Madar v. Kaiser Foundation Hospitals

The Court finds good cause to grant the relief requested. Accordingly, the application is GRANTED. (Cal. Rules of Ct., rule 9.40.)

Mr. Aaron is ordered to give notice of this ruling.

3. Delatorre v. Smith 25-1498067 (Notice of Conditional Settlement filed) 4. Enriquez v. Avila 26-1554734 (off calendar) 5. Andresen v. Watermeier Before the court are unopposed 1) and 2) motions to compel plaintiff Christina Compani’s initial responses to sets one of special interrogatories and requests for production, and 3) a motion to deem requests for admission set one as admitted, filed by pro per defendant David Watermeier (“Defendant”). The unopposed motions are each DENIED without prejudice.

The proofs of service filed with the motions indicates electronic service, however they fail to include the required name and electronic service address of the person(s) served. (Civ. Proc. Code § 1013b(b)(3).) As the proofs of service are improper and do not show service of the motions on all the parties who have made appearances in this action, the motions are denied without prejudice to Defendant refiling and properly serving the other parties in this action.

The court also notes Defendant failed to include the underlying discovery requests with the motions along with proofs of service of the requests properly being served on Watermeier.

Defendant to give notice.

6. Millen v. General Motors LLC 26-1554736 (off calendar) 7. Rodriguez v. Summergreen Homeowners Association 24-1378892 (Moot) 8. Crossroads Equipment Lease and Finance, LLC v. Trophy Transport and Towing 25-1464116 (Moot) 9. Madar v. Kaiser Foundation Hospitals 23-1348123 Before the court is a motion for summary adjudication filed by defendant Bartlett Care Center, LLC dba French Park Care Center (Bartlett or French Park) and a motion for summary judgment, or summary adjudication in the alternative, filed by defendant Sun Mar Management Services (Sun Mar) on the complaint of plaintiffs Gavril Madar (Decedent), by and through his successor in interest, Sefora Madar, Sefora Madar, and Mary Madar (Plaintiffs). For the reasons set forth below, the motions are DENIED.

Bartlett Motion for Summary Adjudication

The new evidence submitted for the first time with the reply was not considered. (ROA 188; Code of Civ. Proc. § 437c, subd. (b)(4).)

Bartlett’s evidentiary objections are OVERRULED.

Issue No. 1: Bartlett failed to meet its initial burden that Plaintiffs cannot establish neglect. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783 [standard]; Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90 [a health care provider may be liable for neglect under the statute even if some care is provided, e.g., if a care facility knows it must provide a certain type of care on a daily basis but provides that care sporadically, or is supposed to provide multiple types of care but only provides some of those types of care, withholding of care has occurred].)

While Bartlett produced evidence of some care and treatment by health care providers, Plaintiffs’ dependent adult neglect claims is predicated on inadequate care by French Park staff having daily caretaking responsibilities. (Compl. ¶¶ 45-48.) Bartlett failed to produce any evidence negating Plaintiffs’ allegations that French Park staff failed to adequately assess and monitor Decedent’s G-tube placement and feedings. There is no evidence French Park created an adequate care plan for Decedent and/or that French Park regularly and properly monitored the correct placement of the G-tube to ensure Decedent was receiving sufficient nutrition and medication.

This is fatal to the motion. (Code of Civ. Proc. § 437c, subd. (b)(1) [a summary judgment motion must show that the “material facts” are undisputed]; Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74 [“the pleadings determine the scope of relevant issues on a summary judgment motion”].)

Even assuming Bartlett met its moving burden (which it did not), Plaintiffs produced sufficient evidence showing triable issues of fact as to French Park’s failure to adequately monitor and verify G-tube placement, and assess the site for drainage, redness, swelling, or other signs of tube displacement or infection based on the care plan, and that Decedent ultimately died from G-tube complications. (Plaintiffs’ Separate Statement of Additional Material Facts (AMF) 1, 6- 8, 13-32.)

Barlett also failed to meet its initial burden that Plaintiffs cannot establish recklessness, oppressive, fraudulent, or malicious conduct. (Delaney v. Baker (1999) 20 Cal.4th 23, 31 [standard].) As discussed above, Bartlett failed to address Plaintiffs’ allegations of inadequate care by French Park staff having daily caretaking responsibilities regarding the assessment and monitoring of Decedent’s G-tube placement, whether negligent, reckless or in conscious disregard of Decedent’s safety. In addition, Bartlett failed to produce any evidence French Park was adequately staffed or that the nursing policies in place were proper during the time French Park cared for Decedent.

Even assuming Bartlett met its moving burden (which it did not), Plaintiffs produced sufficient evidence showing French Park was understaffed and the staffing ratios violated state minimum requirements on numerous days during Decedent’s stay, that the

facility lacked qualified RNs to conduct assessments, and the facility employed unqualified LVNs to do RN level assessments outside the scope of their licensure. (AMF 37-54.) Understaffing, when part of a pattern and practice, can substantiate a claim for reckless neglect. (Fenimore v. Regents of Univ. of Calif. (2016) 245 Cal.App.4th 1339, 1350.) The motion is therefore DENIED as to the second cause of action for dependent adult abuse.

Issue No. 2: Bartlett failed to meet its initial burden that Plaintiffs cannot establish corporate employer liability for punitive damages. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854 [moving burden]; Welf. & Inst. Code § 15657(a)-(c).) While Bartlett contends there is no evidence of any wrongdoing by an officer, director, administrator or managing agent directed French Park, Bartlett notably failed to produce any evidence in support. Bartlett failed to cite to any factually devoid discovery responses or other evidence that Plaintiffs do not possess or cannot reasonably obtain evidence to show malfeasance of an officer, director, administrator or managing agent. The motion is therefore DENIED as to the punitive damages claim.

Sun Mar Motion for Summary Judgment/Summary Adjudication

The Court declines to rule on Sun Mar’s evidentiary objections. Because Sun Mar failed to meet its moving burden, Plaintiffs’ evidence was not considered. (Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 805.)

Issue Nos. 1-3: Sun Mar failed to meet its initial burden that Plaintiffs cannot establish their claims for dependent adult neglect, negligence, wrongful death and punitive damages. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854 [moving burden].) Sun Mar concedes it was solely responsible for the operation and management of French Park, including staffing, scheduling, supervision and termination of facility staff. (Defendants’ Separate Statement of Undisputed Material Facts (“DSS”) 1, 3, 7, 8.)

Sun Mar produced no evidence that its staffing, supervision, training, and operational decisions were appropriate, that Sun Mar did not cause harm to Plaintiffs, or that Plaintiffs do not possess or cannot reasonably obtain evidence to establish their claims. Sun Mar merely contends Plaintiffs cannot identify any witness from Sun Mar with knowledge supporting Plaintiffs’ allegations of corporate misconduct and cannot identify when the alleged misconduct occurred. (DSS 19, 21.) However, Plaintiffs identify numerous witnesses from Sun Mar in discovery responses, and dates of misconduct are not material to the claims.

Moreover, Sun Mar failed to address alternate theories of liability asserted against Sun Mar, including alter ego, joint venture liability and/or single enterprise. This is fatal to the motion. (Code of Civ. Proc. § 437c, subd. (b)(1); Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 717 [the moving party must show it is entitled to judgment “with respect to all theories of liability” asserted by the plaintiff]; Compl. ¶¶ 27-33; 70.) The motion is therefore DENIED in its entirety.