Oct 31, 2014

TENTATIVE RULINGS

 

LAW & MOTION CALENDAR

WEDNESDAY, OCTOBER 29, 2014, 3:30 P.M.

Courtroom 18 –Honorable Nancy Shaffer

3055 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) 521-6729 by 4:00 p.m. today, Tuesday, October 28, 2014.  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. MCV-225639; Collectronics Inv. V. Dhillon   

The motion brought by plaintiff Collectronics, Inc., for an order approving the receiver’s final account and final report, approving the receiver’s fees and costs, discharging the receiver, and exonerating the surety is granted.  Plaintiff is to submit a written order consistent with this ruling.

2. SCV-226091; Zeppenfeld v. Gordon

Appearances required.

3. SCV-253519; Buhalawa v. Countrywide

Appearance required.  The court will hear argument on the issue of whether Plaintiff has made a sufficient showing that Mr. Fennacy completely abandoned Plaintiff’s case.

4. SCV-254027; Sundquist, et al. v. Emeritus at Santa Rosa, et al.   

The motions of defendants Emeritus at Santa Rosa and Emericare, Inc. (together “Emeritus”) for summary judgment is denied as defendants have not met their burden on each cause of action.  Their alternative motion for summary adjudication of each cause of action in plaintiffs’ complaint is granted in part and denied in part as set forth below.

First Cause of Action (Negligence):  Plaintiffs allege that from March 10, 2009, through August 30, 2012, defendants negligently failed to exercise the proper degree of knowledge and skill in examining, diagnosing, treating, and caring for Jane Sundquist with respect to her custodial and medical needs (C., ¶ 9) and failed to properly ensure the character, quality, ability and competence of individuals caring for her (C., ¶ 10).

The law requires only that a healthcare provider exercise that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by healthcare providers under similar circumstances in diagnosis and treatment, with no different or higher degree of responsibility than that found in their professional community. (Folk, supra, at 185; Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215.)

On a summary judgment motion, expert evidence is conclusive as to the proof of the prevailing standard of skill and learning in the locality and of the propriety of particular conduct by the practitioner in particular instances because such standard and skill is not a matter of general knowledge and can only be supplied by expert testimony. (Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412.)

When a defendant presents expert opinion testimony, the plaintiff must provide opposing expert opinion testimony to create a triable issue of material fact. (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984.)

Here, defendants provided the declaration of Dr. Joshua Rassen. Dr. Rassen opines that defendants met the standard of care in the skilled nursing industry and that the care received by Jane Sundquist did not constitute negligence or elder abuse. (Rassen dec., ¶ 60.)

Plaintiffs have not provided an opposing expert opinion. Therefore, they have not met their burden to establish a triable issue of material fact.  Accordingly, defendants’ motion for summary adjudication of plaintiffs’ first cause of action for negligence cause of action is granted.

Second Cause of Action (Elder Abuse): Plaintiffs allege that during the years that Jane Sundquist resided at Emeritus, defendants failed to provide the assistance that she needed to maintain her mobility and maximize her independence. (C., ¶ 20.) Defendants also allegedly failed to provide her with proper nutrition, failed to develop a proper plan of care to prevent elopements, failed to develop a proper plan of care to prevent falls, allowed her skin to breakdown, failed to monitor and relieve her pain, failed to provide proper hygiene, failed to maintain complete and accurate records regarding her condition and care, permitted her to develop fatal respiratory failure, and unlawfully retained her in their facility when she needed a higher level of care. (C., ¶ 20.)

Elder abuse requires proof by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or 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. (Welf. & Inst. Code § 15657(a).)

An employer will not be liable for damages based upon acts of an employee, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. (Welf. & Inst. Code § 15657(c), Civ. Code § 3294(b).)

Scott Bissey was the Executive Director of Brighton Gardens of Santa Rosa / Emeritus at Santa Rosa from August 2005 until October 2012, while Jane Sundquist was a resident there. (Bissey Dec., ¶ 1; Complaint, ¶ 8.) Mr. Bissey was responsible for the day to day operations of the community. (UNF Nos. 190, 191; Bissey dec., ¶ 4.) He was the only person who had the authority to hire or terminate any staff member. (UNF No. 192; Bissey Dec., ¶ 4.) In his declaration, he states that he does not provide any direct hands-on residential care or services and that he never received information while Ms. Sundquist was a resident that a staff member refused to observe or comply with any of the resident care policies as they pertained to Ms. Sundquist. (Bissey dec., ¶¶ 7, 10.)

The facts establish that the managing agent of Emeritus did not engage in, authorize or ratify any misconduct directed towards Ms. Sundquist. Therefore, defendants’ motion for summary adjudication of plaintiffs’ second cause of action for elder abuse is granted.

Third Cause of Action (Violation of Health & Safety Code § 1430): Plaintiffs allege that defendants violated numerous sections of Title 22 of the California Code of Regulations and title 42 of the Code of Federal Regulations.

Plaintiffs were asked in discovery to state all facts supporting their cause of action for violation of Health & Safety Code § 1430. In response, plaintiffs restated the allegations in the complaint and referred defendants to their response to Special Interrogatory Number 1. (UMF, Nos. 212-213.) That response contains facts that, if proven to be true, would support the violation of some of the statutes named in the complaint.

As defendants’ motion is based upon their claim that plaintiffs’ discovery response lacks sufficient facts to support any statutory violation, defendants have not met their burden on this cause of action. Therefore, defendants’ motion for summary adjudication of Plaintiffs’ third cause of action for violation of Health & Safety Code § 1430 is denied.

Fourth Cause of Action (Wrongful Death):  Plaintiffs allege that Jane E. Sundquist died on August 30, 2012, as a result of the acts and omissions perpetrated by defendants. (C., ¶ 45.)

CCP § 377.60 establishes a separate statutory cause of action in favor of specified heirs of a person who dies as a result of the “wrongful act or neglect” of another. (Daniels v. Sunrise Senior Living, Inc. (2013) 212 Cal. App. 4th 674, 680.)

Dr. Rassen’s declaration establishes that Emeritus’s care of Ms. Sundquist was not negligent.  Additionally, he states that in his professional opinion, “no act or omission to act by staff of Emeritus of Santa Rosa caused or contributed to Mrs. Sundquist’s alleged injuries.” (Rassen Dec., 4:5-4:7.)

Decedent was 92 years old when she died due to the end-stage progression of her underlying illnesses. (UMF Nos. 219, 221.) The findings at autopsy were consistent with death due to dementia and related conditions, including brain atrophy, cardiomegaly (heart enlargement), and severe atherosclerotic disease (“hardening of the arteries”) in the heart, the brain and kidneys. (UMF No. 222.) The sole cause of death listed on the death certificate is “end stage Lewy body dementia.” (UMF No. 224.)

In discovery, Plaintiffs were asked to state all facts supporting their wrongful death cause of action. (UMF No. 215.) Plaintiffs referred defendants to plaintiffs’ response to Special Interrogatory No. 1. (Exhibits, Ex. R. No. 30.) There are no facts in that response which support finding that Emeritus caused or contributed to Ms. Sundquist’s death. (See ibid.)       

Defendants’ motion for summary adjudication of plaintiffs’ fourth cause of action for wrongful death is granted.

Defendants are to submit a written order consistent with these rulings.

5. SCV-255174; Lippard v. G&C Auto Body  

The motions on calendar for October 29, 2014, are continued to January 21, 2015, 3:30 p.m., Dept. 18, Civil and Family Law Courthouse, 3055 Cleveland Avenue, Santa Rosa, CA 95403, at request of parties, to complete work with discovery facilitator.

6. SCV-255198; Barnett v. Jonas

The motions on calendar for October 29, 2014, are continued to January 21, 2015, 3:30 p.m., Dept. 18, Civil and Family Law Courthouse, 3055 Cleveland Avenue, Santa Rosa, CA 95403, at request of parties, to a date after hearings on dispositive motions.

7. SCV-255277; Grant v. Cobblestone Homes, Inc.

The motion of Abbey, Weitzenberg, Warren & Emery, P.C. to be relieved as counsel for Plaintiffs Richard and Colleen Grant is granted. 

8. SCV-255993; Thomas v. Peak Foreclosure Services

Appearances required.

 

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