Preview
1 DAVID F. BEACH, ESQ. (SBN 127135)
OSCAR A. PARDO, ESQ (SBN 249955)
2 PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ, LLP
3 438 First Street, Fourth Floor
Santa Rosa, CA 95401
4 Telephone: (707) 525-8800 E-FILED
Facsimile: (707) 545-8242 11/18/2020 12:59 PM
5
Attorney for Defendants Superior Court of California
6 BEVERLY HEALTHCARE-CALIFORNIA, INC. dba County of Fresno
GOLDEN LIVINGCENTER – FRESNO; BEVERLY By: J. Nelson, Deputy
7 HEALTHCARE – CALIFORNIA, INC. dba GOLDEN
LIVINGCENTER – CLOVIS
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF FRESNO
11 JOSIE MAE BROWN, individually, ) CASE No. 17CECG04065
)
PERRY, JOHNSON, ANDERSON,
12 Plaintiff, ) Unlimited Civil Action
MILLER & MOSKOWITZ LLP
)
13 vs. ) DEFENDANTS’ MEMORANDUM OF
) POINTS AND AUTHORITIES IN
14 BEVERLY HEALTHCARE-CALIFORNIA, ) SUPPORT OF MOTION FOR SUMMARY
INC. dba GOLDEN LIVINGCENTER – ) JUDGMENT OR, IN THE ALTERNATIVE,
15 FRESNO; BEVERLY HEALTHCARE, INC. dba ) SUMMARY ADJUDICATION OF ISSUES
GOLDEN LIVINGCENTER – CLOVIS, and )
16 DOES 1 through 200, inclusive, )
) Complaint Filed: November 27, 2017
17 Defendants. ) Trial Date: Not Set
)
18 ) Date: March 24, 2021
) Time: 3:30 p.m.
19 ) Dept.: 403
)
20 )
)
21 )
22
23
24
25
26
27
28
29
i
30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
31
1 TABLE OF CONTENTS
2 I. INTRODUCTION ........................................................................................................................... 1
3 II. STATEMENT OF FACTS............................................................................................................. 2
4 A. Pre-Incident Facts ....................................................................................................... 2
5 B. Plaintiff’s Sole Allegation Against The: Living Defendants ...................................... 2
6 C. Change in Ownership of Facilities .............................................................................. 3
7 D. Plaintiff’s Complaint................................................................................................... 3
8 III. LEGAL AUTHORITY & ANALYSIS ........................................................................................ 4
9 A. Procedural Authority For A Motion for Summary Judgment/Summary Adjudication
10 ..................................................................................................................................... 4
11 B. Plaintiff Cannot Establish The Elder Abuse Claim .................................................... 5
PERRY, JOHNSON, ANDERSON,
12 1. The Golden Living Defendants Did Not Act with Recklessness, Oppression,
MILLER & MOSKOWITZ LLP
13 Malice, or Fraud .............................................................................................. 6
14 2. The Golden Living Defendants Did Not Ratify or Authorize Any Alleged
15 Wrongful Conduct .......................................................................................... 7
16 C. Plaintiff Cannot Establish The Negligence Claim ...................................................... 8
17 D. Plaintiff Cannot Establish The Claim for Violation of Patient’s Bill of Rights ......... 9
18 IV. CONCLUSION........................................................................................................................... 10
19
20
21
22
23
24
25
26
27
28
29
ii
30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
31
1 TABLE OF AUTHORITIES
2 Cases
3 Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849............................................................ 5
4 Basich v. Allstate Insurance Co. (2001) 87 Cal. App. 4th 1112, 1121 ................................................ 5
5 Carter v. Prime Healthcare Paradise Valley, 198 Cal. App. 4th 396 (2011) ................................. 6, 7
6 Chern v. Bank of America (1976) 15 Cal.3d 866, 873). ..................................................................... 5
7 Delaney v. Baker, 20 Cal. 4th 23, 35 (1999)........................................................................................ 6
8 Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476 .......................................................................... 5
9 Waschek v. Department of Motor Vehicles (1997) 59 Cal.App. 4th 640, 644..................................... 5
10
Statutes
11
Cal. Welf. & Inst. Cod §15657 (c) .................................................................................................. 6, 8
PERRY, JOHNSON, ANDERSON,
12
MILLER & MOSKOWITZ LLP
California Civil Code §3294 (b) ......................................................................................................... 8
13
Civil Code §1714.8(a) ..................................................................................................................... 8, 9
14
Code Civ. Proc. §437c .................................................................................................................... 4, 5
15
Code Civ. Proc. §437c(f)(1)................................................................................................................ 5
16
Code Civ. Proc. §437c(f)(2)................................................................................................................ 5
17
Health & Safety Code §1430 .............................................................................................................. 1
18
Health & Safety Code §1430(b) ..................................................................................................... 1, 3
19
Title 22 Cal. Code. Reg. §72527..................................................................................................... 4, 9
20
Welfare & Institution Code §§15657 .................................................................................................. 6
21
22
23
24
25
26
27
28
29
iii
30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
31
1 Defendants BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN
2 LIVINGCENTER – FRESNO and BEVERLY HEALTHCARE – CALIFORNIA, INC. dba
3 GOLDEN LIVINGCENTER – CLOVIS (hereinafter “Golden Living Defendants”) hereby submit
4 the following memorandum of points and authorities in support of their motion for summary
5 judgment or, in the alternative, summary adjudication of issues as to all causes of action asserted
6 by Plaintiff JOSIE MAE BROWN.
7 I.
8 INTRODUCTION
9 Plaintiff JOSIE MAE BROWN filed her Complaint for Damages on November 27, 2017
10 and personally served the Golden Living Defendants on December 7, 2017. Her complaint alleges
11 Elder Abuse, Violation of Patient’s Rights (Health & Safety Code §1430(b)), and Professional
Negligence arising from Ms. Brown’s time at two facilities operated by the Golden Living
PERRY, JOHNSON, ANDERSON,
12
MILLER & MOSKOWITZ LLP
13 Defendants. Defendants ceased their respective operations of Golden LivingCenter-Fresno and
14 Golden LivingCenter-Clovis on December 16, 2016. Plaintiff’s sole allegation supporting her
15 claims against the Golden Living Defendants arise from an alleged “unwitnessed” fall she had on
16 March 8, 2013 at the GL-Fresno facility. She has made no specific claims against the Golden
17 Living Defendants for her stay at Golden LivingCenter-Clovis.
18 The Golden Living Defendants are entitled to summary judgment as to the entirety of
19 Plaintiff’s Complaint, because no triable issue of material fact exists as to one or more essential
20 elements of each cause of action herein. In the alternative, the Golden Living Defendants are
21 entitled to summary adjudication of one or more of the individual causes of action, as well as the
22 punitive damages and attorney fees claims, because no triable issue of material fact exists as to at
23 least one essential element of each of the claims, and there is no basis for punitive damages or
24 attorney fees in this matter.
25 ///
26 ///
27 ///
28 ///
29
1
30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
31
1 II.
2 STATEMENT OF FACTS
3 A. Pre-Incident Facts
4 Plaintiff Josie Mae Brown’s primary medical diagnosis was dementia. She had the onset of
5 memory issues in 2006, at the age of 77. A diagnosis of Alzheimer’s dementia was made at UCSF
6 in Fresno at about age 80. Later, brain imaging revealed that Mrs. Brown had suffered multiple
7 strokes. (Undisputed Material Fact “UMF” 1).
8 Plaintiff was admitted to Golden LivingCenter-Fresno (GLC-Fresno) in April 2010, at the
9 age of 81, and remained there until April 2013. (UMF 2). Plaintiff also had multiple additional
10 medical problems, including osteoporosis, depression and hypertension. (UMF 3). While at GLC-
11 Fresno, she had a decline in cognition due to the natural progression of dementia and was
PERRY, JOHNSON, ANDERSON,
12 incontinent of bowel and bladder. (UMF 4).
MILLER & MOSKOWITZ LLP
13 B. Plaintiff’s Sole Allegation Against The: Living Defendants
14 In early March 2013, Plaintiff developed right leg pain. An x-ray on March 9, 2013 showed
15 a nondisplaced fracture of the fibula. (UMF 5). Plaintiff was scheduled to see an orthopedist,
16 however, her son called 911 and she was taken to the hospital. The fracture was stabilized using an
17 orthopedic boot with Velcro fasteners. Plaintiff was then sent back to GLC-Fresno. The fracture
18 healed without further intervention. (UMF 6). There was no recognized event at GLC-Fresno that
19 caused the fracture. (UMF 7).
20 The fracture that occurred without a fall or other incident was a “fragility fracture”. It is a
21 pathologic fracture due to osteoporosis. This type of fracture can occur with normal transferring
22 forces, or even turning in bed. (UMF 8). The fracture of the fibula was non-displaced. The only
23 treatment needed was stabilization. Since 2010, Plaintiff had been non-ambulatory, remaining in
24 her wheelchair or bed. (UMF 9). The fracture in March 2013 was not consequential in any way to
25 her subsequent course. (UMF 10).
26 Later, “[I]n April 2013, Plaintiff was transferred to GLC-CLOVIS.” (UMF 11). Plaintiff’s
27 course during her residence at GLC-Clovis was notable only for the natural progression of
28 dementia. (UMF 12). Despite being non-ambulatory, Plaintiff had no skin issues related to pressure
29
2
30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
31
1 injury. She had no falls or infections. Despite having advanced dementia, Plaintiff had no care-
2 related complications. She maintained her nutrition and hydration and remained in the overweight
3 range. Her pain was controlled, with pain scores consistently at “0”. (UMF 13).
4 Due to the progression of dementia, Mrs. Brown was admitted to hospice in November
5 2016. The qualifying diagnosis was advanced dementia. (UMF 14). During the time the Golden
6 Living Defendants operated GLC-Clovis, Mrs. Brown received nursing care that met the standard
7 of care. (UMF 15).
8 C. Change in Ownership of Facilities
9 On December 16th and 22nd, 2016, respectively, the Golden Living Defendants ceased their
10 respective operations of Golden LivingCenter-Fresno and Golden LivingCenter-Clovis and turned
11 the care duties over to new operators, Defendants Dycora Transitional Health-Clovis LLC and
PERRY, JOHNSON, ANDERSON,
12 Dycora Transitional Health-Fresno LLC. (UMF 16).
MILLER & MOSKOWITZ LLP
13 D. Plaintiff’s Complaint
14 Plaintiff filed her Complaint on November 27, 2017. (UMF 17). Her complaint alleges
15 Elder Abuse, Violation of Patient’s Rights (Health & Safety Code §1430(b)), and Professional
16 Negligence against the Golden Living Defendants and other defendants. (UMF 18). Plaintiff’s
17 primary allegation against the Golden Living Defendants is the following:
18 “While under the care and treatment of GLC-FRESNO, BROWN suffered a
broken leg due to the lack of care provided by GLC-FRESNO staff.”
19 (UMF 19).
20 Plaintiff’s primary allegation against the Dycora Defendants is that she suffered a pressure
21 ulcer in 2017 while at GLC-Clovis. During this timeframe, the Golden Living Defendants no
22 longer operated or provided care to residents at the GLC-Clovis facility. (UMF 20). The Dycora
23 Defendants were effectively dismissed from this action after the Court granted their motion for
24 summary judgement on March 11, 2020. (UMF 21).
25 Plaintiff received care throughout her residence at Golden Living Defendants’ Golden
26 LivingCenter-Fresno and Golden LivingCenter-Clovis that met the standard of care. (UMF 22).
27 While under the care of the Golden Living Defendants at GLC-Fresno and GLC-Clovis, Plaintiff
28 had a notable absence of medical complications. (UMF 23). The fracture of the fibula in May 2013
29
3
30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
31
1 was a pathologic fracture due to osteoporosis. The fracture was unavoidable and occurred during
2 normal care. There was no breach of the standard of care by the Golden Living Defendants and
3 their staff at GLC-Fresno. (UMF 24).
4 There is no evidence to support the allegation that the Golden Living Defendants or their
5 staff at GLC-Fresno engaged in negligence, neglect, or elder abuse with respect to Plaintiff. (UMF
6 25). The care and treatment which the Golden Living Defendants and their staff at GLC-Fresno
7 provided to Plaintiff complied with the standard of care, and there is no evidence of a conscious
8 disregard to attend to her needs. (UMF 26). There is nothing to suggest recklessness, malice, fraud,
9 oppression, or a conscious disregard by the Golden Living Defendants or their staff at GLC-Fresno
10 to cause harm to Plaintiff. (UMF 27 – 28). Nor is there any evidence that any of Golden Living
11 Defendants’ officers, directors, or managing agents authorized or ratified any alleged reckless
neglect or abuse of Plaintiff. (UMF 30 – 31).
PERRY, JOHNSON, ANDERSON,
12
MILLER & MOSKOWITZ LLP
13 There is no evidence to support allegations that the Golden Living Defendants or their staff
14 at GLC-Fresno violated any of the patient rights set forth in the Patients’ Bill of Rights in Section
15 72527 of Title 22 of the California Code of Regulations, or any other right provided for by federal
16 or state law or regulation. (UMF 33 – 34).
17 III.
18 LEGAL AUTHORITY & ANALYSIS
19 A. Procedural Authority For A Motion for Summary Judgment/Summary Adjudication
20 The procedural authority for a summary judgment motion is prescribed by C.C.P. §437c
21 and provides in pertinent part:
22 (a) (1) A party may move for summary judgment in an action or proceeding if it
is contended that the action has no merit or that there is no defense to the action
23 or proceeding. The motion may be made at any time after 60 days have elapsed
since the general appearance in the action or proceeding of each party against
24 whom the motion is directed or at any earlier time after the general appearance
that the court, with or without notice and upon good cause shown, may direct.
25
(c) The motion for summary judgment shall be granted if all the papers
26 submitted show that 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.”
27
28 ///
29
4
30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
31
1 Additionally, a motion for summary adjudication can be made “as to one or more causes of
2 action within an action, . . . [or] one or more claims for damages . . . if that party contends that the
3 cause of action has no merit . . . or that there is no merit to a claim for damages, as specified in
4 Section 3294 of the Civil Code . . . A motion for summary adjudication shall be granted only if it
5 completely disposes of a cause of action . . . [or] a claim for damages.” C.C.P. 437c(f)(1). A
6 motion for summary adjudication may be made by itself or as an alternative to a motion for
7 summary judgment. C.C.P. 437c(f)(2).
8 The moving party’s burden on a motion for summary judgment is only to negate the
9 existence of triable issues of fact in a fashion that entitles him to judgment on the issue raised by
10 the pleadings; he is not required to refute liability on some theoretical possibility not including in
11 the pleadings. Waschek v. Department of Motor Vehicles (1997) 59 Cal.App. 4th 640, 644. “The
PERRY, JOHNSON, ANDERSON,
12 purpose of the summary judgment procedure is to penetrate through evasive language and adept
MILLER & MOSKOWITZ LLP
13 pleading and ascertain the existence or absence of trial issues of fact.” Chern v. Bank of America
14 (1976) 15 Cal.3d 866, 873).
15 “A trial court properly grants summary judgment where no triable issue of material fact
16 exists, and the moving party is entitled to judgment as a matter of law.” Merrill v. Navegar, Inc.
17 (2001) 26 Cal.4th 465, 476. “[I]n moving for summary judgment, a ‘defendant ... has met’ his
18 ‘burden ... if’ he ‘has shown that one or more elements of the cause of action ... cannot be
19 established, or that there is a complete defense to that cause of action. Once the defendant ... has
20 met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more
21 material facts exists as to that cause of action or a defense thereto.” Aguilar v. Atlantic Richfield
22 Co. (2001) 25 Cal.4th 826, 849.
23 B. Plaintiff Cannot Establish The Elder Abuse Claim
24 As set forth below, Plaintiff must prove the elder abuse claim with clear and convincing
25 evidence. This higher standard of proof must be taken into account in ruling on a summary
26 judgment/summary adjudication motion, and “any evidence submitted in response to [that] motion
27 for summary adjudication must necessarily meet that standard.” Basich v. Allstate Insurance Co.
28 (2001) 87 Cal. App. 4th 1112, 1121.
29
5
30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
31
1 1. The Golden Living Defendants Did Not Act with Recklessness, Oppression,
2 Malice, or Fraud
3 Plaintiff makes a claim under the Elder Abuse and Dependent Adult Civil Protection Act
4 (“the Act”). The parameters of a cause of action under the Act are identified in California’s
5 Welfare & Institution Code §§15657, et seq. Section 15657 itself states that a plaintiff can only
6 establish a claim under the Act “[w]hen it is proven by clear and convincing evidence that a
7 defendant is liable for physical abuse… Or neglect…, and that the defendant has been guilty of
8 recklessness, oppression, fraud, or malice in the commission of this abuse…” Id. (emphasis added).
9 This conjunctive reading of the statute is confirmed in Delaney v. Baker, 20 Cal. 4th 23, 35 (1999).
10 As noted by the Court in Delaney, “the Elder Abuse Act’s goal was to provide heightened remedies
11 for… ‘acts of egregious abuse’ against elder and dependent adults.” Id. at 35 (emphasis added,
PERRY, JOHNSON, ANDERSON,
12 quotes omitted).
MILLER & MOSKOWITZ LLP
13 In Carter v. Prime Healthcare Paradise Valley, 198 Cal. App. 4th 396 (2011), the Court of
14 Appeal upheld the trial court sustaining of a demurrer to elder abuse, without leave to amend. In
15 doing so, it “distill[ed] several factors that must be present for conduct to constitute abuse within
16 the meaning of the Elder Abuse and Dependent Adult Civil Protection Act, and thereby trigger the
17 enhanced remedies available under the Act:
18
The plaintiff must allege (and ultimately proved by clear and convincing
19 evidence) facts establishing that the defendant (1) had responsibility for meeting
20 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
21 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,
22 either with knowledge that injury was substantially certain to befall the elder or
23 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
24 recklessness). The plaintiff must also allege (and ultimately proved by clear and
convincing evidence) that the neglect caused the elder or dependent adult to
25 suffer physical harm, pain, or mental suffering.” (Carter, 198 Cal. App. 4th at
406-407).
26
27 Because plaintiff’s counsel could not articulate at the hearing any additional facts which
28 would indicate elder abuse, the court gave no leave to amend. The Court of Appeal affirmed. In
29
6
30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
31
1 this case, Plaintiff can produce no admissible evidence which would have any tendency in reason
2 to establish the necessary elements outlined by Carter. To the contrary, the evidence demonstrates
3 that the Golden Living Defendants’ care and treatment provided to Plaintiff was not reckless but
4 instead met the standard of care. (UMF 25, 26, and 28).
5 Plaintiff’s sole care allegation against the Golden Living Defendants was that they failed to
6 prevent an apparent fracture to her leg in March 2013. (UMF 19). However, Plaintiff cannot
7 establish that this injury was a result of the Golden Living Defendants’ denial or withholding of
8 care. In fact, the contrary is true: Plaintiff’s injury resulted from natural conditions in her own
9 health and well documented diagnosis such as dementia and osteoporosis. There was no recognized
10 event at GLC-Fresno that caused the fracture. (UMF 7). Plaintiff suffered a “fragility fracture”.
11 This type of fracture can occur with normal transferring forces, or even turning in bed. (UMF 8).
PERRY, JOHNSON, ANDERSON,
12 Plaintiff was scheduled to see an orthopedist, however, her son called 911 and she was taken to the
MILLER & MOSKOWITZ LLP
13 hospital. The fracture was stabilized using an orthopedic boot with Velcro fasteners. Plaintiff was
14 then sent back to GLC-Fresno. The fracture healed without further intervention. (UMF 6).
15 There is no evidence that the Golden Living Defendants denied or withheld care or
16 treatment, and Plaintiff cannot create a trial issue in this regard. Plaintiff cannot provide any
17 evidence to establish by a “clear and convincing” standard that the Golden Living Defendants’
18 conduct rose to the level of recklessness, malice, oppression, or fraud. (UMF 28). Plaintiff can
19 present no evidence to even remotely establish misconduct to the level outlined in Carter v.
20 Paradise Valley, 198 Cal. App. 4th 396 (2011). For these reasons alone, the Golden Living
21 Defendants’ request for summary adjudication on Plaintiff’s elder abuse claim must be granted.
22 2. The Golden Living Defendants Did Not Ratify or Authorize Any Alleged
23 Wrongful Conduct
24 In order to successfully pursue a cause of action for elder abuse against an employer, a
25 plaintiff must establish facts showing a corporate defendant’s officers, directors, or managing
26 agents were involved in the abuse or authorized or ratified the abusive conduct. Plaintiff can also
27 establish ratification or authorization of it can show that a corporate defendant hired individuals
28 who did the abuse with advanced knowledge of that person’s unfitness and hired them with a
29
7
30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
31
1 conscious disregard of the rights and safety of others. Cal. Welf. & Inst. Cod §15657 (c) provides
2 that a plaintiff must meet the requirements of California Civil Code §3294 (b), with clear and
3 convincing evidence, before any damages or attorney’s fees may be imposed against a corporate
4 employer. These requirements are as follows:
5 “An employer shall not be liable for damages pursuant to subdivision (a), based
upon acts of an employee of the employer, unless the employer had advance
6
knowledge of the unfitness of the employee and employed him or her with a
7 conscious disregard of rights or safety of others or authorized or ratified the
wrongful conduct for which the damages are awarded or was personally guilty of
8 oppression, fraud, or malice. With respect to a corporate employer, the advance
knowledge and conscience disregard, authorization, ratification or act of
9 oppression, fraud, or malice must be on the part of an officer, director, or
10 managing agent of the corporation.” Cal. Civ. Code §3294(b)
11 Here, Plaintiff can present no admissible evidence supporting employer ratification or
PERRY, JOHNSON, ANDERSON,
12 authorization of any alleged abuse to a clear and convincing evidentiary standard as required by
MILLER & MOSKOWITZ LLP
13 Cal. Civ. Code §3294(b). The Golden Living Defendants have established there is no evidence to
14 support this element of the elder abuse claim. (UMF 25, 26, and 28). Therefore, the Golden Living
15 Defendants’ request for summary adjudication on Plaintiff’s elder abuse claim must be granted.
16 C. Plaintiff Cannot Establish The Negligence Claim
17 It is well settled California law that establishes that a defendant, like the Golden Living
18 Defendants, is not the insurer of Plaintiffs health. Civil Code §1714.8(a) states:
19 “No health care provider shall be liable for professional negligence or
20 malpractice for any occurrence or result solely on the basis that the occurrence
or result was caused by the natural course of the disease or condition, or was the
21 natural or expected result of reasonable treatment rendered for the disease or
condition…”
22
23 It is thus clear that a health care provider is not held to a standard of medical perfection. In
24 fact, a hospital is not necessarily negligent just because its efforts are unsuccessful, or it makes an
25 error that was reasonable under the circumstances. The hospital is negligent only if it was not as
26 skillful, knowledgeable, or careful as other reasonable hospitals would have been in similar
27 circumstances. (See CACI 505). Stated alternatively, Civil Code §1714.8(a) and CACI 505, jointly
28 establish that there is no liability for negligence simply because an unfavorable outcome occurs.
29
8
30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
31
1 Here, Dr. Joshua Rassen in his declaration, and after extensive review of Plaintiff’s medical
2 records, notes that Plaintiff suffered from multiple medical conditions including osteoporosis,
3 depression, and hypertension. (UMF 3). In early March 2013, Plaintiff developed right leg pain,
4 and an x-ray indicated a nondisplaced fracture of the fibula. (UMF 5). The fracture occurred
5 without a fall and is medically considered a “fragility fracture” due to osteoporosis. This type of
6 fracture can occur with normal transferring forces, or even turning in bed. (UMF 8).
7 There was, however, no event at GLC-Fresno that caused the fracture. (UMF 7). Plaintiff
8 suffered a pathologic fracture due to osteoporosis. The fracture was unavoidable and occurred
9 during normal care. There was no breach of the standard of care by the Golden Living Defendants
10 and their staff at GLC-Fresno. (UMF 24). There is no evidence to support the allegation that the
11 Golden Living Defendants or their staff at GLC-Fresno engaged in negligence, neglect, or elder
PERRY, JOHNSON, ANDERSON,
12 abuse with respect to Plaintiff. (UMF 25). The care and treatment which the Golden Living
MILLER & MOSKOWITZ LLP
13 Defendants and their staff at GLC-Fresno provided to Plaintiff complied with the standard of care,
14 and there is no evidence of a conscious disregard to attend to her needs. (UMF 15, 26, and 32).
15 Therefore, the Golden Living Defendants’ request for summary adjudication on Plaintiff’s
16 negligence claim must be granted.
17 D. Plaintiff Cannot Establish The Claim for Violation of Patient’s Bill of Rights
18 Plaintiff has alleged a series of conclusory allegations of violation of patient rights for
19 which she has no evidentiary support. Plaintiff claims that the Golden Living Defendants (1) did
20 not allow her participation in care planning; (2) did not treat her with dignity and respect; (3) did
21 not have adequate number of qualified personnel to carry out the functions of the facility; (4) did
22 not provide her with good hygiene to prevent bedsores; (5) did not keep the facility clean, sanitary,
23 and in good repair at all times; (6) failed to provide her with the necessary nutrition and fluids for
24 hydration; (7) failed to employ staff at the requisite skills and training; and a host of other
25 unsupported contentions.
26 Herein lies the crux of Plaintiff’s claim: there is no evidence to support allegations that the
27 Golden Living Defendants or their staff at GLC-Fresno violated any of the patient rights set forth
28 in the Patients’ Bill of Rights in Section 72527 of Title 22 of the California Code of Regulations, or
29
9
30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
31
1 any other right provided for by federal or state law or regulation. The present claim must fail if
2 Plaintiffs cannot present the requisite evidentiary evidence against the Golden Living Defendants.
3 Therefore, the Golden Living Defendants’ request for summary adjudication on Plaintiff’s claim
4 for violation of patients’ rights must be granted.
5 IV.
6 CONCLUSION
7 Based on the foregoing, the Golden Living Defendants respectfully request that this Court
8 grant the present Motion for Summary Judgment, or in the alternative, Summary Adjudication of
9 specific Issues in their favor.
10 DATED: November 18, 2020 PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ, LLP
11
PERRY, JOHNSON, ANDERSON,
12
MILLER & MOSKOWITZ LLP
By:
13 DAVID F. BEACH
OSCAR A. PARDO
14 Attorneys for Defendants
BEVERLY HEALTHCARE-CALIFORNIA, INC.
15 dba GOLDEN LIVINGCENTER – FRESNO;
BEVERLY HEALTHCARE – CALIFORNIA, INC.
16 dba GOLDEN LIVINGCENTER – CLOVIS
17
18
19
20
21
22
23
24
25
26
27
28
29
10
30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
31
1 PROOF OF SERVICE
2 JOSIE MAE BROWN, individually v. BEVERLY HEALTHCARE – CALIFORNIA, INC. dba
GOLDEN LIVINGCENTER – FRESNO; BEVERLY HEALTHCARE – CALIFORNIA, INC. dba
3 GOLDEN LIVINGCENTER – CLOVIS, and DOES 1 through 200, inclusive
Fresno County Superior Court Case No. 17CECG04065
4
5 STATE OF CALIFORNIA, COUNTY OF SONOMA
6 I, the undersigned declare:
7 I am over the age of eighteen (18) years and not a party to the within action. I am an
8 employee of Perry, Johnson, Anderson, Miller, & Moskowitz, LLP’s and my address is 438 First
Street, 4th Floor, Santa Rosa, California 95401, which is located in the County of Sonoma.
9
On the date below indicated, I served on the interested parties in this action the within
10 documents described as:
11
• DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
PERRY, JOHNSON, ANDERSON,
12
MILLER & MOSKOWITZ LLP
OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION OF ISSUES
13
_ X_ (BY MAIL) On November 18, 2020 I caused each envelope, with postage thereon fully
14 prepaid, to be placed in the United States mail at Santa Rosa, California. I am readily
familiar with the business practice for collection and processing of mail in this office; that
15 in the ordinary course of business said document would be deposited with the US Postal
Service in Santa Rosa on that same day. I understand that service shall be presumed
16 invalid upon motion of a party served if the postal cancellation date or postage meter date
on the envelope is more than one day after the date of deposit for mailing contained on this
17 declaration.
18 Josie Mae Brown Josie Mae Brown
19 9720 Zelzah Ave, Apt. 207 17730 Lassen Street, Apt. 123
Northridge, CA 91325 Northridge, CA 91325
20
Josie Mae Brown Heather H. Kruthers
21 2715 Fresno Street Deputy County Counsel
22 Fresno, CA 93721 2220 Tulare Street, Suite 500
Fresno, CA 93721
23
James E. Yee
24 Lweis Brisbois Brisgaard & Smith LLP
25 650 E. Hospitality Lane, Suite 600
San Bernardino, CA 92408
26
27
28
29
11
30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
31
I declare under penalty of perjury under the laws of the State of California that the above is
1 true and correct, and that this declaration was executed on November 18, 2020 at Santa Rosa,
2 California.
3
4 Vanessa Kinney ______________________________
5
6
7
8
9
10
11
PERRY, JOHNSON, ANDERSON,
12
MILLER & MOSKOWITZ LLP
13
14
15
16
17
18
19
20
Preview
1 DAVID F. BEACH, ESQ. (SBN 127135) OSCAR A. PARDO, ESQ (SBN 249955) 2 PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ, LLP 3 438 First Street, Fourth Floor Santa Rosa, CA 95401 4 Telephone: (707) 525-8800 E-FILED Facsimile: (707) 545-8242 11/18/2020 12:59 PM 5 Attorney for Defendants Superior Court of California 6 BEVERLY HEALTHCARE-CALIFORNIA, INC. dba County of Fresno GOLDEN LIVINGCENTER – FRESNO; BEVERLY By: J. Nelson, Deputy 7 HEALTHCARE – CALIFORNIA, INC. dba GOLDEN LIVINGCENTER – CLOVIS 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF FRESNO 11 JOSIE MAE BROWN, individually, ) CASE No. 17CECG04065 ) PERRY, JOHNSON, ANDERSON, 12 Plaintiff, ) Unlimited Civil Action MILLER & MOSKOWITZ LLP ) 13 vs. ) DEFENDANTS’ MEMORANDUM OF ) POINTS AND AUTHORITIES IN 14 BEVERLY HEALTHCARE-CALIFORNIA, ) SUPPORT OF MOTION FOR SUMMARY INC. dba GOLDEN LIVINGCENTER – ) JUDGMENT OR, IN THE ALTERNATIVE, 15 FRESNO; BEVERLY HEALTHCARE, INC. dba ) SUMMARY ADJUDICATION OF ISSUES GOLDEN LIVINGCENTER – CLOVIS, and ) 16 DOES 1 through 200, inclusive, ) ) Complaint Filed: November 27, 2017 17 Defendants. ) Trial Date: Not Set ) 18 ) Date: March 24, 2021 ) Time: 3:30 p.m. 19 ) Dept.: 403 ) 20 ) ) 21 ) 22 23 24 25 26 27 28 29 i 30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 31 1 TABLE OF CONTENTS 2 I. INTRODUCTION ........................................................................................................................... 1 3 II. STATEMENT OF FACTS............................................................................................................. 2 4 A. Pre-Incident Facts ....................................................................................................... 2 5 B. Plaintiff’s Sole Allegation Against The: Living Defendants ...................................... 2 6 C. Change in Ownership of Facilities .............................................................................. 3 7 D. Plaintiff’s Complaint................................................................................................... 3 8 III. LEGAL AUTHORITY & ANALYSIS ........................................................................................ 4 9 A. Procedural Authority For A Motion for Summary Judgment/Summary Adjudication 10 ..................................................................................................................................... 4 11 B. Plaintiff Cannot Establish The Elder Abuse Claim .................................................... 5 PERRY, JOHNSON, ANDERSON, 12 1. The Golden Living Defendants Did Not Act with Recklessness, Oppression, MILLER & MOSKOWITZ LLP 13 Malice, or Fraud .............................................................................................. 6 14 2. The Golden Living Defendants Did Not Ratify or Authorize Any Alleged 15 Wrongful Conduct .......................................................................................... 7 16 C. Plaintiff Cannot Establish The Negligence Claim ...................................................... 8 17 D. Plaintiff Cannot Establish The Claim for Violation of Patient’s Bill of Rights ......... 9 18 IV. CONCLUSION........................................................................................................................... 10 19 20 21 22 23 24 25 26 27 28 29 ii 30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 31 1 TABLE OF AUTHORITIES 2 Cases 3 Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849............................................................ 5 4 Basich v. Allstate Insurance Co. (2001) 87 Cal. App. 4th 1112, 1121 ................................................ 5 5 Carter v. Prime Healthcare Paradise Valley, 198 Cal. App. 4th 396 (2011) ................................. 6, 7 6 Chern v. Bank of America (1976) 15 Cal.3d 866, 873). ..................................................................... 5 7 Delaney v. Baker, 20 Cal. 4th 23, 35 (1999)........................................................................................ 6 8 Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476 .......................................................................... 5 9 Waschek v. Department of Motor Vehicles (1997) 59 Cal.App. 4th 640, 644..................................... 5 10 Statutes 11 Cal. Welf. & Inst. Cod §15657 (c) .................................................................................................. 6, 8 PERRY, JOHNSON, ANDERSON, 12 MILLER & MOSKOWITZ LLP California Civil Code §3294 (b) ......................................................................................................... 8 13 Civil Code §1714.8(a) ..................................................................................................................... 8, 9 14 Code Civ. Proc. §437c .................................................................................................................... 4, 5 15 Code Civ. Proc. §437c(f)(1)................................................................................................................ 5 16 Code Civ. Proc. §437c(f)(2)................................................................................................................ 5 17 Health & Safety Code §1430 .............................................................................................................. 1 18 Health & Safety Code §1430(b) ..................................................................................................... 1, 3 19 Title 22 Cal. Code. Reg. §72527..................................................................................................... 4, 9 20 Welfare & Institution Code §§15657 .................................................................................................. 6 21 22 23 24 25 26 27 28 29 iii 30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 31 1 Defendants BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN 2 LIVINGCENTER – FRESNO and BEVERLY HEALTHCARE – CALIFORNIA, INC. dba 3 GOLDEN LIVINGCENTER – CLOVIS (hereinafter “Golden Living Defendants”) hereby submit 4 the following memorandum of points and authorities in support of their motion for summary 5 judgment or, in the alternative, summary adjudication of issues as to all causes of action asserted 6 by Plaintiff JOSIE MAE BROWN. 7 I. 8 INTRODUCTION 9 Plaintiff JOSIE MAE BROWN filed her Complaint for Damages on November 27, 2017 10 and personally served the Golden Living Defendants on December 7, 2017. Her complaint alleges 11 Elder Abuse, Violation of Patient’s Rights (Health & Safety Code §1430(b)), and Professional Negligence arising from Ms. Brown’s time at two facilities operated by the Golden Living PERRY, JOHNSON, ANDERSON, 12 MILLER & MOSKOWITZ LLP 13 Defendants. Defendants ceased their respective operations of Golden LivingCenter-Fresno and 14 Golden LivingCenter-Clovis on December 16, 2016. Plaintiff’s sole allegation supporting her 15 claims against the Golden Living Defendants arise from an alleged “unwitnessed” fall she had on 16 March 8, 2013 at the GL-Fresno facility. She has made no specific claims against the Golden 17 Living Defendants for her stay at Golden LivingCenter-Clovis. 18 The Golden Living Defendants are entitled to summary judgment as to the entirety of 19 Plaintiff’s Complaint, because no triable issue of material fact exists as to one or more essential 20 elements of each cause of action herein. In the alternative, the Golden Living Defendants are 21 entitled to summary adjudication of one or more of the individual causes of action, as well as the 22 punitive damages and attorney fees claims, because no triable issue of material fact exists as to at 23 least one essential element of each of the claims, and there is no basis for punitive damages or 24 attorney fees in this matter. 25 /// 26 /// 27 /// 28 /// 29 1 30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 31 1 II. 2 STATEMENT OF FACTS 3 A. Pre-Incident Facts 4 Plaintiff Josie Mae Brown’s primary medical diagnosis was dementia. She had the onset of 5 memory issues in 2006, at the age of 77. A diagnosis of Alzheimer’s dementia was made at UCSF 6 in Fresno at about age 80. Later, brain imaging revealed that Mrs. Brown had suffered multiple 7 strokes. (Undisputed Material Fact “UMF” 1). 8 Plaintiff was admitted to Golden LivingCenter-Fresno (GLC-Fresno) in April 2010, at the 9 age of 81, and remained there until April 2013. (UMF 2). Plaintiff also had multiple additional 10 medical problems, including osteoporosis, depression and hypertension. (UMF 3). While at GLC- 11 Fresno, she had a decline in cognition due to the natural progression of dementia and was PERRY, JOHNSON, ANDERSON, 12 incontinent of bowel and bladder. (UMF 4). MILLER & MOSKOWITZ LLP 13 B. Plaintiff’s Sole Allegation Against The: Living Defendants 14 In early March 2013, Plaintiff developed right leg pain. An x-ray on March 9, 2013 showed 15 a nondisplaced fracture of the fibula. (UMF 5). Plaintiff was scheduled to see an orthopedist, 16 however, her son called 911 and she was taken to the hospital. The fracture was stabilized using an 17 orthopedic boot with Velcro fasteners. Plaintiff was then sent back to GLC-Fresno. The fracture 18 healed without further intervention. (UMF 6). There was no recognized event at GLC-Fresno that 19 caused the fracture. (UMF 7). 20 The fracture that occurred without a fall or other incident was a “fragility fracture”. It is a 21 pathologic fracture due to osteoporosis. This type of fracture can occur with normal transferring 22 forces, or even turning in bed. (UMF 8). The fracture of the fibula was non-displaced. The only 23 treatment needed was stabilization. Since 2010, Plaintiff had been non-ambulatory, remaining in 24 her wheelchair or bed. (UMF 9). The fracture in March 2013 was not consequential in any way to 25 her subsequent course. (UMF 10). 26 Later, “[I]n April 2013, Plaintiff was transferred to GLC-CLOVIS.” (UMF 11). Plaintiff’s 27 course during her residence at GLC-Clovis was notable only for the natural progression of 28 dementia. (UMF 12). Despite being non-ambulatory, Plaintiff had no skin issues related to pressure 29 2 30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 31 1 injury. She had no falls or infections. Despite having advanced dementia, Plaintiff had no care- 2 related complications. She maintained her nutrition and hydration and remained in the overweight 3 range. Her pain was controlled, with pain scores consistently at “0”. (UMF 13). 4 Due to the progression of dementia, Mrs. Brown was admitted to hospice in November 5 2016. The qualifying diagnosis was advanced dementia. (UMF 14). During the time the Golden 6 Living Defendants operated GLC-Clovis, Mrs. Brown received nursing care that met the standard 7 of care. (UMF 15). 8 C. Change in Ownership of Facilities 9 On December 16th and 22nd, 2016, respectively, the Golden Living Defendants ceased their 10 respective operations of Golden LivingCenter-Fresno and Golden LivingCenter-Clovis and turned 11 the care duties over to new operators, Defendants Dycora Transitional Health-Clovis LLC and PERRY, JOHNSON, ANDERSON, 12 Dycora Transitional Health-Fresno LLC. (UMF 16). MILLER & MOSKOWITZ LLP 13 D. Plaintiff’s Complaint 14 Plaintiff filed her Complaint on November 27, 2017. (UMF 17). Her complaint alleges 15 Elder Abuse, Violation of Patient’s Rights (Health & Safety Code §1430(b)), and Professional 16 Negligence against the Golden Living Defendants and other defendants. (UMF 18). Plaintiff’s 17 primary allegation against the Golden Living Defendants is the following: 18 “While under the care and treatment of GLC-FRESNO, BROWN suffered a broken leg due to the lack of care provided by GLC-FRESNO staff.” 19 (UMF 19). 20 Plaintiff’s primary allegation against the Dycora Defendants is that she suffered a pressure 21 ulcer in 2017 while at GLC-Clovis. During this timeframe, the Golden Living Defendants no 22 longer operated or provided care to residents at the GLC-Clovis facility. (UMF 20). The Dycora 23 Defendants were effectively dismissed from this action after the Court granted their motion for 24 summary judgement on March 11, 2020. (UMF 21). 25 Plaintiff received care throughout her residence at Golden Living Defendants’ Golden 26 LivingCenter-Fresno and Golden LivingCenter-Clovis that met the standard of care. (UMF 22). 27 While under the care of the Golden Living Defendants at GLC-Fresno and GLC-Clovis, Plaintiff 28 had a notable absence of medical complications. (UMF 23). The fracture of the fibula in May 2013 29 3 30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 31 1 was a pathologic fracture due to osteoporosis. The fracture was unavoidable and occurred during 2 normal care. There was no breach of the standard of care by the Golden Living Defendants and 3 their staff at GLC-Fresno. (UMF 24). 4 There is no evidence to support the allegation that the Golden Living Defendants or their 5 staff at GLC-Fresno engaged in negligence, neglect, or elder abuse with respect to Plaintiff. (UMF 6 25). The care and treatment which the Golden Living Defendants and their staff at GLC-Fresno 7 provided to Plaintiff complied with the standard of care, and there is no evidence of a conscious 8 disregard to attend to her needs. (UMF 26). There is nothing to suggest recklessness, malice, fraud, 9 oppression, or a conscious disregard by the Golden Living Defendants or their staff at GLC-Fresno 10 to cause harm to Plaintiff. (UMF 27 – 28). Nor is there any evidence that any of Golden Living 11 Defendants’ officers, directors, or managing agents authorized or ratified any alleged reckless neglect or abuse of Plaintiff. (UMF 30 – 31). PERRY, JOHNSON, ANDERSON, 12 MILLER & MOSKOWITZ LLP 13 There is no evidence to support allegations that the Golden Living Defendants or their staff 14 at GLC-Fresno violated any of the patient rights set forth in the Patients’ Bill of Rights in Section 15 72527 of Title 22 of the California Code of Regulations, or any other right provided for by federal 16 or state law or regulation. (UMF 33 – 34). 17 III. 18 LEGAL AUTHORITY & ANALYSIS 19 A. Procedural Authority For A Motion for Summary Judgment/Summary Adjudication 20 The procedural authority for a summary judgment motion is prescribed by C.C.P. §437c 21 and provides in pertinent part: 22 (a) (1) A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action 23 or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against 24 whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct. 25 (c) The motion for summary judgment shall be granted if all the papers 26 submitted show that 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.” 27 28 /// 29 4 30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 31 1 Additionally, a motion for summary adjudication can be made “as to one or more causes of 2 action within an action, . . . [or] one or more claims for damages . . . if that party contends that the 3 cause of action has no merit . . . or that there is no merit to a claim for damages, as specified in 4 Section 3294 of the Civil Code . . . A motion for summary adjudication shall be granted only if it 5 completely disposes of a cause of action . . . [or] a claim for damages.” C.C.P. 437c(f)(1). A 6 motion for summary adjudication may be made by itself or as an alternative to a motion for 7 summary judgment. C.C.P. 437c(f)(2). 8 The moving party’s burden on a motion for summary judgment is only to negate the 9 existence of triable issues of fact in a fashion that entitles him to judgment on the issue raised by 10 the pleadings; he is not required to refute liability on some theoretical possibility not including in 11 the pleadings. Waschek v. Department of Motor Vehicles (1997) 59 Cal.App. 4th 640, 644. “The PERRY, JOHNSON, ANDERSON, 12 purpose of the summary judgment procedure is to penetrate through evasive language and adept MILLER & MOSKOWITZ LLP 13 pleading and ascertain the existence or absence of trial issues of fact.” Chern v. Bank of America 14 (1976) 15 Cal.3d 866, 873). 15 “A trial court properly grants summary judgment where no triable issue of material fact 16 exists, and the moving party is entitled to judgment as a matter of law.” Merrill v. Navegar, Inc. 17 (2001) 26 Cal.4th 465, 476. “[I]n moving for summary judgment, a ‘defendant ... has met’ his 18 ‘burden ... if’ he ‘has shown that one or more elements of the cause of action ... cannot be 19 established, or that there is a complete defense to that cause of action. Once the defendant ... has 20 met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more 21 material facts exists as to that cause of action or a defense thereto.” Aguilar v. Atlantic Richfield 22 Co. (2001) 25 Cal.4th 826, 849. 23 B. Plaintiff Cannot Establish The Elder Abuse Claim 24 As set forth below, Plaintiff must prove the elder abuse claim with clear and convincing 25 evidence. This higher standard of proof must be taken into account in ruling on a summary 26 judgment/summary adjudication motion, and “any evidence submitted in response to [that] motion 27 for summary adjudication must necessarily meet that standard.” Basich v. Allstate Insurance Co. 28 (2001) 87 Cal. App. 4th 1112, 1121. 29 5 30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 31 1 1. The Golden Living Defendants Did Not Act with Recklessness, Oppression, 2 Malice, or Fraud 3 Plaintiff makes a claim under the Elder Abuse and Dependent Adult Civil Protection Act 4 (“the Act”). The parameters of a cause of action under the Act are identified in California’s 5 Welfare & Institution Code §§15657, et seq. Section 15657 itself states that a plaintiff can only 6 establish a claim under the Act “[w]hen it is proven by clear and convincing evidence that a 7 defendant is liable for physical abuse… Or neglect…, and that the defendant has been guilty of 8 recklessness, oppression, fraud, or malice in the commission of this abuse…” Id. (emphasis added). 9 This conjunctive reading of the statute is confirmed in Delaney v. Baker, 20 Cal. 4th 23, 35 (1999). 10 As noted by the Court in Delaney, “the Elder Abuse Act’s goal was to provide heightened remedies 11 for… ‘acts of egregious abuse’ against elder and dependent adults.” Id. at 35 (emphasis added, PERRY, JOHNSON, ANDERSON, 12 quotes omitted). MILLER & MOSKOWITZ LLP 13 In Carter v. Prime Healthcare Paradise Valley, 198 Cal. App. 4th 396 (2011), the Court of 14 Appeal upheld the trial court sustaining of a demurrer to elder abuse, without leave to amend. In 15 doing so, it “distill[ed] several factors that must be present for conduct to constitute abuse within 16 the meaning of the Elder Abuse and Dependent Adult Civil Protection Act, and thereby trigger the 17 enhanced remedies available under the Act: 18 The plaintiff must allege (and ultimately proved by clear and convincing 19 evidence) facts establishing that the defendant (1) had responsibility for meeting 20 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 21 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, 22 either with knowledge that injury was substantially certain to befall the elder or 23 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 24 recklessness). The plaintiff must also allege (and ultimately proved by clear and convincing evidence) that the neglect caused the elder or dependent adult to 25 suffer physical harm, pain, or mental suffering.” (Carter, 198 Cal. App. 4th at 406-407). 26 27 Because plaintiff’s counsel could not articulate at the hearing any additional facts which 28 would indicate elder abuse, the court gave no leave to amend. The Court of Appeal affirmed. In 29 6 30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 31 1 this case, Plaintiff can produce no admissible evidence which would have any tendency in reason 2 to establish the necessary elements outlined by Carter. To the contrary, the evidence demonstrates 3 that the Golden Living Defendants’ care and treatment provided to Plaintiff was not reckless but 4 instead met the standard of care. (UMF 25, 26, and 28). 5 Plaintiff’s sole care allegation against the Golden Living Defendants was that they failed to 6 prevent an apparent fracture to her leg in March 2013. (UMF 19). However, Plaintiff cannot 7 establish that this injury was a result of the Golden Living Defendants’ denial or withholding of 8 care. In fact, the contrary is true: Plaintiff’s injury resulted from natural conditions in her own 9 health and well documented diagnosis such as dementia and osteoporosis. There was no recognized 10 event at GLC-Fresno that caused the fracture. (UMF 7). Plaintiff suffered a “fragility fracture”. 11 This type of fracture can occur with normal transferring forces, or even turning in bed. (UMF 8). PERRY, JOHNSON, ANDERSON, 12 Plaintiff was scheduled to see an orthopedist, however, her son called 911 and she was taken to the MILLER & MOSKOWITZ LLP 13 hospital. The fracture was stabilized using an orthopedic boot with Velcro fasteners. Plaintiff was 14 then sent back to GLC-Fresno. The fracture healed without further intervention. (UMF 6). 15 There is no evidence that the Golden Living Defendants denied or withheld care or 16 treatment, and Plaintiff cannot create a trial issue in this regard. Plaintiff cannot provide any 17 evidence to establish by a “clear and convincing” standard that the Golden Living Defendants’ 18 conduct rose to the level of recklessness, malice, oppression, or fraud. (UMF 28). Plaintiff can 19 present no evidence to even remotely establish misconduct to the level outlined in Carter v. 20 Paradise Valley, 198 Cal. App. 4th 396 (2011). For these reasons alone, the Golden Living 21 Defendants’ request for summary adjudication on Plaintiff’s elder abuse claim must be granted. 22 2. The Golden Living Defendants Did Not Ratify or Authorize Any Alleged 23 Wrongful Conduct 24 In order to successfully pursue a cause of action for elder abuse against an employer, a 25 plaintiff must establish facts showing a corporate defendant’s officers, directors, or managing 26 agents were involved in the abuse or authorized or ratified the abusive conduct. Plaintiff can also 27 establish ratification or authorization of it can show that a corporate defendant hired individuals 28 who did the abuse with advanced knowledge of that person’s unfitness and hired them with a 29 7 30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 31 1 conscious disregard of the rights and safety of others. Cal. Welf. & Inst. Cod §15657 (c) provides 2 that a plaintiff must meet the requirements of California Civil Code §3294 (b), with clear and 3 convincing evidence, before any damages or attorney’s fees may be imposed against a corporate 4 employer. These requirements are as follows: 5 “An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance 6 knowledge of the unfitness of the employee and employed him or her with a 7 conscious disregard of rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of 8 oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscience disregard, authorization, ratification or act of 9 oppression, fraud, or malice must be on the part of an officer, director, or 10 managing agent of the corporation.” Cal. Civ. Code §3294(b) 11 Here, Plaintiff can present no admissible evidence supporting employer ratification or PERRY, JOHNSON, ANDERSON, 12 authorization of any alleged abuse to a clear and convincing evidentiary standard as required by MILLER & MOSKOWITZ LLP 13 Cal. Civ. Code §3294(b). The Golden Living Defendants have established there is no evidence to 14 support this element of the elder abuse claim. (UMF 25, 26, and 28). Therefore, the Golden Living 15 Defendants’ request for summary adjudication on Plaintiff’s elder abuse claim must be granted. 16 C. Plaintiff Cannot Establish The Negligence Claim 17 It is well settled California law that establishes that a defendant, like the Golden Living 18 Defendants, is not the insurer of Plaintiffs health. Civil Code §1714.8(a) states: 19 “No health care provider shall be liable for professional negligence or 20 malpractice for any occurrence or result solely on the basis that the occurrence or result was caused by the natural course of the disease or condition, or was the 21 natural or expected result of reasonable treatment rendered for the disease or condition…” 22 23 It is thus clear that a health care provider is not held to a standard of medical perfection. In 24 fact, a hospital is not necessarily negligent just because its efforts are unsuccessful, or it makes an 25 error that was reasonable under the circumstances. The hospital is negligent only if it was not as 26 skillful, knowledgeable, or careful as other reasonable hospitals would have been in similar 27 circumstances. (See CACI 505). Stated alternatively, Civil Code §1714.8(a) and CACI 505, jointly 28 establish that there is no liability for negligence simply because an unfavorable outcome occurs. 29 8 30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 31 1 Here, Dr. Joshua Rassen in his declaration, and after extensive review of Plaintiff’s medical 2 records, notes that Plaintiff suffered from multiple medical conditions including osteoporosis, 3 depression, and hypertension. (UMF 3). In early March 2013, Plaintiff developed right leg pain, 4 and an x-ray indicated a nondisplaced fracture of the fibula. (UMF 5). The fracture occurred 5 without a fall and is medically considered a “fragility fracture” due to osteoporosis. This type of 6 fracture can occur with normal transferring forces, or even turning in bed. (UMF 8). 7 There was, however, no event at GLC-Fresno that caused the fracture. (UMF 7). Plaintiff 8 suffered a pathologic fracture due to osteoporosis. The fracture was unavoidable and occurred 9 during normal care. There was no breach of the standard of care by the Golden Living Defendants 10 and their staff at GLC-Fresno. (UMF 24). There is no evidence to support the allegation that the 11 Golden Living Defendants or their staff at GLC-Fresno engaged in negligence, neglect, or elder PERRY, JOHNSON, ANDERSON, 12 abuse with respect to Plaintiff. (UMF 25). The care and treatment which the Golden Living MILLER & MOSKOWITZ LLP 13 Defendants and their staff at GLC-Fresno provided to Plaintiff complied with the standard of care, 14 and there is no evidence of a conscious disregard to attend to her needs. (UMF 15, 26, and 32). 15 Therefore, the Golden Living Defendants’ request for summary adjudication on Plaintiff’s 16 negligence claim must be granted. 17 D. Plaintiff Cannot Establish The Claim for Violation of Patient’s Bill of Rights 18 Plaintiff has alleged a series of conclusory allegations of violation of patient rights for 19 which she has no evidentiary support. Plaintiff claims that the Golden Living Defendants (1) did 20 not allow her participation in care planning; (2) did not treat her with dignity and respect; (3) did 21 not have adequate number of qualified personnel to carry out the functions of the facility; (4) did 22 not provide her with good hygiene to prevent bedsores; (5) did not keep the facility clean, sanitary, 23 and in good repair at all times; (6) failed to provide her with the necessary nutrition and fluids for 24 hydration; (7) failed to employ staff at the requisite skills and training; and a host of other 25 unsupported contentions. 26 Herein lies the crux of Plaintiff’s claim: there is no evidence to support allegations that the 27 Golden Living Defendants or their staff at GLC-Fresno violated any of the patient rights set forth 28 in the Patients’ Bill of Rights in Section 72527 of Title 22 of the California Code of Regulations, or 29 9 30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 31 1 any other right provided for by federal or state law or regulation. The present claim must fail if 2 Plaintiffs cannot present the requisite evidentiary evidence against the Golden Living Defendants. 3 Therefore, the Golden Living Defendants’ request for summary adjudication on Plaintiff’s claim 4 for violation of patients’ rights must be granted. 5 IV. 6 CONCLUSION 7 Based on the foregoing, the Golden Living Defendants respectfully request that this Court 8 grant the present Motion for Summary Judgment, or in the alternative, Summary Adjudication of 9 specific Issues in their favor. 10 DATED: November 18, 2020 PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ, LLP 11 PERRY, JOHNSON, ANDERSON, 12 MILLER & MOSKOWITZ LLP By: 13 DAVID F. BEACH OSCAR A. PARDO 14 Attorneys for Defendants BEVERLY HEALTHCARE-CALIFORNIA, INC. 15 dba GOLDEN LIVINGCENTER – FRESNO; BEVERLY HEALTHCARE – CALIFORNIA, INC. 16 dba GOLDEN LIVINGCENTER – CLOVIS 17 18 19 20 21 22 23 24 25 26 27 28 29 10 30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 31 1 PROOF OF SERVICE 2 JOSIE MAE BROWN, individually v. BEVERLY HEALTHCARE – CALIFORNIA, INC. dba GOLDEN LIVINGCENTER – FRESNO; BEVERLY HEALTHCARE – CALIFORNIA, INC. dba 3 GOLDEN LIVINGCENTER – CLOVIS, and DOES 1 through 200, inclusive Fresno County Superior Court Case No. 17CECG04065 4 5 STATE OF CALIFORNIA, COUNTY OF SONOMA 6 I, the undersigned declare: 7 I am over the age of eighteen (18) years and not a party to the within action. I am an 8 employee of Perry, Johnson, Anderson, Miller, & Moskowitz, LLP’s and my address is 438 First Street, 4th Floor, Santa Rosa, California 95401, which is located in the County of Sonoma. 9 On the date below indicated, I served on the interested parties in this action the within 10 documents described as: 11 • DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT PERRY, JOHNSON, ANDERSON, 12 MILLER & MOSKOWITZ LLP OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 13 _ X_ (BY MAIL) On November 18, 2020 I caused each envelope, with postage thereon fully 14 prepaid, to be placed in the United States mail at Santa Rosa, California. I am readily familiar with the business practice for collection and processing of mail in this office; that 15 in the ordinary course of business said document would be deposited with the US Postal Service in Santa Rosa on that same day. I understand that service shall be presumed 16 invalid upon motion of a party served if the postal cancellation date or postage meter date on the envelope is more than one day after the date of deposit for mailing contained on this 17 declaration. 18 Josie Mae Brown Josie Mae Brown 19 9720 Zelzah Ave, Apt. 207 17730 Lassen Street, Apt. 123 Northridge, CA 91325 Northridge, CA 91325 20 Josie Mae Brown Heather H. Kruthers 21 2715 Fresno Street Deputy County Counsel 22 Fresno, CA 93721 2220 Tulare Street, Suite 500 Fresno, CA 93721 23 James E. Yee 24 Lweis Brisbois Brisgaard & Smith LLP 25 650 E. Hospitality Lane, Suite 600 San Bernardino, CA 92408 26 27 28 29 11 30 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 31 I declare under penalty of perjury under the laws of the State of California that the above is 1 true and correct, and that this declaration was executed on November 18, 2020 at Santa Rosa, 2 California. 3 4 Vanessa Kinney ______________________________ 5 6 7 8 9 10 11 PERRY, JOHNSON, ANDERSON, 12 MILLER & MOSKOWITZ LLP 13 14 15 16 17 18 19 20