Feb 09, 2016

TENTATIVE RULINGS
LAW & MOTION CALENDAR
WEDNESDAY, FEBRUARY 3, 2016 3:00 P.M.
Courtroom 16 – Honorable Philip A. Champlin for the Honorable Nancy Shaffer
3035 Cleveland Avenue, Santa Rosa

The following tentative rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, you will need to contact the Judicial Assistant by telephone at (707) 521-6725 by 4:00 p.m. today, Tuesday, February 2, 2016. Any party requesting an appearance must notify all other opposing parties of their intent to appear. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

CourtCall is available for all Law and Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances. CourtCall can be reached directly at (888) 882-6878
 

 

1. SCV-254930; Buckingham v. Emeritus Corporation

 

This matter comes on calendar for the Defendants’ motion for summary judgment, or in the alternative, summary adjudication. This matter also comes on calendar for the Plaintiffs’ motion to amend complaint.

 

Defendants’ Motion for Summary Judgment/Adjudication

 

The Defendants move for summary judgment on the grounds that none of the Defendants acted in a way to cause or contribute to the Plaintiffs’ damages. The Defendants also identify eight issues for summary adjudication: (1) First Cause of Action for Negligence has no merit because Emeritus, including Defendants Becker and Abramson, did not act in any way that caused or contributed to the Plaintiffs’ damages; (2) First Cause of Action for Negligence has no merit because Emeritus, including Defendants Becker and Abramson, did not act in any way that caused or contributed to Ms. Buckingham’s death; (3) Second Cause of Action for Elder Abuse fails because Emeritus, including Defendants Becker and Abramson, did not act in any way that caused or contributed to the Plaintiffs’ damages; (4) Second Cause of Action for Elder Abuse has no merit because the Plaintiffs have no admissible evidence to prove by clear and convincing standard that Defendant Becker engaged in conduct that was reckless, oppressive, malicious, and/or fraudulent that was directed at Ms. Buckingham; (5) Second Cause of Action for Elder Abuse has no merit because the Plaintiffs have no admissible evidence to prove by clear and convincing standard that Defendant Abramson engaged in conduct that was reckless, oppressive, malicious, and/or fraudulent that was directed at Ms. Buckingham; (6) Second Cause of Action for Elder Abuse has no merit against Defendant Emeritus because the Plaintiffs have no admissible evidence to prove by clear and convincing standard that any officer, director, or managing agent of Defendant Emeritus participated in, authorized and/or ratified any alleged wrongful conduct that was directed at Ms. Buckingham; (7) Plaintiffs’ claim for punitive damages has no merit because the Plaintiffs have no admissible evidence to prove by clear and convincing standard that any officer, director, or managing agent of Defendant Emeritus participated in, authorized and/or ratified any alleged wrongful conduct that was directed at Ms. Buckingham; and (8) Third Cause of Action has no merit because it is not an independent cause of action. The Plaintiffs have filed opposition. Each of the issues raised in the motion and the opposition are dealt with below.

 

Motion for Summary Judgment

 

In arguing for summary judgment, the Defendants argue that the allegations in the Second Amended Complaint fail because the evidence adduced by them demonstrates that there is no causal connection between any alleged wrongful act or omission that caused the alleged injuries. The Defendants primarily rely on the declaration of Dr. Zier, who opines that Ms. Buckingham’s pressure sore was “medically unavoidable” and therefore did not contribute to Ms. Buckingham’s death.

 

The Plaintiffs oppose arguing that the Defendants have not met their initial burden that the Plaintiffs cannot adduce any evidence. The Plaintiffs contend that the Defendants simply adduced most of the medical records in the case (approximately one full banker’s box), and an expert who opines that Ms. Buckingham died from her other medical issues and not a pressure sore. The Plaintiffs offer up their own expert, Dr. Fugaro, and Ms. Buckingham’s Certificate of Death which puts material issues of fact in dispute as to whether the Defendants’ actions caused Ms. Buckingham’s death, and the Plaintiffs’ damages.

 

From the outset, the court notes that the first issue presented by the Defendants, lack of causation, has disputed issues of fact that preclude summary judgment. The Defendants’ motion on this point is dependent on the opinion of  Dr. Zier, who opines that Ms. Buckingham suffered from a host of medical problems that pre-dated her stay at the Defendants’ facility, that were the cause of her death. As a result, Dr. Zier opines that the Defendants’ care could not have been the cause of Ms. Buckingham’s death and that the pressure sore was “medically unavoidable.”

 

Dr. Zier’s opinion is contradicted by the Plaintiffs’ expert Dr. Fugaro, and the cause of death stated on Ms. Buckingham’s Certificate of Death. Dr. Fugaro opines that it was the Defendants “egregious failure . . . to not produce more intensive care and to then ultimately and recklessly downgrade [Ms. Buckingham’s] care” that led to her death. (Fugaro Dec., ¶ 5.) Further, Dr. Fugaro opines that “to a medical probable certainty if [Ms. Buckingham] had received appropriate monitoring and care the coccyx pressure ulcer would have been avoided altogether, and alternatively, if it had formed it should have been able to be kept to a minor problem with good wound care.”  (Id.) Further, Dr. Zier’s opinion re causation is directly contradicted by Ms. Buckingham’s death certificate, which clearly indicates that she died from sepsis, which was present for one week, and that the sepsis was caused by osteomyelitis and a sacral pressure ulcer. (See Exhibit E to the Junn Dec.)

 

Here, there are contradictory opinions from the parties’ experts which preclude summary judgment, as there are material issues of fact in dispute as to whether the Defendants rendered substandard care to Ms. Buckingham which caused her death. Accordingly, the motion for summary judgment must be denied. Further, as a result of the analysis above, the Defendants’ motion for summary adjudication with respect to the First Cause of Action must also be denied. (Issues 1-2.)

 

Note that the Defendants might argue that the Plaintiffs did not put facts in dispute as to the actions of Defendants Sue Becker (Emeritus’s Executive Director at the facility) or Jennifer Abramson (Emeritus’s Director of Nursing at the facility). However, the Notice of Motion mentions all Defendants with respect to summary adjudication as to the First Cause of Action, and therefore any material fact on as to any of the Defendants requires that adjudication of that issue be denied.

Summary Adjudication as to the Second Cause of Action

 

The Defendants seek summary adjudication as to the Second Cause of Action for Elder Abuse/Neglect on four grounds. (Issues 3-5.)

 

Issue Three seeks adjudication of the Second Cause of Action on the grounds that “no act or omission to act by the Emeritus staff at Emeritus Santa Rosa, including Sue Becker and Jennifer Abramson, caused or contributed to plaintiffs’ alleged injuries, and thus, this cause of action fails as a matter of law.” As discussed above, the Plaintiffs have put facts in dispute as to causation, and therefore the Defendants are not entitled to summary adjudication as to the Second Cause of Action on this basis.

 

Issue Four seeks adjudication of the Second Cause of Action on the basis that the Plaintiffs have no evidence that Defendant Becker “engaged in conduct that was reckless, oppressive, malicious, and/or fraudulent that was directed at [Ms. Buckingham] . . . .” In essence, the Defendants argue that Defendant Becker did not provide hands on care to Ms. Buckingham. Further, Defendant Becker contends that she was unaware of any staffing issues, or inadequate care being provided to Ms. Buckingham—and therefore cannot be held liable under the elder abuse statutes. Further, Defendant Becker contends that she, as the executive director of the subject facility never ratified any of the acts alleged to have been committed by Emeritus staff.

 

The Plaintiffs oppose, arguing that Defendant Becker is the managing agent of Emeritus, and therefore is liable for the poor care of Ms. Buckingham. The Plaintiffs argue that Defendant Becker staffed the facility with unqualified and poorly trained employees. The Plaintiffs point to Defendant Becker’s job description that provides that as an essential function for her position she is “responsible for overall supervision . . . with full accountability for the performance of subordinates.” The Plaintiffs also fault Defendant Becker for hiring Defendant Abramson as director of nursing, despite her having only half of the experience necessary per the job description.

 

In Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783, the California Supreme Court provided guidance on the scope of the elder abuse statutes:

 

It is true that statutory elder abuse includes “neglect as defined in Section 15610.57” (Welf. & Inst.Code, § 15657), which in turn includes negligent failure of an elder custodian “to provide medical care for [the elder's] physical and mental health  needs” (id., § 15610.57, subd. (b)(2)). But as we explained in Delaney, “neglect” within the meaning of Welfare and Institutions Code section 15610.57 covers an area of misconduct distinct from “professional negligence.” As used in the Act, neglect refers not to the substandard performance of medical services but, rather, to the “failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.” (Delaney, supra, 20 Cal.4th at p. 34, 82 Cal.Rptr.2d 610, 971 P.2d 986.) Thus, the statutory definition of “neglect” speaks not of the undertaking of medical services, but of the failure to provide medical care. (Ibid.) Notably, the other forms of abuse, as defined in the Act—physical abuse and fiduciary abuse (Welf. & Inst. Code, § 15657)—are forms of intentional wrongdoing also distinct from   “ professional negligence.” (Delaney, supra, at p. 34, 82 Cal.Rptr.2d 610, 971 P.2d 986.)

 

Covenant Care, supra, at 783 [emphasis added].

Here, the Plaintiffs have adduced evidence that the failure to move Ms. Buckingham into more suitable care environment was motivated by the facility’s desire to maximize payment from Medicare. (See Plaintiffs’ Statement of Undisputed Material Facts (“PUMF”) #7.) The Plaintiffs argue that this desire led to Ms. Buckingham’s transfer to assisted living wing, despite the fact that she had an unstageable pressure wound. Indeed, the Plaintiffs’ expert opines that the decision to transfer Ms. Buckingham to assisted living was “deplorable” or “purposely calculat[ed].” (Fugaro Dec., ¶ 8.) As noted by the Plaintiffs’ other expert, Ms. Page, Ms. Buckingham’s transfer to a hospital would have resulted in decreased funding for the facility – which could have been the reason for her having been moved from skilled nursing facility to assisted living, as opposed to the hospital. Further, the Plaintiffs adduce evidence that the skilled nursing facility nursing staff was operating under inadequate policies and procedure to deal with Ms. Buckingham’s condition. Indeed, the Plaintiffs adduce evidence that the nurses were trained to keep the wound care records outside of the medical records – an act characterized by the Plaintiffs’ expert as reckless. (PUMF #17.)The Plaintiffs also point to Ms. Lawrence’s inability to perform her regular nursing duties and wound care properly, and her inexperience as exposing root problems with the facilities management.

 

Accordingly, the Plaintiffs have placed material issues of fact in dispute as to whether Defendant Becker acted recklessly with respect to the care Ms. Buckingham received at the facility.

 

Issue Five seeks adjudication of the Second Cause of Action on the basis that the Plaintiffs have no evidence that Defendant Abramson “engaged in conduct that was reckless, oppressive, malicious, and/or fraudulent that was directed at [Ms. Buckingham] . . . .” The crux of the Defendants argument is that Defendant Abramson “was not given any discretion or authority to make policy decisions. (Defendant’s Separate Statement of Undisputed Material Facts (“DUMF”) #74.) The Plaintiffs oppose, arguing that the evidence in the case provides that Defendant Abramson had discretion and authority to act on behalf of the facility. Further, the Defendant Abramson recklessly failed to perform her duties as the director of nursing for the facility which ultimately led to the series of events which caused Ms. Buckingham’s death.

 

Defendant Abramson’s contention that she had no discretion is disputed by her job description that provides that she, as the director of nursing, is to: “Develop, maintain, and periodically update written policies and procedures that govern the day-to-day functions of the nursing service department.” (PUMF #11.) Further, the Plaintiffs have adduced evidence that Defendant Abramson’s department hired an inexperienced wound care nurse, and recklessly kept the wound care charts separate from the medical records – as a matter of policy. (See discussion above.)

 

Accordingly, the Plaintiffs have placed material issues of fact in dispute as to whether Defendant Abramson acted recklessly with respect to the care Ms. Buckingham received at the facility.

Summary Adjudication as to Emeritus

 

Issues Six and Seven involve Defendant Emeritus’ liability. Defendant Emeritus contends that it is not liable under the Second Cause of Action because the Plaintiffs have no evidence that “an officer, director or managing agent of Emeritus Corp. participated in, authorized and/or ratified any alleged wrongful conduct that was directed towards Eleanor Buckingham . . . .” Defendant Emeritus’ argument is that while Defendant Becker was the executive director of the facility she provided no hands on care to Ms. Buckingham, and that Defendant Abramson was not a managing agent per the holding in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 573.

 

As the court in Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167, instructed:

 

 “Managing agents” are employees who “exercise[] substantial discretionary authority over decisions that ultimately determine corporate policy.” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 569 [88 Cal.Rptr.2d 19, 981 P.2d 944].) . . .  “The Supreme Court has defined “official policy” (in a case considering municipal liability for a sheriff's torts) as “formal rules or understandings-often but not always committed to writing-that are intended to, and do, establish fixed plans of action to be followed under similar circumstances consistently and over time.” (Pembaur v. Cincinnati (1986) 475 U.S. 469, 480-481 [106 S.Ct. 1292, 1299, 89 L.Ed.2d 452].)

 

As discussed above, there are material issue of fact as to whether Defendant Abramson was a managing agent, her job description that provides that she, as the director of nursing, is to: “Develop, maintain, and periodically update written policies and procedures that govern the day-to-day functions of the nursing service department.” (Plaintiffs’ response to DUMF #74; and PUMF #11.) Further, the court cannot overlook the fact that the core business of Emeritus is the provision of nursing care to elders – how can it be that the person putatively in charge of drafting the policies that govern everyday functions of the nursing department is not a managing agent?

 

Accordingly, the Plaintiffs have placed issues of material fact in dispute on this issue. Moreover, as more fully discussed in Covenant Care, supra, at 788-89, the conduct that constitutes elder neglect is equivalent to support the recovery of punitive damages. Here, as discussed above, there are material issues of fact as to whether Defendants Abramson and Becker acted recklessly, and whether Defendant Abramson was a managing agent of Defendant Emeritus.

 

Summary Adjudication Third Cause of Action for Willful Misconduct

 

Issue Number Eight states that the Third Cause of Action has no merit because “it is not recognized as an independent cause of action . . . .”  The court has already ruled that willful misconduct is a cause of action, and that is, essentially, “law of the case.”

 

Accordingly, the motion is denied as to this issue as well.

 

Evidentiary Objections

 

The court will sustain the Defendants’ objections numbers 8, 9, 13, 19, 26 and 27; the court overrules the balance of objections. The court notes that it is well-settled that an expert's declaration in opposition to a motion for summary judgment is to be liberally construed. (Jennifer C. v. Los Angeles Unified School Dist. (2008) 168 Cal. App. 4th 1320, 1332.) It is further noted that in summary judgment proceedings, the submissions made by the party moving for summary judgment are scrutinized strictly. (See McCaskey v. California State Auto. Assn. (2010) 189 Cal. App. 4th 947.) While the opinions of the Plaintiffs experts are far-ranging – and at some points out of bounds – they are viewed with substantial deference by the trial courts. The same deference, however, need not be shown at the time for trial, and many of the Defendants points, with respect to the proper weight given to the experts’ opinions may very well persuade the finder of fact. This, however, is a summary judgment proceeding and the court does not weigh the evidence.


Motion to Amend the Complaint

 

This is on calendar for the Plaintiffs’ motion to amend the Second Amended Complaint to add EmeriCare Inc. as a Defendant Doe on the basis that EmeriCare Inc. was the licensee of the assisted living wing where Ms. Buckingham was transferred. The Defendants oppose, arguing that the Plaintiffs’ delay is inexcusable and that the proposed amendment would cause prejudice.

 

Under Code of Civil Procedure section 473(a)(1), amendments are left to the sound discretion of the trial court.  Judicial policy favors amendment to allow resolution of all potential claims and disputes between parties, so such motions are examined liberally.  (Nestlé v. Santa Monica (1972) 6 Cal.3d 920, 939.)  As long as the motion is timely and will not prejudice a party, it is normally an abuse of discretion to refuse to allow amendment if the denial will deprive a party of a meritorious claim or defense.  (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.)

 

Normally delay alone is not a sufficient reason to deny amendment, unless the delay has resulted in prejudice to another party.  (Hirsa v. Sup. Ct. (Vickers) (1981) 118 Cal.App.3d 486, 490.) Prejudice exists where the amendment would require delaying trial so as to cause a loss of critical evidence, added costs of preparation, increased discovery burdens, and similar problems.  (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488. )

 

The court has reviewed the moving and opposing papers and does not believe that the delay was “inexcusable” or that substantial prejudice will be visited on the Defendants due to a doe substitution. The Defendants complain that discovery will be closed by the time of the amendment. To accommodate any concern, the court will order the discovery cut-off (for both responses and motions) to be extended to the first day of trial – to alleviate any potential prejudice.

 

Accordingly, the motion is granted.

 

 

2.  SCV-255174; Lippard v. G & C Auto Body, Inc.

 

CONTINUED to Wed., Feb. 10, 2016 at 3:00 p.m. in Courtroom 16.

 

 

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