Gutierrez v. Veritas Health Services, LLC et al

TENTATIVE RULING(S) FOR August 31, 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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RULING.

Gutierrez v. Veritas Health Services, LLC et al

__________________________________________________________________________

TENTATIVE RULING(S):

Before the Court is the Kindred Defendants’ demurrer to the SAC’s first cause of action for

dependent adult abuse and neglect pursuant to Code of Civil Procedure section 430.10,

subdivision (e), for failure to state facts sufficient to constitute a cause of action. Plaintiffs oppose

and Defendants reply.

Analysis

The Kindred Defendants argue that, although the SAC contains additional factual detail, it still

alleges at most professional negligence rather than the reckless withholding of custodial care

required under the Elder Abuse and Dependent Adult Civil Protection Act. They further contend

the SAC does not establish the substantial caretaking or custodial relationship required by Winn

v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 157–158 (Winn), and that the allegations

concerning understaffing, regulatory violations, and corporate authorization or ratification remain

conclusory.

Plaintiffs respond that the SAC cures the deficiencies identified in the Court’s prior ruling by

alleging Gutierrez’s total dependence on the Kindred Defendants for basic needs, the specific

care-plan requirements, repeated failures to provide nutrition, hygiene, repositioning, and other

required care, and resulting malnutrition and other harm. Plaintiffs contend these allegations

sufficiently plead a custodial relationship, statutory neglect, and recklessness.

Elder abuse is a statutory cause of action and must be specifically alleged. (Carter v. Prime

Healthcare Paradise Valley (2011) 198 Cal.App.4th 396, 410 (Carter); Covenant Care, Inc. v.

Superior Court (2004) 32 Cal.4th 771, 790 (Covenant Care).) To state a claim for neglect under

the Elder Abuse and Dependent Adult Civil Protection Act, a plaintiff must allege neglect as

defined by Welfare and Institutions Code section 15610.57 and facts showing the defendant

acted with recklessness, oppression, fraud, or malice in committing the neglect. (Welf. & Inst.

Code, § 15657.) “Neglect” includes the failure to assist in personal hygiene or provide food, the

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

health and safety hazards, and the failure to prevent malnutrition or dehydration. (Welf. & Inst.

Code, § 15610.57, subd. (b)(1)–(4).)

Acts of simple professional negligence are insufficient. (Delaney v. Baker (1999) 20

Cal.4th 23, 32.) Recklessness requires more than inadvertence, incompetence, unskillfulness, or

a failure to take precautions; it involves a conscious choice of a course of action with knowledge

of the serious danger to others. (Id. at pp. 31–32.)

As explained in Carter, to survive demurrer, a plaintiff alleging neglect must plead facts

showing the defendant: (1) had responsibility for meeting the elder or dependent adult’s basic

needs; (2) knew of conditions that made the elder or dependent adult unable to provide for those

needs; (3) denied or withheld goods or services necessary to meet those needs, either with

knowledge that injury was substantially certain or with conscious disregard of the high probability

of injury; and (4) thereby caused physical harm, pain, or mental suffering. (Carter, supra, 198

Cal.App.4th at pp. 406–407.) The facts constituting the neglect and establishing the causal link

between the neglect and injury must be pled with particularity. (Id. at p. 407; Covenant Care,

supra, 32 Cal.4th at p. 790.)

The Act applies to a health care provider only where the provider had a substantial

caretaking or custodial relationship with the elder or dependent adult involving ongoing

responsibility for one or more basic needs. (Winn, supra, 63 Cal.4th at pp. 152, 157–158.) It is

the nature of the relationship, rather than the defendant’s professional status, that determines

whether the requisite custodial relationship exists. (Id. at p. 152.)

1. The SAC adequately alleges a substantial caretaking or custodial relationship

The Kindred Defendants first argue that the SAC still concerns treatment provided by an

acute care hospital to a critically ill patient and therefore does not establish the substantial

caretaking relationship required by Winn.

The SAC alleges that Gutierrez resided at KH Ontario 24 hours per day and was “totally

dependent” on its staff for his basic needs. He allegedly could not feed himself, reposition

himself, bathe or dress himself, protect his own skin, or maintain his airway without assistance.

The Kindred Defendants allegedly assessed Gutierrez and documented impaired bed mobility,

feeding self-care deficits, bathing deficits, dressing and grooming deficits, and ineffective airway

clearance. (SAC ¶¶ 20, 41–44.)

The SAC further alleges that KH Ontario undertook responsibility for feeding Gutierrez at

each meal, bathing and washing him, dressing and grooming him, turning and repositioning him

every two hours, providing toileting and incontinence care and changing soiled linens, inspecting

his skin, and maintaining specified skin protection protocols. (SAC ¶¶ 20–21, 43.)

Those alleged responsibilities include basic custodial needs distinct from the provision of

professional medical treatment. Feeding, bathing, dressing, grooming, toileting, and

repositioning are needs an able-bodied and fully competent adult ordinarily would be capable of

managing without assistance. They involve acts for which the failure to assist or provide

constitutes neglect under the Act. (Welf. & Inst. Code, § 15610.57, subd. (b)(1)-(4).) The

allegations therefore support a reasonable inference that KH Ontario assumed ongoing

responsibility for Gutierrez’s basic needs within the meaning of Winn.

Defendants rely on Winn, Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382

(Oroville Hospital), and Kruthanooch v. Glendale Adventist Medical Center (2022) 83

Cal.App.5th 1109 (Kruthanooch) to argue that the services alleged in the SAC remained

professional medical and nursing care rather than custodial care. Plaintiffs distinguish those

authorities and rely on Stewart v. Superior Court (2017) 16 Cal.App.5th 87 (Stewart) as involving

circumstances more analogous to those alleged here.

The circumstances alleged here materially differ from Winn, where the decedent received

outpatient medical care and returned home between appointments. (Winn, supra, 63 Cal.4th at

pp. 152–153, 165.) They also differ from Oroville Hospital, which involved intermittent in-home

wound care rather than responsibility for the patient’s activities of daily living. (Oroville Hospital,

supra, 74 Cal.App.5th at p. 405.) In Kruthanooch, the Court declined to hold that hospitalization

alone created a custodial relationship, but recognized that a patient-provider relationship may

expand into one in which the provider attends to the patient’s most basic needs. (Kruthanooch,

supra, 83 Cal.App.5th at pp. 1131–1133.)

Stewart is more analogous. There, the Court of Appeal concluded that an acute care

hospital had assumed responsibility for assisting an inpatient with basic activities the patient

could not perform independently. (Stewart, supra, 16 Cal.App.5th at pp. 102–103.) Here, the

SAC similarly alleges that Gutierrez was unable to feed, bathe, dress, toilet, or reposition himself

and depended on KH Ontario staff to meet those needs. (SAC ¶¶ 20, 42–43.)

Defendants argue that many of the other alleged activities, including airway suctioning,

medication reconciliation, oxygen monitoring, and other ICU interventions, are professional

medical or nursing functions requiring specialized judgment. But the existence of professional

medical care does not eliminate the separately alleged responsibility for Gutierrez’s basic

custodial needs. The governing inquiry concerns the nature of the particular relationship and

responsibilities assumed. (Winn, supra, 63 Cal.4th at p. 152.)

Accordingly, the SAC adequately alleges the requisite substantial caretaking or custodial

relationship.

2. The SAC adequately alleges statutory neglect rather than merely deficient

performance of medical services

Defendants next argue that Plaintiffs have simply supplied greater detail concerning

professional negligence. That characterization does not account for all of the amended

allegations.

The SAC alleges that Gutierrez could not feed himself; staff repeatedly left meal trays

“within sight but out of reach” despite that limitation; staff failed to accurately monitor his intake

and failed to ensure prescribed nutritional supplements were provided; he lost approximately 20

pounds in five days; and he became “acutely malnourished.” (SAC ¶¶ 22–23, 46.)

Those allegations fall within the statutory examples of neglect consisting of the failure to

provide food and the failure to prevent malnutrition. (Welf. & Inst. Code, § 15610.57, subd. (b)(1),

(4).) Delaney specifically recognizes that the omission of sufficient nutrition can constitute

neglect rather than merely professional negligence. (Delaney, supra, 20 Cal.4th at pp. 34–35.)

The same is true of the hygiene allegations. The SAC alleges Gutierrez could not bathe

or toilet himself and that his care plan required bathing, skin cleansing, linen changes following

incontinence, and protective skin measures. Plaintiffs allege those services repeatedly were not

provided, leaving Gutierrez with “soiled linens” and “dried stool” and contributing to worsening

skin breakdown. (SAC ¶¶ 28–29, 43, 45, 50.) These allegations fit directly within section

15610.57, subdivision (b)(1)’s reference to the failure to assist in personal hygiene and,

potentially, subdivision (b)(3)’s failure to protect from health and safety hazards.

The SAC also alleges specific care plan requirements, including feeding at each meal,

two hour repositioning, heel offloading, incontinence care, skin checks each shift, and protective

barrier applications, and identifies the measures Defendants allegedly failed to provide. (SAC ¶¶

20–29, 43, 45–50.) In Sababin v. Superior Court (2006) 144 Cal.App.4th 81 (Sababin), the Court

explained that where a facility knows it must provide certain care regularly but provides that care

only sporadically, withholding of care may have occurred. (Id. at p. 90.) Here, the SAC alleges

repeated failures to provide multiple categories of required care identified in Gutierrez’s care

plan.

Defendants argue that an omitted nursing intervention does not automatically constitute

dependent adult neglect. But the SAC, read as a whole, alleges more than an isolated omission

or a medical procedure performed negligently. It alleges repeated failures to provide food,

bathing, toileting and incontinence care, linen changes, turning and repositioning, and other

basic services to a patient who allegedly could perform none of those functions himself.

Accordingly, the allegations concerning the withholding of basic custodial care are

sufficient at the pleading stage to allege statutory neglect. The Court therefore need not

determine on demurrer whether each additional allegation concerning medication reconciliation,

respiratory treatment, or medical monitoring independently constitutes neglect under the Act.

3. The SAC adequately alleges recklessness at the demurrer stage

The closer issue is whether the SAC alleges more than negligence and adequately

pleads the heightened culpability required by section 15657.

Defendants contend Plaintiffs must allege an intentional refusal to provide food,

repositioning, or other care and argue that a collection of missed interventions cannot establish

recklessness without allegations tying them to a common conscious decision. The law, however,

does not require an intent to injure or an express decision to deny care. Recklessness may be

shown by a conscious disregard of a known high probability of injury. (Delaney, supra, 20

Cal.4th at pp. 31–32.)

The SAC alleges facts permitting that inference at the pleading stage. The Kindred

Defendants allegedly themselves assessed Gutierrez as unable to feed, reposition, bathe, dress,

toilet, or otherwise care for himself and developed care plans identifying the particular assistance

required and the frequency with which it was to be provided. (SAC ¶¶ 20–21, 42–43.) Despite

that alleged knowledge, the SAC alleges repeated failures to provide several categories of

required care over the course of Gutierrez’s nine day admission. (SAC ¶¶ 23–29, 45–50.)

The allegations also include circumstances from which the seriousness of the risks

allegedly was apparent. Gutierrez allegedly lost approximately 20 pounds in five days while

unable to feed himself and nevertheless was not re-weighed or timely assessed by a dietitian.

(SAC ¶¶ 22, 46.) His oxygen saturation allegedly fell to approximately 60 percent,

notwithstanding a facility policy identifying 85 percent as a threshold requiring immediate

physician notification, yet a physician allegedly was not timely notified. (SAC ¶¶ 24, 47.) ICU

vital signs allegedly went undocumented for four hours notwithstanding a two-hour requirement.

(SAC ¶¶ 26, 48.) Medication reconciliation allegedly remained incomplete for approximately

seven days after admission. (SAC ¶¶ 27, 49.) Plaintiffs further allege DPH cited KH Ontario

concerning these failures and identified resulting risks to Gutierrez’s health and safety. (SAC ¶¶

22, 24, 26–27, 46–49.)

The DPH allegations do not themselves establish recklessness; nor does a policy or

regulatory violation, standing alone, transform negligence into dependent adult abuse. Those

allegations are nevertheless relevant to the knowledge and risk alleged when considered

together with the individualized care plans and repeated failure to provide basic care.

Sababin held that a significant pattern of withholding required care may permit a

factfinder to conclude that the conduct resulted from choice or deliberate indifference. (Sababin,

supra, 144 Cal.App.4th at p. 90.) That principle supports Plaintiffs’ theory here because the SAC

alleges repeated failures to provide multiple categories of care that the Kindred Defendants

allegedly knew Gutierrez required.

Plaintiffs also rely on Fenimore v. Regents of University of California (2016) 245

Cal.App.4th 1339 (Fenimore), arguing that the alleged policy violations and understaffing further

support an inference of recklessness. But unlike Fenimore, the SAC does not identify a staffing

ratio or regulation knowingly violated, a particular staffing directive, or facts tying the alleged

omissions in Gutierrez’s care to a deliberate institutional staffing policy. (SAC ¶ 51.) The

generalized allegation of a “conscious decision” to understaff KH Ontario therefore does not

materially advance the recklessness analysis.

That deficiency is not dispositive because understaffing is not an element of the claim.

Independently of the staffing allegations, the SAC alleges that the Kindred Defendants knew

from their own assessments and care plans that Gutierrez could not meet his basic needs,

identified the specific care he required, and nevertheless repeatedly failed to provide multiple

categories of that care. Taken together, those allegations are sufficient at the pleading stage to

support an inference of conscious disregard.

4. Defendants’ challenge to corporate authorization or ratification does not warrant

sustaining the demurrer

Defendants additionally argue that Plaintiffs have not adequately alleged authorization or

ratification by an officer, director, or managing agent as required by Welfare and Institutions

Code section 15657 and Civil Code section 3294, subdivision (b).

The SAC alleges that the Kindred Defendants’ officers, directors, and managing agents knew of

Gutierrez’s significant weight loss, low oxygen saturation, missed vital sign monitoring, and

delayed medication reconciliation, yet failed to take timely corrective action. (SAC ¶ 52.) It further

alleges that KHO controlled KH Ontario’s budget and participated in decisions concerning

staffing and operations. (SAC ¶ 9.) Defendants contend these allegations are conclusory

because Plaintiffs do not identify a particular officer, director, or managing agent or allege when

and how such person acquired the asserted knowledge.

Defendants also correctly observe that the allegation that, after Gutierrez’s death, “no further

actions could be taken” for him because he had expired does not itself show that the Kindred

Defendants approved or adopted the preceding conduct. (SAC ¶ 52.)

Nevertheless, this does not provide a basis to sustain the demurrer to the entire first cause of

action. Welfare and Institutions Code section 15657, subdivision (c), requires satisfaction of the

standards in Civil Code section 3294, subdivision (b), before the damages or attorney’s fees

authorized by section 15657 may be imposed against an employer. Thus, even assuming the

SAC’s allegations of corporate authorization or ratification are not sufficiently particularized to

support those enhanced remedies, that deficiency does not negate the otherwise sufficiently

alleged statutory neglect and recklessness discussed above.

Moreover, a demurrer generally does not lie to only a portion of a cause of action. (See Kong v.

City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047

[discussing that Court cannot sustain demurrer to part of a cause of action].) Accordingly,

Defendants’ challenge to the corporate authorization and ratification allegations does not warrant

sustaining the demurrer to the first cause of action.

RULING

For the reasons stated above, the Court:

OVERRULES Defendants THC – Orange County, LLC dba Kindred Hospital Ontario and

Kindred Healthcare Operating, LLC’s demurrer to the first cause of action for dependent adult

abuse and neglect.