Oroville Hospital v. Superior Court

Filed 1/26/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
OROVILLE HOSPITAL, C090570
Petitioner, (Super. Ct. No. 16CV03116)
v.
THE SUPERIOR COURT OF BUTTE COUNTY,
Respondent;
LYNDA AMBROSE et al.,
Real Parties in Interest.
APPEAL from a judgment of the Superior Court of Butte County, Robert A.
Glusman, Judge. Reversed.
Schuering Zimmerman & Doyle, Robert H. Zimmerman and Alaina T. Dickens;
Horovitz & Levy, Jeremy B. Rosen, and Mark A. Kressel for Petitioner.
No appearance for Respondent.
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Law Offices of Joseph M. Earley III, Joseph M. Earley III, James Schacht, and
Cameron M. Easterling for Real Parties in Interest.
Prior to her death, Eyvon Ambrose (decedent) had become entirely dependent
upon others for her basic care needs. She depended on her granddaughter, Rebecca
Foster, for basic needs such as dressing, eating, taking medications, using the restroom,
attending physician appointments, and diabetes management. Oroville Hospital d/b/a
Golden Valley Home Health and Oroville Hospital, the petitioner here and defendants in
the underlying actions (defendants), agreed to provide decedent in-home nursing services
for wound care for a pressure injury to her left ischium or buttock. Defendants provided
such in-home wound care on six occasions in July 2015 and four additional occasions in
October 2015. According to real parties in interest, who are plaintiffs in the underlying
actions (plaintiffs), decedent’s wound worsened, she sustained additional wounds, she
was hospitalized, and she ultimately died from her wound and complications.
Plaintiffs commenced the underlying actions against defendants alleging a number
of causes of action. Defendant’s writ petition and arguments relate solely to plaintiff’s
cause of action to recover under the Elder Abuse and Dependent Adult Civil Protection
Act (Welf. & Inst. Code, § 15600 et seq. [statutory section citations that follow are to the
Welfare and Institutions Code unless otherwise stated]) (the Elder Abuse Act) for
defendants’ alleged neglect which, they asserted, was committed with recklessness,
oppression, fraud, or malice. Therefore, plaintiffs asserted entitlement to enhanced
remedies under the Elder Abuse Act. They seek no other relief in their petition.
Defendants moved for summary judgment or, in the alternative, summary
adjudication. They asserted they did not have a substantial caretaking or custodial
relationship with the decedent, a prerequisite for recovery for neglect under the Elder
Abuse Act as discussed in Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148(Winn). They further asserted that a reasonable jury could not find them guilty of forms
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of abuse or neglect rising to the level of recklessness. The trial court denied defendants’
motion.
Defendants seek a preemptory writ of mandate directing the trial court to vacate its
denial of their motion for summary adjudication and to grant the motion. They reprise
both contentions described ante, and maintain that, if we agree with them on the
threshold issue as to the substantial caretaking or custodial relationship, we need not
reach the issue of recklessness.
We conclude that, in opposition to defendants’ prima facie showing of entitlement
to summary adjudication on plaintiffs’ Elder Abuse Cause of action based on the absence
of a substantial caretaking or custodial relationship, plaintiffs failed to raise a triable issue
of material fact. We will issue the requested writ.
FACTS AND HISTORY OF THE PROCEEDINGS
The Underlying Actions and Plaintiffs’ Allegations
In case No. 16CV03116, plaintiffs, decedent’s children and grandchildren,
commenced an action in Butte County Superior Court against defendants, asserting a
cause of action to recover for the wrongful death of decedent.
In case No. 17CV02568, decedent through her successor in interest, commenced a
second action in the Superior Court, Butte County. Plaintiff in that action pleaded causes
of action to recover for elder abuse and willful misconduct. The trial court consolidated
the two actions under case No. 16CV03116.
Plaintiffs in 17CV02568 alleged that, on July 9, 2015, decedent was referred by
her medical provider for in-home nursing care for a pressure injury to her left ischium or
buttock. Defendants evaluated decedent and began providing in-home nursing services
on July 11. Decedent’s dressings were to be changed every three to four days and as
needed to cover with Hydrocolloid film dressing to assist with autolytic debridement.
According to plaintiffs, based on decedent’s condition, which included eschar, or a
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blackish, scab-like covering, on her left buttock, Hydrocolloid dressings were not
appropriate. Plaintiffs asserted that, in violation of the applicable standard of care,
defendants failed to recommend decedent be transferred to Oroville Hospital for
evaluation and wound debridement.
On July 13, 2015, defendants evaluated and provided wound care to decedent.
Defendants determined decedent “was ‘likely to remain in fragile health and have
ongoing high risks of serious complications and death . . .’ ” According to plaintiffs, on
three subsequent occasions, on July 15, 17, and 20, 2015, defendants evaluated and
provided wound care to decedent. The wound, according to plaintiffs, was malodorous,
increasing in size, and worsening. However, defendants falsely documented the wound
status as unchanged. Defendants continued to fail to recommend decedent be transferred
to Oroville Hospital for evaluation and wound debridement. On July 27, 2015,
defendants documented the wound appeared to be “ ‘infected with large area of
induration filled with purulent drainage,’ malodorous.” Someone called 911, and
decedent was transferred to the Emergency Department at Oroville Hospital. At this
time, decedent had “a very large pressure injury with pustular drainage, requiring IV
antibiotic and surgical debridement.” Decedent had developed sepsis. On July 29, 2015,
decedent underwent an operation on her wound, and, on August 7, 2015, further surgical
debridement was performed. Decedent was discharged to Oroville Hospital Post Acute
Care in August 2015. By October 7, 2015, her wound had healed considerably, and she
was discharged home on October 14, 2015, with a new order for home health wound
care. Two days later, defendants resumed home health services for the same wound.
According to plaintiffs, by this time, defendants were “thoroughly aware from
their previous home health services a few months earlier that [decedent], who was in poor
health and lived alone, was not safe in her environment. [Defendants] . . . had
affirmatively determined that 1) the caregiving assistance available to [decedent] ‘did not
meet her needs’; 2) [decedent] was incontinent, and, because she did not have appropriate
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care available to her, she ‘sits in diaper all day’; 3) she needed ‘a higher level of care’
than she could receive in the home; 4) the caregiver [(here, presumably, Foster)] was
‘having great difficulty caring’ for [decedent’s] wound; 5) the caregiver is ‘having great
difficulty transferring’ [decedent]; and 6) there were clear ‘deficits’ with the management
of” decedent’s illness.
On October 16, 2015, defendants assessed decedent, whose ischium wound had
worsened after her discharge two days prior. She also had a large wound to her coccyx
“measuring 7x8 with an undetermined depth but believed to be very serious.”
Defendants did not transfer decedent to Oroville Hospital for evaluation. On October 19,
2015, defendants again provided wound care to decedent. Her newly discovered coccyx
wound “was breaking open” and her ischium wound had deepened. According to
plaintiffs, both wounds were worse than they were during the previous visit. However,
defendants reported the coccyx wound was unchanged. Plaintiffs alleged decedent’s
daughter “questioned [defendants] multiple times whether [decedent] should be treated at
the hospital. [Defendants] noted that [decedent’s] daughter was ‘overwhelmed by
severity of wound and keeps asking if patient should go back to hospital. Of concern
volume of wound drainage and patient’s severe protein calorie malnutrition.’ ” (Bold
omitted.) Defendants again did not transfer decedent to Oroville Hospital. On October
20, 2015, according to plaintiffs, defendants noted (1) decedent was not a good candidate
for wound healing at home; (2) her nutritional status was poor and she likely would not
qualify for wound VAC at home; (3) the newer coccyx wound was developing into a
stage four ulcer requiring debridement; and (4) Foster felt unsafe transferring decedent
because the process “required a two person assist to transfer, which was not available.”
Defendants again did not transfer decedent for evaluation of her coccyx wound.
It was further alleged that on October 21, 2015, defendants again provided wound
care. Decedent’s wounds were worsening and were malodorous with eschar. Defendants
continued to report the coccyx wound was unchanged in size. Since decedent had
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returned home, she had developed two additional pressure injuries, and, according to
plaintiffs, all wounds had worsened. Decedent’s wound with eschar required
debridement, but defendants did not transfer her to Oroville Hospital. On October 23,
2015, defendants again provided wound care. Defendants failed to measure any of
decedent’s four wounds. Defendants evaluated Foster’s ability to care for decedent
safely at home and, according to plaintiffs, failed to report that her needs were not being
met. Decedent’s wound care orders largely remained unchanged. On October 24, 2015,
decedent’s family called 911 and decedent was taken to Oroville Hospital. Decedent was
suffering from sepsis.
Decedent’s coccyx wound was substantially larger, and her prognosis was very
poor due to deterioration of her wounds and malnutrition. She underwent surgery two
days later. The original wound had worsened considerably and was much larger.
Decedent required additional surgical intervention on November 5, 2015. She was
subsequently discharged to Post Acute Care, but she never regained her health. She
became septic and ultimately died on February 26, 2016, at Oroville Hospital following a
final admission for toxic metabolic encephalopathy from pneumonia and wounds.
In the only cause of action relevant here, to recover under the Elder Abuse Act,
plaintiffs asserted decedent had been in the care and custody of defendants. According to
plaintiffs, decedent “required hospitalization due to [defendants’] conscious and
deliberate disregard for [her] health, safety and well being, resulting in her coccyx
wound, deteriorating from a manageable stage to a cavernous 20 cm x 30 cm,
insurmountable gangrenous wound. [Her] wound was so extensive by the time she was
admitted to the hospital that she required a diverting colostomy and suffered sepsis, loss
of bone, bits of muscle and subcutaneous tissue. . . . Defendant[s’] . . . gross neglect, and
despicable conduct was a substantial factor in causing [decedent] harm.” Plaintiffs
asserted defendants’ care, and lack thereof, was committed with recklessness, oppression,
fraud, or malice. Therefore, plaintiffs asserted entitlement to enhanced remedies under
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section 15657, including damages for decedent’s pre-death pain and suffering and
reasonable attorney fees and costs.
Defendants’ Motion for Summary Judgment or Summary Adjudication
Defendants moved for summary judgment or, in the alternative, summary
adjudication pursuant to Code of Civil Procedure section 437c. As to the Elder Abuse
Act cause of action, relying on our high court’s decision in Winn, supra, 63 Cal.4th 148,
defendants argued they did not have a substantial caretaking or custodial relationship
with decedent. According to defendants, they only provided in-home wound care on six
occasions in July 2015 and four occasions in October 2015. For all other aspects of her
care, decedent relied on Foster. According to defendants, the scope of their care for
decedent did not amount to a “robust” and “substantial” caretaking relationship of the
type contemplated by the Elder Abuse Act as explained in Winn. Further, defendants
asserted that, even assuming their alleged “omissions” could be proven, they would
amount only to professional negligence, not reckless neglect within the meaning of the
Elder Abuse Act.
Defendants submitted an expert declaration of Steven Fugaro, M.D. Fugaro
stated, in part: “Defendant[] w[as] not responsible for assisting decedent with personal
hygiene or with the provision of food, clothing, or shelter. Based on my review of the
records, decedent was not reliant on defendant[] for her basic needs such as bathing and
hydration. [Defendant] merely provided in home nursing wound care on six occasions
from July 11, 2015 through July 27, 2015 and four occasions from October 16, 2015
through October 24, 2015.” Fugaro also opined that defendants’ care of decedent
complied with the applicable standard of care.
Defendants also submitted portions of Foster’s deposition testimony. Foster
testified she was decedent’s caretaker at the relevant times. Decedent needed help getting
dressed, getting food, getting medicine, and getting to and using the bathroom. Foster got
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adult diapers for decedent and Foster changed decedent’s diapers three times a day.
Foster also took decedent to dialysis appointments and to doctor appointments. Foster
administered decedent’s insulin injections and monitored her blood sugar. Foster would
get decedent up in the morning, get her out of bed, and get her into her wheelchair. She
also helped her get around the house. Asked what she understood the home health care
nurse’s role to be, Foster testified she “thought they were going to come and do the job
and take care of the wound, but they taught me once and expected me to do all the job.”
Additionally, defendants submitted decedent’s healthcare records from both her
home health care and Oroville Hospital.
Defendants submitted additional deposition testimony largely relevant to specifics
about their care of decedent. One witness testified decedent’s daughter was concerned
about the severity of decedent’s wound and wondered if she should go back to the
hospital, and another testified Foster agreed decedent should go to the hospital. Several
of these witnesses testified it had been recommended decedent go to the emergency
room, but that decedent refused. In contrast, plaintiffs submitted a declaration which,
among other things, stated there was no documentation that defendants’ nurses
recommended decedent go to the hospital. Foster and decedent’s daughter testified
decedent did not refuse to go to the hospital. Even if this conflict could give rise to a
triable issue of material fact as to defendants’ alleged recklessness, it is not strictly
relevant to our threshold determination whether defendants had a caretaking or custodial
relationship with decedent. Accordingly, we do not detail this testimony further. For the
same reason, we do not detail the parties’ experts’ opinions as to whether decedent was of
sound mind so as to be competent to refuse a higher level of care. While mental acuity
and competency may be relevant in determining the existence of a caretaking or custodial
relationship (see Stewart v. Superior Court (2017) 16 Cal.App.5th 87, 102 (Stewart)),
under the circumstances of this case, it is not necessary to our determination.
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Plaintiffs’ Opposition to Defendants’ Motion
In opposition to defendants’ motion for summary judgment, plaintiffs asserted
there was a sufficiently robust caretaking relationship between defendants and decedent
to establish a triable issue of fact as to whether defendants had care or custody of
decedent. Plaintiffs asserted defendants assumed a significant measure of responsibility
for attending to decedent’s wound care “involving more than casual or limited
interactions.” According to plaintiffs, the “nature of the caretaking relationship thus fits
easily within the type of caretaking or custodial relationship contemplated by Winn.”
Plaintiffs asserted whether defendants had care or custody of decedent should be
determined by the trier of fact. Additionally, plaintiffs asserted defendants’ admission
contract with decedent provided that defendants were to provide her with “ ‘whatever
home health treatment, procedure, and/or services that are deemed necessary by the
attending physician in consultation with the staff of Golden Valley Home Health.’ ”
Plaintiffs asserted that defendants knew in October 2015 decedent’s condition was
deteriorating rapidly and that her family was unable to provide adequate care for her, yet
defendants neither increased the care provided nor transferred decedent to a higher level
of care. According to plaintiffs, this clearly implicates neglect within the meaning of the
Elder Abuse Act.
Plaintiffs further asserted triable issues of fact existed as to whether defendants’
conduct was reckless within the meaning of the Elder Abuse Act. According to plaintiffs,
defendants “had knowledge of conditions likely to cause injury to [decedent], yet made
repeated conscious decisions to do nothing substantial to prevent further injury caused by
[her] worsening pressure injuries.”
Plaintiffs submitted what they refer to as defendants’ “admission contract” with
decedent, which is actually entitled “Conditions of Admission.” (Capitalization omitted.)
It provided, in part, that decedent “consent for treatment and release of information – I
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hereby consent to receive whatever home health treatment, procedure, and/or services
that are deemed necessary by the attending physician in consultation with the staff of
Golden Valley Home Health.” (Capitalization omitted.)
Plaintiffs also submitted a declaration by Linda Sullivan, R.N. Sullivan opined
defendants’ care and treatment of decedent fell below the applicable standard of care in
both July and October 2015. Specifically, defendants (1) accepted decedent as a patient
despite the fact that she was not an appropriate candidate for home health care; (2) failed
to provide proper wound care; (3) failed to provide proper physician oversight; (4) failed
to transfer decedent to a higher level of care when required; and (5) retained decedent as
a patient despite the fact that defendants could not provide adequate home health care.
Sullivan also asserted defendants attempted to delegate skilled wound care to Foster, and
later to decedent’s daughter, and that it was unconscionable for defendants “to attempt to
shift so much responsibility for [decedent’s] wound care to family members . . . .”
Concerning whether defendants had care or custody of decedent, Sullivan stated
defendants were not responsible for all aspects of decedent’s care, but did assume a
significant measure of responsibility for attending to decedent’s “wound care needs.”
Plaintiffs, too, submitted portions of Foster’s deposition testimony. Plaintiffs
emphasized the passage in which Foster testified she understood the home health care
provider’s role to be “to come and do the job and take care of the wound, but they taught
me once and expected me to do all the job.” In portions of the deposition furnished by
plaintiffs, Foster was asked about telling the home health care nurses she was
uncomfortable providing wound care. She testified: “The second that the nurse came to
take -- see the wound, I told them that I thought it was too much. I thought it was too
much. I was overwhelmed. She just got home, and she’s got another wound already.
That -- I told them -- I didn’t think she needed to be home already. If she came back like
that, I did not think she needed to be at the house.” Foster told the home health care staff
that decedent needed to go back to the hospital. She brought it up perhaps “every time
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they came because it was overwhelming to me.” She testified that she was clear that she
felt very uncomfortable providing the type of wound care they expected her to provide,
and further testified: “they should have been able to see that with me as they’re trying to
teach me to do the wound care. As I’m shaking like crazy trying to do the job that
they’re trying to teach me to do, they should have noticed that I was stressed, way
stressed.”
Defendants’ Reply
In reply, defendants asserted plaintiffs failed to raise a triable issue of fact as to
whether there was a sufficiently robust caretaking relationship, and, therefore, summary
adjudication must be granted as to the Elder Abuse Act cause of action. Defendants
emphasized they provided in-home care to decedent six times in July 2015, and did not
see her again until they provided her with in-home care on four additional instances in
October 2015. Defendants’ nurses “were not responsible for bathing, feeding, changing,
or transporting decedent,” but rather decedent was dependent on Foster “for all other
aspects of daily living.” According to defendants, their “limited interactions do not
qualify as substantial, significant, or robust.” Defendants further asserted plaintiffs failed
to demonstrate defendants’ conduct was reckless. According to defendants, plaintiffs’
opposition “frames a picture of alleged substandard care, not a reckless withholding of
care by defendants.”
Oral Argument Before the Trial Court
At oral argument before the trial court, defendants continued to rely on Winn and
asserted “there is a bright line distinction to be drawn between elder abuse and
professional negligence.” According to defendants, to support an Elder Abuse Act cause
of action, “there has to be a failure at withholding or a denial of care.” Defendants
asserted what they characterized as plaintiffs’ contention—that the in-home healthcare
nurses did not send decedent to a higher level of care when she needed it—was “almost
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on all fours with the Winn case, where a primary care provider saw a patient, probably
more often than the home healthcare providers saw the decedent, and failed to refer her
on to see a vascular surgeon.” Under these circumstances, defendants asserted, our high
court concluded the facts lent themselves to a finding of professional negligence, not
elder abuse, because there was not a substantial, robust, or significant caretaking
relationship, and there was no deprivation of care.
Plaintiffs responded the failure to transfer was indeed a deprivation of care, but
further asserted “there’s far more to it than that.” Plaintiffs asserted that the failure to
provide appropriate dressings for a wound with eschar constituted neglect. They
emphasized defendants’ attempt to delegate wound care to untrained and unqualified
family members. They further emphasized the failure to obtain physician oversight.
Finally, plaintiffs emphasized that, “most importantly,” defendants failed “to transfer in
October, 2015, when the daughter and granddaughter are saying, ‘Doesn’t she need to go
back to the hospital?’ ” Paraphrasing Winn, plaintiffs asserted of the caretaking or
custodial relationship: “ ‘It’s one where a party assumes a significant measure of
responsibility for attending to one or more of an elder’s needs.’ ” Plaintiffs asserted,
“obviously [defendants] [were] primarily responsible for the wound care . . . , and they
failed miserably in that regard.”
The court posed a question concerning the underlying contract. The court stated,
“It says, ‘I consent for treatment, release of information. I hereby --’ and then it says, ‘I
hereby consent to receive whatever home-health treatment procedural --’ and I don’t
know what that means, ‘and slash CP services that are deemed necessary by the attending
physician in consultation with the staff of . . . ’ ” defendants. The court continued: “It
would seem to me that if the attending physician at Golden Valley Home Health does not
provide any care -- and I know that’s not the fact here. Does not provide any care, that
that does provide grounds for a custodial relationship that has been thrown out. In other
words, if Golden Valley said we’re going to provide all your wound care, and they don’t
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provide any at all, doesn’t that raise to the level of the Elder Abuse Act?” It is clear the
trial court’s hypothetical question did not reflect any facts or allegations in this case.
Defendants responded: “I would say no, it doesn’t. And under a hypothetical
situation it doesn’t apply, because they’re looking at one limited scope of this
individual’s care and treatment. The evidence that was submitted, if we take that in
conjunction with your hypothetical here, being the decedent’s granddaughter, she testifies
she does everything; helps her bathroom, helps her get transportation, gets her out of bed,
puts her in bed, helps around the house, changes diapers, changes her clothing, gets her
fed, takes care of her diabetes, takes her to her nephrology and dialysis appointments. . . .
So that is who’s providing primary caretaking services. [¶] And I think what’s important
to keep in mind here is even considering this contractual obligation -- you mentioned the
shortcomings that the plaintiff is citing to here is medical care. They’re taking issue with
wound care, they’re taking issue with how they delegated wound care duties, they’re
taking issue with professional obligations. This was a professional relationship, this was
not a custodial relationship; one that you would see in a skilled nursing setting, for
example. The issue here is medical malpractice, the issue is not elder abuse.”
Plaintiffs replied that the relationship need not necessarily be custodial. “[I]t’s a
situation where a party assumes a significant measure of responsibility for attending to
one or more of the elder’s needs. So it’s irrelevant that the granddaughter is also
providing care.”
The court then asked whether defendants’ assumption of responsibility for wound
care would have any effect on, for example, diabetes care or changing diapers.
Defendants responded in the negative, and continued: “it puts into perspective the
robustness, the significance, the substantialness of this caretaking relationship, and it puts
into perspective the fact that it’s medical care being provided, not a deprivation of care.
There was no reckless withholding of care here. They take issue with how the care was
effectuated. That’s professional negligence.” Plaintiffs responded that decedent’s
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progression, developing wounds after her release, demonstrated “a definite failure to get
her back to the hospital or to a skilled nursing facility where she can get the higher level
of care.”
Trial Court’s Order
The trial court denied defendants’ motion for summary judgment or, in the
alternative, summary adjudication. The court only stated: “The Court finds that triable
issues of material fact exist as to whether Defendants had a substantial caretaking or
custodial relationship with Decedent, whether the care and treatment Defendants
provided to Decedent was within the applicable standard of care, and whether Defendants
were a substantial factor in causing Decedent’s death.”
Defendants’ Petition
Defendants filed a petition for a writ of mandate seeking relief from the trial
court’s denial of their motion for summary adjudication of the plaintiffs’ elder abuse
claim.
According to defendants, plaintiffs’ own evidence demonstrated defendants’
nurses did not assume responsibility for attending to decedent’s basic needs or put
themselves in a position where they could assert control over whom she sought out to
treat her wound. Defendants contend that “the very core of plaintiffs’ complaint is that
defendants should have taken this responsibility but did not.” In this regard, they assert
the “gravamen of plaintiffs’ complaint is that [defendants’] nurses failed to transfer
[decedent] to the hospital for in-patient care—in essence that defendants failed to take on
the type of caretaking or custodial relationship envisioned by Winn.” Defendants assert
plaintiffs failed to tender admissible evidence to show defendants’ nurses had a
“ ‘substantial,’ ‘significant,’ and ‘robust’ caretaking or custodial relationship, involving
ongoing responsibility for one or more basic needs, with the elder patient,” as required
under the Elder Abuse Act. According to defendants, because “plaintiffs’ elder abuse
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claim cannot proceed without their proving this threshold issue, summary judgment
should have been granted and writ relief is proper now.”
Defendants further assert plaintiffs failed to furnish admissible evidence that
defendants’ nurses engaged in acts constituting reckless neglect or withholding of care.
According to defendants, plaintiffs’ evidence establish they are only able to raise trial
issues of fact regarding professional negligence. Defendants assert plaintiffs failed to
raise triable issues of material fact that defendants actually withheld care with a
conscious disregard that a serious injury was highly likely.
Defendants maintain that, if plaintiffs’ elder abuse claim was allowed to proceed,
it would needlessly complicate the trial, expose them to punitive damages and uncapped
noneconomic damages, and provide plaintiffs with “unwarranted settlement leverage.”
Thus, defendants seek a writ directing the trial court to vacate its order denying
their summary adjudication motion and enter a new order granting the motion.
DISCUSSION
I
Summary Judgment, Summary Adjudication, and Standard of Review
“ ‘A trial court properly grants summary judgment where no triable issue of
material fact exists and the moving party is entitled to judgment as a matter of law.’
[Citations.] ‘[G]enerally, from commencement to conclusion, the party moving for
summary judgment bears the burden of persuasion that there is no triable issue of
material fact and that he is entitled to judgment as a matter of law.’ [Citation.] If a
defendant shows that one or more elements of a cause of action cannot be established or
that there is a complete defense to that cause of action, the burden shifts to the plaintiff to
show that a triable issue exists as to one or more material facts. [Citations.] If the trial
court finds that no triable issue of fact exists, it then has the duty to determine the issue of
law.” (Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 553; see Code
15
Civ. Proc., § 437c.) On appeal, we “ ‘review the trial court’s decision de novo, liberally
construing the evidence in support of the party opposing summary judgment and
resolving doubts concerning the evidence in favor of that party.’ ” (Ennabe v. Manosa
(2014) 58 Cal.4th 697, 705, quoting State of California v. Allstate Ins. Co. (2009)
45 Cal.4th 1008, 1017-1018.)
Summary adjudication works the same way as summary judgment, “except it acts
on specific causes of action or affirmative defenses, rather than on the entire complaint.”
(Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 464 (Hartline),
citing Code Civ. Proc., § 437c, subd. (f).) “A summary adjudication is properly granted
only if a motion therefor completely disposes of a cause of action, an affirmative defense,
a claim for damages, or an issue of duty.” (Hartline, at p. 464, citing Code Civ. Proc.,
§ 437c, subd. (f)(1).) “Motions for summary adjudication proceed in all procedural
respects as a motion for summary judgment.” (Hartline, at p. 464, citing Code Civ.
Proc., § 437c, subd. (f)(2).)
“ ‘An order denying a motion for summary adjudication may be reviewed by way
of a petition for writ of mandate. [Citation.] Where the trial court’s denial of a motion
for summary judgment will result in trial on nonactionable claims, a writ of mandate will
issue. [Citations.] Likewise, a writ of mandate may issue to prevent trial of
nonactionable claims after the erroneous denial of a motion for summary adjudication.
[¶] Since a motion for summary judgment or summary adjudication “involves pure
matters of law,” we review a ruling on the motion de novo to determine whether the
moving and opposing papers show a triable issue of material fact. [Citations.] Thus, the
appellate court need not defer to the trial court’s decision. “ ‘We are not bound by the
trial court’s stated reasons, if any, supporting its ruling; we review the ruling, not its
rationale.’ ” [Citations.]’ ” (CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255,
1259-1260, quoting Travelers Casualty & Surety Co. v. Superior Court (1998)
63 Cal.App.4th 1440, 1450.)
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II
The Elder Abuse Act
The Elder Abuse Act “affords certain protections to elders and dependent adults.”
(Winn, supra, 63 Cal.4th at p. 152.) “Section 15657 . . . provides heightened remedies to
a plaintiff who can prove ‘by clear and convincing evidence that a defendant is liable for
physical abuse as defined in Section 15610.63, or neglect as defined in Section
15610.57,’ and who can demonstrate that the defendant acted with ‘recklessness,
oppression, fraud, or malice in the commission of this abuse.’ ” (Winn, at p. 152.)
Section 15610.57 defines “neglect,” insofar as relevant here, as “[t]he 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.” (§ 15610.57,
subd. (a)(1), italics added; see Winn, at p. 152.)
III
Substantial Caretaking or Custodial Relationship
Defendants assert the trial court erred in denying their motion for summary
adjudication because, in opposition, plaintiffs failed to raise a triable issue of fact as to
whether defendants’ nurses had a substantial caretaking or custodial relationship with
decedent. Defendants’ nurses provided decedent with in-home wound care six times over
16 days in July 2015 and four additional occasions over eight days in October 2015.
According to defendants, it is undisputed that all their nurses did for decedent was to
provide wound care, as opposed to general nursing for her other health issues. Moreover,
defendants assert that their nurses taught Foster how to care for the wound. Defendants
assert their nurses were not responsible for bathing, feeding, changing, or transporting
decedent, and that decedent relied on Foster for those need of daily living.
In their return, plaintiffs emphasize “the undisputed evidence establishes that
[decedent] was completely dependent on others for all her basic care needs. Her
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granddaughter, Ms. Foster, visited three times a day to assist [decedent] with dressing,
eating, medications, ambulation, toileting/changing of diapers, physician appointments
and diabetes management.” Defendants, meanwhile, contracted to provide “substantial
wound care needs” for decedent because Foster had neither the time nor the training to
satisfy this need.
The parties agree Winn is controlling. They disagree on the application of that
case to these facts. Because we agree it is controlling, we discuss Winn at length.
In Winn, the decedent was treated by Dr. Csepanyi on an outpatient basis at the
defendant’s facilities. (Winn, supra, 63 Cal.4th at pp. 152-153.) She was subsequently
treated by another physician, Dr. Lowe, who treated her for “ ‘painful onychomycosis,’ a
condition that may limit mobility and impair peripheral circulation.” (Id. at p. 153.)
Lowe noted impaired vascular flow in the decedent’s lower legs and sent a copy of his
report to Csepanyi. (Ibid.) The decedent’s lower-extremity vascular symptoms worsened
and Csepanyi diagnosed her with peripheral vascular disease. (Ibid.) Later, Lowe
evaluated the decedent and found a reduced pulse in her extremities. He recommended a
follow-up visit, but did not refer her to a vascular specialist. (Ibid.) Lowe subsequently
treated the decedent for conditions consistent with tissue damage resulting from vascular
insufficiency, prescribed medication, and recommended another follow-up. (Ibid.)
However, again, Lowe did not refer the decedent to a specialist. (Ibid.) Dr. Csepanyi
subsequently examined the decedent again and found she still suffered from peripheral
vascular disease. (Ibid.) He saw her again a month later, but he did not perform a
vascular examination at that time. (Ibid.) After sustaining a laceration on her foot, the
decedent saw yet another physician, Dr. Lee, who prescribed antibiotics and instructed
her to return for follow-up treatment. (Ibid.) When she returned, the wound had not
healed. (Ibid.) The decedent subsequently saw Dr. Csepanyi on two occasions, during
the second of which he diagnosed her with conditions all of which indicated cellular
deterioration and tissue destruction from peripheral vascular ischemia. (Ibid.) The
18
decedent subsequently saw Lowe on four occasions. (Ibid.) He noted the decedent
suffered from a condition caused by vascular compromise, but he did not refer her to a
specialist. (Ibid.) During two of the visits, Lowe found he could not feel a pulse in the
decedent’s feet. (Ibid.) The decedent subsequently saw Csepanyi again, and he noted
she had suffered abnormal weight loss, but he did not refer her to a specialist. (Ibid.)
The day after her last visit with Csepanyi, the decedent was hospitalized “with symptoms
consistent with ischemia and gangrene. She suffered from sepsis, or blood poisoning,
which caused her foot to appear black, and doctors unsuccessfully attempted a
revascularization procedure.” (Id. at pp. 153-154.) Doctors amputated the decedent’s
right leg below the knee and later doctors performed an above-the-knee amputation. (Id.
at p. 154.) Ultimately, the decedent was hospitalized for blood poisoning and died
several days later. (Ibid.)
The plaintiffs in Winn asserted a cause of action against the defendants seeking to
recover under the Elder Abuse Act. (Winn, supra, 63 Cal.4th at p. 154.) The trial court
sustained the defendants’ demurrer without leave to amend and the plaintiffs appealed.
(Ibid.) A majority of the Court of Appeal reversed, concluding that the Elder Abuse Act
“does not require the existence of a custodial relationship in order for the plaintiff to
establish a cause of action for neglect.” (Ibid., fn. omitted.) The majority further
concluded “the ‘statutory language simply does not support defendants’ contention that
only “care custodians” are liable for elder abuse.’ ” (Id. at pp. 154-155.)
Our high court granted review in Winn “to consider whether a claim of neglect
under the Elder Abuse Act requires a caretaking or custodial relationship—where a
person has assumed significant responsibility for attending to one or more of those basic
needs of the elder or dependent adult that an able-bodied and fully competent adult would
ordinarily be capable of managing without assistance.” (Winn, supra, 63 Cal.4th at
p. 155.) The court determined that it does. (Ibid.) The Elder Abuse Act “does not apply
unless the defendant health care provider had a substantial caretaking or custodial
19
relationship, involving ongoing responsibility for one or more basic needs, with the elder
patient. It is the nature of the elder or dependent adult’s relationship with the
defendant—not the defendant’s professional standing—that makes the defendant
potentially liable for neglect.” (Id. at p. 152.)
In construing section 15610.57, defining neglect and setting forth a nonexhaustive
list of examples, our high court stated: “Neglect includes the ‘[f]ailure to assist in
personal hygiene, or in the provision of food, clothing, or shelter.’ [Citation.] It also
includes the ‘[f]ailure to protect from health and safety hazards’ [citation], and the
‘[f]ailure to prevent malnutrition or dehydration’ [citation]. These examples add some
context elucidating the statute’s meaning—context that supports inferences about the sort
of conduct the Legislature sought to address from individuals ‘having the care or
custody’ of an elder. What they each seem to contemplate is the existence of a robust
caretaking or custodial relationship—that is, a relationship where a certain party has
assumed a significant measure of responsibility for attending to one or more of an elder’s
basic needs that an able-bodied and fully competent adult would ordinarily be capable of
managing without assistance.” (Winn, supra, 63 Cal.4th at pp. 157-158.)
Particularly relevant here, our high court continued: “The remaining example of
neglect—the ‘[f]ailure to provide medical care for physical and mental health needs’
[citation]—fits the pattern. As with the other examples of neglect, the failure to provide
medical care assumes that the defendant is in a position to deprive an elder or a
dependent adult of medical care. Section 15610.57, subdivision (b)(2)’s use of the word
‘provide’ also suggests a care provider’s assumption of a substantial caretaking or
custodial role, as it speaks to a determination made by one with control over an elder
whether to initiate medical care at all. Read in tandem, section 15610.57, subdivisions
(a)(1) and (b)(2) support a straightforward conclusion: whether a determination that
medical care should be provided is made by a health care provider or not, it is the
defendant’s relationship with an elder or a dependent adult—not the defendant’s
20
professional standing or expertise—that makes the defendant potentially liable for
neglect.” (Winn, supra, 63 Cal.4th at p. 158, first italics added.)
Our high court concluded that, “[u]ltimately, the focus of the statutory language is
on the nature and substance of the relationship between an individual and an elder or a
dependent adult. This focus supports the conclusion that the distinctive relationship
contemplated by the [Elder Abuse] Act entails more than casual or limited interactions.”
(Winn, supra, 63 Cal.4th at p. 158.)
Distinguishing between the Elder Abuse Act and professional negligence, our high
court stated: “What seems beyond doubt is that the Legislature enacted a scheme
distinguishing between—and decidedly not lumping together—claims of professional
negligence and neglect. [Citations.] The [Elder Abuse] Act seems premised on the idea
that certain situations place elders and dependent adults at heightened risk of harm, and
heightened remedies relative to conventional tort remedies are appropriate as a
consequence. [Citation.] Blurring the distinction between neglect under the [Elder
Abuse] Act and conduct actionable under ordinary tort remedies—even in the absence of
a care or custody relationship—risks undermining the [Elder Abuse] Act’s central
premise.” (Winn, supra, 63 Cal.4th at pp. 159-160, italics added.)
Our high court continued, stating that the “qualification on the types of conduct
that trigger heightened remedies supports the conclusion that the Legislature explicitly
targeted heightened remedies to protect particularly vulnerable and reliant elders and
dependent adults. Indeed, the limited availability of heightened remedies is indicative of
a determination that individuals responsible for attending to the basic needs of elders and
dependent adults that are unable to care for themselves should be subject to greater
liability where those caretakers or custodians act with recklessness, oppression, fraud, or
malice. [Citation.] The statutory scheme further persuades us that the concept of
neglect—though broad enough to encompass settings beyond residential care facilities—
is not intended to apply to any conceivable negligent conduct that might adversely impact
21
an elder or dependent adult. Instead, neglect requires a caretaking or custodial
relationship that arises where an elder or dependent adult depends on another for the
provision of some or all of his or her fundamental needs.” (Winn, supra, 63 Cal.4th at
p. 160, italics added.)
Our high court concluded in Winn: “Beyond the assertion that defendants treated
[the decedent] at outpatient ‘clinics’ operated by defendants, plaintiffs offer no other
explanation for why defendants’ intermittent, outpatient medical treatment forged a
caretaking or custodial relationship between [the decedent] and defendants. No
allegations in the complaint support an inference that [the decedent] relied on defendants
in any way distinct from an able-bodied and fully competent adult’s reliance on the
advice and care of his or her medical providers. Accordingly, we hold that defendants
lacked the needed caretaking or custodial relationship with the decedent.” (Winn, supra,
63 Cal.4th at p. 165, italics added.) Our high court further concluded: “plaintiffs rely
solely on defendants’ allegedly substandard provision of medical treatment, on an
outpatient basis, to an elder. But without more, such an allegation does not support the
conclusion that neglect occurred under the Elder Abuse Act. To elide the distinction
between neglect under the Act and objectionable conduct triggering conventional tort
remedies—even in the absence of a care or custody relationship—risks undermining the
Act’s central premise.” (Ibid.)
The factual circumstances in Winn are somewhat different than those presented
here. Winn involved the outpatient treatment of the decedent by physicians and those
physicians’ failure to refer her to a vascular specialist. Here, plaintiffs’ contentions relate
to defendants, who were providing decedent with in-home nursing care to tend to her
wound, their alleged deliberate disregard for decedent’s deteriorating condition, and their
failure to provide her with greater care and/or to transfer her to Oroville Hospital for
greater levels of care.
22
Defendants agreed to provide in-home nursing services for decedent. They were
to provide such services “3-4 days and prn,” or as needed. Decedent consented “to
receive whatever home health treatment, procedure, and/or services that are deemed
necessary by the attending physician in consultation with the staff of Golden Valley
Home Health.”
Defendants provided decedent with in-home wound care on six occasions in July
2015 and four additional occasions in October 2015. We agree with plaintiffs that the
mere number of occasions on which a defendant furnishes medical care is not dispositive
to the question whether a substantial caretaking or custodial relationship required under
the Elder Abuse Act has arisen.
A distinction between this case and Winn is where the services at issue were
provided. In Winn, the decedent saw defendants’ physicians on an outpatient basis.
(Winn, supra, 63 Cal.4th at p. 152.) Here, defendants’ nurses provided decedent with in-
home wound care on a number of occasions. Our high court did state in Winn that
“[c]ertain in-home health care relationships . . . may satisfy the caretaking or custodial
relationship requirement set forth under the [Elder Abuse] Act.” (Id. at p. 158.)
However, while we may consider this as a factor, it is certainly not dispositive.
Meanwhile, it is undisputed that Foster served as caretaker for decedent and
fulfilled a number of decedent’s basic needs, including dressing decedent, getting food
for decedent, administering medications to decedent, helping decedent ambulate in her
home, assisting decedent with toileting, changing decedent’s diapers, taking decedent to
her doctor appointments, and helping to manage decedent’s diabetes. Foster visited
decedent to perform her caretaking functions three times daily. Plaintiffs do not dispute
the foregoing, but assert Foster was improperly trained to be primarily responsible for
decedent’s wound care. We assume, for purposes of this appeal, that defendants were
primarily responsible for decedent’s wound care and that Foster neither was nor should
have been primarily responsible for decedent’s wound care.
23
It is plain Foster had a caretaking or custodial relationship with decedent based on,
among other things, the fact that Foster had assumed significant responsibility for
attending to many of decedent’s basic needs which a competent and able-bodied adult
would ordinarily be capable of managing without assistance. (See Winn, supra,
63 Cal.4th at p. 155.)
We agree with plaintiffs that, to be deemed a caretaker or custodian for present
purposes, Winn does not require that a defendant assume responsibility for all of the
elder’s needs. As our high court stated in Winn, what three statutory examples of neglect
“each seem to contemplate is the existence of a robust caretaking or custodial
relationship—that is, a relationship where a certain party has assumed a significant
measure of responsibility for attending to one or more of an elder’s basic needs that an
able-bodied and fully competent adult would ordinarily be capable of managing without
assistance.” (Winn, supra, 63 Cal.4th at p. 158, italics added.)
It must be determined, on a case-by-case basis, whether the specific
responsibilities assumed by a defendant were sufficient to give rise to a substantial
caretaking or custodial relationship. The fact that Foster provided for a large number of
decedent’s basic needs does not, in itself, serve to insulate defendants from liability under
the Elder Abuse Act if the services they provided were sufficient to give rise to a
substantial caretaking or custodial relationship. Nowhere in Winn is there any suggestion
that only one person or entity can be in a qualifying caretaking or custodial relationship
with an elder or dependent adult at a given time, although such will often be the case. In
other words, while Foster had a caretaking relationship with decedent, that in itself does
not establish that defendants did not also have such a relationship with decedent.
Based on our review of the undisputed facts, we conclude defendants’ provision of
wound care to decedent did not give rise to the substantial caretaking or custodial
relationship required to establish neglect under the Elder Abuse Act.
24
Defendants providing in-home nursing for wound care did not establish they had
“assumed significant responsibility for attending to one or more of those basic needs of
the elder or dependent adult that an able-bodied and fully competent adult would
ordinarily be capable of managing without assistance.” (Winn, supra, 63 Cal.4th at
pp. 155, 158, italics added.) Wound care such as that at issue here is not a “basic need”
of the type an able-bodied and fully competent adult would ordinarily be capable of
managing on his or her own. Indeed, plaintiffs themselves assert Foster, presumably an
able-bodied and fully competent adult, did not have the training to properly attend to
decedent’s wound care needs, and they acknowledged in their separate statement in
opposition to defendants’ motion that she “was not qualified to provide such nursing
services.” Unlike a basic need an able-bodied and fully competent adult would be
capable of managing without assistance, such as eating, taking medicine, or using the
restroom, decedent’s wound care required competent professional medical attention.
Like Winn, we conclude the allegations and evidence here do not “support an inference
that [decedent] relied on defendants in any way distinct from an able-bodied and fully
competent adult’s reliance on the advice and care of his or her medical providers.”
(Winn, supra, 63 Cal.4th at p. 165, italics added.) We conclude the relationship at issue
here is not the type of arrangement the Legislature was addressing in the Elder Abuse
Act.
In enacting the Elder Abuse Act, “[t]he Legislature recognized ‘that most elders
… who are at the greatest risk of abuse, neglect, or abandonment by their families or
caretakers suffer physical impairments and other poor health that place them in a
dependent and vulnerable position.’ ” (Winn, supra, 63 Cal.4th at p. 162, quoting
§ 15600, subd. (d).) The Legislature “expressed concern for those who are vulnerable and
dependent on others for their most basic needs.” (Winn, at p. 162.)
To be clear, decedent was vulnerable and dependent on others for her most basic
needs. Decedent’s most basic needs were met by Foster. And, again, the fact that Foster
25
undertook to provide for decedent’s basic needs does not mean defendants could not be
found to have a caretaking or custodial relationship with decedent.
But in assessing defendants’ potential liability under the Elder Abuse Act, our
focus must be on the specific relationship developed between defendants and decedent.
Defendants’ provision of in-home nursing for wound care on a number of occasions is
more analogous to the outpatient visits the decedent had with physicians in Winn than it
is the situation where a defendant has “assumed significant responsibility for attending to
one or more of those basic needs of the elder or dependent adult that an able-bodied and
fully competent adult would ordinarily be capable of managing without assistance.”
(Winn, supra, 63 Cal.4th at pp. 155, 158.) That decedent was dependent and vulnerable
as a general matter does not mean that anyone who entered into her orbit and provided
her with a service would have entered into a caretaking or custodial relationship with her.
Plaintiffs assert the facts here are nothing like those in Winn, “in which the . . .
physicians failed to refer the patient to a specialist.” We have discussed the facts of
Winn, ante. Those physicians obviously did fail to refer the decedent to a specialist.
However, they were far more involved in her care than plaintiffs’ characterization.
Indeed, for what it is worth, combined, the physicians discussed in Winn treated the
decedent on more occasions than defendants attended to decedent here. (Winn, supra,
63 Cal.4th at pp. 152-154.)
The provision of medical care will not always give rise to the type of caretaking or
custodial relationship required to establish neglect under the Elder Abuse Act. As our
high court stated in Winn, “nothing in the legislative history suggests that the Legislature
intended the [Elder Abuse] Act to apply whenever a doctor treats any elderly patient.
Reading the act in such a manner would radically transform medical malpractice liability
relative to the existing scheme.” (Winn, supra, 63 Cal.4th at p. 163.)
Additionally, the statutory example of neglect most relevant here is the “[f]ailure
to provide medical care for physical and mental health needs.” (§ 15610.57, subd.
26
(b)(2).) Our high court stated: the failure to provide medical care “assumes that the
defendant is in a position to deprive an elder or a dependent adult of medical care.
Section 15610.57, subdivision (b)(2)’s use of the word ‘provide’ also suggests a care
provider’s assumption of a substantial caretaking or custodial role, as it speaks to a
determination made by one with control over an elder whether to initiate medical care at
all.” (Winn, supra, 63 Cal.4th at p. 158.) The evidence here demonstrates defendants
were providing medical care. In light of our determination that defendants did not have a
caretaking or custodial relationship with decedent, defendants’ alleged failure to provide
adequate care is relevant to a professional negligence claim rather than a claim under the
Elder Abuse Act. Additionally, there is nothing in the record suggesting defendants
somehow impeded or interfered with decedent seeking medical care elsewhere.
Plaintiffs rely on the written contract in asserting that they “presented abundant
evidence that [defendants] assumed a significant measure of responsibility for attending
to [decedent’s] needs.” Plaintiffs assert that, in the contract, defendants agreed they
would provide “ ‘whatever home health treatment, procedure, and/or services that are
deemed necessary by the attending physician in consultation with the staff of’ ”
defendants. (Underlining omitted.) In the language plaintiffs raise, it was in fact,
decedent consenting to treatment rather than defendants promising to provide it.
Plaintiffs also point out that “care custodian” as defined in section 15610.17
includes “[t]wenty-four-hour health facilities” as defined in, inter alia, section 1250 of the
Health and Safety Code. (§ 15610.17, subd. (a).) That section includes skilled nursing
facilities in its definitions of health facilities. (Health & Saf. Code, § 1250, subd. (c).)
Further, a “ ‘Home Health Agency’ means a private or public organization . . . which
provides, or arranges for the provision of, skilled nursing services, to persons in their
temporary or permanent place of residence.” (Cal. Code Regs., tit. 22, § 74600, italics
added.)
27
While plaintiffs concede that Winn made plain that “care or custody is not
established as a matter of law merely because a facility or agency is defined as a ‘care
custodian’ under section 15610.17,” the determination whether a caretaking or custodial
relationship exists in this context “should nonetheless factor in the fundamental nature of
home health care, which is to provide skilled nursing services to individuals in their
homes.” Indeed, in Winn, our high court stated: “What plaintiffs erroneously assume is
that the [Elder Abuse] Act’s definition of care custodian in section 15610.17 will, as a
matter of law, always satisfy the particular caretaking or custodial relationship required to
show neglect under section 15610.57. While it may be the case that many of the ‘ “[c]are
custodian[s]” ’ defined under section 15610.17 could have ‘the care or custody of’ an
elder or a dependent adult as required under section 15610.57, subdivision (a)(1), plainly
the statute requires a separate analysis to determine whether such a relationship exists.
Neither the text of section 15610.17 nor anything else in the statute supports plaintiffs’
argument that the presence of such a relationship may be assumed whenever the
definition of ‘care custodian’ is met.” (Winn, supra, 63 Cal.4th at p. 164, italics added.)
We have concluded in our “separate analysis” defendants did not have the requisite
substantial caretaking or custodial relationship with decedent. “[F]actor[ing] in the
fundamental nature of home health care, which is to provide skilled nursing services to
individuals in their homes” does not change our conclusion.
Plaintiffs assert it was “entirely improper” for defendants to “attempt to delegate
[decedent’s] wound care to her family.” According to plaintiffs, Foster did not have the
time or expertise to attend to decedent’s wound care, and her expectation was that
defendants would provide all wound care while Foster would attend to decedent’s other,
basic needs.
We would note that defendants appear not to have delegated their responsibility
for wound care to Foster. Rather, they trained her on wound care to assist decedent when
they were not on site. Defendants were not to be at decedent’s home around the clock.
28
Training Foster to care for decedent’s wounds when none of defendants’ nurses were
present would, if anything, enhance the level of decedent’s care, not diminish it. We do
not believe the fact that defendants trained Foster on caring for decedent’s wounds
amounts to defendants “ ‘[f]ail[ing] to provide medical care for physical and mental
health needs’ ” or depriving decedent of medical care. (Winn, supra, 63 Cal.4th at p. 158,
quoting § 15610.57, subd. (b)(2).)
Since our high court decided Winn, there has been but one published Court of
Appeal case citing Winn and analyzing, in any depth, the existence of a caretaking or
custodial relationship requirement.
In Stewart, supra, 16 Cal.App.5th 87, the appellate court stated: “it appears Carter
depended on St. Mary to meet his basic needs in ways that establish the type of custodial
relationship described by the Winn court. In fact, we note Carter’s admission to an acute
care facility such as St. Mary, standing alone, would have been sufficient to make him a
‘dependent adult’ who would be entitled to the [Elder Abuse] Act’s protections even if he
had not also qualified as an ‘elder’ by virtue of his age. [Citations.] The facts of this
case further support our conclusion, as Carter was experiencing confusion upon
admission, and a doctor’s note prepared a week after admission describes him as a ‘very
poor historian’ who could not provide a coherent history and tended only to mumble and
grunt. The record also shows that Carter at times needed medical assistance, including a
G-tube, to consume adequate calories. Finally, St. Mary readily admits Dr. Denton told it
that Carter’s health was poor enough that he required a pacemaker on an emergency
basis. For these reasons, we conclude St. Mary had ‘ “care or custody of” ’ Carter and
therefore was obligated ‘ “to exercise that degree of care that a reasonable person in a like
position would exercise.” [Citation.]’ ” (Id. at p. 102.)
The defendants in Stewart asserted the appellate court should “make a care and
custody determination as to the specific circumstances surrounding” a meeting of the
hospital’s ethics committee in connection with the decision regarding consent to
29
pacemaker surgery as opposed to making the determination based on the relationship
between Carter and the hospital as a whole. (Stewart, supra, 16 Cal.App.5th at p. 102.)
“The ethics committee meeting, in St. Mary’s view, was not about the provision of
medical care but instead involved only the interpretation of [the] power of attorney” that
had been executed by the patient. (Id. at pp. 102-103.) The Stewart court stated: “We do
not see how Winn supports the suggestion that ‘when [St. Mary] interpreted [Carter’s]
Power of Attorney, [it was] no longer acting as care custodian[], but rather as [a]
healthcare provider[] focused on the undertaking of medical services.’ In fact, in our
view, Winn supports the opposite conclusion. Here, St. Mary accepted Carter as a patient
with knowledge of his ‘confus[ed]’ state, which left him a ‘poor historian,’ and its
records show Carter at times required assistance with feeding. Moreover, the ethics
committee authorized the performance of surgery on Carter’s behalf on the assumption
that he lacked the ability to consent. In our view, St. Mary had accepted responsibility
for assisting Carter with acts for which ‘[o]ne would not normally expect an able-bodied
and fully competent adult to depend on another.’ [Citation.] [¶] We see no reason why
the facts that the decision to allow Dr. Denton and Dr. Ashtiani to sign the consent to the
pacemaker surgery in Carter’s stead was made in a setting that was more like a
conference room than an examination room, or that St. Mary sought advice from counsel
rather than from a doctor other than Dr. Denton, must mean that the ethics committee
meeting served a noncustodial function. After all, ‘it is the defendant’s relationship with
an elder or a dependent adult—not the defendant’s professional standing or expertise—
that makes the defendant potentially liable for neglect.’ [Citation.] For these reasons,
Winn better supports the conclusion that the majority of St. Mary’s interactions with
decedent were custodial. St. Mary has cited no authority allowing or even encouraging a
court to assess care and custody status on a task-by-task basis, and the Winn court’s
focus on the extent of dependence by a patient on a health care provider rather than on
30
the nature of the particular activities that comprised the patient-provider relationship
counsels against adopting such an approach.” (Id. at pp. 103-104, italics added.)
In Stewart, the defendants, in effect, attempted to remove themselves from the
reach of the Elder Abuse Act by parsing out the events involved in the ethics committee
meeting from the rest of the care they furnished to the decedent and the resulting
relationship. The appellate court concluded in the italicized language that there was no
authority supporting such parsing on a task-by-task basis and that Winn counseled against
such an approach. (Stewart, supra, 16 Cal.App.5th at p. 104.)
Plaintiffs’ framing of Stewart does not present the complete picture of that case.
In discussing Stewart, plaintiffs largely ignore the factors which established St. Mary did
have a caretaking or custodial relationship with Carter. They also assert “defendants are
effectively urging this court to adopt the reasoning rejected in Stewart.” We disagree.
Here, wound care is the only matter with which defendants were tasked. They certainly
did not undertake any of the other forms of caretaking as did the defendants in Stewart.
And we have concluded that the provision of wound care under the circumstances of this
case did not give rise to the requisite substantial caretaking or custodial relationship. To
the extent plaintiffs assert defendants cannot parse out the caretaking decedent received
from defendants and Foster on a task-by-task basis, this misses the mark. This would not
be parsing on a task-by-task basis as was disapproved in Stewart. Rather it is
distinguishing between acts committed by defendants and acts committed by others, an
entirely necessary consideration. In this regard, we note plaintiffs’ repeated emphasis on
decedent’s dependence on others for help with her basic needs. Decedent’s condition is
certainly a relevant consideration. But her reliance on individuals other than defendants
for help with her basic needs, specifically Foster, has limited relevance to the nature of
her relationship with defendants and the role they played in her care.
In our view, on these undisputed facts, finding the existence of a substantial or
robust caretaking or custodial relationship between defendants and decedent would
31
“[b]lur[] the distinction between neglect under the [Elder Abuse] Act and conduct
actionable under ordinary tort remedies,” and would “risk[] undermining the Act’s central
premise.” (Winn, supra, 63 Cal.4th at p. 160.)
Under the guidance of Winn, we conclude that, in support of their motion for
summary adjudication, defendants eliminated all triable issues of fact as to whether they
had the requisite substantial caretaking or custodial relationship with decedent to support
plaintiffs’ Elder Abuse Act cause of action. In opposition, plaintiffs failed to raise a
triable issue of material fact. Accordingly, the trial court should have granted defendants
summary adjudication on the Elder Abuse Act cause of action. We shall issue a
peremptory writ of mandate consistent with this conclusion.
IV
Reckless Conduct
Defendants assert that trial court erred in denying their motion for summary
adjudication because plaintiffs failed to demonstrate that a reasonable jury could find, by
clear and convincing evidence, that it was guilty of forms of abuse or neglect performed
with recklessness. However, defendants further state that, if we conclude that there was
no substantial caretaking or custodial relationship, we “need not reach the remaining
issues in this petition.” We agree. Accordingly, we need not address defendants’
contentions concerning whether their conduct rose to the level of recklessness.
DISPOSITION
Let a peremptory writ of mandate issue directing the respondent Butte County
Superior Court to vacate the order of August 28, 2019, in the superior court case No.
16CV03116, entitled Ambrose v. Oroville Hospital, denying that branch of defendants’
motion which was for summary adjudication on plaintiffs’ Elder Abuse Act cause of
32
action, and enter a new order granting that branch of defendants’ motion. Defendants
shall recover their costs in this proceeding. (Cal. Rules of Court, rule 8.493.)
HULL, J.
We concur:
RAYE, P.J.
MURRAY, J.
33