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Hugh S. Spackman, SBN 150204
J. Lynn Stokes-Pena, SBN 223300
CLINKENBEARD, RAMSEY SPACKMAN & CLARK, LLP
Post Office Box 21007
Santa Barbara, California, 93121 ELECTRONICALLY FILED
Telephone: (805) 965-0043 Superior Court of California
Facsimile: (805) 965-8894 County of Santa Barbara
Darrel E. Parker, Executive Officer
Attorneys for Defendant Dignity Health dba 6/27/2024 12:16 PM
Marian Regional Medical Center By: Norma Willoughby , Deputy
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA BARBARA
10 COOK DIVISION
ll GABRIELA ANACONA through her guardian ad CASE NO. 24CV00455
litem DENISSE ANACONA MARTINEZ, an Complaint Filed: 01-29-24
12 individual, Assigned: Honorable James F. Rigali
13 Plaintiff, REPLY TO OPPOSITION TO DEMURRER
TO FIRST AMENDED COMPLAINT ON
14 Vv. BEHALF OF DEFENDANT DIGNITY
HEALTH dba MARIAN REGIONAL
15 DIGNITY HEALTH dba MARIAN REGIONAL MEDICAL CENTER
MEDICAL CENTER, AND DOES 1-100, inclusive
16 Date: July 9, 2024
Defendants. Time: 8:30 a.m.
17 Dept: SM-2
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21 COMES NOW defendant DIGNITY HEALTH dba MARIAN REGIONAL MEDICAL
22 CENTER and hereby replies to plaintiff's opposition to demurrer to the Elder Abuse cause of
23 action in her first amended complaint.
24 ARGUMENT
25 I. PLAINTIFF’S COMPLAINT DOES NOT CONTAIN SUFFICIENT
26 FACTS TO SUPPORT CLAIMS OF ELDER ABUSE
27 The facts provided in plaintiff's first amended complaint are factually insufficient to
28 support employer liability under the Elder Abuse cause of action against defendant MRMC.
Reply to Opposition to Demurrer to Complaint on Behalf of Defendant DH dba MRMC - Page I
Plaintiff has added paragraphs 53 — 58 to the first amended complaint in an effort to satisfy
the basic pleading requirements to maintain the Edler Abuse cause of action against an employer.
In Fenimore, v. Regents (2006) 245 Cal.App. 4" 1339 the court outlined that in order to avoid a
demurrer, plaintiff needed to present facts that a jury could “decide whether a knowing pattern and
practice of understaffing in violation of applicable regulations amount to recklessness”. The newly
added paragraphs to plaintiff’s first amended complaint are merely conclusory allegations devoid
of any specific facts demonstrating the hospital had an ongoing practice of understaffing to
maximize profits at the expense of patient care.
Plaintiff has not submitted any actual complaints or violation reports or given any
substantive information to support her allegations of understaffing. Plaintiffalleges that MRMC’s
10 nursing to patient ratio regulations were purposefully violated, however plaintiff does not state how
11 these generalized, non-specific violations would have changed plaintiff's outcome. According to
12 plaintiffs own facts, the nurse only left the room for a couple of minutes to attend to a patient in
13 the next room. Unless a doctor orders a one-to-one sitter, nurses are assigned to more than one
14 patient. This is an issue of whether the standard of care was violated under the theory of medical
negligence as to whether a one-to-one sitter should have been assigned or whether the nurse should
15
have stayed with plaintiff instead of attending to another patient yelling for help, not Elder Abuse.
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Because unless a one-to-one sitter was monitoring plaintiff, this fall would have happened
17
regardless of the nurse to patient ratio.
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If all a plaintiff over 65 has to do to add an Edler Abuse cause of action to a Medical
19
Malpractice case is include unsupported allegations that a “hospital knowingly understaffed to cut
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costs”, then every plaintiff's attorney is going to automatically add it. The Welfare and Institutions
21
Code §15657 authorizes recovery of heightened remedies when it is proven by “clear and
22
convincing evidence”, not speculation.
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Mf
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Mf
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Mf
26 Mt
27 Mf
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Reply to Opposition to Demurrer to Complaint on Behalf of Defendant DH dba MRMC ~ Page 2
CONCLUSION
Plaintiffs cause of action for Elder Abuse/Neglect does not meet the heightened
requirements under the Act. As such, the demurrer to the Elder Abuse cause of action should
be sustained without leave to amend.
Dated: June 27, 2024. CLINKENBEARD, SEY, SPACKMAN & CLARK, LLP
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a
By
Hugh SSpackman,
—~
J. Lynn Stokes-Pena
10 Attorneys for Defendant DIGNITY HEALTH dba
MARIAN REGIONAL MEDICAL CENTER
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Reply to Opposition to Demurrer to Complaint on Behalf of Defendant DH dba MRMC ~ Page 3
PROOF OF SERVICE
[C-CP. §1013a]
COUNTY OF SANTA BARBARA
STATE OF CALIFORNIA
I am a citizen of the United States and am employed in the County of Santa Barbara, State of California.
I am over the age of eighteen (18) years and not a party to the within action. My business address is
3938 State St., P.O. Box 21007, Santa Barbara, CA 93121
On the date set forth below, I served the foregoing document described as REPLY TO
OPPOSITION TO DEMURRER TO FIRST AMENDED COMPLAINT ON BEHALF OF
DEFENDANT DIGNITY HEALTH dba MARIAN REGIONAL MEDICAL CENTER by
placing copies thereof in sealed envelopes, addressed as follows:
Attorneys For Plaintiff
Adam Feldman, Esq.
10 Adam Feldman Law, APC
5850 Canoga Avenue, Suite 400
11 Woodland Hills, CA 91367
Tel.: 818 710 3833
12 Fax: 818 710 3802
13 Emails
\dam@adamfeldmanlaw.com
14 info@adamfeldmanlaw.com
peggy@adamfeldmanlaw.com
1S
16
17 (By Mail) I am "readily familiar" with the firm's practice of collection and processing
correspondence for mailing. Under that practice, it would be deposited with the U.S. postal service on
18 that same day with postage thereon fully prepaid First Class at Santa Barbara, California in the ordinary
course of business. I am aware that, on motion of party served, service is presumed invalid if postal
19 cancellation date or postage meter date is more than one day after the date of deposit for mailing in
affidavit
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(By -Mail) | caused all of the pages of the above-entitled document to be sent to the
recipient(s) noted above via e-mail at the respective e-mail address indicated above.
22 (By Federal Express/Overnight Mail) I caused the above-described document to be served on
the interested parties noted above by Federal Express/Overnight Mail.
23
— (By Personal Service) I delivered such envelope(s) by hand to the offices of the addressee(s)
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I declare under penalty of perjury under the laws of the State of California that the foregoing i is true and
25 correct. Executed on June 27, 2024, at Santa Barbara, California.
26
27
(bine Cline
Elaine Clementi
28
Proofof Service - 1
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Hugh S. Spackman, SBN 150204 J. Lynn Stokes-Pena, SBN 223300 CLINKENBEARD, RAMSEY SPACKMAN & CLARK, LLP Post Office Box 21007 Santa Barbara, California, 93121 ELECTRONICALLY FILED Telephone: (805) 965-0043 Superior Court of California Facsimile: (805) 965-8894 County of Santa Barbara Darrel E. Parker, Executive Officer Attorneys for Defendant Dignity Health dba 6/27/2024 12:16 PM Marian Regional Medical Center By: Norma Willoughby , Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA BARBARA 10 COOK DIVISION ll GABRIELA ANACONA through her guardian ad CASE NO. 24CV00455 litem DENISSE ANACONA MARTINEZ, an Complaint Filed: 01-29-24 12 individual, Assigned: Honorable James F. Rigali 13 Plaintiff, REPLY TO OPPOSITION TO DEMURRER TO FIRST AMENDED COMPLAINT ON 14 Vv. BEHALF OF DEFENDANT DIGNITY HEALTH dba MARIAN REGIONAL 15 DIGNITY HEALTH dba MARIAN REGIONAL MEDICAL CENTER MEDICAL CENTER, AND DOES 1-100, inclusive 16 Date: July 9, 2024 Defendants. Time: 8:30 a.m. 17 Dept: SM-2 18 19 20 21 COMES NOW defendant DIGNITY HEALTH dba MARIAN REGIONAL MEDICAL 22 CENTER and hereby replies to plaintiff's opposition to demurrer to the Elder Abuse cause of 23 action in her first amended complaint. 24 ARGUMENT 25 I. PLAINTIFF’S COMPLAINT DOES NOT CONTAIN SUFFICIENT 26 FACTS TO SUPPORT CLAIMS OF ELDER ABUSE 27 The facts provided in plaintiff's first amended complaint are factually insufficient to 28 support employer liability under the Elder Abuse cause of action against defendant MRMC. Reply to Opposition to Demurrer to Complaint on Behalf of Defendant DH dba MRMC - Page I Plaintiff has added paragraphs 53 — 58 to the first amended complaint in an effort to satisfy the basic pleading requirements to maintain the Edler Abuse cause of action against an employer. In Fenimore, v. Regents (2006) 245 Cal.App. 4" 1339 the court outlined that in order to avoid a demurrer, plaintiff needed to present facts that a jury could “decide whether a knowing pattern and practice of understaffing in violation of applicable regulations amount to recklessness”. The newly added paragraphs to plaintiff’s first amended complaint are merely conclusory allegations devoid of any specific facts demonstrating the hospital had an ongoing practice of understaffing to maximize profits at the expense of patient care. Plaintiff has not submitted any actual complaints or violation reports or given any substantive information to support her allegations of understaffing. Plaintiffalleges that MRMC’s 10 nursing to patient ratio regulations were purposefully violated, however plaintiff does not state how 11 these generalized, non-specific violations would have changed plaintiff's outcome. According to 12 plaintiffs own facts, the nurse only left the room for a couple of minutes to attend to a patient in 13 the next room. Unless a doctor orders a one-to-one sitter, nurses are assigned to more than one 14 patient. This is an issue of whether the standard of care was violated under the theory of medical negligence as to whether a one-to-one sitter should have been assigned or whether the nurse should 15 have stayed with plaintiff instead of attending to another patient yelling for help, not Elder Abuse. 16 Because unless a one-to-one sitter was monitoring plaintiff, this fall would have happened 17 regardless of the nurse to patient ratio. 18 If all a plaintiff over 65 has to do to add an Edler Abuse cause of action to a Medical 19 Malpractice case is include unsupported allegations that a “hospital knowingly understaffed to cut 20 costs”, then every plaintiff's attorney is going to automatically add it. The Welfare and Institutions 21 Code §15657 authorizes recovery of heightened remedies when it is proven by “clear and 22 convincing evidence”, not speculation. 23 Mf 24 Mf 25 Mf 26 Mt 27 Mf 28 Reply to Opposition to Demurrer to Complaint on Behalf of Defendant DH dba MRMC ~ Page 2 CONCLUSION Plaintiffs cause of action for Elder Abuse/Neglect does not meet the heightened requirements under the Act. As such, the demurrer to the Elder Abuse cause of action should be sustained without leave to amend. Dated: June 27, 2024. CLINKENBEARD, SEY, SPACKMAN & CLARK, LLP / a By Hugh SSpackman, —~ J. Lynn Stokes-Pena 10 Attorneys for Defendant DIGNITY HEALTH dba MARIAN REGIONAL MEDICAL CENTER ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Reply to Opposition to Demurrer to Complaint on Behalf of Defendant DH dba MRMC ~ Page 3 PROOF OF SERVICE [C-CP. §1013a] COUNTY OF SANTA BARBARA STATE OF CALIFORNIA I am a citizen of the United States and am employed in the County of Santa Barbara, State of California. I am over the age of eighteen (18) years and not a party to the within action. My business address is 3938 State St., P.O. Box 21007, Santa Barbara, CA 93121 On the date set forth below, I served the foregoing document described as REPLY TO OPPOSITION TO DEMURRER TO FIRST AMENDED COMPLAINT ON BEHALF OF DEFENDANT DIGNITY HEALTH dba MARIAN REGIONAL MEDICAL CENTER by placing copies thereof in sealed envelopes, addressed as follows: Attorneys For Plaintiff Adam Feldman, Esq. 10 Adam Feldman Law, APC 5850 Canoga Avenue, Suite 400 11 Woodland Hills, CA 91367 Tel.: 818 710 3833 12 Fax: 818 710 3802 13 Emails \dam@adamfeldmanlaw.com 14 info@adamfeldmanlaw.com peggy@adamfeldmanlaw.com 1S 16 17 (By Mail) I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. postal service on 18 that same day with postage thereon fully prepaid First Class at Santa Barbara, California in the ordinary course of business. I am aware that, on motion of party served, service is presumed invalid if postal 19 cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit 20 21 (By -Mail) | caused all of the pages of the above-entitled document to be sent to the recipient(s) noted above via e-mail at the respective e-mail address indicated above. 22 (By Federal Express/Overnight Mail) I caused the above-described document to be served on the interested parties noted above by Federal Express/Overnight Mail. 23 — (By Personal Service) I delivered such envelope(s) by hand to the offices of the addressee(s) 24 I declare under penalty of perjury under the laws of the State of California that the foregoing i is true and 25 correct. Executed on June 27, 2024, at Santa Barbara, California. 26 27 (bine Cline Elaine Clementi 28 Proofof Service - 1