McDaniel v. Horizon Oxygen

TENTATIVE RULING(S) FOR August 27, 2026 Department S37 – Judge Winston Keh This court follows California Rules of Court, rule 3.1308(b) for tentative rulings. (See San Bernardino Superior Court Local Emergency Rule 8.) Tentative rulings for each law & motion will be posted on the internet (https://www.sb-court.org) by 3:00 p.m. on the court day immediately before the hearing.

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UNLESS OTHERWISE NOTED, THE PREVAILING PARTY IS TO GIVE NOTICE OF THE

RULING.

McDaniel v. Horizon Oxygen

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TENTATIVE RULING(S):

Context & Factual Allegations

Marilyn McDaniel was hit in the head with a clamp and suffered a head injury, which

ultimately contributed to her death in September 2024. Plaintiffs Marie McDaniel, David

McDaniel, and June Hughes, the Decedent’s surviving children, commenced suit over the death

in July 2025. The operative first amended complaint (FAC) was filed as a matter of right, in

October 2025, as against Horizon Oxygen and Medical Equipment Inc. (Horizon), Calstro

Hospice High Desert (Calstro HD), and, via doe amendment, Calstro Hospice Inc. (Calstro).

The FAC indicates the Decedent was hospitalized after suffering a fall in August 2024.

While she was in the hospital, Horizon installed a hospital bed at Marie’s house, where the

Decedent lived. However, Horizon failed to install a trapeze bar that was designed to assist

patients with repositioning. A Horizon employee returned after the Decedent was discharged to

install the bar. The installation occurred while the Decedent was sleeping in the bed. The

employee let go of a clamp he was holding and it fell and struck the Decedent, who was 93

years old. (FAC at ¶¶ 11-20.)

As for Calstro HD, it provided hospice services to the Decedent and a nurse arrived an

hour and a half after the incident. Marie informed the nurse about the incident and her mother’s

pain. The next day the Decedent’s physical and cognitive condition declined, she was lethargic

and agitated, her face cropped on her left side, and she lost the ability to communicate clearly.

Calstro HD refused to answer whether the trauma could have caused the decline and refused to

recommend that the Decedent seek treatment at a hospital. Calstro HD also had multiple internal

meetings about the injury but refused to disclose the purpose of the meetings or what was

discussed. As the Decedent’s condition worsened, Calstro HD still neither recommended nor

authorized evaluation and treatment at a hospital, which was a contributing factor in the death.

(FAC at ¶¶ 13, 23-26, 28-29, and 32.)

As for Calstro (as opposed to Calstro HD), the FAC suggests Does 1 to 25 were

negligent in their acts or omissions. Otherwise Calstro is lumped in with the FAC’s generic

references to “Defendants” and the claim that each is responsible in some manner for the

damages alleged. (FAC at ¶¶ 6-8.) Overall, the FAC contains claims for (1) negligence, (2)

negligent hiring, supervision, and retention, (3) elder abuse and neglect, (4) medical malpractice,

(5) negligent infliction of emotional distress, and (6) wrongful death.

As currently relevant, the FAC also indicates “Defendants” were care custodians of the

Decedent, Defendants’ conduct constituted neglect, Defendants failed to exercise reasonable

care in failing to select and install durable medical equipment, failing to provide for the

Decedent’s physical and mental health needs, and failing to protect her. Defendants also

purportedly failed to employ appropriate safeguards, failed to install the trapeze bar in a manner

that would not pose a risk of injury, failed to send the Decedent to an appropriate care facility for

evaluation and treatment, failed to accept and retain persons only for whom they could provide

care, and failed to treat the Decedent with dignity. (FAC at ¶ 47.)

The Demurrer

Calstro (as opposed to Calstro HD) now demurs to the third cause of action for elder

abuse on the grounds that the claim fails to state sufficient facts to state a valid cause of action

because the facts do not show recklessness, oppression, fraud, or malice. The demurrer is

supported by a declaration from attorney David Carman.

The demurrer is opposed by Plaintiffs on the grounds that the claims are sufficiently

stated and the discovery thus far supports the claim. The opposition is supported by a

declaration from attorney Frederick Rispoli and records from Calstro.

Calstro has replied.

The Third Cause of Action for Elder Abuse

The purpose of the Dependent Adult/Elder Abuse Act is “to protect a particularly vulnerable

portion of the population from gross mistreatment in the form of abuse and custodial neglect.”

(Delaney v. Baker (1999) 20 Cal.4th 23, 33.) The abuse of an elder or dependent adult under the

Act is defined as either “[p]hysical abuse, neglect, financial abuse, abandonment, isolation,

abduction, or other treatment with resulting physical harm or pain or mental suffering” or the

“deprivation by a care custodian of goods or services that are necessary to avoid physical harm

or mental suffering.” (Welf. & Inst. Code, § 15610.07.)

“Neglect” is the “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).) Neglect can include, but is not limited

to, the failure to assist in personal hygiene or provision of food, clothing, or shelter; failure to

provide medical care for physical and mental health needs; failure to protect from health and

safety hazards; and failure to prevent malnutrition or dehydration. (Welf. & Inst. Code, §

15610.57, subd.’s (b)(1)-(4).)

To state a claim for neglect, the plaintiff must alleged (a) the defendant(s) had care or custody of

the plaintiff/decedent, (b) the plaintiff/decedent was an elder or dependent adult while in the

defendant’s(s’) care or custody, (c) the defendant(s) failed to use the degree of care that a

reasonable person in the same situation would have used, (d) the plaintiff/decedent was harmed,

and (e) the defendant’s(s’) conduct was a substantial factor in causing decedent’s harm. (CACI

3103.)

To obtain the enhanced statutory remedies for neglect the plaintiff will need to establish by clear

and convincing evidence the neglect and that defendants acted with recklessness, oppression,

fraud or malice in the neglect. (CACI 3104; Covenant Care, Inc. v. Superior Court (2004) 32

Cal.4th 771, 789 [discussing an elder abuse claim].) Essentially, the plaintiff must allege conduct

that would afford recovery for punitive damages. Recklessness is a deliberate disregard of the

high degree of probability that an injury will occur and involves more than inadvertence,

incompetence, unskillfulness, or failure to take precautions, but rather rises to the level of a

conscious choice of a course of conduct with knowledge of the serious danger to others involved

in it. (Delaney, supra, 20 Cal.4th at pp. 31–32.)

Additionally, if the plaintiff seeks the enhanced remedies against an employer, then the plaintiff

must plead (a) the employer had advanced knowledge of the unfitness of the employee and the

employer employed him/her with a conscious disregard for the rights or safety or others, (b) the

employer authorized or ratified the wrongful conduct, or (c) the employer is personally guilty of

oppression, fraud, or malice. The foregoing must have been by an officer, director, or managing

agent of the corporate employer. (Welf. & Inst. Code, § 15657, subd. (c); Code Civ. Proc., §

3294, subd. (b).) Finally, the facts constituting the neglect and establishing the causal link

between the neglect and the injury “must be pleaded with particularity,” in accordance with the

pleading rules governing statutory claims. (Carter v. Prime Healthcare Paradise Valley, LLC

(2011) 198 Cal.App.4th 396, 406-407.)

In this case, all the specific allegations are directed at Calstro HD and Horizon. The

demurrer suggests that the allegations against Calstro HD are the same as the allegations

against Calstro, which is not true since both were sued separately and Calstro was added as a

doe defendant (as Doe 1 in particular). For instance, the FAC indicates it was the Horizon

employee that installed the bed and caused the clamp to fall and hit the Decedent. (FAC at ¶

19.) It was also the Calstro HD nurse that arrived after the incident. Calstro HD’s staff failed to

answer questions and failed to recommend that the Decedent should seek treatment at the

hospital. (FAC at ¶¶ 2, 5, 23, and 26.)

To the extent Calstro is included within the generic references to “Defendants,” the FAC

also suggests it took part in the installation of the bed, failed to “employ appropriate safeguards,”

failed to send the Decedent to an appropriate facility for proper evaluation, failed to “take

appropriate measures,” failed to accept only persons for whom they could provide adequate

care, and failed to treat the Decedent with respect and dignity. (FAC at ¶¶ 40, 42-43, and 59.)

Beyond the allegations related to the bed and the failure to transfer the Decedent, the allegations

are conclusory.

There is also no affirmative misconduct alleged, such as the use of chemical restraints,

nor does the alleged neglect reach the level of the cases outlined above. To the extent Calstro

was even involved with the installation of the bed, the facts suggest the employee, although

unexperienced, was attempting to help and was merely negligent in letting go of the clamp or

conducting the installation of the bar with the Decedent sleeping. That is not enough to show

recklessness, which must be supported by facts showing a deliberate disregard of the “high

degree of probability that an injury will occur and involves more than inadvertence,

incompetence, unskillfulness, or failure to take precautions, but rather rises to the level of a

conscious choice of a course of conduct with knowledge of the serious danger to others involved

in it.” (Delaney, supra, 20 Cal.4th at pp. 31–32.)

There is also no indication Calstro failed to provide care or neglected the Decedent in any other

way besides the purported failure to recommend or transfer the Decedent for evaluation. The

immediacy of the need to transfer the Decedent is also not apparent nor are any facts alleged

indicating any Calstro employee was employed with a conscious disregard for the rights or

safety of others, that Calstro authorized or ratified the wrongful conduct (beyond a conclusory

assertion), or that Calstro is personally guilty of oppression, fraud, or malice. Overall, the FAC

fails to state sufficient facts to support the enhanced remedies under the action and the demurrer

should therefore be sustained.

RULING

For the reasons stated above, the Court rules as follows:

Sustains the demurrer to the third cause of action for elder abuse as the claim is insufficiently

stated, with 20 days leave to amend.