Opinion
No. A149750
12-11-2018
REINA HERNANDEZ, Plaintiff and Appellant, v. CRESTWOOD BEHAVIORAL HEALTH, INC., dba CRESTWOOD MANOR Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCS044246)
Hernandez's deceased mother, Dora Rodriguez, was a patient of Crestwood Behavioral Health, Inc. (Crestwood), operator of a nursing home in Vallejo, California. Among other things, Hernandez alleged that Crestwood violated the Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act), Welfare & Institutions Code section 15600 et seq., by knowingly withholding from Rodriguez the one-to-one monitoring she needed to stay safe as a high fall risk, which resulted in Rodriguez falling and sustaining a head injury that led to her death. Hernandez appeals from the trial court's order granting Crestwood's motion for summary adjudication regarding this part of Hernandez's elder abuse claim. She also appeals from the trial court's denial of her motion for reconsideration of the court's summary adjudication order; its grant of two of Crestwood's in limine motions; and its dismissal for lack of standing of Hernandez's claim against Crestwood under California's Unfair Competition Law (UCL), Business and Professions Code section 17200 et seq.
All statutory citations are to the Welfare and Institutions Code unless otherwise stated.
Hernandez's appeal is premature, but we will consider it as a petition for an extraordinary writ of mandate. We conclude the trial court erred by granting Crestwood's motion for summary adjudication on Hernandez's one-to-one monitoring claim because Crestwood did not meet its initial burden of showing prima facie that there were no triable issues of material fact regarding Hernandez's one-to-one monitoring claim. We vacate the court's order and instruct it to enter a new order denying Crestwood's summary adjudication motion. We also order the court to vacate its orders regarding Hernandez's motion for reconsideration and Crestwood's two in limine motions because the reconsideration motion is moot and the two in limine rulings should be reconsidered in light of our conclusion. However, Hernandez does not provide legal authority that establishes the trial court erred in ruling that she did not have standing to pursue her UCL claim. Therefore, we affirm that order.
BACKGROUND
On March 1, 2014, Rodriguez fell and hit her head while in Crestwood's care. She suffered a subdural hematoma which, Hernandez alleges, resulted in her death five days later. In September 2014, Hernandez, Rodriguez's daughter, filed a complaint against Crestwood in Solano County Superior Court. She asserted four causes of action—for a violation of the Elder Abuse Act; professional negligence or negligence per se; wrongful death; and a UCL claim.
The complaint also identifies Christopher Romero as a plaintiff and son of Rodriguez. The record does not indicate he participated below, and he is not a party to this appeal. Therefore, we do not discuss him further.
Crestwood moved for summary adjudication of Hernandez's elder abuse claim. The trial court identified two distinct parts of this claim: first, that Crestwood committed elder abuse by not providing Rodriguez with "one-to-one monitoring" care (where an attendant would be with her constantly) and, second, that Crestwood committed elder abuse by other means. The court granted Crestwood's motion for summary adjudication regarding the one-to-one monitoring part based on Worsham v. O'Connor Hospital (2014) 226 Cal.App.4th 331 (Worsham). The court denied the remainder of Crestwood's motion.
The court ruled that it could summarily adjudicate a wrongful act that was separate from other wrongful acts alleged in the same cause of action, citing this court's opinion in Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848. In Lilienthal, a legal malpractice case, we held that the trial court properly ruled on a summary adjudication motion directed at claims about services rendered on one legal matter even though these claims were combined in the same cause of action with claims about services rendered on another legal matter. (Id. at pp. 1854-1855.) Hernandez does not challenge this aspect of the court's ruling. Therefore, we do express any view about the ruling.
Hernandez moved for the trial court to reconsider its summary adjudication order. She argued a newly published decision, Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339 (Fenimore), supported her motion. The court denied her motion as untimely, not viable based on a change in the law and unsupported by a change in the law that would justify reconsideration.
Before trial, the court made three rulings that Hernandez also challenges. First, the court granted Crestwood's motion in limine number 17 to exclude any mention of elder abuse at trial, concluding Hernandez did not have sufficient expert testimony to pursue what remained of her elder abuse claim. Second, it granted Crestwood's motion in limine number 22 to exclude any mention of Napa County's payment to Crestwood of $8,400 for one-to-one monitoring of Rodriguez from February 9, 2014, to February 22, 2014 (which monitoring Hernandez alleged Crestwood did not provide) as not probative of the events leading to Rodriguez's death. Third, the court at a trial management conference ordered the parties to file supplemental briefs on whether Hernandez had standing to pursue her UCL claim, and the court subsequently ruled that Hernandez did not have this standing.
Prior to the court making these three rulings, Hernandez dismissed her negligence and wrongful death causes of action without prejudice.
Hernandez filed a notice of appeal, claiming to do so from an order or judgment under Code of Civil Procedure section 904.1, subdivision (a)(3) to (a)(13).
DISCUSSION
I.
We Treat Hernandez's Appeal As a Petition for an Extraordinary Writ of Mandate.
The record indicates Hernandez has not appealed from a final judgment nor from any judgment or order identified in Code of Civil Procedure section 904.1, subdivision (a)(3) to (a)(13). She contends, and Crestwood does not seriously disagree, that she nonetheless has the right to appeal from the rulings she identifies because they together were tantamount to an order granting nonsuit or a judgment on the pleadings. We conclude Hernandez does not have this right.
Code of Civil Procedure section 904.1, subdivision (a)(3) to (a) (13) authorizes appeals:
"(3) From an order granting a motion to quash service of summons or granting a motion to stay the action on the ground of inconvenient forum, or from a written order of dismissal under Section 581d following an order granting a motion to dismiss the action on the ground of inconvenient forum.
"(4) From an order granting a new trial or denying a motion for judgment notwithstanding the verdict.
"(5) From an order discharging or refusing to discharge an attachment or granting a right to attach order.
"(6) From an order granting or dissolving an injunction, or refusing to grant or dissolve an injunction.
"(7) From an order appointing a receiver.
"(8) From an interlocutory judgment, order, or decree, made or entered in an action to redeem real or personal property from a mortgage thereof, or a lien thereon, determining the right to redeem and directing an accounting.
"(9) From an interlocutory judgment in an action for partition determining the rights and interests of the respective parties and directing partition to be made.
"(10) From an order made appealable by the Probate Code or the Family Code.
"(11) From an interlocutory judgment directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000).
"(12) From an order directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000).
"(13) From an order granting or denying a special motion to strike under Section 425.16."
"Under the one final judgment rule, ' "an appeal may be taken only from the final judgment in an entire action." ' " (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 756.) The right to appeal is wholly statutory and a matter must come within the appealable judgments and orders created by section 904.1, or one of the exceptions to the one judgment rule. " 'There can be but one final judgment in an action, and that judgment must resolve all causes of action pending between the parties. [Citation.] Thus a partial summary judgment remains interlocutory so long as the proceeding in which it was rendered is still pending.' " (Niederer v. Ferreira (1983) 150 Cal.App.3d 219, 223.)
Hernandez contends the orders appealed from together effectively disposed of her case and thus constitute an appealable, final order. She relies on two cases for this argument, Clark v. Optical Coating Laboratory Inc. (2008) 165 Cal.App.4th 150, 176 (reviewing a trial court's grant of a motion to dismiss after granting in limine motions under the same standard of review applied to grants of motions for nonsuit) and Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 28 (reviewing a trial court's grant of in limine motions under the same standard of review applied to a grant of a motion for nonsuit). Neither of these cases involved questions of appealability or the circumstances before us. The trial court's summary adjudication order is not an appealable order. (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 319.)
Also, despite the court's summary adjudication order and its motions in limine, Hernandez had the opportunity to further litigate some of her causes of action. Although the court effectively disposed of her elder abuse and UCL causes of action, the latter on the ground that she did not have standing, its rulings did not affect her wrongful death and negligence causes of action. Instead, Hernandez voluntarily dismissed them, without prejudice. This undermines her contention that the court's rulings were tantamount to a final adjudication of her case. (See Kurwa v. Kislinger (2013) 57 Cal.4th 1097, 1107 [a judgment adjudicating certain causes of action was not appealable because other claims were dismissed without prejudice and effectively preserved for later litigation by agreement].) Further, Hernandez does not indicate the rulings disposing of her elder abuse and UCL causes of action were finalized by entry of a judgment prior to her filing of her notice of appeal. We conclude her appeal was premature.
During the pendency of this appeal, we asked the parties to address whether we should exercise our discretionary power to treat this appeal as a petition for an extraordinary writ of mandate if we conclude the orders appealed from are not appealable. Both parties agree we should do so. Treating this appeal as a writ is in the interest of justice and judicial economy. Hernandez's elder abuse cause of action was a prominent claim in her lawsuit, and one she could not have pursued at trial given the trial court's summary adjudication and in limine rulings. The parties and the court would incur needless expense and delays if Hernandez were required to prosecute her other claims and then appealed successfully from the trial court's rulings on her elder abuse claim. (See, e.g., Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 744-747 [treating an improper appeal as a writ of mandate because of the unusual circumstances of the case]; Olson v. Cory (1983) 35 Cal.3d 390, 400-401 [avoiding otherwise unnecessary trial proceedings by treating a premature appeal as a writ proceeding].) In circumstances similar to those here, we have exercised our discretion to review an order granting summary adjudication by way of a writ of mandate. (Fisherman's Wharf Bay Cruise Corp. v. Superior Court, supra, 114 Cal.App.4th at p. 319.) For these reasons, we shall exercise our discretion to treat Hernandez's appeal as a petition for an extraordinary writ of mandate.
II.
The Court Erred by Granting Crestwood's Motion for
Summary Adjudication Regarding Hernandez's One-to-One Monitoring Claim.
Hernandez argues the court erred in granting Crestwood's motion for summary adjudication on Hernandez's one-to-one monitoring claim because Crestwood did not show there were no triable issues of material fact regarding the one-to-one monitoring part of her elder abuse claim. "On a motion for summary judgment or summary adjudication, the pleadings delimit the scope of the issues, and the function of affidavits, declarations, or other supporting evidence is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings." (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1132.) We therefore begin with Hernandez's allegations in support of her elder abuse claim, specifically those that pertain to her theory that Crestwood's failure to provide Rodriguez one-to-one monitoring constituted reckless negligence under the Elder Abuse Act. We then turn to Crestwood's showing in support of its motion for summary adjudication to determine whether it met its initial burden to make a prima facie showing that, as a matter of law, Hernandez could not prove this claim.
A. Hernandez's Allegations
In the one-to-one monitoring part of her elder abuse claim, Hernandez alleged that Rodriguez was a dependent adult entitled to protection under the Elder Abuse Act who was admitted to Crestwood in November 2011, that Crestwood thereafter assumed a duty regarding her care, comfort, safety, and physical and mental health, and that thereafter it "recklessly neglected [Rodriguez's] medical, mental, and physical needs." Specifically, Hernandez alleges, in 2014, Crestwood allegedly "knew that [Rodriguez] was a high fall risk and documented the fact that [Rodriguez] had suffered multiple serious falls at [the] Crestwood facility that necessitated transfer by ambulance to acute care hospitals for treatment." It knew and documented that Rodriguez needed one-to-one monitoring for her safety and that her doctor had ordered this monitoring. Nonetheless, Hernandez alleges, Crestwood "permitted [Rodriguez] to be readmitted and [it] failed to provide her with the [physician-]ordered and necessary constant attendant" and physical restraints. On March 1, 2014, Rodriguez was left unattended, unrestrained and unmonitored, and she suffered yet another serious fall as a result. When she fell this last time, she hit her head and suffered a subdural hematoma which resulted in her death five days later.
Hernandez also alleged Crestwood fraudulently charged for services it did not provide to Rodriguez, which may be related to its one-to-one monitoring claim.
Hernandez alleged that Crestwood's failure to provide Rodriguez with one-to-one monitoring was "reckless, oppressive, fraudulent and/or malicious" under the Elder Abuse Act. She sought all damages recoverable under the Act, including "economic damages, general damages, including pain, suffering, and emotional distress, punitive damages, treble damages and attorney fees, and costs of suit."
B. Crestwood's Evidence
In support of its motion for summary adjudication of Hernandez's elder abuse claim, Crestwood presented the following facts as undisputed, based on deposition testimony and other evidence:
Rodriguez, a patient at Crestwood since 2011, suffered from a variety of illnesses, including terminal liver disease, and was sometimes hospitalized. In 2014, her attending physician was Crestwood's medical director, Dr. Walter Peters, who examined her regularly. The Napa County Public Conservator, via a deputy conservator, controlled Rodriguez's medical care because Rodriguez was not able to make medical decisions.
On February 7, 2014, Rodriguez was discharged from a hospital and returned to Crestwood. The hospitalist recommended that she receive one-to-one monitoring. According to Crestwood, "[i]n one-to-one supervision the patient will have staff who will be directly staying with her who will observe her, determine what she needs and assist her."
Dr. Peters, who was both Crestwood's medical director and Rodriguez's attending physician, agreed with the hospitalist's recommendation. On February 9, 2014, he issued a written order for one-to-one monitoring of Rodriguez because "he considered her a fall risk." Crestwood cited Dr. Peters's testimony that "[t]he one-to-one monitoring was ordered . . . because [Rodriguez] had the fall prior to her initial hospitalization on the 7th, and yeah, I guess she was sometimes unsafe in her ambulatory skills," which made her a fall risk.
On February 10, 2014, the day after Dr. Peters ordered one-to-one monitoring for Rodriguez, Crestwood's program director, Miriam Andrade, wrote a letter to the county's deputy conservator responsible for Rodriguez's care, Valerie Cahill. Andrade requested "authorization for a one-to-one attendant to supervise [Rodriguez] due to medical necessity as of February 9, 2014 and [because Rodriguez] required a higher level of care than is normally provided in Crestwood." According to Andrade's deposition testimony, Rodriguez's treatment team formulated the letter because Cahill needed it to obtain authorization for one-to-one monitoring. Andrade testified her letter stated that Rodriguez "is requiring a higher level of care than is normally provided in Crestwood Manor," "has a high risk for falls and . . . did have a fall on Friday, February 7, 2014," and "requires a one-to-one monitor for her safety. The alternative would be for you to transfer her to a higher level of care."
As our discussion indicates, Crestwood's factual assertions and its supporting deposition testimony sometimes does not distinguish between the conservator, the deputy conservator (Cahill) and the county. We repeat these contentions as they are stated in the record. It appears from the record that the county, through the county conservator, paid for Rodriguez's one-to-one care, and that Cahill managed this process.
On the same date as Andrade transmitted that letter, February 10, 2014, Cahill "instructed . . . [Rodriguez's] case manager[] to refer [Rodriguez] to the Medical Hill facility but [Rodriguez's] family was reluctant to have [Rodriguez] placed in another facility where she would not be able to have overnight visits with them." In her deposition, Cahill testified that Rodriguez was put on a waiting list at the Medical Hill facility and that staff continued to look for other facilities closer to the family. Cahill testified that she understood it was important to the family to have as much contact with Rodriguez as possible. She recalled having conversations that Rodriguez "needed a higher level of care. Crestwood was continuing to take care of her. We could pay for one to ones, but we would continue to have to have that monitored to the fiscal nature of it and that we were trying to get her in a higher level of care." Cahill further testified that no one from Crestwood ever indicated to her that Rodriguez no longer needed one-to-one monitoring.
On February 14, 2014, "there was an interdisciplinary team meeting concerning only [Rodriguez] where her conservator [an apparent reference to Cahill], her case manager, an ombudsman, a hospice representative, the medical director of the facility, the director of nursing and Lupe, Dora's sister as the family representative were present." Crestwood stated, "Medical Hill in Oakland, a facility providing a higher level of care, was found but Lupe vetoed it because she could not take Dora home for the weekend. The conservator respected Lupe's wishes."
According to Crestwood, Rodriguez's conservator authorized one-to-one monitoring "for a limited period of time." Crestwood supported this statement with the deposition testimony of Cahill, Dr. Peters and a Crestwood nurse, Christina Bunggay. Cahill testified that the public conservator approved one-to-one monitoring for a two-week period, from February 9, 2014, to February 22, 2014. According to Dr. Peters, Crestwood allowed Rodriguez to stay in its facility "[w]ith certain caveats. One of them—well, I think—I believe the conservator was there, and the conservator had to get approval for the one-to-one care, and it was approved for a certain amount of time." According Bunggay, the conservator's authorization was to provide Crestwood with extra money for that one-to-one supervision, but the conservator did not have the power to order treatment, since she was not a physician. If care was required, Rodriguez's physician (Crestwood's Dr. Peters) would be the person to order it. Crestwood further asserts that the County authorized one-to-one care on a week-by-week basis.
Dr. Peters never discontinued his written order that Rodriguez be provided one-to-one monitoring and, further, he "knew that his order for 1:1 observation was for a defined amount of time." In his deposition, Dr. Peters testified that he "kind of knew from the February 14 meeting that the County "agreed to pay for one-to-one monitoring for a certain period of time," although he was "not sure exactly when that stopped." He testified, "we didn't know how long it was going to be, but the County made it very clear that they had to get approval for one-to-one." Further, "the County has limited resources. They do their best to take care of these patients that are conserved. They . . . talked about putting her in a different facility, where maybe one-to-one monitoring could be done more easily. The family did not want that. . . . [T]hat's when we had this meeting to try to figure out a game plan. We all agreed that we would do the best we can to take care of this patient. One of the things that we did, and we decided to do—and the County agreed to the plan, initially—was to provide one-to-one care. The County authorized one-to-one care for a defined amount of time. When that expired, Crestwood and the treating team, along with me, we—the patient was on Q 15 minute observations after that." According to Crestwood, "[i]n Q 15 minute observation, the patient is being checked as often as every 15 minutes, or maybe even shorter than 15 minutes."
Crestwood discontinued its one-to-one monitoring of Rodriguez and provided Q 15 minute observation care of her starting on February 24, 2014. Bunggay, the Crestwood nurse, testified at deposition that an entry in Crestwood's records by licensed staff indicated that, as of February 24, 2014, whenever Rodriguez woke and stood up, a staff person "must be behind her so she doesn't fall." However, it was Bunggay's understanding that "the authorized one to one from the county has expired beyond the two weeks that they have authorized, and she was—on our assessment at the time, she was improving slightly. So she was placed on close observation."
On February 26, 2014, at a time when Rodriguez was on Q 15 observation at Crestwood, she was again hospitalized, apparently for reasons unrelated to falling. When she was readmitted to Crestwood on March 1, 2014, Crestwood again placed her on Q 15 minute observation. Bunggay testified that an unidentified nurse placed Rodriguez on this Q 15 care.
According to Crestwood, when Rodriguez was readmitted to Crestwood on March 1, 2014, "Dr. Peters continued his order that [she] be on Q 15 minute observation . . . ." Dr. Peters testified that "we continued with the orders that were in place." He was aware that Rodriguez was on Q 15 observation when she was readmitted on March 1, testifying, "I believe Gloria notified me of that, and she wanted to confirm if that should be continued, and I believe I said, 'Yes.' " According to Crestwood, "Dr. Peters felt that once the County stopped providing one-to-one care the Crestwood . . . nurses did the next best thing when they instituted Q 15 minute observations." Dr. Peters testified that "[t]he County . . . was able to provide one-to-one care for a short period of time, and once that was ended, Crestwood did the . . . next best thing, where they instituted Q 15 minute observations for this patient with a—with a high fall risk."
C. Legal Standards
The purpose of the Elder Abuse Act is to " 'protect[] elder and dependent adults who are residents of nursing homes and other health care facilities from reckless neglect and various forms of abuse.' " (Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal.App.4th 426, 432, quoting Delaney v. Baker (1999) 20 Cal.4th 23, 40 (Delaney).) "Elder abuse claims . . . are based on custodial neglect rather than professional negligence." (Country Villa Claremont Healthcare Center, Inc. v. Superior Court, at p. 432.) " ' "Abuse of an elder or a dependent adult" ' " includes " 'neglect' " and " '[t]he deprivation by a care custodian of . . . services that are necessary to avoid physical harm or mental suffering.' (Welf. & Inst. Code, § 15610.07.)" (Ibid.) Under the Elder Abuse Act, "neglect" is defined as, among other things, "[t]he negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise." (§ 15610.57, subd. (a)(1).) This includes, but is not limited to, the "[f]ailure to provide medical care for physical and mental health needs" and the "[f]ailure to protect from health and safety hazards." (§ 15610.57, subd. (b)(2), (3).) "The Elder Abuse Act does not apply to simple or gross negligence by health care providers." (Worsham, supra, 226 Cal.App.4th at p. 336, citing Delaney, at pp. 28-29, fn. 2.)
We quote provisions of the Elder Abuse Act as they existed in 2014, when Rodriguez died and Hernandez filed her suit. The former version of section 15610.07 quoted in Country Villa Claremont Health Care Center Inc. v. Superior Court was then in effect. (See Stats. 1998, ch. 946, § 2 [former version]; Stats. 2015, ch. 285, § 2 [current version].)
A plaintiff who successfully prosecutes an elder abuse claim may be entitled to remedies beyond basic tort damages. "Where it is proven by clear and convincing evidence that a defendant is liable for . . . neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud or malice in the commission of this abuse," a plaintiff is entitled to certain statutorily mandated remedies in addition to those otherwise provided by law. (§ 15657.) They include reasonable attorney fees and costs and an increase in potential damages otherwise limited by Code of Civil Procedure section 377.34, which limits damages recoverable in an action by a decedent's personal representative or successor. (§ 15657, subds. (a), (b).)
We review rulings on summary judgment and summary adjudication motions de novo. (Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal.App.4th 807, 819.) Summary adjudication of a cause of action is appropriate where "all the papers 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." (Code Civ. Proc., § 437c, subd. (c).) We "view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing her evidentiary submission while strictly scrutinizing defendants' own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
A defendant seeking summary adjudication "bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact." Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) "A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.] No more is called for." (Id. at p. 851.) California law requires that "a defendant moving for summary [adjudication] . . . present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence." (Id. at p. 854, fn. omitted.)
The parties vigorously debate the significance of the evidence they presented below, but they do not discuss Aguilar, which governs our review of summary judgment/adjudication motions.
If the moving party "carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar, supra, 25 Cal.4th at p. 850.) "There is a genuine issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Id. at p. 845.)
D. Analysis
As we have indicated, a plaintiff asserting an elder abuse claim must prove more than simple or gross negligence. The plaintiff is entitled to the enhanced remedies under section 15657 if he or she can show, by clear and convincing evidence, that a defendant acted, among other things, with recklessness. " ' "Recklessness" refers to a subjective state of culpability greater than simple negligence, which has been described as a "deliberate disregard" of the "high degree of probability" that an injury will occur [citations]. Recklessness, unlike negligence, involves more than "inadvertence, incompetence, unskillfulness, or a failure to take precautions" but rather rises to the level of a "conscious choice of a course of action . . . with knowledge of the serious danger to others involved in it." ' " (Worsham, supra, 226 Cal.App.4th at p. 337, quoting Delaney, supra, 20 Cal.4th at pp. 31-32.)
Hernandez alleged in her complaint that Crestwood knew Rodriguez was a high fall risk who needed one-to-one monitoring for her safety as Dr. Peters, her attending physician and Crestwood's medical director, ordered in early February 2014. Yet, despite Crestwood's conclusion that Rodriguez was not safe at Crestwood without one-to-one monitoring, it readmitted her on March 1, 2014, without providing this level of care. Hernandez further alleged this resulted in Rodriguez's suffering a serious fall that same day, leading to her death five days later. If Hernandez proves these allegations by clear and convincing evidence, a jury could conclude Crestwood acted with reckless negligence by consciously deciding to withhold one-to-one monitoring from Rodriguez despite knowing she needed that level of care for her safety. In other words, a jury could conclude that Crestwood, the custodian and care provider for Rodriguez, acted, or more accurately failed to act, with deliberate disregard that its conduct, or lack thereof, would very probably result in Rodriguez suffering a serious injury. (See Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90 [evidence supporting inferences that hospital ignored care plan, failed to inform physician of need for treatment order, and failed to provide patient with medical care necessary to protect her from health and safety hazards presented triable issue of fact with respect to recklessness].)
Crestwood did little, if anything, to rebut Hernandez's factual allegations in its separate statement of undisputed facts. To the contrary, the facts it stated and documents it cited confirm virtually all of Hernandez's factual allegations. Crestwood indicated that its own medical director, Dr. Peters, was Rodriguez's attending physician; Rodriguez was hospitalized in early February 2014 due to a fall she suffered at Crestwood; upon her return to Crestwood, Dr. Peters ordered one-to-one monitoring for her because she was a high fall risk; around the same time, Crestwood's program director, Andrade, wrote to Rodriguez's deputy conservator, Cahill, that Rodriguez required one-to-one monitoring for her safety, which Crestwood did not normally provide; after a meeting of all parties involved, Crestwood agreed that Rodriguez would remain at Crestwood and the county conservator authorized one-to-one monitoring for two weeks because the county conservator generally authorized payments on a week-to-week basis; after the two weeks ended, Crestwood discontinued its one-to-one monitoring of Rodriguez; Rodriguez was then placed on close (Q 15) observation because she was "improving slightly," even though Crestwood's records from that time period indicated a staff person had to be behind Rodriguez whenever she woke and stood up so she did not fall; Dr. Peters believed Rodriguez remained a high fall risk after the funding for one-to-one monitoring expired; Rodriguez was hospitalized in late February 2014 and upon her release, Crestwood readmitted her, with Dr. Peters confirming orally with staff that she was to continue to receive Q 15 observation.
As this summary demonstrates, Crestwood did not disprove Hernandez's contentions that it knew Rodriguez was a high fall risk who needed one-to-one monitoring for her safety, but nonetheless readmitted her to Crestwood on March 1, 2014, without providing it. Instead, Crestwood merely contends that, as Dr. Peters characterized it in his deposition testimony, it did "the next best thing" after the deputy conservator's initial two weeks of payments for special one-to-one monitoring expired, despite knowing that Rodriguez was a "high fall risk."
Strictly construing Crestwood's showing and resolving any evidentiary doubts or ambiguities in Hernandez's favor as we must (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 768), we conclude Crestwood has not demonstrated as a matter of law that its conduct was not reckless. To the extent Crestwood contends it was not reckless, it does not disprove Hernandez's contention that it knowingly withheld one-to-one monitoring that Rodriguez needed to remain safe. Nowhere does Crestwood contend that, despite its knowledge of Rodriguez's specialized needs, it sought, or that the county conservator denied a request for, additional funding for one-to-one monitoring. Nowhere does Crestwood contend that it was incapable of providing this care to Rodriguez. Nowhere does Crestwood contend that, after the initial funding for one-to-one monitoring expired, it informed the conservator or Rodriguez's family that it could not continue to provide that level of care or insisted that they transfer Rodriguez to another facility that could provide it. Further, consistent with Hernandez's contentions, Crestwood showed that Dr. Peters continued to believe Rodriguez remained a high fall risk after Crestwood changed her care to Q15 observation. Specifically, Dr. Peters testified that after the County stopped paying for one-to-one monitoring, "Crestwood did the . . . next best thing, where they instituted Q 15 minute observations for this patient with a—with a high fall risk." (Italics added.) Virtually by itself, this testimony creates a triable issue of material fact regarding whether Crestwood, for economic reasons, knowingly provided Rodriguez with custodial care it knew was inadequate and hazardous to her safety. The unrebutted allegations and indeed the evidence here present a triable issue of recklessness under the Elder Abuse Act, i.e., whether Crestwood made a " ' "conscious choice of a course of action . . . with knowledge of the serious danger to others involved in it." ' " (Worsham, supra, 226 Cal.App.4th p. 337, quoting Delaney, supra, 20 Cal.4th at pp. 31-32.)
The parties debate the significance of the Worsham and Fenimore decisions, Crestwood relying on Worsham to contend that Hernandez does not allege facts sufficient to show reckless negligence, and Hernandez relying on Fenimore to contend, based largely on her opposition to Crestwood's summary adjudication motion, that Crestwood engaged in a significant pattern of misconduct that was reckless negligence. It is enough to note that these cases and others indicate elder abuse can be established by proof that a nursing home or similar facility consciously withheld care necessary to a patient's safety with knowledge of the serious danger it caused to the patient, for financial reasons or otherwise. Crestwood failed to show prima facie that Hernandez could not prove at trial that Crestwood engaged in such misconduct.
In short, Crestwood did not make a prima facie showing that there was no triable issue of material fact as to whether its conduct towards Rodriguez amounted to recklessness. Because Crestwood failed to demonstrate the absence of a triable issue of fact regarding its recklessness, we must reverse the trial court's grant of Crestwood's motion for summary adjudication.
In light of our conclusion that Crestwood has failed to meet its burden, we have no reason to address the parties' other arguments about Crestwood's summary adjudication motion, including those raised by Hernandez's opposition to the motion. Nor do we need to address Hernandez's challenge to the trial court's denial of her motion for reconsideration, which is moot in light of our decision. As to her challenges to the trial court's rulings on Crestwood's motion in limine numbers 17 and 22, excluding any mention of elder abuse and of Napa County's payment to Crestwood of $8,400 for one-to-one monitoring of Rodriguez from February 9, 2014, to February 22, 2014, we reverse and remand these rulings to the trial court for reconsideration in light of our reversal of Crestwood's motion for summary adjudication.
III.
Hernandez Does Not Establish the Trial Court Erred in Ruling She Did Not Have
Standing to Pursue Her UCL Claim.
Hernandez also argues that the trial court erred as a matter of law in ruling that she did not have standing to pursue her UCL claim. Hernandez does not provide legal authority showing error.
The UCL prohibits "unfair competition," which means, among other things, "any unlawful, unfair or fraudulent business act or practice." (Bus. & Prof. Code, § 17200.) To have standing to bring a UCL claim, a plaintiff must show that she has "suffered injury in fact and has lost money or property as a result of the unfair competition." (Id., § 17204.) Our Supreme Court has held that that "money or property," as used in Business and Professions Code section 17203 (which provides for restoring to any person of interest "any money or property, real or personal, which may have been acquired by means of . . . unfair competition"), includes money or property of which a plaintiff has had prior possession or in which a plaintiff has a vested legal interest. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1149.)
In her UCL claim, Hernandez alleged that Crestwood's conduct towards Rodriguez was part of its general business practice to mistreat mentally disabled and vulnerable clientele to obtain profits at the expense of its moral, legal and ethical obligations. Hernandez claimed this practice violated, among other things, the Elder Abuse Act, and constituted an unfair and fraudulent business practice within the meaning of the UCL. She sought restitution of all funds paid to Crestwood on Rodriguez's behalf, an injunction prohibiting Crestwood from engaging in further UCL violations and attorney fees.
Upon the order of the trial court at a case management conference, Hernandez filed supplemental trial court briefs addressing her standing to bring her UCL claim. She contended Crestwood violated the UCL by, first, receiving $8,400 from the County to provide one-to-one monitoring to Rodriguez for two weeks in February 2014, which it did not provide and, second, readmitting Rodriguez on March 1, 2014, and accepting payment for her continued care without providing her the care she needed to remain safe. Hernandez claimed she had standing based on Rodriguez's "legitimate claim to and an ownership interest in the benefits she received from social security and Napa County. [Rodriguez's] benefits were paid to Crestwood to provide the care she needed. This was more than an expectation; the money was being expended for the benefit of [Rodriguez]. It was also not unilateral; both the County and [Rodriguez] and [Rodriguez's] family expected the funds to be used for the purpose of providing the promised care for [Rodriguez]." The trial rejected these arguments.
Hernandez repeats her contentions on appeal. She relies largely on Anchor Pacifica Management Co. v. Green (2012) 205 Cal.App.4th 232 (Anchor Pacifica) to argue that Rodriguez's interest in her social security and county benefits, which were paid to Crestwood, constituted a vested legal interest in "money or property" that gave Hernandez standing for her UCL claim.
Hernandez's argument is not persuasive. Anchor Pacifica is not a UCL case. Rather, it involves an appeal by a tenant in publicly subsidized housing who had been served with an eviction notice by a management company at the end of her lease, without explanation. The appellate court evaluated the tenant's claim that an eviction without good cause violated her constitutional due process protections regarding her property interest in her continued tenancy. Hernandez emphasizes the court's statement that " '[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it .' " (Anchor Pacifica, supra, 205 Cal.App.4th at p. 245.)
Anchor Pacifica is obviously inapposite, if only because the tenant in that case contended she had an actual property interest in the renewal of her lease of the publicly subsidized housing unit. An interest in property is one of the things protected by the UCL. Hernandez on the other hand contends that Crestwood, not Rodriguez, was paid to provide one-to-one monitoring and other care for Rodriguez. While Hernandez contends Rodriguez was entitled to the care this money paid for, she cites no evidence or legal authority showing that she or Rodriguez had a vested legal interest in any money or property. Therefore, she has failed to establish standing under the UCL. We affirm the trial court's ruling that she did not have standing to pursue her UCL claim.
In light of our conclusion, we do not address Crestwood's contention that Hernandez has forfeited her appellate claim regarding the court's ruling on her lack of standing to pursue her UCL claim.
DISPOSITION
We issue an extraordinary writ of mandate directing the trial court to vacate its orders granting summary adjudication to Crestwood regarding the one-to-one monitoring part of Hernandez's elder abuse claim, granting Crestwood's motions in limine numbers 17 and 22, and denying Hernandez's motion for reconsideration. We remand this matter to the superior court for further proceedings consistent with this opinion.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.