluntarily signed the agreement on behalf of Mattia and the arbitration agreement stated that it would be binding on all partiesMattia (the resident), her agent/representative White (in her representative and individual capacity), and Belmont Defendants.
Belmont Defendants also argue that the scope of the arbitration agreement covers Plaintiffs claims for elder abuse, negligence, and wrongful death (the 3
rd
cause of action for violation of Resident Rights is alleged against Vineland only).
In opposition, Plaintiffs first argue that the arbitration agreement is invalid as it has not been legally authenticated.
However, Plaintiffs do not deny that White signed the Residence and Services Agreement on Mattia behalf.
While they argue that White did not sign the arbitration agreement, Whites declaration statements denying her signature are refuted by Belmont Defendants evidence in reply as discussed below.
Further, with the reply brief, Belmont Defendants provide the declaration of Mary Jane Rodriguez, who is the Executive Director of Belmont Village Burbank and she states that she is familiar with and oversees resident records and files.
(Rodriguez Decl., ¶1.)
Her declaration includes Whites DocuSign Certificate of Completion and a copy of the Residence and Services Agreement with its Appendices.
As such, the documents have been properly authenticated and will be admissible for the purposes of this motion.
Second, Plaintiffs argue that White did not execute the arbitration agreement.
In her declaration, White states that upon her review the arbitration agreement, she has never received the arbitration agreement to sign and did not sign it electronically.
(White Decl., ¶1.)
She states that the signature in the arbitration agreement is not her signature and believes that the purported signature was done without her consent, knowledge, or authorization.
(
Id.
, ¶2.)
However, White does not deny that she electronically signed the rest of the Residence and Services Agreement.
The Court has reviewed the Residence and Services Agreement and it shows that she electronically signed the Residence and Services Agreement on August 30, 2022 with DocuSign with unique stamp 33BC9A6622DD4BD.
(See Residence and Services Agreement at pp.19-20.)
Appendices A to L are also electronically signed with the same DocuSign ID number/stamp.
(See
id.
, Appendix A at A-4; Appendix B at B-3; Appendix C at C-6; Appendix D at D-7; Appendix E at E-2; Appendix F at F-3; Appendix I at I-5; Appendix J at J-2; Appendix K at K-4; Appendix L at L-1; Appendix N at N-2.)
Other than her declaration, there is no other proof that she did not sign the arbitration agreement or that she did not sign the Residence and Services Agreement or the Appendices with the same electronic signature.
With the reply brief, Belmont Defendants provide Whites emails showing that she requested the lease agreement documents on August 30, 2022 and had sent them over to Juliet Connaughton of Belmont Village.
(See Reply at Ex. A.)
Belmont Defendants also provide the DocuSign Certificate of Completion, showing that White reviewed 70 pages of documents with 25 signatures regarding the RSA for Dorothy Mattia; this document also shows Whites DocuSign signature and the unique stamp/number.
(Reply at Ex. B.)
Thus, this will not be an argument upon which the motion will be denied.
Third, Plaintiffs argue that the arbitration agreement is a waiver of the patients legal rights and thus violates Health & Safety Code, § 1569.269(c).
Subsection (c) states: No provision of a contract of admission, including all documents that a resident or his or her representative is required to sign as part of the contract for, or as a condition of, admission to a residential care facility for the elderly, shall require that a resident waive benefits or rights to which he or she is entitled under this chapter or provided by federal or other state law or regulation.
(Health & Saf. Code, § 1569.269(c).)
Health & Safety Code, § 1599.81 states:
(a) All contracts of admission that contain an arbitration clause shall clearly indicate that agreement to arbitration is not a precondition for medical treatment or for admission to the facility.
(b) All arbitration clauses shall be included on a form separate from the rest of the admission contract. This attachment shall contain space for the signature of any applicant who agrees to arbitration of disputes.
(Health & Saf. Code, § 1599.81.)
The arbitration agreement is provided on a separate form from the Residence and Services Agreement and clearly states at the top in bold:
Signing this alternate dispute resolution agreement is not a precondition of the admission to or furnishing of services by Belmont Village.
(
Residence and Services Agreement, Appendix I at I-1 [bold in original].)
Thus, signing the arbitration agreement was optional/voluntary and there was no requirement for Plaintiffs to have signed the arbitration agreement as a requirement to obtain services.
Fourth, Plaintiffs argue that White did not have legal authority to bind Mattia to the arbitration agreement.
They argue that Mattia did not sign the arbitration agreement, White only signed on behalf of Mattia as the Responsible Person, and no power of attorney has been provided to show that White has the capacity to contract on behalf of Mattia.
The Court of Appeals discussion in
Hutcheson v. Eskaton FountainWood Lodge
(2017) 17 Cal.App.5th 937, 944945 is instructive:
As the
Flores
court explained, Generally, a person who is not a party to an arbitration agreement is not bound by it. (
Buckner v. Tamarin, supra,
98 Cal.App.4th at p. 142 [119 Cal.Rptr.2d 489].) However, there are exceptions. For example, a
patient
who signs an arbitration agreement at a health care facility can bind relatives who present claims arising from the patient's treatment. (
Mormile v. Sinclair
(1994) 21 Cal.App.4th 1508, 1511-1516 [26 Cal.Rptr.2d 725];
Bolanos v. Khalatian
(1991) 231 Cal.App.3d 1586, 1591 [283 Cal.Rptr. 209].) Further, a person who is authorized to act as the patient's
agent
can bind the patient to an arbitration agreement.
(
Hutcheson
, supra,
17 Cal.App.5th at 944945.)
In
Hutcheson
, the decedent signed a healthcare power of attorney, naming her niece as attorney-in-fact to make healthcare decisions for her.
The decedent thereafter signed a personal care power of attorney designating her sister and niece as her attorneys-in-fact.
The decedents sister then voluntarily admitted decedent to defendant residential care facility and the sister signed the admission agreement, which contained an arbitration clause, on the decedents behalf.
In determining whether compelling arbitration was proper, the Court of Appeal concluded that
admission of decedent to the residential care facility for the elderly in this instance was a health care decision, and the attorney-in-fact who admitted her, acting under the [Power of Attorney Law], was not authorized to make health care decisions on behalf of the principal.
(
Hutcheson v. Eskaton FountainWood Lodge
(2017) 17 Cal.App.5th 937, 941.)
Here, there is no evidence offered by the parties that White had legal authority under a power of attorney to bind Mattia to an arbitration agreement.
As stated in
Pagarigan v. Libby Care Center, Inc.
(2002) 99 Cal.App.4th 298:
A person cannot become the agent of another merely by representing herself as such. To be an agent she must actually be so employed by the principal[] or the
principal
intentionally, or by want of ordinary care, [has caused] a third person to believe another to be his agent who is not really employed by him.
[] Defendants produced no evidence Ms. Pagarigan had ever employed either of her daughters as her agent in any capacity. Nor did defendants produce any evidence this comatose and mentally incompetent woman did anything which caused them to believe either of her daughters was authorized to act as her agent in any capacity.
(
Pagarigan v. Libby Care Center, Inc.
(2002) 99 Cal.App.4th 298, 301-302 [footnotes omitted].)
At most, the arbitration agreement states Whites representations that she is authorized to act as Mattias agent and that Belmont Defendants may reasonably rely on her authority to sign the arbitration agreement.
However, Belmont Defendants have not shown that White in fact was Mattias agent for the purposes of binding her to the arbitration agreement, such as under a power of attorney, signed document by Mattia naming White as her agent, etc.
As such, the motion to compel arbitration is denied.
DISCUSSION RE DEMURRER
Vineland demurs to each cause of action alleged in the complaint.
A.
Uncertainty
Vineland demurs to the entirety of the complaint, arguing that it is uncertain because the allegations mostly concern Belmont Defendants and fails to allege specific conduct about Vineland.
The complaint alleges general facts about Mattia, her admission to Belmont Defendants facility, and then her admission to Vineland.
(See Compl., ¶¶11-29.)
Paragraphs 30 to 49 are regarding Belmont Defendants actions and inactions.
Paragraphs 50 to 70 are regarding ALLEGATIONS AGAINST VINELAND.
Plaintiffs allege that after Mattia was admitted to Providence following her fall in the bathroom, she entered Vineland for rehabilitation on May 17, 2023.
(Compl., ¶18.)
Plaintiffs allege that Mattia sustained another fall on May 17, 2023 at approximately 7:50 p.m., which caused her to be transferred to the emergency room on May 17, 2023.
(
Id.
, ¶¶19-20.)
Plaintiffs allege that Defendants were aware that Mattia had a high probability of suffering injuries and had a duty to provide adequate care and supervision to prevent falls.
(
Id.
, ¶24.)
They allege that Vineland owed Mattia a duty to provide necessary custodial and professional care to attain or maintain her wellbeing and to be free from mental and physical abuse; to notify a physician of any sudden or marked adverse changes; to conduct assessments of her functional capacity; and to provide a sufficient number of personnel for appropriate custodial and professional services to Mattia.
(
Id.
, ¶¶50-54.)
Plaintiffs allege that Mattias injuries were the result of Defendants plan and effort to cut costs in the operation of their facilities and that Defendants knew that they would be unable to comply with the standards of care as a result of insufficient staffing and training.
(
Id.
, ¶60.)
At the demurrer stage, the Court accepts the pleading as true.
Here, the allegations are not so uncertain that Vineland cannot ascertain what facts are being alleged against it.
While Vineland is sometimes referred to and grouped with Defendants generally, the Court accepts the pleadings that Belmont Defendants and Vineland each engaged in certain conduct (or inactions) towards Mattia.
As such, the demurrer on the basis of uncertainty is overruled.
B.
1
st
cause of action for elder abuse (Welfare & Institutions Code §§ 15600
et al.
)
Vineland argues that the elder abuse cause of action fails to allege sufficient facts against it.
This cause of action is a statutory remedy provided under Welfare and Institutions Code §15657, which is part of the Elder Abuse and Dependent Adult Civil Protection Act, enacted at Welfare & Institutions Code §§ 15600 to 15675.
In order to protect elders, the Legislature added heightened civil remedies for egregious elder abuse, seeking thereby to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adult.
(
Covenant Care, Inc. v. Superior Court
(2004) 32 Cal. 4th 771, 787.) These heightened remedies are enacted in section 15657, which permits a plaintiff who proves the elder abuse by clear and convincing evidence to obtain heightened remedies, including attorneys fees and pain and suffering for elders who have died.
In order to obtain these heightened remedies and show elder abuse under section 15657, the plaintiff must plead and show that the defendant is liable for: (1) physical abuse as defined in section 15610.63; or (2) neglect as defined in Section 15610.57.
In addition, section 15657 requires the plaintiff to show that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse. Accordingly, the plaintiff must show that the defendant engaged in conduct, either physical abuse or neglect, and that the defendant engaged in the conduct with a specific mental state, either recklessness, oppression, fraud, or malice.
In the 1
st
cause of action, Plaintiffs allege the elements of elder abuse/neglect based on CACI VF 3105.
(Compl., ¶72.)
Plaintiffs allege that Defendants were to provide care/services to Mattia and were care custodians of Mattia.
(
Id.
, ¶73.)
They allege that Mattia is an elder (born May 31, 1928) and that Defendants neglected Mattia under the definition of the Welfare & Institutions Code by denying or withholding goods/services necessary to meet Mattias basic needs.
(
Id.
, ¶¶74-75.)
They allege that Defendants repetitive acts/omissions constituted negligence and were done with malice, oppression, and fraud, such that Mattia suffered economic and non-economic damages.
(
Id.
, ¶¶76-77.)
The allegations fail to allege facts showing that Vineland intended to harm Mattia and thereby caused and/or contributed to Mattias injuries are lacking.
The elements of elder abuse must be pleaded with particularity for this statutory cause of action.
While Plaintiffs incorporate all the prior allegations into their 1
st
cause of action, Plaintiffs should specifically plead what allegations are being alleged against Vineland in the 1
st
cause of action.
In opposition, Plaintiffs argue that they have adequately pled neglect.
To plead neglect, a plaintiff must allege facts establishing that the defendant:
(1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care;
(2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; and
(3)
denied or withheld goods or services necessary to meet the elder or dependent adult's basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult, if the plaintiff alleges oppression, fraud or malice, or with conscious disregard of the high probability of such injury, if the plaintiff alleges recklessness.
Carter v. Prime Healthcare Paradise Valley LLC
(2011) 198 Cal. App. 4th 396, 406-407.)
In addition, the plaintiff must allege that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. (
Id
.) 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
.)
As currently alleged, Plaintiffs have only alleged neglect in conclusory, general terms.
At most, Plaintiffs have alleged that Mattia entered Vineland for rehabilitation on May 17, 2023, but that she sustained another fall and was transferred to Providences emergency room at approximately 7:50 p.m. that same day; she then passed away on July 6, 2023.
(Compl., ¶¶18-22.)
While Plaintiffs allege that Vineland owed Mattia certain types of duties, breached those duties, and understaffed its facility, Plaintiffs have not alleged specific facts regarding what happened on May 17, 2023 during Mattias short residency with Vineland, how Vineland neglected Mattia, and how Vinelands actions/inactions caused or contributed to her injuries.
The demurrer to the 1
st
cause of action is sustained with leave to amend.
C.
2
nd
cause of action for negligence
The elements of a negligence cause of action are duty, breach of duty, proximate cause, and damages.
(
Carlsen v. Koivumaki
(2014) 227 Cal.App.4th 879, 892.)
In the 2
nd
cause of action, Plaintiffs allege that Defendants owed statutory, regulatory, and common law duties to Mattia and Defendants breached those duties, which caused Mattia to suffer injuries.
(Compl., ¶¶81-83.)
This cause of action is essentially devoid of any facts against Vineland and simply alleges the elements of a negligence cause of action.
While Plaintiffs incorporate the prior allegations (paragraph 80), Plaintiffs have not stated which facts apply to this cause of action against each of the Defendants.
Facts should be alleged in the 2
nd
cause of action to support a claim of negligence instead of simply alleging the elements of a negligence cause of action.
The demurrer to the 2
nd
cause of action is sustained with leave to amend.
D.
3
rd
cause of action for violation of Resident Rights (Health & Safety Code § 1430(b))
Health & Safety Code, § 1430(b) states in relevant part:
(1)
A current or former resident or patient
, or the legal representative, personal representative, or successor in interest of a current or former resident or patient,
of a skilled nursing facility, as defined in subdivision (c) of Section 1250, or intermediate care facility, as defined in subdivision (d) of Section 1250, 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. The suit shall be brought in a court of competent jurisdiction. The licensee shall be liable for the acts of the licensee's employees.
(Health & Saf. Code, § 1430(b).)
In the 3
rd
cause of action, Plaintiffs allege that Vineland Post Acute, LLC was the licensee of the skilled nursing facility known as Vineland Post Acute, LLC dba Vineland Post Acute.
(Compl., ¶86.)
They allege that Vineland failed to treat Mattia with respect, consideration, and full recognition of dignity in care of her personal needs as required by the Patients Bill of Rights, such that Vineland violated her rights under 22 C.C.R. §§ 72527(a)(3), 72527(a)(12), 72527(a)(25), 72315, and 72517; and 43 C.F.R. §§ 483.25, 483.10(b)(11), 483.20(d), 483.20(k)(1), 483.20(k)(3)(i), and 483.25(h)(1).
(
Id.
, ¶87 (a)-(j).)
Plaintiffs allege that while Mattia was a resident, she suffered numerous falls with injuries and endured pain and suffering, which Health & Safety Code, § 1430(b) is intended to protect against.
(
Id.
, ¶¶88-89.)
For the same reasons discussed above, the complaint fails to allege sufficient facts to constitute a cause of action for violation of residents rights against Vineland.
The allegations in support of the 3
rd
cause of action are a recitation of the Health & Safety Code and citations to various California Code of Regulations sections and Code of Federal Regulations sections.
No supporting facts are actually alleged in the 3
rd
cause of action.
The demurrer to the 3
rd
cause of action is sustained with leave to amend.
E.
4
th
cause of action for wrongful death
The elements of a wrongful death cause of action are: (1) a wrongful act or neglect on the part of one or more persons that (2) causes (3) the death of another person.
(
Nogart v. Upjohn Co.
(1999) 21 Cal.4th 383, 390.)
In the 4
th
cause of action, Plaintiffs allege that White is the surviving heir of decedent Mattia.
(Compl., ¶93.)
Plaintiffs allege that Vineland and Belmont Defendants owed duties to Mattia and they failed to meet those duties, such that Mattia died on July 6, 2023.
(
Id.
, ¶¶94-96.)
They allege that prior to Mattias death, White enjoyed the love, society, comfort, and attention of Mattia.
(
Id.
, ¶97.)
For the reasons discussed above, the wrongful death cause of action is insufficiently pled and lacks facts against Vineland.
The demurrer to the 4
th
cause of action is sustained with leave to amend.
DISCUSSION RE MOTION TO STRIKE
Vineland moves to strike allegations for attorneys fees and costs and for punitive damages.
In light of the ruling on the demurrer, the motion is taken off-calendar as moot.
CONCLUSION AND ORDER
Defendants Belmont Village Burbank Tenant, LLC dba Belmont Village Burbank and Belmont Three, LLC dba Belmont Village Burbanks motion to compel arbitration is denied.
Defendants Vineland Post Acute, LLC dba Vineland Post Acutes demurrer is sustained with 20 days leave to amend.
In light of the ruling on the demurrer, Defendants Vineland Post Acute, LLC dba Vineland Post Acutes motion to strike is taken off-calendar as moot.
Each party shall provide notice of their respective order.
DATED: July 26, 2024
___________________________
John J. Kralik
Judge of the Superior Court
Ruling
OLIVER LEROY VANN vs. OSAROBO OSEMWINGIE LVN
Jul 29, 2024 |
19-CVC-11488
Defendant’s Motion for Summary Judgment is GRANTED. Mandatory Settlement Conference and Trial Setting are VACATED. Summary judgment must be granted if all the papers and affidavits submitted, together with “all inferences reasonably deducible from the evidence” and uncontradicted by other inferences or evidence, show ‘there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ (Code Civ. Proc., § 437c, subd. (c).)” (Property California SCJLW One Corp. v. Leamy (2018) 25 Cal.App.5th 1155, 1161- 1162.) The party moving for summary judgment carries both the burden of persuasion and the burden of production of evidence. (Evid. Code §500; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) A defendant moving for summary judgment “bears the burden of persuasion that ‘one or more elements of the ‘cause of action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Alternatively, a defendant meets its burden by submitting evidence ‘that the plaintiff does not possess, and cannot reasonably obtain, needed evidence’ supporting an essential element of its claim.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.) Plaintiff’s complaint alleges a single cause of action of medical negligence against Defendant Osemwingie, LVN. To establish a prima facie case of professional malpractice, a Plaintiff must prove by a preponderance of the evidence each of the following four elements: (1) duty; (2) breach of duty; (3) causation; and (4) damages. (Leslie G. v. Perry & Assocs. (1996) 43 Cal.App.4th 472, 482). In medical malpractice actions, expert testimony is required to prove each of the four prima facie elements. (Lawless v. Calloway, (1944) 24 Cal.2d 81, 90; Willard v. Hagemeister, (1981) 121 Cal.App.3d 406 412). A Plaintiff opposing a motion for summary judgment on a medical malpractice claim must present competent expert testimony that the Defendants' delivery of medical services fell below the standard of care, and the breach of the duty of care proximately caused the injury. (Rutherford v. Owens- Illinois, Inc., (1997) 16 Cal.4th 953, 957-58; Jameson v. Desta, (2013) 215 Cal.App.4th 1144, 1166; Johnson v. Superior Court, (2006) 143 Cal.App.4th 297, 305. Defendant Osemwingie, LVN offers into evidence the declaration of Dr. J. Jackson, Plaintiff’s physician who treated Plaintiff after the injection of Estradiol. Dr. Jackson reviewed Plaintiff’s medical records as well as medical literature regarding the potential side effects of a single injection of Estradiol. (Decl. Jackson ¶¶ 2-3.) Dr. Jackson was unable to find any clinical or statistical information to suggest that a single injection of Estradiol might have any significant effects, or even any adverse effects. (Decl. Jackson ¶ 4.) Based on the review of the medical literature, Plaintiff’s medical file, as well as Dr. Jackson’s own examinations of Plaintiff, it is the doctor’s professional medical opinion that the injection of Estradiol did not cause any side effects or lasting effects of any kind. (Decl. Jackson ¶ 5.) Here, Defendant presents admissible evidence showing that Plaintiff does not possess and cannot obtain evidence supporting demonstrable damages, or that the conduct of Defendant caused any such damages. Burden Shifts to Opposing Party Once the moving party has met their initial burden, the burden shifts to the plaintiff to show a triable issue of one or more material facts exists as to the cause of action or a defense. “The defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (CCP § 437c(p)(1); emphasis added.) “An issue of fact can only be created by a conflict of evidence. It is not created by ‘speculation, conjecture, imagination or guess work.’ Further, an issue of fact is not raised by ‘cryptic, broadly phrased, and conclusory assertions', or mere possibilities’” (Myricks v. Lynwood Unified School District (1999) 74 Cal.App.4th 231, 237.) ‘Thus, while the court in determining a motion for summary judgment does not “try” the case, the court is bound to consider the competency of the evidence presented.’ (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 525-526.) Defendant’s Motion for Summary Judgment is unopposed. Plaintiff offers no relevant, admissible evidence as to the cause of action for medical negligence against Defendant Osemwingie, LVN. In light of the court’s ruling granting Defendant’s Motion for Summary Judgment, the Mandatory Settlement Conference and Trial Setting are vacated. Moving party is ordered to prepare a judgment and dismissal conforming to the court’s order within ten (10) days of the hearing date. Plaintiff is incarcerated at Mule Creek State Prison. As per Amador Local Rules of Court, rule 4.03, subdivision F, the tentative ruling procedures do not apply in any case in which a self-represented party in the custody of the California Department of Corrections and Rehabilitation. Plaintiff may appear telephonically for hearing; orders will be made at time of hearing.
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12-Person(A,B,C,D,E,F,H,R,X,Z) Law Division Motion Section Initial Case Management Dates for CALENDARS Jury will be heard In Person. All other Law Division Initial Case Management Dates will be heard via Zoom For more information and Zoom Meeting IDs go to https.//www.cookcountycourt,org/HOME?Zoom-Links?Agg4906_SelectTab/12 Court Date: 9/3/2024 9:30 AM #40058 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION FILED DATE: 3/18/2024 10:41 PM 2024L064018 FILED JUANITA DIAZ, ) 3/18/2024 10:41 PM Independent Administrator of the Estate ) IRIS Y. MARTINEZ OF Maria Zaragoza, Deceased, ) CIRCUIT CLERK COOK COUNTY, IL ) 2024L064018 ) Calendar, L Plaintiff, ) 26873596 ) v. ) No. 2024 L ) JURY DEMAND IGNACIO ALVAREZ and MARCELINA) $50,000+ ALVAREZ, ) Defendants. ) COMPLAINT AT LAW NOW COMES Plaintiff, JUANITA DIAZ, as Independent Administrator of the Estate of MARIA ZARAGOZA, deceased, by and through her attorneys, Weiss Ortiz, P.C., and for her Complaint at Law against Defendants, IGNACIO ALVAREZ and MARCELINA ALVAREZ, states as follows: PARTIES 1. Plaintiff, JUANITA DIAZ, is the duly appointed Independent Administrator of the Estate of MARIA ZARAGOZA, Deceased, by virtue of an Order appointing her in the Circuit Court of Cook County, Illinois dated August 5, 2022. 2. The Decedent, MARIA ZARAGOZA (“MARIA”), was born on December 22, 1950. At the time of her death on March 23, 2022, she was a resident of Cook County, Illinois. 3. At all times relevant, MARIA, deceased, was a resident of the State of Illinois, County of Cook, City of CICERO. 4. At all times relevant, IGNACIO ALVAREZ ("IGNACIO") and MARCELINA ALVAREZ (“MARCELINA”) and or (“DEFENDANTS”), were residents of Cook County, State of Illinois, and were doing business in the County of Cook, City of Cicero. FILED DATE: 3/18/2024 10:41 PM 2024L064018 5. At all times relevant DEFENDANTS were the owners and lessors of 1832 and 1834 S. 51st Court, Cicero, IL 60804, each of which are 8 unit two story adjoining apartment buildings, the property subject to this Complaint (“the Premises”). JURISDICTION AND VENUE 6. This is an action predicated upon negligence. 7. This Court has subject matter jurisdiction of this action and personal jurisdiction over Defendants, IGNACIO ALVAREZ and MARCELINA ALVAREZ. 8. Venue of this action in this judicial district is proper as the event that forms the basis for this Complaint occurred in Cook County, Illinois. FACTS 9. On March 16, 2022, MARIA lawfully occupied the premises located at 1834 S. 51st Court, Unit 2R, Cicero, Illinois ("the UNIT"). On March 16, 2022, IGNACIO and MARCELINA were the landlords and owners of the Unit. 10. On March 16, 2022, MARIA was lawfully in the Unit. 11. On March 16, 2022, at approximately 8:56 pm MARIA was in the Unit. 12. On March 16, 2022, at approximately 9:00 p.m., the Decedent was in her apartment when a fire started in her second floor, rear apartment located at 1834 S. 51st Street Court, Cicero, Illinois. 13. On March 16, 2022, The Cicero Fire Department responded to the fire at the premises. 14. On March 16, 2022, The Cicero Fire Department gained entry to the premises wherein MARIA was found with severe burns. The wall mounted smoke detector was absent: FILED DATE: 3/18/2024 10:41 PM 2024L064018 Moreover, the wiring in the Unit was faulty, including the connections under the radiator in Maria’s bedroom. 15. As a result of said fire, Decedent suffered extensive burns all over her body, including but not limited to face, neck, arms, hands and back, and suffered from smoke inhalation injury. 16. Decedent was extricated from the burning building by the fire department and transported to the Loyola University Medical Center Burn Unit where she underwent surgery, debridement and other treatment for her burn and inhalation injury. 17. Decedent died on March 23, 2022, due to complications from burn and inhalation injury caused by the fire. COUNT I – Negligence Per Se all Defendants (Wrongful Death Act) 18. Plaintiff repeats and realleges Common Allegations 1 through 17 of Plaintiff’s Complaint as and for paragraph 18 of Count I as though fully set forth herein. 19. Plaintiff brings this action pursuant to 740 ILCS 180/1, et. seq., commonly known as the Wrongful Death Act. FILED DATE: 3/18/2024 10:41 PM 2024L064018 20. At the time of the apartment fire, there was in force and effect: a. The Town of Cicero had previously adopted certain codes that are in full force and effect, and which are applicable to all properties located within the Town of Cicero, including but not limited to: 2009 International Building Code, 2009 International Residential Code, 2009 International Existing Buildings Code, 2009 101 Life Safety Code, 2009 International Fire Code and 2008 National Electric Code. b. The 2009 101 Life Safety Code requires the following: i. that structures contain a properly designed means of egress in the event of fire or other emergency; ii. require adequate, safe and sufficient electrical wiring. iii. that structures contain exit lighting and the illumination of the means of egress to ensure quick evacuation of the building; iv. that structures contain portable fire extinguishers in the event of fire; v. that structures be provided with sprinkler systems and fire proof doors; 1. Defendant violated the 2009 101 Life Safety Code by: a. Negligently failing to provide a properly designed means of egress to allow for evacuation in the event of fire or other emergency; b. Negligently failing to provide exit lighting and the illumination of the means of egress to ensure quick evacuation of the building; and c. Negligently failing to provide portable fire extinguishers. d. by negligently failing to maintain electrical wiring pursuant to Code. FILED DATE: 3/18/2024 10:41 PM 2024L064018 21. Defendant’s violations of any and all of the above cited statutes and code regulations constitutes prima facie evidence of Defendant’s negligence. 22. The statute, ordinances, or regulations above are designed to protect against the type of injury complained of, that is, injury caused by fire. 23. Decedent was a member of the class of persons said statutes and code regulations were intended to protect from the kind of injury she suffered. 24. Each of the violations alleged above were the actual and proximate cause of the injuries sustained by the Decedent. 25. As a direct and proximate cause of one or more than one of Defendant’s statutory and/or code violations, the Decedent sustained severe and fatal injuries including but not limited to burns over of her body including but not limited to her face, neck, arms, hands and back and inhalation injury, all of which caused or contributed to her death. 26. The Decedent left surviving her as her only heirs and next of kin, Juanita Diaz, her daughter, Leticia Machuca, her daughter, Sandra Diaz, her daughter, and Enrique Lira, her son, each of whom suffered injuries as a result of Decedent’s death, including the profound loss of her love, affection, consortium, care, attention, society, companionship, comfort, guidance and protection. WHEREFORE, Plaintiff, JUANITA DIAZ, as Independent Administrator of the Estate of MARIA ZARAGOZA, Deceased, asks that judgment be entered against Defendants IGNACIO and MARCELINA ALVAREZ, in a sum in excess of FIFTY THOUSAND DOLLARS ($50,000.00), and for any other relief this Court finds equitable and just. COUNT II – Negligence Per Se all Defendants (Survival Statute) 27. Plaintiff repeats and realleges paragraphs 1 through 26 as and for paragraph 27 of FILED DATE: 3/18/2024 10:41 PM 2024L064018 Count II as though fully set forth herein. 28. Plaintiff brings this action on behalf of MARIA ZARAGOZA, Deceased, pursuant to 755 ILCS 5/27-6, commonly known as the Illinois Survival Statute. 29. As a direct and proximate cause of one or more than one of Defendant’s statutory and/or code violations, the Decedent sustained severe and fatal injuries including but not limited to burns over of her body including but not limited to her face, neck, arms, hands and back and inhalation injury, all of which caused or contributed to her death, pain and suffering, disfigurement, and medical expenses, and the Decedent would have been entitled to receive compensation from Defendant for these injuries, had she survived. Further, Decedent’s estate was diminished by virtue of the medical, hospital and funeral expenses that were incurred. WHEREFORE, Plaintiff, JUANITA DIAZ, as Independent Administrator of the Estate of MARIA ZARAGOZA, Deceased, asks that judgment be entered against Defendants, in a sum in excess of FIFTY THOUSAND DOLLARS ($50,000.00), and for any other relief this Court finds equitable and just. COUNT III Violation of The Smoke Detector Act 425 ILCS 60/3-All Defendants (Wrongful Death & Survival Act) 30. Plaintiff repeats and realleges paragraphs 1 through 29 above as and for paragraph 30 of Count III as if fully set forth herein. 31. On March 16, 2022 The Smoke Detector Act, 425 ILCS 60/3 ("The Act"), was in full force and effect. FILED DATE: 3/18/2024 10:41 PM 2024L064018 32. The Act requires that every dwelling unit shall be equipped with at least one approved smoke detector in an operating condition within fifteen (15) feet of every room used for sleeping purposes and that the detector shall be installed on the ceiling and at least six (6) inches from any wall, or on a wall located between four (4) and six (6) inches from the ceiling. 33. The Act requires that every residence shall have at least one approved smoke detector installed on every story of the dwelling unit, including basements. 34. The Act requires that in dwelling units with split levels, a smoke detector installed on the upper level shall suffice for the adjacent lower level if the lower level is less than one full story below the upper level; however, if there is an intervening door between the adjacent levels, a smoke detector shall be installed on each level. 35. The Act requires that every structure which: (1) contains more than one dwelling unit, or (2) contains at least one dwelling unit and is a mixed-use structure, shall contain at least one approved smoke detector at the uppermost ceiling of each interior stairwell and the detector shall be installed on the ceiling, at least six (6) inches from the wall, or on a wall located between four (4) and six (6) inches from the ceiling. 36. The Act makes it the responsibility of the Defendants of a structure to supply and install all required detectors. 37. The Act makes it the responsibility of the Defendants to test and maintain required smoke detectors in common stairwells and hallways. 38. The Act makes it the responsibility of the Defendants to provide one tenant per dwelling unit with written information regarding smoke detector testing and maintenance. 39. For a tenant's dwelling unit, The Act makes it the responsibility of the Defendants to ensure that any required batteries in required smoke detectors are in operating condition at the FILED DATE: 3/18/2024 10:41 PM 2024L064018 time the tenant takes possession of the dwelling unit. 40. DEFENDANTS had a duty to supply, provide, install, test, inspect, replace and maintain required smoke detectors in the Unit. 41. Notwithstanding said duties, DEFENDANT breached and violated The Act, in ways including but not limited to the following: (a) DEFENDANTS failed to supply required smoke detectors in the Unit; (b) DEFENDANTS failed to provide required smoke detectors in the Unit; (c) DEFENDANTS failed to install required smoke detectors in the Unit; (d) DEFENDANTS failed to test required smoke detectors in the Unit; (e) DEFENDANTS failed to inspect for smoke detectors in the Unit; (f) DEFENDANTS failed to replace required smoke detectors in the Unit; (g) DEFENDANTS failed to maintain required smoke detectors in the Unit; and (h) DEFENDANTS failed to provide written information regarding smoke detector testing and maintenance to Plaintiffs regarding required smoke detectors in the Unit. 42. As a result of said breaches and violations by DEFENDANTS, MARIA sustained fatal injuries in the fire. 43. MARIA was survived by her aforementioned children. 44. Each of MARIA's surviving heirs have suffered and continue to suffer the loss of MARIA's society, love, and affection, and each of whom have suffered and continue to suffer grief, sorrow and mental suffering. WHEREFORE, Plaintiff, JUANITA DIAZ, as Independent Administrator of the Estate of MARIA ZARAGOZA, Deceased, asks that judgment be entered against Defendants IGNACIO FILED DATE: 3/18/2024 10:41 PM 2024L064018 and MARCELINA ALVAREZ, in a sum in excess of FIFTY THOUSAND DOLLARS ($50,000.00), and for any other relief this Court finds equitable and just. COUNT IV- Negligence- All Defendants (Wrongful Death & Survival Act) 45. Plaintiff repeats and realleges paragraphs 1 through 29 above as and for paragraph 45 of Count IV as if fully set forth herein. 46. DEFENDANTS had a duty to maintain the Unit in a safe condition for the protection of MARIA and all others lawfully in the Unit. 47. DEFENDANTS had a duty to supply, provide, install, test, inspect, replace and maintain smoke detectors in the Unit. 48. Notwithstanding said duties, DEFENDANTS was reckless, careless and negligent follows: (a) DEFENDANTS failed to supply working smoke detectors; (b) DEFENDANTS failed to provide an adequate number of working smoke detectors; (c) DEFENDANTS failed to install an adequate number of working smoke detectors; (d) DEFENDANTS failed to test, inspect, maintain, and or repair the in unit wiring and radiator present in the Unit for safety; (e) DEFENDANTS failed to inspect for smoke detectors present in the Unit; (f) DEFENDANTS failed to maintain at least one working smoke detectors present in the Unit; (h) DEFENDANTS failed to provide written information regarding smoke detector testing and maintenance, or lack thereof, to Plaintiff; and FILED DATE: 3/18/2024 10:41 PM 2024L064018 (i) DEFENDANTS were otherwise careless and negligent. 49. As a result of said breaches and violations by DEFENDANTS , MARIA sustained fatal injuries in the fire. 50. MARIA was survived by her aforementioned children. 51. Each of MARIA's surviving heirs have suffered and continue to suffer the loss of MARIA's society, love, and affection, and each of whom have suffered and continue to suffer grief, sorrow and mental suffering. WHEREFORE, Plaintiff, JUANITA DIAZ, as Independent Administrator of the Estate of MARIA ZARAGOZA, Deceased, asks that judgment be entered against Defendants IGNACIO and MARCELINA ALVAREZ, in a sum in excess of FIFTY THOUSAND DOLLARS ($50,000.00), and for any other relief this Court finds equitable and just. COUNT V- Negligence- Premises Liability Act- All Defendants (Wrongful Death & Survival Act) 52. Plaintiff repeats and realleges paragraphs 1 through 29 above as and for paragraph 52 of Count V as if fully set forth herein. 53. DEFENDANTS had a duty to maintain the Unit in a safe condition for the protection of MARIA and all others lawfully in the Unit. 54. DEFENDANTS had a duty to supply, provide, install, test, inspect, replace and maintain smoke detectors in the Unit. 55. Notwithstanding said duties, DEFENDANTS was reckless, careless and negligent follows: (a) DEFENDANTS failed to supply working smoke detectors; (b) DEFENDANTS failed to provide an adequate number of working smoke detectors; FILED DATE: 3/18/2024 10:41 PM 2024L064018 (c) DEFENDANTS failed to install an adequate number of working smoke detectors; (d) DEFENDANTS failed to test for smoke detectors present in the Unit; (e) DEFENDANTS failed to inspect for smoke detectors present in the Unit; (f) DEFENDANTS failed to inspect, repair, maintain and safeguard the premises, including the wiring and radiators; (g) DEFENDANTS failed to maintain the required number of smoke detectors present in the Unit; (h) DEFENDANTS failed to provide written information regarding smoke detector testing and maintenance, or lack thereof, to Plaintiff. 49. As a result of said breaches and violations by DEFENDANTS, MARIA sustained fatal injuries in the fire. 50. MARIA was survived by her aforementioned children. 51. Each of MARIA's surviving heirs have suffered and continue to suffer the loss of MARIA's society, love, and affection, and each of whom have suffered and continue to suffer grief, sorrow and mental suffering. WHEREFORE, Plaintiff, JUANITA DIAZ, as Independent Administrator of the Estate of MARIA ZARAGOZA, Deceased, asks that judgment be entered against Defendants IGNACIO and MARCELINA ALVAREZ, in a sum in excess of FIFTY THOUSAND DOLLARS ($50,000.00), and for any other relief this Court finds equitable and just. Respectfully submitted, JUANITA DIAZ, INDEPENDENT ADMINISTRATOR FOR THE ESTATE OF MARIA ZARAGOZA By: ADEENA WEISS ORTIZ Attorney for the Plaintiff FILED DATE: 3/18/2024 10:41 PM 2024L064018 Weiss Ortiz, P.C. 1011 E. 31st Street LaGrange, Illinois 60526 Phone: (773) 498-4498 info@weissortizlaw.com #40058 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION FILED DATE: 3/18/2024 10:41 PM 2024L064018 JUANITA DIAZ, ) Independent Administrator of the Estate ) Of Maria Zaragoza, Deceased, ) ) ) Plaintiff, ) ) v. ) No. 2023 L ) JURY DEMAND IGNACIO ALVAREZ and ) $50,000+ and MARCELINA ALVAREZ, ) Defendant. ) RULE 222(b) AFFIDAVIT OF DAMAGES The undersigned verifies, pursuant to Rule 222(b), that the total damages sought by Plaintiff exceed $50,000.00. Respectfully submitted, JUANITA DIAZ, INDEPENDENT ADMINISTRATOR FOR THE ESTATE OF MARIA ZARAGOZA By: ADEENA WEISS ORTIZ Attorney for the Plaintiff Weiss Ortiz, P.C. 1011 E. 31st Street LaGrange, Illinois 60526 Phone: (773) 498-4498 info@weissortizlaw.com #40058