Opinion
G052626
03-17-2017
ARLAYNE HOOVER et al., Plaintiffs and Appellants, v. MANOR CARE OF FOUNTAIN VALLEY CA, LLC et al., Defendants and Respondents.
Garcia, Artigliere & Medby, Stephen M. Garcia, William M. Artigliere and David M. Medby for Plaintiffs and Appellants. Petrullo, John Patrick Petrullo, Isaiah Costas and Sabrina Jangda for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2015-00777943) OPINION Appeal from a judgment of the Superior Court of Orange County, Deborah C. Servino, Judge. Affirmed in part and reversed in part. Garcia, Artigliere & Medby, Stephen M. Garcia, William M. Artigliere and David M. Medby for Plaintiffs and Appellants. Petrullo, John Patrick Petrullo, Isaiah Costas and Sabrina Jangda for Defendants and Respondents.
Arlayne Hoover, through her successor in interest, sued Manor Care of Fountain Valley CA, LLC, HCR Manor Care, Inc., HCR Manor Care Services, LLC, and Heartland Employment Services, LLC (collectively referred to as Manor Care) for elder abuse, negligence, negligent hiring and supervision, fraud, and wrongful death. Manor Care demurred to Hoover's first amended complaint (FAC), and the trial court sustained the demurrer as to the elder abuse and negligent hiring and supervision causes of action. Hoover dismissed the other causes of action to perfect her appeal.
On appeal, Hoover argues the trial court erred by ruling the alleged facts were not sufficient to support an elder abuse claim and by ruling Hoover failed to allege causation between Manor Care's acts and omissions and Hoover's injuries and ultimate death. We conclude Hoover adequately pled a cause of action for elder abuse against Manor Care. We therefore reverse the order sustaining the elder abuse cause of action. We conclude Hoover has waived her negligent supervision claim by failing to present it on appeal.
FACTS
"In conducting our de novo review, we 'must "give[] the complaint a reasonable interpretation, and treat[] the demurrer as admitting all material facts properly pleaded." [Citation.] Because only factual allegations are considered on demurrer, we must disregard any "contentions, deductions or conclusions of fact or law alleged . . . . "' [Citation.]" (WA Southwest 2, LLC v. First American Title Ins. Co. (2015) 240 Cal.App.4th 148, 151.)
Hoover was an elderly woman who was transferred to Manor Care skilled nursing facility for rehabilitation after being treated at a hospital for cellulitis. She previously was treated for cancer in her left leg and had suffered falls at home. Based on her medical history, Manor Care knew Hoover was a high fall risk and she required specific interventions to protect her from falling. Manor Care also knew Hoover was admitted to the facility to protect her from further falls and to help her leg heal. Manor Care accepted the responsibility for Hoover's care, which included her propensity to wander and her status as a high fall risk patient.
Despite Hoover's medical history, Manor Care withheld required care to Hoover, including failing to do the following: create a care plan encompassing her needs; perform required assessments of her care needs; answer her call signals; provide her with good hygiene and nutrition; ensure her environment was free of fall hazards; and provide adequate supervision and assistance devices to prevent accidents leading to falls. Specifically, the FAC alleged Hoover suffered an accidental fall in mid-December 2014 trying to go to the bathroom by herself after her requests to go to the bathroom were ignored by Manor Care. She fell again at the end of December 2014, trying again to be transferred to the bathroom. After this fall, Manor Care refused to call 911 and Hoover was forced to call 911 herself. At the hospital, Hoover was diagnosed with a left leg fracture.
After returning to Manor Care from the hospital, Hoover became increasingly confused and yelled out in pain. Manor Care did not make additional assessments, update her care plan, or make additional fall interventions. Manor Care told Hoover's family she required 24 hour care, and she was transferred to the long-term care section. Manor Care continued to ignore Hoover's needs, and Manor Care left Hoover soiled in her bed and failed to provide Hoover with fluid and nutrition, causing her to become dehydrated. Hoover died on January 15, 2015.
Hoover filed a complaint against Manor Care alleging the following five causes of action: (1) elder abuse; (2) negligence; (3) negligent hiring and supervision; (4) fraud; and (5) wrongful death. Manor Care demurred and moved to strike portions of the complaint. The trial court sustained the demurrer as to the elder abuse and negligent hiring and supervision causes of action with leave to amend. The court sustained Manor Care's demurrer to the fraud cause of action without leave to amend and overruled the demurrer as to the negligence and wrongful death causes of action.
Hoover's FAC against Manor Care alleged the following four causes of action: (1) elder abuse; (2) negligence; (3) negligent hiring and supervision; and (4) wrongful death. Manor Care again demurred. Manor Care also filed a motion to strike the FAC. The trial court sustained Manor Care's demurrer to the first and third causes of action without leave to amend and overruled the demurrer as to the second and fourth causes of action. The court determined, "[Manor Care's] motion to strike is moot as to all items sought to strike with the exception of the requests to strike the prayer as to paragraph[ ] [Nos.] 3 and 4 for punitive and exemplary damages and attorneys' fees which are not sought for any particular cause of action. Because the first and third causes of action have been sustained, the requested relief must be stricken from the prayer because as alleged they are requested as to all causes of action." For the purpose of perfecting this appeal, Hoover dismissed the second and fourth causes of action and the trial court entered the dismissal.
DISCUSSION
Hoover contends the trial court erred in sustaining the demurrer to the elder abuse cause of action without leave to amend because the trial court based its ruling on only a portion of the facts alleged and found Hoover's causation allegations lacking. Hoover, in one line in her opening brief's conclusion, requests that we "issue a new order overruling the demurrer and motion to strike relating to the FAC." Hoover's opening brief does not argue we should reverse the trial court's ruling sustaining the demurrer as to the negligent hiring and supervision cause of action. Manor Care concedes the trial court erred in sustaining the demurrer as to the elder abuse cause of action without leave to amend. Hoover asks us to instruct the trial court to overrule the demurrer in its entirety and to deny Manor Care's motion to strike.
"A demurrer tests the legal sufficiency of the complaint, and the granting of leave to amend involves the trial court's discretion. Therefore, an appellate court employs two separate standards of review on appeal. [Citations.] First, the complaint is reviewed de novo to determine whether it contains sufficient facts to state a cause of action. [Citation.] In doing so, we accept as true the properly pleaded material factual allegations of the complaint, together with facts that may be properly judicially noticed. Reversible error exists only if facts were alleged showing entitlement to relief under any possible legal theory. [Citations.] [¶] Second, where the demurrer is sustained without leave to amend, reviewing courts determine whether the trial court abused its discretion in doing so. [Citations.] On review of the trial court's refusal to grant leave to amend, we will only reverse for abuse of discretion if we determine there is a reasonable possibility the pleading can be cured by amendment. Otherwise, the trial court's decision will be affirmed for lack of abuse. [Citations.]" (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497-1498.)
Elder Abuse Claim
"The Elder Abuse and Dependent Adult Civil Protection Act affords certain protections to elders and dependent adults. Section 15657 of the Welfare and Institutions Code provides heightened remedies to a plaintiff who can prove 'by clear and convincing evidence that a defendant is liable for physical abuse as defined in [s]ection 15610.63, or neglect as defined in [s]ection 15610.57,' and who can demonstrate that the defendant acted with 'recklessness, oppression, fraud, or malice in the commission of [this] abuse.' Section 15610.57, in turn, defines '[n]eglect' in relevant part as '[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.' (Welf. & Inst. Code, § 15610.57, subd. (a)(1).)" (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152.)
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated. --------
Section 15610.57, subdivision (a)(1), defines neglect as "[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." Section 15610.57, subdivision (b)(1)-(b)(5), also sets forth examples of neglect under the statute, including but not limited to the following: "(1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter; (2) Failure to provide medical care for physical and mental health needs. No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment; (3) Failure to protect from health and safety hazards; (4) Failure to prevent malnutrition or dehydration; (5) Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4), inclusive, for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health."
Hoover alleged Manor Care neglected her in a myriad of ways, including failing to do the following: assist in personal hygiene by leaving her soiled and not taking her to the bathroom when she called; provide medical care by not calling 911 when she suffered a broken leg; protect her from multiple fall hazards; and prevent malnutrition or dehydration. Hoover also alleged Manor Care's recklessness, including allegations that Manor Care failed to: address fall prevention despite Hoover being a high fall risk and having a history of falling; follow Hoover's care plan; and assist Hoover in transfers (such as to the bathroom). Hoover contends Manor Care's neglect and recklessness caused Hoover to suffer injuries, pain, and death.
This case is similar to Mack v. Soung (2000) 80 Cal.App.4th 966, where the Court of Appeal held plaintiff stated an elder abuse claim where she alleged a doctor "conceal[ed] the existence of a serious bedsore on a nursing home patient under his care, [and] oppose[d] her hospitalization where circumstances indicate[d] it [was] medically necessary . . . . " (Id. at p. 973.) Hoover's allegations reflect similar neglect and failure to act, such as when Manor Care failed to provide medical attention after Hoover fell and broke her leg, requiring her to call 911 herself.
Additionally, Sababin v. Superior Court (2006) 144 Cal.App.4th 81 (Sababin), is instructive. The Sababin court determined the failure to follow a care plan, as Manor Care did with Hoover, was sufficiently egregious to constitute recklessness under an elder abuse claim. (Id. at p. 90.) The facility ignored a medical care plan requiring the facility to check the patient's skin on a daily basis and failed to notify a physician when skin lesions developed. (Id. at pp. 83-87, 90.) The Sababin court determined a significant pattern of failure to provide care, much like Hoover's allegations, was sufficient to constitute recklessness, even if some care was sporadically given. (Id. at p. 90.) Hoover need not allege no care was provided. She properly alleged only sporadic care and attention was given, but that she required care 24 hours a day to prevent falls and keep her safe.
Hoover's allegations were sufficient to withstand Manor Care's demurrer. Because Hoover properly alleged a cause of action for elder abuse, Manor Care's motion to strike as to that claim cannot stand.
Negligent Hiring and Supervision Claim and Motion to Strike
Hoover fails to present any argument on her negligent hiring and supervision claim. We agree with Manor Care the only cause of action on appeal is the elder abuse claim.
"The burden of affirmatively demonstrating error is on the appellant. This is a general principle of appellate practice as well as an ingredient of the constitutional doctrine of reversible error. [Citation.]" (Fundamental Investment Etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.) "When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citations.]" (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) Because Hoover failed to present argument on the negligent hiring and supervision claim, we treat that issue as waived.
Hoover argued a new order should issue denying the motion to strike relating to the FAC. Manor Care contends this issue was waived on appeal because Hoover failed to discuss error in the trial court's order. We determine Hoover has properly raised the issue. Because the demurrer was sustained on the elder abuse cause of action, it rendered the motion to strike moot. The court's decision explained it struck the punitive and exemplary damages and attorney fees because they were no longer tied to a particular cause of action. Since we determine the elder abuse claim was adequately plead, it is illogical that Hoover would be prevented from including her request for damages and attorney fees. The trial court should vacate its order striking punitive and exemplary damages and attorney fees from the FAC.
DISPOSITION
The order sustaining the demurrer without leave to amend is reversed as to the elder abuse cause of action of the FAC. On remand, the trial court is directed to vacate its order sustaining the demurrer as to the elder abuse cause of action of the FAC and granting the motion to strike punitive and exemplary damages and attorney fees from the prayer. The court shall enter a new order overruling the demurrer as to the elder abuse cause of action only and denying the motion to strike. The order is affirmed in all other respects. Hoover shall recover her costs on appeal.
O'LEARY, P. J. WE CONCUR: ARONSON, J. FYBEL, J.