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Dennis Haney v. Eskaton Properties

March 28, 2011

DENNIS HANEY, PLAINTIFF AND APPELLANT,
v.
ESKATON PROPERTIES, INC., DEFENDANT AND RESPONDENT.



Super. Ct. No. 34200800005159CUPOGDS

The opinion of the court was delivered by: Hull ,j.

Haney v. Eskaton Properties CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Following the death of his mother, Doris Hilton, plaintiff brought this action against defendant Eskaton Properties, Inc., the operator of a long term care facility where Hilton lived the last three months of her life, asserting elder abuse, wrongful death, and survivor claims. The trial court sustained defendant's demurrer to the elder abuse and survivor claims without leave to amend and granted defendant's motion for summary judgment on the wrongful death claim. Plaintiff appeals the ensuing judgment for defendant. We conclude the trial court properly granted summary judgment on the wrongful death claim but erred in sustaining the demurrer to the elder abuse and survivor claims. We therefore reverse the judgment.

Facts and Proceedings

Because this matter involves both an order sustaining demurrers and an order granting summary judgment, we accept as true all material allegations of the complaint (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 8, fn. 3; Shoemaker v. Myers (1990) 52 Cal.3d 1, 7) and view the evidence presented on the summary judgment motion in the light most favorable to plaintiff (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107).

Defendant is in the business of providing long term care as a 24-hour health care facility. Plaintiff is the sole surviving heir and successor of Doris Hilton.

On or about August 11, 2006, Hilton was admitted to defendant's facility in Fair Oaks, California. She was 78 years old. Hilton remained at the facility until November 26, 2006, when she was transferred to a Kaiser hospital, where she died on November 28.

Plaintiff brought this action against defendant on March 5, 2008. The first cause of action for elder abuse alleged defendant breached its duty to provide Hilton with care, comfort and safety by, among other things, failing to follow, implement and adhere to physician orders, failing to monitor Hilton's condition, and failing to maintain accurate records on her condition. Defendant demurred to the first cause of action, and the trial court sustained the demurrer with leave to amend.

Plaintiff filed a first amended complaint, and defendant again demurred to the first cause of action for elder abuse. The trial court sustained the demurrer with leave to amend.

Plaintiff filed a second amended complaint containing three causes of action. In the first elder abuse claim, plaintiff again alleged breach of duty to provide care, comfort and safety, but this time with more specificity. In the second cause of action, plaintiff alleged wrongful death as a result of defendant's actions. The third cause of action alleged a survivor claim on behalf of Hilton.

Defendant demurred to the first and third causes of action, and the trial court sustained the demurrers, this time without leave to amend. Defendant then moved for summary judgment on the sole remaining claim for wrongful death. The trial court granted the motion, both on the basis of the statute of limitations and on undisputed evidence that defendant acted within the applicable standard of care. The court thereafter entered judgment for defendant.

Further facts shall be provided in connection with plaintiff's contentions on appeal.

Discussion

I Elder Abuse and Survivor Claims

The first cause of action of the second amended complaint is untitled. However, it purports to state a claim under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) (Elder Abuse Act or Act). (Further undesignated section references are to the Welfare and Institutions Code.) The third cause of action, titled "SURVIVAL ACTION," repeats all prior allegations and further alleges plaintiff is the successor in interest of Doris Hilton. Hence, this claim has no viability independent of the first two and stands or falls on the strength of those claims.

The Elder Abuse Act is intended "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 (Delaney).) The original focus of the Act was on reporting abuse and neglect. (Ibid.) However, later amendments shifted the focus to private, civil enforcement. (Ibid.)

Under the Elder Abuse Act, "heightened remedies are available to plaintiffs who successfully sue for dependent adult abuse. Where it is proven by clear and convincing evidence that a defendant is liable for neglect or physical abuse, and the plaintiff proves that the defendant acted with recklessness, oppression, fraud, or malice, a court shall award attorney fees and costs. Additionally, a decedent's survivors can recover ...


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