Filed 8/4/16 Benson v. MEK Escondido CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
EDNA BENSON et al., D068201
Plaintiffs and Appellants,
v. (Super. Ct. No. 37-2014-00034206-CU-PO-NC) MEK ESCONDIDO LLC,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Jacqueline
M. Stern, Judge. Reversed and remanded with directions.
Moran Law and Michael F. Moran, Alexander Harrison Feldman for Plaintiffs and
Appellants.
Lewis Brisbois Bisgaard & Smith and Kathleen Marie Walker, Lann G. McIntyre,
Brittany H. Bartold for Defendant and Respondent.
Appellant Peter Benson, as successor in interest of his deceased mother, Edna
Benson (Benson), appeals a judgment of dismissal following the trial court's order
sustaining without leave to amend the demurrer of respondent Mek Escondido, LLC, doing business as Escondido Care Center (sometimes "the facility") to appellant's causes
of action for (1) violation of the Elder Abuse Act (Welf. & Inst. Code, § 15600 et seq.),
(2) violation of Health and Safety Code section 1430, subdivision (b) (Patients' Bill of
Rights), (3) willful misconduct, and (4) wrongful death, and sustaining with leave to
amend appellant's fifth cause of action for negligence. Appellant contends the court
abused its discretion by sustaining the demurrer without leave to amend his complaint to
show that after Benson fell at the facility, she became insane within the meaning of Code
of Civil Procedure section 352;1 triggering its tolling provisions. Appellant further
contends he could state a cause of action for wrongful death based on the cause of death
stated in the autopsy report. Appellant did not file a motion to amend, but rather a
motion for reconsideration, which he contends the court erroneously denied. We
conclude that although the court did not err by sustaining the demurrer, it erroneously
failed to grant appellant's motion for reconsideration and leave to amend all the causes of
action; accordingly, we reverse and remand with directions set forth below.
FACTUAL AND PROCEDURAL BACKGROUND
We state the background by accepting "as true all material allegations of the
complaint" (Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 929), and take
judicial notice of documents attached to it. (Evid. Code, § 459.) On October 8, 2014,
appellant sued Escondido Care Center, which appellant stated is a "facility specializing in
long term care for the elderly." In December 2014, appellant filed the operative first
1 Statutory references are to the Code of Civil Procedure unless otherwise stated. 2 amended complaint, alleging that after Benson had suffered a stroke leaving her partially
paralyzed and unable to walk properly, 85-year old Benson resided at the facility from
May 11, 2012, until September 18, 2012. Appellant alleged that in May 2012, the facility
created a fall care plan to address Benson's fall risk; however, Benson fell five times
while a resident there. After Benson's first fall, the facility did not notify Benson's
physician, thus depriving Benson of safety interventions. The facility also failed to
review and revise Benson's plan of care regarding fall prevention. Benson's fall was not
mentioned in the licensed nurse's notes; therefore, the "health and safety threat she faced
was not communicated or endorsed to the oncoming staff during the shift change."
Following Benson's second fall, her physician recommended a tab alarm, and an
interdisciplinary team discussed with her son the use of a skid mat, full-length side rails
on the bed, and a lowered bed position for Benson. However, the facility never
implemented those measures.
Appellant alleged that Benson's third fall occurred when she was trying to transfer
from her wheelchair to her bed. Again, the facility failed to record the fall in the licensed
nurse's notes, communicate the incident to the oncoming staff during the shift change, or
revise Benson's fall prevention plan. Appellant alleged that Benson's fourth fall occurred
after she "was abandoned in her wheelchair and was left alone in a hallway. She needed
a diaper change but was unable to obtain assistance from the staff. [She] got up from her
wheelchair and walked in the direction of the nurse's station to obtain assistance. . . .
[U]sing the wooden railing for support, she lost her balance, causing her to fall and hit
her head."
3 Appellant alleged that Benson's fifth fall happened two days later, on September
12, 2012, when she "wanted to make a phone call but was unable to call for assistance
because her call light was broken. Benson attempted to reach over to where her phone
was located, and as she strained to grasp the phone, the unlocked wheels on the bed
moved, and she fell out of bed, striking her head on the metal bed frame." She suffered a
bump on her right occipital lobe and a tear on her back. Nearly a year later, her son
found out through discovery of Benson's medical records that, when she fell, the side
rails of her bed were not raised.
Appellant alleged that following her last fall, Benson experienced dizziness and
irregular vital signs; therefore, on September 18, 2012, Benson was taken to a hospital
emergency room where doctors diagnosed her with a subdural hematoma, dehydration
and bedsores. Afterwards, Benson no longer resided at the facility. Appellant alleged
that Benson's "traumatic brain injury caused by her September [2012] fall rendered her
permanently incompetent. She suffered from severe cognitive impairment and
incompetency until her death on July 15, 2013. [¶] Following the development of the
subdural hematoma, Ms. Benson lost the ability to speak and suffered a functional
decline in many of her [activities of daily living]. Her health declined dramatically
following her brain injury. She was hospitalized numerous times and never regained her
prior level of function."2
2 Without specifying a date, appellant also alleged that "[p]rior to the acute onset of her brain bleed, [Benson] had regained the ability to eat independently, play the piano, and ambulate with the assistance of a walker. She was even able to play catch with a 4 The first amended complaint lists other instances of the facility's failures "to
perform many other of the custodial duties owed to Ms. Benson"; specifically, on several
days the facility failed to provide Benson her meals, and routinely ignored her calls for
help. Benson became dehydrated because the facility failed to provide her the
recommended amount of fluids. Further, she sometimes was left with soiled adult
diapers for up to an hour; she was often forced to wear the same clothing several days in
a row, and that lack of hygiene caused her to develop sores on her buttocks. The family
hired outside caregivers because the facility did not employ sufficient staff to meet
Benson's needs. Appellant alleged the facility's staff physically and verbally abused
Benson at different times. Specifically, one certified nurse's assistant threw a shoe at
Benson; another one threw a bed cover over Benson after she had requested an adult
diaper change; and a third one threw Benson onto the bed after changing Benson's adult
diaper.
Escondido Care Center demurred to the first amended complaint and moved to
strike it, arguing that all of Benson's causes of action, except that for negligence, failed to
allege facts sufficient to state causes of action. It also argued that all causes of action,
except that for wrongful death, were time-barred. It argued that appellant had failed to
state a cause of action for elder abuse because the facility's allegedly wrongful acts
appeared to be encompassed by the negligence claim. Moreover, Escondido Care Center
argued that appellant had failed to satisfy the Elder Abuse Act's requirement of showing
football during her occupational therapy sessions. [She] had also built up enough strength to wheel herself in a wheelchair."
5 involvement by an officer, director, or managing agent of the corporate defendant.
(Welf. & Inst. Code, § 15657, subd. (c).) Escondido Care Center denied violating Health
and Safety Code section 1430, subdivision (b), contending that no facts showed the
California Department of Public Health (department) had taken action on a complaint and
the facility had not corrected the violation. Escondido Care Center argued that appellant
had not stated facts showing the facility's actions were reckless, oppressive, fraudulent or
malicious to constitute willful misconduct. It argued as to the wrongful death cause of
action that Benson's death certificate, which had the benefit of a statutory presumption of
correctness (Health & Saf. Code, §103550), stated that Benson's immediate cause of
death was acute respiratory failure with underlying causes of aspiration pneumonia and
cerebral vascular accident; therefore, appellant had not alleged sufficient facts showing
that Benson's death was caused by the subdural hematoma she had suffered ten months
earlier.
Appellant argued in opposition that the first amended complaint's allegations
sufficed to state causes of action for elder abuse, neglect, and willful misconduct.
Appellant also argued that the two-year statute of limitations set forth in section 335.1
applied to the elder abuse and willful misconduct causes of action; therefore, these causes
of action did not accrue until Benson had died in July 2013. Appellant further argued
that section 364, subdivision (d), entitled him to a 90-day extension from the date of
death to commence the lawsuit; thus, the statute of limitations did not run until October
13, 2014. Based on the statutory definition of insanity set forth in section 352,
6 subdivision (a), appellant argued the negligence cause of action was tolled for one year;
accordingly, the complaint filed on October 8, 2013, was timely.
The court ruled that the elder abuse and willful misconduct causes of action were
barred by the two-year statute of limitations set forth in section 335.1 because Benson's
injuries were diagnosed by September 18, 2012, but the complaint was not filed until
October 8, 2014. Accordingly, the court sustained the demurrer as to these causes of
action without leave to amend. The court sustained the demurrer with leave to amend as
to the negligence cause of action, granting appellant an opportunity to allege that under
section 352, Benson's insanity had tolled the statute of limitations. The court sustained
without leave to amend the cause of action alleging a violation of the Patients' Bill of
Rights, concluding that appellant had failed to allege facts showing that under Health &
Safety Code section 1430, subdivision (a), department had issued a particular citation to
the facility, which did not correct the violation. The court sustained the demurrer as to
the wrongful death cause of action because despite the complaint alleging that Benson
had died from subdural hematoma, dehydration and bedsores, the death certificate did not
list any of these conditions as a cause of death or a contributing factor. The court denied
as moot Escondido Care Center's motion to strike the first amended complaint.
Appellant filed an ex parte application for reconsideration of the court's ruling on
the demurrer under section 1008, submitting a proposed second amended complaint.
Escondido Care Center opposed the application. Following a hearing, the court denied
the application, reasoning that appellant had not satisfactorily explained his failure to
earlier obtain the new or different facts set forth in the proposed second amended
7 complaint. The court subsequently granted appellant's motion to dismiss the first
amended complaint.
DISCUSSION
I. Standard of Review
A demurrer may be sustained on statute of limitations grounds if the time bar
" ' " 'clearly and affirmatively appear[s] on the face of the complaint.' " ' " (Lee v. Hanley
(2015) 61 Cal.4th 1225, 1232, quoting Committee for Green Foothills v. Santa Clara Bd.
of Supervisors (2010) 48 Cal.4th 32, 42; § 430.30, subd. (a) ["[w]hen any ground for
objection to a complaint . . . appears on the face thereof, . . . the objection on that ground
may be taken by a demurrer to the pleading"].) We must accept as true all "well-pleaded
facts" in the complaint, but need not accept allegations containing "legal conclusions,"
"adjectival descriptions" or "unsupported speculation." (Ellis v. County of Calaveras
(2016) 245 Cal.App.4th 64, 70; Chicago Title Ins. Co. v. Western Financial Corp. (1968)
69 Cal.2d 305, 327.) Because "[t]he application of the statute of limitations on
undisputed facts is a purely legal question," our review is de novo. (Aryeh v. Canon
Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.) Further, because we are
reviewing the trial court's ruling and not its reasoning, we may affirm on any ground
supported by the record regardless of whether the trial court relied upon it. (Small v.
Fritz Companies, Inc. (2003) 30 Cal.4th 167, 201.) In deciding whether a plaintiff whose
complaint is barred should be granted further leave to amend, we ask "whether there is a
reasonable possibility that the defect can be cured by amendment"; if so, the trial court
8 has abused its discretion in denying leave to amend and we must reverse. (Zelig v.
County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)
"Under Rains v. Superior Court (1984) 150 Cal.App.3d 933, 943-944 . . . ,
plaintiffs were entitled to submit proposed second amended complaints by way of a
motion for reconsideration. If those second amended complaints stated any causes of
action, then the trial court was obligated to (1) vacate its order which sustained the
demurrers without leave to amend and (2) make a different order granting plaintiffs leave
to file an amended complaint which would include the causes of action which the trial
court, in deciding the merits of the motion for reconsideration, determined were valid."
(Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371,
1387.)
" 'When a demurrer is sustained without leave to amend the petitioner may
advance on appeal a new legal theory why the allegations of the petition state a cause of
action.' [Citation.] This is so because of the general rule that ' "a litigant may raise for
the first time on appeal a pure question of law which is presented by undisputed facts." ' "
(Dudley v. Department of Transp. (2001) 90 Cal.App.4th 255, 259; see also Graham v.
Bank of American, N.A. (2014) 226 Cal.App.4th 594, 610.)
1. Applicable Law
As pertinent here, a statute of limitations gives someone who has suffered a civil
wrong a certain period of time to sue for damages. (Gilkyson v. Disney Enterprises, Inc.
(2016) 244 Cal.App.4th 1336, 1341; §§ 312, 350.) The Legislature fixes the time period,
and that period is designed to strike a balance between the interest in giving a plaintiff
9 sufficient time to sue against the interests in " 'promot[ing] the diligent assertion of [the]
claim[], ensur[ing] defendants the opportunity to collect evidence while still fresh, and
provid[ing] repose and protection from dilatory suits once excess time has passed.' "
(Gilkyson, at p. 1341, quoting Aryeh v. Canon Business Solutions, Inc., supra, 55 Cal.4th
at p. 1191.) The time period starts to run once the cause of action "accrues." (Gilkyson,
at p. 1341.) Although a cause of action typically "accrues 'when [it] is complete with all
of its elements' " (Pooshs v. Philip Morris USA, Inc. (2011) 51 Cal.4th 788, 797), a cause
of action will at times be deemed to accrue at a later date. (Aryeh, at p. 1192.)
Although statutes of limitations in general serve to prevent the assertion of stale
claims that would be difficult to defend because of the passage of time, such technical
defenses "should be strictly construed to avoid the forfeiture of a person's rights."
(Donnellan v. City of Novato (2001) 86 Cal.App.4th 1097, 1103; see Herman v. Los
Angeles County Metropolitan Transportation Authority (1999) 71 Cal.App.4th 819, 826-
827.) "The two public policies identified above—the one for repose and the other for
disposition on the merits—are equally strong, the one being no less important or
substantial than the other." (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 396.) "To
establish any particular limitations period under any particular statute of limitations
entails the striking of a balance between the two. To establish any such period under any
such statute belongs to the Legislature alone [citation], subject only to constitutional
constraints." (Id. at pp. 396-397.)
This result comports with our strong policies favoring liberal amendment of
pleadings, disposition of cases on their substantial merits, and resolution of all disputed
10 matters between the parties in the same lawsuit. (See, e.g., Douglas v. Superior Court
(1989) 215 Cal.App.3d 155, 158 ["California courts have 'a policy of great liberality in
allowing amendments at any stage of the proceeding so as to dispose of cases upon their
substantial merits where the authorization does not prejudice the substantial rights of
others' "]; Morgan v. Superior Court of Los Angeles County (1959) 172 Cal.App.2d 527,
530 ["[I]t is a rare case in which 'a court will be justified in refusing a party leave to
amend his pleading so that he may properly present his case' "].)
II. The Elder Abuse Cause of Action
A.
Appellant contends the court abused its discretion by denying him leave to amend
the elder abuse cause of action to allege that the statute of limitations for commencing a
legal action was tolled under section 352.
We conclude the court erred by not granting appellant's motion for
reconsideration. In appellant's proposed second amended complaint, he alleged these
facts for tolling the statute of limitations for Benson's insanity under section 352: "Ms.
Benson's traumatic brain injuries left her incompetent, without basic physical or cognitive
skills. She was disoriented and did not have the cognitive ability to comprehend what
was occurring around her or to make decisions regarding her health or financial affairs.
She was not able to communicate verbally or care for herself. She required total
assistance to complete activities of daily living to include eating, dressing, bathing, and
transferring to and from bed. Ms. Benson was incapable of caring for her property or
transacting her business affairs or understanding the nature of her acts. After Ms. Benson
11 sustained her brain injuries following her fall and head-strike at Defendant's facility, her
son, Peter Benson, became responsible for her healthcare, legal, and financial decisions.
Ms. Benson's cognitive impairment and inability to care for her property or take steps to
protect her own legal or medical needs remained unchanged until her death on July 15,
2013." (Some capitalization omitted.)
The statute of limitations applicable to elder abuse is two years from the date the
injury was discovered. (§ 335.1; Benun v. Superior Court (2004) 123 Cal.App.4th 113,
125-127.) When, as here, the plaintiff also brings a cause of action for negligence,
section 335.1 is extended by the required 90-day notice of intent to sue a health care
provider. (§ 364, subd. (a).) Further, the time for filing a complaint is tolled when a
patient suffers from insanity. (§ 352; Benun, at p. 126.) Section 352's tolling provision
reads in part: "(a) If a person entitled to bring an action . . . is, at the time the cause of
action accrued either under the age of majority or insane, the time of the disability is not
part of the time limited for the commencement of the action." For purposes of section
352, a plaintiff is "insane" if "incapable of caring for his [or her] property or transacting
business or understanding the nature or effects of his [or her] acts." (Alcott
Rehabilitation Hospital v. Superior Court (2001) 93 Cal.App.4th 94, 102.)
As set forth in detail above, appellant alleges Benson was diagnosed with a
subdural hematoma on September 18, 2012, and shortly thereafter, and until her death in
July 2013, she suffered from specific impairments that met the standards for insanity
within the meaning of section 352. Therefore, the statute of limitations was tolled until
after her date of death. Section 364 additionally extended the statute of limitations by 90
12 days. Based upon these allegations, it therefore appears that appellant's complaint filed in
October 2014 was timely and not barred by the statute of limitations. We conclude these
allegations sufficed to show the complaint can be so amended; therefore, appellant should
be granted leave to do so.
B.
Respondent contends appellant did not allege facts sufficient to make out an elder
abuse cause of action because the facility's conduct was not shown to be reckless; rather,
at most it was negligent. We disagree.
The Elder Abuse Act makes certain enhanced remedies available to a plaintiff who
proves abuse of an elder, i.e., a "person residing in this state, 65 years of age or older."
(Welf. & Inst. Code, § 15610.27.) In particular, a plaintiff who proves "by clear and
convincing evidence" both that a defendant is liable for physical abuse, neglect or
financial abuse (as these terms are statutorily defined) and that the defendant is guilty of
"recklessness, oppression, fraud, or malice" in the commission of such abuse may recover
attorney fees and costs. (Welf. & Inst. Code, § 15657, subd. (a).) On the same proof, a
plaintiff who sues as the personal representative or successor in interest of a deceased
elder is partially relieved of the limitation on damages imposed by Code of Civil
Procedure section 377.34 and may recover damages for the decedent's predeath pain and
suffering. (Welf. & Inst. Code, § 15657, subd. (b).)
As applicable here, the Elder Abuse Act defines abuse as "[p]hysical abuse,
neglect, financial abuse, abandonment, isolation, abduction, or other treatment with
13 resulting physical harm or pain or mental suffering" (Welf. & Inst. Code, § 15610.07,
subd. (a)); or "[t]he deprivation by a care custodian of goods or services that are
necessary to avoid physical harm or mental suffering" (id., § 15610.07, subd. (b)). The
statute 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." (Id., § 15610.57, subd. (a)(1).) "Neglect includes, but is
not limited to, all of 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. . . . [¶] (3) Failure to protect from health and safety
hazards. [¶] (4) Failure to prevent malnutrition or dehydration." (Id., § 15610.57, subd.
(b).) In short, neglect as a form of abuse under the Elder Abuse Act refers "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 v. Baker (1999) 20 Cal.4th 23, 34.) Thus, when the medical care of an elder is
at issue, "the statutory definition of 'neglect' speaks not of the undertaking of medical
services, but of the failure to provide medical care." (Covenant Care, Inc. v. Superior
Court (2004) 32 Cal.4th 771, 783; see also id. at p. 786 ["statutory elder abuse may
include the egregious withholding of medical care for physical and mental health
needs"].)
To recover the enhanced remedies available under the Elder Abuse Act from a
health care provider, a plaintiff must prove more than simple or even gross negligence in
the provider's care or custody of the elder. (Welf. & Inst. Code, § 15657.2; Delaney v.
14 Baker, supra, 20 Cal.4th at p. 32; Sababin v. Superior Court (2006) 144 Cal.App.4th 81,
88.) The plaintiff must prove "by clear and convincing evidence" that "the defendant has
been guilty of recklessness, oppression, fraud, or malice in the commission of" the
neglect. (Welf. & Inst. Code, § 15657.) Oppression, fraud and malice "involve
'intentional,' 'willful,' or 'conscious' wrongdoing of a 'despicable' or 'injurious' nature."
(Delaney, at p. 31.) Recklessness involves " 'deliberate disregard' of the 'high degree of
probability' that an injury will occur" and "rises to the level of a 'conscious choice of a
course of action . . . with knowledge of the serious danger to others involved in it.' " (Id.
at pp. 31-32.) Thus, the enhanced remedies are available only for " 'acts of egregious
abuse' against elder and dependent adults." (Id. at p. 35; see also Covenant Care, Inc. v.
Superior Court, supra, 32 Cal.4th at p. 786 ["statutory elder abuse may include the
egregious withholding of medical care for physical and mental health needs"].) In short,
"[i]n order to obtain the [Elder Abuse] Act's heightened remedies, a plaintiff must allege
conduct essentially equivalent to conduct that would support recovery of punitive
damages." (Covenant Care, at p. 789.)
For example, in Sababin, the summary adjudication standard was met where a
facility caring for a dependent adult with a known condition causing progressive
dementia, requiring nutrition and hydration through a gastrostomy tube, and subjecting
her to skin deterioration, ignored a medical care plan requiring the facility to check the
dependent adult's skin on a daily basis and failed to notify a physician when pressure
ulcers and other skin lesions developed. (Sababin v. Superior Court, supra, 144
Cal.App.4th at pp. 83-87, 90.)
15 2. Analysis
In light of the case law cited above, we conclude that appellant's proposed second
amended complaint alleges various facts to state a cause of action for elder abuse.
Specifically, the facility's staff allegedly (1) denied Benson nourishment, causing her to
suffer dehydration; (2) failed to follow a fall prevention plan for Benson; (3) failed to
provide Benson proper hygiene, thus causing her to suffer sores on her buttocks, and (4)
failed to properly document Benson's falls and injuries, thus preventing others from
helping her.
C.
Escondido Care Center contends appellant has not shown he can make out a cause
of action for elder abuse because he failed to allege that respondent's agents authorized or
ratified the acts constituting reckless neglect.
A "managing agent" is someone "who exercise[s] substantial independent
authority and judgment over decisions that ultimately determine corporate policy."
(White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 573.) " '[C]orporate policy' is the general
principles which guide a corporation, or rules intended to be followed consistently over
time in corporate operations. A 'managing agent' is one with substantial authority over
decisions that set these general principles and rules." (Cruz v. HomeBase (2000) 83
Cal.App.4th at 160, 167-168.) To demonstrate an employee is a managing agent, the
plaintiff must show that he or she "exercised substantial discretionary authority over
significant aspects of a corporation's business." (White v. Ultramar, Inc., at p. 577.)
16 "The scope of a corporate employee's discretion and authority . . . is therefore a question
of fact for decision on a case-by-case basis." (Id. at p. 567.)
Appellant alleged in the proposed second amended complaint that the facility's
director of nursing was solely responsible for the total management of the nursing and
"for ensuring compliance with local, state and federal regulations . . . which required the
[director of nursing] to review, evaluate, and update Ms. Benson's fall plan of care as
necessary to manage her fall risk. Despite having knowledge of this regulatory duty and
obligation, the [director of nursing] chose to disregard the regulation, which was
specifically designed to protect residents like Ms. Benson from health and safety hazards
in the nursing home setting." (Some capitalization omitted.)
We conclude that in light of the fact we are remanding this matter for the trial
court to grant appellant leave to amend his complaint regarding the statute of limitations
issue, appellant may well decide to amend this aspect of his complaint as well.
Therefore, we need not decide whether the above allegations suffice to show that the
director of nursing was one of respondent's principals who ratified the facility's alleged
elder abuse of Benson.
III. The Willful Misconduct Cause of Action
Respondent contends appellant did not allege facts sufficient to make out a cause
of action for wrongful misconduct. In Berkley v. Dowds (2007) 152 Cal.App.4th 518, the
court discussed the pleading requirements of a claim for "willful misconduct," noting that
17 "[t]he parties have argued extensively about whether a tort called 'willful misconduct' is
recognized in California. It is not a separate tort, but simply ' " 'an aggravated form
of negligence, differing in quality rather than degree from ordinary lack of care'
[citations]." ' [Citation.] Its pleading requirements are similar to negligence but stricter."
(Id. at p. 526.)
Willful misconduct is the "intentional doing of something either with knowledge,
express or implied, that serious injury is a probable, as distinguished from a possible,
result, or the intentional doing of an act with a wanton and reckless disregard of its
consequences." (Williams v. Carr (1968) 68 Cal.2d 579, 584.) Three elements must be
present to raise a negligent act to the level of willful misconduct: " '(1) actual or
constructive knowledge of the peril to be apprehended, (2) actual or constructive
knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3)
conscious failure to act to avoid the peril.' " (Bains v. Western Pacific R.R. Co. (1976) 56
Cal.App.3d 902, 905.)
We conclude that the allegations set forth in appellant's proposed second amended
complaint suffice to state a cause of action for reckless misconduct. We need not
exhaustively recount the allegations; rather, we need only cite to some of the acts
allegedly undertaken by the facilities' certified nursing assistants, including throwing a
shoe at Benson, and throwing her on the bed. Based on those allegations, the facility's
staff would actually or constructively know that such conduct would put Benson in peril,
and their conscious failure to act to avoid the peril would constitute reckless conduct.
18 B.
Further, applying the same analysis above regarding the statute of limitations, we
conclude the court should have granted appellant's motion for reconsideration, and given
him leave to amend the complaint to show that under section 352, Benson suffered
insanity as of her last fall in September 2012, until her death in July 2013; thus, section
335.1's two-year statute of limitations for appellant to bring a willful misconduct cause of
action was tolled. Further, he may allege that section 364 would extend by 90 days the
time for commencement of the lawsuit.
IV. The Negligence Cause of Action
The negligence cause of action turns on the same issue regarding the tolling of the
statute of limitations under section 352, therefore resolution of this issue is the same as
that set forth above regarding the elder abuse and willful misconduct causes of action.
The negligence cause of action is in a different procedural posture than the elder abuse or
wrongful misconduct causes of action because the court had granted appellant leave to
amend the complaint to state a negligence cause of action, but appellant did not do so,
instead moving for reconsideration of the court's ruling on the demurrer, and submitting a
proposed second amended complaint.
On similar facts, an appellate court stated: "Although it does not appear from the
record before us that the trial court specifically considered the changes made by the
plaintiffs in their proposed second amended complaints before denying the motion to
reconsider, we do not believe it to be in the interest of judicial economy to return the case
to the trial court for such a review. We have the second amended pleadings before us,
19 and we can make a determination as to whether any viable causes of action are stated
and, if not, whether further amendment should be permitted." (Careau & Co. v. Security
Pacific Business Credit, Inc., supra, 222 Cal.App.3d at p. 1387, fn. omitted.)
When, as here, a demurrer to a complaint is sustained with leave to amend and the
plaintiff declines to amend the complaint, the plaintiff may challenge the trial court's
ruling on appeal from the subsequent dismissal of the action. (Alfaro v. Community
Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356,
1372.) On appeal, we assume the complaint contained the strongest statement of the
plaintiff's cause or causes of action. (Ibid.) Thus, unlike when a demurrer is sustained
without leave to amend, we determine only whether the plaintiff stated a cause of action,
and not whether the plaintiff might be able to do so. (Reynolds v. Bement (2005) 36
Cal.4th 1075, 1091, abrogated on another ground in Martinez v. Combs (2010) 49 Cal.4th
35, 62-66.)
Following our independent review of the allegations in appellant's proposed
second amended complaint, we conclude that appellant has alleged sufficient facts to
state that Benson's alleged injuries caused her to suffer insanity within the meaning of
section 352. The statute of limitations for a negligence cause of action is one year.
(§ 340.5; Artell v. Allen (2003) 111 Cal.App.4th 273, 278.) As noted, Benson died in
July, 2013, and under section 364 her successor in interest had an additional 90 days to
file a negligence action. Appellant alleged that following her last fall, Benson suffered
cognitive impairment, rendering her incapable of taking care of her affairs; therefore, her
20 son was appointed to handle her healthcare, legal and financial decisions. Based on those
allegations, appellant should be given leave to amend the complaint.
V. The Patients' Bill of Rights Cause of Action
Appellant alleged Escondido Care Center violated Health and Safety Code section
1430, subdivision (b), which provides, in relevant part: "A current or former resident or
patient of a skilled nursing facility . . . may bring a civil action against the licensee of a
facility who violates any rights of the resident or patient as set forth in the Patients' Bill of
Rights in Section 72527 of Title 22 of the California Code of Regulations, or any other
right provided for by federal or state law or regulation." Health and Safety Code section
1430, subdivision (b) is also a remedial statute, which must therefore be "liberally
construed on behalf of the class of persons it is designed to protect." (California Assn. of
Health Facilities v. Department of Health Services (1997) 16 Cal.4th 284, 295.) Those
individuals are nursing care patients, "one of the most vulnerable segments of our
population." (Ibid.)
Here the duties imposed by the regulations that Escondido Care Center allegedly
violated directly affect the patient's right to proper diagnosis, treatment and care. "Failure
to maintain complete health care records may lead to serious health and treatment
consequences. These regulations set standards for the conduct of the facilities. But they
were enacted to protect the patients who are the intended beneficiaries of regulatory
compliance. [Citation.] California regulations give the nursing care patient the right to
participate 'in the total plan of care.' (Cal. Code Regs., tit. 22, § 72527, subd. (a)(3)
(Patients['] Bill of Rights).) But such a right and plan of care cannot be implemented
21 where the facility does not maintain proper medical records. Consequently, the
regulations involved in this action implement the statutory duty to ensure 'quality health
care' by requiring adequate health care records for patients." (Lemaire v. Covenant Care
California, LLC (2015) 234 Cal.App.4th 860, 865-866.)
Here, appellant alleged the facility did not maintain adequate medical records of
Benson's falls, thus preventing medical staff from providing her adequate treatment or
forestalling subsequent falls. California regulations give the nursing care patient the right
to participate "in the total plan of care." (Cal. Code Regs., tit. 22, § 72527, subd. (a)(3).)
But such a right and plan of care cannot be implemented where the facility does not
maintain proper medical records. Consequently, the regulations involved in this action
implement the statutory duty to ensure "quality health care" by requiring adequate health
care records for patients. (Kizer v. County of San Mateo (2000) 53 Cal.3d 139, 148;
Health & Saf. Code, §§ 1422, subd. (a), 1427, subd. (a).) We therefore conclude the
court erred by denying appellant's motion for reconsideration, and he should be granted
leave to amend his complaint.
By contrast, the trial court relied on a different provision of the statute, which was
inapposite; specifically, Health and Safety Code section 1430, subdivision (a), which
states: "Except where the state department has taken action and the violations have been
corrected to its satisfaction, a licensee who commits a class 'A' or 'B' violation may be
enjoined from permitting the violation to continue or may be sued for civil damages
within a court of competent jurisdiction. An action for injunction or civil damages, or
both, may be prosecuted by the Attorney General in the name of the people of the State of
22 California upon his or her own complaint or upon the complaint of a board, officer,
person, corporation, or association, or by a person acting for the interests of itself, its
members, or the general public. The amount of civil damages that may be recovered in
an action brought pursuant to this section may not exceed the maximum amount of civil
penalties that could be assessed on account of the violation or violations." Because
appellant did not sue under this provision, it follows he was not required to plead facts—
regarding the facility's alleged violation of licensing requirements—to satisfy it.
VI. The Wrongful Death Cause of Action
The court did not err by sustaining the demurrer as to the wrongful death cause of
action because it properly relied on the presumption that the certificate of death attached
to the complaint is "prima facie evidence" of the "facts stated therein." (Health & Saf.
Code, § 103550.) Nevertheless, we again conclude the court erred by not granting
appellant's motion for reconsideration and leave to amend the complaint regarding the
wrongful death cause of action.
Appellant's proposed second amended complaint incorporates an allegation that
Benson's autopsy report stating that her subdural hematoma was a contributing cause of
Benson's death. We conclude that this factual allegation suffices for appellant to be given
an opportunity to amend the complaint to try to overcome the statutory presumption
contained in Health and Safety Code section 103550 regarding the correctness of the
autopsy report. Two cases applying the predecessor statute, Health and Safety Code
section 10577, which is substantially the same as the present statute, support our
conclusion. (Morris v. Noguchi (1983) 141 Cal.App.3d 520, 523, fn. 1 [pointing out that
23 a death certificate constitutes only prima facie evidence of the facts stated therein, but
that it is "subject to rebuttal and to explanation"]; Bohrer v. San Diego (1980) 104
Cal.App.3d 155, 164 ["If California Health and Safety Code section 10577 expressly
provides for admissibility of the California record as prima facie evidence of the 'cause of
death,' the trial court misapplied this provision to effectively utilize the conclusion of
suicide as a conclusive presumption which the plaintiff could not further dispute"].)
DISPOSITION
The judgment is reversed, the matter is remanded and the trial court is directed to
vacate its order sustaining the demurrer of Escondido Care Center without leave to
amend and to enter a new order overruling the demurrer and granting leave to amend,
consistent with this opinion. Appellant Peter Benson is awarded costs on appeal.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
NARES, J.