Thompson v. United States ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 VICTORIA THOMPSON No. 2:22-cv-01459-JAM-JDP INDIVIDUALLY AND ON BEHALF OF 12 DECEDENT RUSSELL GENE THOMPSON, 13 ORDER DENYING DEFENDANT UNITED Plaintiff, STATES OF AMERICA’S MOTION TO 14 DISMISS PLAINTIFF’S ELDER ABUSE v. ACT CLAIMS IN SECOND AMENDED 15 COMPLAINT UNITED STATES OF AMERICA, 16 Defendant. 17 18 This matter is before the Court on Defendant United States 19 of America’s (“Defendant”) motion to dismiss Plaintiff Victoria 20 Thompson’s (“Plaintiff”) claims for elder abuse in the second 21 amended complaint under Rule 12(b)(6) of the Federal Rules of 22 Civil Procedure. Def.’s Mot. to Dismiss Pl.’s Second Am. Compl. 23 (“SAC”), ECF No. 34. Plaintiff opposed, Opp’n, ECF No. 38, and 24 Defendant replied, Reply, ECF No. 39. 25 For the reasons set forth below, the Court DENIES Defendant’s 26 motion.1 27 1This motion is determined to be suitable for decision without 28 oral argument. E.D. Cal. L.R. 230(g). 1 I. INTRODUCTION 2 The parties are intimately familiar with the allegations and 3 procedural background of this case and they will not be repeated 4 here. Defendant’s latest motion to dismiss is brought on grounds 5 nearly identical to its previous motions to dismiss Plaintiff’s 6 elder abuse claims. See Def.’s Motions to Dismiss, ECF Nos. 13, 7 25. The only noteworthy difference between Plaintiff’s earlier 8 complaints and the SAC is that Plaintiff has added allegations 9 referencing recklessness, oppression, malice, and fraud. See, 10 e.g., SAC ¶ 141. 11 II. OPINION 12 A. Legal Standard 13 Dismissal is appropriate under Rule 12(b)(6) of the Federal 14 Rules of Civil Procedure when a plaintiff’s allegations fail “to 15 state a claim upon which relief can be granted.” Fed. R. Civ. 16 P. 12(b)(6). “To survive a motion to dismiss [under 12(b)(6)], 17 a complaint must contain sufficient factual matter, accepted as 18 true, to state a claim for relief that is plausible on its 19 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal 20 quotation marks and citation omitted). While “detailed factual 21 allegations” are unnecessary, the complaint must allege more 22 than “[t]hreadbare recitals of the elements of a cause of 23 action, supported by mere conclusory statements.” Id. In 24 considering a motion to dismiss for failure to state a claim, 25 the court generally accepts as true the allegations in the 26 complaint, construes the pleading in the light most favorable to 27 the party opposing the motion, and resolves all doubts in the 28 pleader’s favor. Lazy Y Ranch LTD. v. Behrens, 546 F.3d 580, 1 588 (9th Cir. 2008). “In sum, for a complaint to survive a 2 motion to dismiss, the non-conclusory ‘factual content,’ and 3 reasonable inferences from that content, must be plausibly 4 suggestive of a claim entitling the plaintiff to relief.” Moss 5 v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 6 B. Analysis 7 Defendant contends Plaintiff’s allegations under 8 California’s Elder Abuse and Dependent Adult Civil Protection 9 Act (the “Act”), Cal. Welf. & Inst. Code § 15600, et seq., fail 10 to state a claim upon which relief can be granted because 11 Plaintiff has not alleged neglect, as that term is defined under 12 the Act, and has not adequately pleaded recklessness, 13 oppression, fraud, or malice. Def.’s Mem. of Points and 14 Authorities (“Mot.”), ECF No. 34-1 at 3. 15 The Court agrees with Defendant that the allegations 16 concerning recklessness, oppression, fraud, and malice, e.g., 17 SAC ¶ 147, are legal conclusions and formulaic recitals. They 18 are therefore insufficient. Iqbal, 556 U.S. at 678. 19 However, this failure to properly plead reckless, 20 oppressive, fraudulent, or malicious conduct does not preclude 21 the entire cause of action but only Plaintiff’s ability to 22 recover the enhanced remedies provided by section 15657 of the 23 Act. Cal. Welf. & Inst. Code, § 15657 (permitting the recovery 24 of enhanced remedies “in addition to all other remedies provided 25 by law” when the plaintiff shows by clear and convincing evidence 26 that the defendant is (1) liable for neglect and (2) guilty of 27 reckless, oppressive, fraudulent, or malicious conduct); see 28 Covenant Care, Inc. v. Superior Ct., 32 Cal. 4th 771, 789 (2004) 1 (holding allegations of recklessness, oppression, fraud, or 2 malice necessary “to obtain the Act’s heightened remedies”); see 3 also Judicial Council of California Civil Jury Instructions 3103, 4 3104, Elder Abuse Act Table A; Davis v. RiverSource Life Ins. 5 Co., 240 F. Supp. 3d 1011, 1020 (N.D. Cal. 2017) (applying 6 California law). 7 To maintain a cause of action for elder abuse, however, 8 Plaintiff must still plead “neglect” as that term is defined 9 under the Act. Defendant argues Plaintiff’s allegations concern 10 only the substandard performance of medical care, not a failure 11 to provide care, and therefore these claims cannot be 12 maintained. Mot. at 3. The Court disagrees. 13 “Neglect” is defined as “the negligent failure of any 14 person having the care or custody of an elder or a dependent 15 adult to exercise that degree of care that a reasonable person 16 in a like position would exercise.” Cal. Welf. & Inst. Code 17 § 15610.57(a). 18 Neglect, includes but is not limited to all of the following: 19 (1) Failure to assist in personal hygiene, or in the 20 provision of food, clothing, or shelter. (2) Failure to provide medical care for physical and 21 mental health needs. A person shall not be deemed neglected or abused for the sole reason that the 22 person voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical 23 treatment. (3) Failure to protect from health and safety hazards. 24 (4) Failure to prevent malnutrition or dehydration. (5) Substantial inability or failure of an elder or 25 dependent adult to manage their own finances. (6) Failure of an elder or dependent adult to satisfy 26 any of the needs specified in paragraphs (1) to (5), inclusive, for themselves as a result of poor 27 cognitive functioning, mental limitation, substance abuse, or chronic poor health. 28 em mE II III IIE IIIS IE NE EIN IE IEE OS ESE I EOE EE 1 Welf. & Inst. § 15610.57(b); Covenant Care, Inc., 32 Cal. 4th at 2 783. 3 Contrary to Defendant’s argument, the Court finds Plaintiff 4] has sufficiently alleged “neglect.” While the SAC also includes 5 some allegations of substandard performance of medical care, 6 there are other factual allegations, taken as true, that amount 7 to a failure by Defendant to provide medical care. For example, 8 Plaintiff has alleged Defendant failed to provide decedent 9 Russell Gene Thompson with range-of-motion exercises which 10 caused medical complications including additional open-wound 11 bedsores. SAC 153. Because there are factual allegations 12 supporting Plaintiff’s elder abuse claims and plausibly 13 suggesting an entitlement to relief, the Court DENIES 14 Defendant’s motion to dismiss these Elder Abuse Act claims in 15 their entirety. 16 Til. ORDER 17 For the reasons set forth above, the Court DENIES 18 Defendant’s motion to dismiss Plaintiff’s causes of action for 19 elder abuse in the SAC. Plaintiff is precluded, however, from 20 recovering the enhanced remedies provided by section 15657 of the 21 | Elder Abuse Act in this case. 22 IT IS SO ORDERED. 23 Dated: November 3, 2023 24 cp, JOHN A. MENDEZ 26 SENIOR UNITED*STATES DISTRICT JUDGE 27 28