Filed 3/25/04
IN THE SUPREME COURT OF CALIFORNIA COVENANT CARE, INC., et al.,

Petitioners,
S098817
v.
Ct. App. 2/1 B145406
THE SUPERIOR COURT OF LOS ANGELES COUNTY,
Los Angeles County
Respondent;  Super. Ct. No. LC041017

LOURDES M. INCLAN et al.,

Real Parties in Interest.
___________________________________ )
We granted review in this matter to resolve a conflict among the Courts of
Appeal as to whether the procedural prerequisites to seeking punitive damages in
an action for damages arising out of the professional negligence of a health care
provider, codified at Code of Civil Procedure section 425.13, subdivision (a)
(section 425.13(a)), apply to punitive damage claims in actions alleging elder
abuse subject to heightened civil remedies under the Elder Abuse and Dependent
Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) (Elder Abuse Act
or Act). The Court of Appeal concluded section 425.13(a) does not apply. We
agree, finding nothing in the text, legislative history, or purposes of either section
425.13(a) or the Elder Abuse Act to suggest the Legislature intended to afford
health care providers that act as elder custodians, and that egregiously abuse the
1
elders in their custody, the special protections against exemplary damages they
enjoy when accused of negligence in providing health care. Accordingly, we
affirm the judgment of the Court of Appeal.
Background1
Lourdes M. Inclan and Juan C. Inclan (plaintiffs) sued Covenant Care
California, Inc., and Covenant Care, Inc. (defendants), for damages caused by
defendants’ care and treatment of their father, Juan A. Inclan (decedent), during
the approximately eight weeks that decedent, an elder,2 resided at defendants’
skilled nursing facility in Los Angeles. More than two years after filing their
initial complaint, plaintiffs moved for leave to file a fourth amended complaint. In
their proposed fourth amended complaint, plaintiffs sought damages, including
“general damages for pain and suffering according to proof,” for willful
misconduct, intentional infliction of emotional distress, constructive fraud, fraud,
battery, false imprisonment, elder abuse, and wrongful death. They also sought
punitive damages.
Plaintiffs’ fourth amended complaint contained detailed and specific factual
allegations of elder abuse. Specifically, plaintiffs alleged that decedent suffered
from Parkinson’s disease. Plaintiffs contracted with a managed care organization
to oversee decedent’s care, to act within plaintiffs’ directives, and to inform
plaintiffs of any change in decedent’s condition or other situation requiring their
attention. The managed care organization, however, assumed rights and usurped
1 Plaintiffs’ motions for judicial notice, filed on January 30, 2002, and on
May 1, 2002, respectively, are denied. (Mangini v. R. J. Reynolds Tobacco Co.
(1994) 7 Cal.4th 1057, 1064.) Defendants’ motion for judicial notice, filed on
November 20, 2001, is granted.
2 “ ‘Elder’ means any person residing in this state, 65 years of age or older.”
(Welf. & Inst. Code, § 15610.27.)
2
powers over decedent neither contemplated nor agreed to by decedent or plaintiffs.
The managed care organization, sometimes in conspiracy with defendants,
admitted and ordered the discharge of decedent, without his consent, from various
health care facilities, including a convalescent hospital owned and operated by
defendants, and “withh[e]ld essential care, treatment and medical services from
decedent including . . . food, fluids, medicine, and basic nursing care including
basic palliative care.”
Plaintiffs alleged that defendants conspired and otherwise “acted with
malice and oppression” in moving and treating decedent in order to maximize
revenue from the Medicare and Medicaid programs and to avoid regulatory
penalties for noncompliance with certain federal and state regulations. At one
point, decedent was compelled to transfer to defendants’ skilled nursing facility.
At that facility, defendants provided decedent only with hospice services and
deprived him of skilled nursing services to which he was legally entitled.
Decedent’s subsequent injury and death flowed in part from defendants’ actions.
While decedent was at defendants’ nursing facility, plaintiffs further
alleged, defendants knew he was suffering from Parkinson’s disease and was
unable to care for his personal needs. Defendants nevertheless failed to provide
decedent with proper care, nutrition, hydration, and medication. Defendants’
conduct was in conscious disregard of decedent’s rights and safety. Decedent was
left in his bed, unattended and unassisted, for excessively long periods. Although
decedent increasingly could not feed or hydrate himself, he was for long periods
not provided assistance with these activities. As a result, decedent was
inadequately stimulated, became malnourished, and lost much of his body weight.
Decedent was left in his excrement for long periods; he developed ulcers on his
body that exposed muscle and bone and became septic; and he also became
severely dehydrated.
3
As decedent deteriorated, he manifested signs and symptoms of starvation,
dehydration, neglect, and abuse. Plaintiffs alleged that defendants deliberately
failed to report such symptoms, neglect, and abuse to public authorities as they
were legally required to do. Moreover, defendants misrepresented decedent’s
condition and failed to inform plaintiffs of his true condition, thus concealing his
deterioration from plaintiffs.
When decedent was transferred out of defendants’ nursing facility to
another facility (where he died approximately a week later), plaintiffs alleged,
decedent was in such condition that without immediate intervention and
aggressive care he would surely die from the effects of starvation, dehydration,
and infection. Decedent, however, was not transferred to an acute care facility
but, rather, to a 24-hour care setting where, without any care for his acute needs,
he languished and deteriorated further. As a direct and proximate result of
defendants’ neglect and abuse, decedent sustained personal injury, including
severe emotional distress, and died.
Plaintiffs filed their motion for leave to file the fourth amended complaint
claiming punitive damages on May 14, 1999. Defendants opposed the motion,
arguing that under section 425.13(a), which requires such a motion be “filed
within two years after the complaint or initial pleading is filed,” this was too late.
The trial court granted plaintiffs’ motion, ruling plaintiffs were not required to
comply with section 425.13(a) because the causes of action alleged in the fourth
amended complaint “go beyond mere or simple professional negligence.” The
Court of Appeal summarily denied defendants’ petition for writ relief, and we
denied review.
Subsequent to the trial court’s ruling, a different district of the Court of
Appeal issued an opinion in Community Care & Rehabilitation Center v. Superior
Court (2000) 79 Cal.App.4th 787 (Community Care). The court in Community
4
Care held that section 425.13(a) applies to elder abuse actions in which punitive
damages are sought, “whenever the gravamen of an action is professional
malfeasance—that is, malfeasance in the provision of health care services.”
(Community Care, supra, at p. 797.) Defendants moved the trial court for
reconsideration in light of Community Care, but the court denied the motion.
The Court of Appeal again denied defendants’ petition for writ relief.
Rejecting Community Care, the Court of Appeal ruled that plaintiffs’ elder abuse
claim was exempt from “the procedural hurdles created by section 425.13.” We
granted review.
Discussion
As originally enacted in 1982, the Elder Abuse Act established
requirements and procedures for mandatory and nonmandatory reporting to local
agencies of elder abuse, as defined,3 and the abuse of other dependent adults. The
Act also addressed local agency investigation and criminal prosecution of such
cases. (See Stats. 1982, ch. 1184, § 3, p. 4223.) The Act continues to contain
such provisions. (See generally Welf. & Inst. Code, § 15600 et seq.)4
3 “ ‘Abuse of an elder or a dependent adult’ means either of the following:
[¶] (a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction,
or other treatment with resulting physical harm or pain or mental suffering.
[¶] (b) The deprivation by a care custodian of goods or services that are necessary
to avoid physical harm or mental suffering.” (Welf. & Inst. Code, § 15610.07.)
4 Although “[s]ubsequent amendment refined the 1982 enactment, . . . the
focus remained on reporting abuse and using law enforcement to combat it.
[Citation.] Also, Penal Code section 368 was enacted, making it [a criminal
offense] for, among other things, a custodian of an elder or dependent adult to
willfully cause or permit various types of injury.” (Delaney v. Baker (1999) 20
Cal.4th 23, 33.)
5
In 1991, in order “to enable interested persons to engage attorneys to take
up the cause of abused elderly persons and dependent adults” (Welf. & Inst. Code,
§ 15600, subd. (j)), the Legislature added Welfare and Institutions Code section
15657 to the Act. That section makes available, to plaintiffs who prove especially
egregious elder abuse to a high standard, certain remedies “in addition to all other
remedies otherwise provided by law” (Welf. & Inst. Code, § 15657). Specifically,
a plaintiff who proves “by clear and convincing evidence” that a defendant is
liable for physical abuse, neglect, or financial abuse (as these terms are defined in
the Act), and that the defendant has been guilty of “recklessness, oppression,
fraud, or malice” in the commission of such abuse, may recover attorney fees and
costs. (Id., subd. (a), incorporating by reference Welf. & Inst. Code, §§ 15610.30,
15610.57, 15610.63.)5 On the same conditions, a plaintiff who brings suit as the
personal representative of a deceased elder is partially relieved of the limitation on
damages in a decedent’s action imposed by Code of Civil Procedure section
5 In its entirety, Welfare and Institutions Code section 15657 provides:
“Where it is proven by clear and convincing evidence that a defendant is liable for
physical abuse as defined in Section 15610.63, neglect as defined in Section
15610.57, or financial abuse as defined in Section 15610.30, and that the
defendant has been guilty of recklessness, oppression, fraud, or malice in the
commission of this abuse, in addition to all other remedies otherwise provided by
law: [¶] (a) The court shall award to the plaintiff reasonable attorney’s fees and
costs. The term ‘costs’ includes, but is not limited to, reasonable fees for the
services of a conservator, if any, devoted to the litigation of a claim brought under
this article. [¶] (b) The limitations imposed by Section 337.34 [sic: should be
377.34] of the Code of Civil Procedure on the damages recoverable shall not
apply. However, the damages recovered shall not exceed the damages permitted
to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code.
[¶] (c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code
regarding the imposition of punitive damages on an employer based upon the acts
of an employee shall be satisfied before any damages or attorney’s fees permitted
under this section may be imposed against an employer.”
6
377.34 and thus may recover damages up to $250,000 for emotional distress
suffered by the decedent prior to death. (Welf. & Inst. Code, § 15657, subd. (b).)
Section 425.13(a) provides, in relevant part, that “[i]n any action for
damages arising out of the professional negligence of a health care provider, no
claim for punitive damages shall be included” unless the plaintiff “within two
years after the complaint or initial pleading is filed or not less than nine months
before the date the matter is first set for trial, whichever is earlier” files a motion
demonstrating a “substantial probability” he or she will prevail on the claim.6 The
question presented is whether plaintiffs’ elder abuse claim is one “arising out of
the professional negligence of a health care provider” for the purposes of section
425.13(a). We have not previously addressed whether a plaintiff seeking
6 In its entirely, section 425.13 provides: “(a) In any action for damages
arising out of the professional negligence of a health care provider, no claim for
punitive damages shall be included in a complaint or other pleading unless the
court enters an order allowing an amended pleading that includes a claim for
punitive damages to be filed. The court may allow the filing of an amended
pleading claiming punitive damages on a motion by the party seeking the amended
pleading and on the basis of the supporting and opposing affidavits presented that
the plaintiff has established that there is a substantial probability that the plaintiff
will prevail on the claim pursuant to Section 3294 of the Civil Code. The court
shall not grant a motion allowing the filing of an amended pleading that includes a
claim for punitive damages if the motion for such an order is not filed within two
years after the complaint or initial pleading is filed or not less than nine months
before the date the matter is first set for trial, whichever is earlier. [¶] (b) For the
purposes of this section, ‘health care provider’ means any person licensed or
certified pursuant to Division 2 (commencing with Section 500) of the Business
and Professions Code or licensed pursuant to the Osteopathic Initiative Act, or the
Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with
Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health
dispensary, or health facility, licensed pursuant to Division 2 (commencing with
Section 1200) of the Health and Safety Code. ‘Health care provider’ includes the
legal representatives of a health care provider.”
7
heightened remedies under the Elder Abuse Act must comply with section 425.13
in order to claim punitive damages.
Plaintiffs assert that our reasoning in Delaney v. Baker, supra, 20 Cal.4th
23 (Delaney), precludes application of section 425.13 to Elder Abuse Act causes
of action. In Delaney, we held unanimously that a cause of action seeking the
Act’s heightened remedies for reckless, oppressive, fraudulent, or malicious elder
abuse is not based on “professional negligence” within the meaning of Welfare
and Institutions Code section 15657.2,7 a section of the Act that excludes from its
purview causes of action based on such negligence. (Delaney, supra, at pp. 29-
32.) Our rationale, which we derived from the language and history of the Act,
was that the Legislature intended section 15657.2 to clarify “that the acts
proscribed [by the Act] do not include acts of simple professional negligence, but
refer to forms of abuse or neglect performed with some state of culpability greater
than mere negligence.” (Delaney, supra, at p. 32.)
Observing that the relevant language in section 425.13 (“arising out of the
professional negligence of a health care provider”) is similar to the Welfare and
Institutions Code section 15657.2 language we construed in Delaney (“based on
the health care provider’s alleged professional negligence”), plaintiffs argue we
should rule here, as we did there, that causes of action against health care
providers that otherwise come within the scope of the Elder Abuse Act are not
7 In its entirety, Welfare and Institutions Code section 15657.2 provides:
“Notwithstanding this article, any cause of action for injury or damage against a
health care provider, as defined in Section 340.5 of the Code of Civil Procedure
based on the health care provider’s alleged professional negligence, shall be
governed by those laws which specifically apply to those professional negligence
causes of action.”
8
within the meaning of the section 425.13 language. (Delaney, supra, 20 Cal.4th at
p. 32.)
Factually, as noted, plaintiffs alleged their decedent suffered bodily injury,
pain, and suffering (including severe emotional distress) at defendants’ hands.
More specifically, plaintiffs alleged decedent’s injuries were caused by
defendants’ willful misconduct in violation of the Elder Abuse Act, consisting in
fraudulent business practices, intentional infliction of emotional distress, battery
upon, and false imprisonment of decedent. In describing defendants’ abuse of
decedent, plaintiffs specifically alleged despicable and deceptive business
practices, as well as other unlawful conduct by defendants, some of which
constituted conspiracy and all of which was reckless, intentional, deliberate, or
knowing. Plaintiffs also alleged that in abusing decedent, defendants consciously
disregarded his rights and safety, acting with fraud, oppression, and malice.
In its ordinary sense, “professional negligence” is failure to exercise
“ ‘knowledge, skill, and care ordinarily employed by members of the profession in
good standing.’ ” (Delaney, supra, 20 Cal.4th at p. 31.) Hence, such misconduct
as plaintiffs alleged—intentional, egregious elder abuse—cannot be described as
mere “professional negligence” in the ordinary sense of those words. But as
defendants point out, in light of our prior pronouncements respecting section
425.13(a), that fact is not necessarily dispositive. (See Central Pathology Service
Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 191-192 (Central
Pathology).)
In Central Pathology, a patient sued a physician and a laboratory, alleging
they failed to notify her she was developing cancer when a pap smear the
physician performed and sent to the laboratory for analysis revealed the presence
of abnormal cells. (Central Pathology, supra, 3 Cal.4th at p. 185.) The patient’s
initial complaint was for negligence in the provision of medical services, but she
9
moved to amend it to add causes of action for fraud and intentional infliction of
emotional distress and to seek punitive damages in connection with those claims.
Construing section 425.13(a)’s reference to “any action for damages arising out of
the professional negligence of a health care provider,” we concluded the statute
applied to the proposed additional intentional tort causes of action, as well as to
the ordinary negligence causes of action already contained in the complaint.
(Central Pathology, supra, at p. 192.) Were we to hold otherwise, we reasoned,
“injured patients seeking punitive damages in an action involving professional
negligence could readily assert that their health care providers committed an
intentional tort” and thus by “artful pleading” effectively “annul the protection
afforded [health care providers] by that section.” (Id. at p. 191.)
Relying primarily on Central Pathology, defendants argue in effect that
even egregious elder abuse arises out of professional negligence (§ 425.13(a))
when such abuse is “directly related to the professional services provided”
(Central Pathology, supra, 3 Cal.4th at p. 191) by a health care provider.
Defendants acknowledge that, on its face, section 425.13(a) applies only to causes
of action arising from negligence, and that in Delaney we distinguished between
“professional negligence” and statutory elder abuse. Nevertheless, defendants
point out, health care providers can at once be subject to liability under the Elder
Abuse Act and protected by section 425.13(a)’s restrictions on the pleading of
punitive damages. Because Central Pathology’s broad phrasing potentially
supports this possibility and Delaney does not expressly bar it, defendants urge
that we declare it to be the law.
Notwithstanding the parties’ focus on Central Pathology and Delaney,
resolution of the issue here is not simply an exercise in conforming our result to
our previous phraseology. Judicial precedent on similar facts may be relevant, but
“[e]stablishing terminological uniformity throughout our codified law is less
10
important than discerning ‘ “the intent of the Legislature so as to effectuate the
purpose” ’ of each individual statute.” (Delaney, supra, 20 Cal.4th at p. 42.)
Ultimately, “the ascertainment of legislative intent is the paramount principle of
statutory interpretation.” (In re Michael G. (1988) 44 Cal.3d 283, 289.) For the
following reasons, we agree with the Court of Appeal that section 425.13’s
limitations on actions for damages arising out of professional negligence
(§ 425.13(a)) were not meant to burden those who pursue the cause of abused
elderly persons (Welf. & Inst. Code, § 15600, subd. (j)) under the Elder Abuse
Act.
Plain language. First, nothing in the text of either section 425.13(a) or the
Elder Abuse Act suggests the Legislature meant to link the two statutes. While
section 425.13 by its terms applies only to causes of action arising out of
“negligence” (§ 425.13(a)), every cause of action seeking the Act’s heightened
civil remedies, by definition, arises out of “recklessness, oppression, fraud, or
malice” (Welf. & Inst. Code, § 15657). The earlier enacted section 425.13(a), of
course, contains no reference to the Elder Abuse Act or to elder abuse; neither
does the subsequently enacted Act contain any reference to section 425.13(a).
It is true that statutory elder abuse includes “neglect as defined in Section
15610.57” (Welf. & Inst. Code, § 15657), which in turn includes negligent failure
of an elder custodian “to provide medical care for [the elder’s] physical and
mental health needs” (id., § 15610.57, subd. (b)(2)). But as we explained in
Delaney, “neglect” within the meaning of Welfare and Institutions Code section
15610.57 covers an area of misconduct distinct from “professional negligence.”
As used in the Act, neglect refers not to the substandard performance of medical
services but, rather, to the “failure of those responsible for attending to the basic
needs and comforts of elderly or dependent adults, regardless of their professional
standing, to carry out their custodial obligations.” (Delaney, supra, 20 Cal.4th at
11
p. 34.) Thus, the statutory definition of neglect speaks not of the undertaking of
medical services, but of the failure to provide medical care. (Ibid.) Notably, the
other forms of abuse, as defined in the Act—physical abuse and fiduciary abuse
(Welf. & Inst. Code, § 15657)—are forms of intentional wrongdoing also distinct
from “professional negligence.” (Delaney, supra, at p. 34.)
As we determined in Delaney, if the neglect (or other abuse) is reckless or
done with oppression, fraud, or malice, “then the action falls within the scope of
[Welfare and Institution Code] section 15657 and as such cannot be considered
simply ‘based on . . . professional negligence’ . . . . That only these egregious acts
were intended to be sanctioned under section 15657 is further underscored by the
fact that the statute requires liability to be proved by a heightened ‘clear and
convincing evidence’ standard.” (Delaney, supra, 20 Cal.4th at p. 35.)
Because in Delaney we were construing the term “professional negligence”
as used in the Elder Abuse Act, our actual holding did not impinge on the holding
of Central Pathology that professional negligence within the meaning of section
425.13 can encompass intentional torts. (Central Pathology, supra, 3 Cal.4th at
p. 192.) Nevertheless, our conclusion that the Legislature intended the Elder
Abuse Act to sanction only egregious acts of misconduct distinct from
professional negligence contravenes any suggestion that, in defining elder abuse to
include failure to provide medical care, the Legislature intended that health care
providers, alone among elder custodians, would enjoy under the Act the
procedural protections they enjoy when sued for negligence in their professional
health care practice. (See Delaney, supra, 20 Cal.4th at p. 35 [discussing the
anomaly of such a result].)
Legislative history. Second, nothing in the legislative history of either
section 425.13(a) or the Elder Abuse Act suggests the Legislature meant to link
the two statutes. Our past pronouncements succinctly describe the relevant
12
history. (See Central Pathology, supra, 3 Cal.4th at pp. 189-190; Delaney, supra,
20 Cal.4th at pp. 31-34.)
Section 425.13 was added to the Code of Civil Procedure in 1987. “As
originally enacted, the section was not limited to medical malpractice. The statute
provided, ‘No claim for punitive damages against a health care provider shall be
included in a complaint or other pleading unless the court enters an order allowing
an amended pleading that includes a claim for punitive damages to be filed.’
(Stats. 1987, ch. 1498, § 7, p. 5782.) The next year the Legislature amended the
section by incorporating former section 425.13 into new subdivision (a) of that
section and by altering the first sentence to read, ‘In any action for damages
arising out of the professional negligence of a health care provider, no claim for
punitive damages shall be included . . . .’ (Stats. 1988, ch. 1205, § 1, p. 4028.)”
(Central Pathology, supra, 3 Cal.4th at pp. 188-189, italics omitted.)
The Legislature enacted the Elder Abuse Act’s heightened civil damage
remedies for egregious elder abuse three years later, in 1991. (Stats. 1991, ch.
774, § 3, p. 3477 [enacting Sen. Bill No. 679 (1991-1992 Reg. Sess.].) As we
recounted in Delaney, in the 1991 amendments to the Act, the Legislature shifted
the focus in protecting vulnerable and dependent adults from reporting abuse and
using law enforcement to combat it, “to private, civil enforcement of laws against
elder abuse and neglect. ‘[T]he Legislature declared that “infirm elderly persons
and dependent adults are a disadvantaged class, that cases of abuse of these
persons are seldom prosecuted as criminal matters, and few civil cases are brought
in connection with this abuse due to problems of proof, court delays, and the lack
of incentives to prosecute these suits.” ([Welf. & Inst. Code,] § 15600, subd. (h),
added by Stats. 1991, ch. 774, § 2.) . . . As was stated in the Senate Rules
Committee’s analysis of Senate Bill No. 679, ‘in practice, the death of the victim
and the difficulty in finding an attorney to handle an abuse case where attorneys
13
fees may not be awarded, impedes many victims from suing successfully. [¶] This
bill would address the problem by: . . . authorizing the court to award attorney’s
fees in specified cases; [and by] allowing pain and suffering damages to be
awarded when a verdict of intentional and reckless abuse was handed down after
the abused elder dies.’ (Sen. Rules Com., Analysis of Sen. Bill No. 679 (1991-
1992 Reg. Sess.) as amended May 8, 1991, p. 3.)” (Delaney, supra, 20 Cal.4th at
p. 33.)
As we determined in Central Pathology, the legislative history of section
425.13 demonstrates that the Legislature’s intent in enacting the statute was to
protect health care providers (or practitioners) only in their professional capacity
as providers; there was no intent to protect them in any other capacity. (Central
Pathology, supra, 3 Cal.4th at p. 189; see also id. at p. 190.) Without question,
health care provider and elder custodian “capacities” are conceptually distinct.
“Health care provider” means any person licensed or certified pursuant to
specified licensing provisions and any licensed clinic, health dispensary, or health
facility and their legal representatives. (§ 425.13, subd. (b).) Neglectful elder
abuse, by contrast, as noted, is “the failure of those responsible for attending to the
basic needs and comforts of elderly or dependent adults, regardless of their
professional standing, to carry out their custodial obligations.” (Delaney, supra,
20 Cal.4th at p. 34, italics added.)
Moreover, the legislative history of the Elder Abuse Act “indicates that
those who enacted the statute thought that the term ‘professional negligence,’ . . .
within the meaning of [Welfare and Institutions Code] section 15657.2, was
mutually exclusive of the abuse and neglect specified in [Welfare and Institutions
Code] section 15657” as actionable under the Act. (Delaney, supra, 20 Cal.4th at
p. 30.) As we have noted, the Legislature apparently concluded that the high
standard imposed by section 15657—clear and convincing evidence of (i) liability
14
and (ii) recklessness, malice, oppression or fraud—adequately protects health care
providers from liability under the statute for acts of simple or even gross
negligence. (Delaney, supra, at p. 32.) We are not authorized to gainsay that
legislative judgment.8
Defendants argue the Legislature’s failure expressly to exempt Elder Abuse
actions from section 425.13 obliges us to construe the section as including such
actions. In support, they contend that elder abuse, when committed by a health
care provider, is “an injury that is directly related to the professional services
provided by a health care provider acting in its capacity as such” (Central
Pathology, supra, 3 Cal.4th at p. 191). Defendants’ argument fails on three
counts.
First, the rules of statutory construction defendants invoke—viz., that
presumably the Legislature knew how to create an exemption if it wished to do so
and that courts generally may not insert what the Legislature has omitted from a
statute (see California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11
Cal.4th 342, 349)—have no application unless one assumes, at the outset, the
facial applicability of section 425.13. But section 425.13(a), which references
“professional negligence,” is not facially applicable to claims for heightened civil
remedies under the Elder Abuse Act, which entail “recklessness, oppression,
fraud, or malice” (Welf. & Inst. Code, § 15657, subd. (a)).
Second, elder abuse as defined in the Act, even when committed by a
health care provider, is not an injury that is “directly related” to the provider’s
8 As we conclude the Legislature did not intend section 425.13 to apply to
causes of action seeking heightened remedies under the Elder Abuse Act, we do
not reach the additional question raised by plaintiffs whether all defendants were
or are health care providers entitled to invoke the protection of section 425.13.
15
professional services. That statutory elder abuse may include the egregious
withholding of medical care for physical and mental health needs is not
determinative. As a failure to fulfill custodial duties owed by a custodian who
happens also to be a health care provider, such abuse is at most incidentally related
to the provider’s professional health care services.
That is, claims under the Elder Abuse Act are not brought against health
care providers in their capacity as providers but, rather, against custodians and
caregivers that abuse elders and who may or may not, incidentally, also be health
care providers. Statutorily, as well as in common parlance, the function of a
health care provider is distinct from that of an elder custodian, and “the fact that
some health care institutions, such as nursing homes, perform custodial functions
and provide professional medical care” (Delaney, supra, 20 Cal.4th at p. 34, italics
added) does not mean that the two functions are the same.
Third, the Legislature did not have the benefit of our 1992 opinion in
Central Pathology either when it limited section 425.13(a) to damage actions
arising out of the professional negligence of a health care provider (Stats. 1988,
ch. 1205, § 1, p. 4028) or three years later when it added heightened civil remedies
to the Elder Abuse Act (Stats. 1991, ch. 774, § 3, p. 3475). Accordingly,
regardless of its language, Central Pathology affords no basis for concluding the
Legislature intended its reference in section 425.13(a) to “professional negligence”
to encompass elder abuse, let alone as yet uncreated statutory causes of action for
elder abuse committed with recklessness, oppression, fraud, or malice (Welf. &
Inst. Code, § 15657). Nor does the opinion afford any basis for deeming the
Legislature to have intended, when adding heightened civil remedies as an
16
incentive to the prosecution of elder abuse actions, that section 425.13(a) restrict
the availability of those remedies.9
Statutory purposes. The fundamental legislative purposes underlying the
Elder Abuse Act, on the one hand, and section 425.13, on the other, would not be
promoted were we to link the two regimes. Indeed, such linkage actually would
undermine the purposes of the Elder Abuse Act.
“The purpose of the [Act was] essentially to protect a particularly
vulnerable portion of the population from gross mistreatment in the form of abuse
and custodial neglect.” (Delaney, supra, 20 Cal.4th at p. 33.) To this end, the
Legislature added to the Act heightened civil remedies for egregious elder abuse,
seeking thereby “to enable interested persons to engage attorneys to take up the
cause of abused elderly persons and dependent adults.” (Welf. & Inst. Code,
§ 15600, subd. (j).) To burden such causes with section 425.13’s procedural
requirements when claims are made for punitive damages would undermine the
Legislature’s intent to foster such actions by providing litigants and attorneys with
incentives to bring them.
Defendants concede that application of section 425.13 would preclude
plaintiffs’ punitive damage claim but, they maintain, only because plaintiffs
9 With respect to section 425.13(a), in fact, the presumption would be to the
contrary. “At the time Senate Bill No. 679 was enacted, the terms ‘arising out of
professional negligence’ and ‘based on professional negligence’ had been quite
narrowly construed.” (Delaney, supra, 20 Cal.4th at p. 42, fn. 8, citing inter alia
Bommareddy v. Superior Court (1990) 222 Cal.App.3d 1017, 1024 [which
interpreted § 425.13(a) as excluding intentional torts]; Flores v. Natividad Medical
Center (1987) 192 Cal.App.3d 1106, 1114-1116 [which interpreted the phrase
“based on professional negligence” in the Medical Injury Compensation Reform
Act (MICRA) to exclude failure to summon medical care pursuant to Gov. Code,
§ 845.6].)
17
delayed filing their motion for punitive damages until more than two years after
they filed suit. Nevertheless, making it more difficult for Elder Abuse Act
plaintiffs to plead punitive damages would, as a general matter, likely diminish the
willingness of attorneys to undertake such cases on a contingency basis. (See
Welf. & Inst. Code, § 15600, subd. (h) [reciting Legislature’s observation when
enacting Elder Abuse Act that “few civil cases are brought in connection with this
abuse due to . . . the lack of incentives to prosecute such suits”].)
Section 425.13(a) “was enacted amid concern over routine inclusion of
sham punitive damages claims in medical malpractice actions. The statute
apparently seeks to alleviate this problem by shifting to the plaintiff the procedural
burden that would otherwise fall on the defendant to remove a ‘frivolous’ or
‘unsubstantiated’ claim early in the suit.” (College Hospital, Inc. v. Superior
Court (1994) 8 Cal.4th 704, 717; see also id. at p. 719 [motion required by
§ 425.13(a) “operates like a demurrer or motion for summary judgment in
‘reverse’ ”].) More specifically, section 425.13(a) “was designed to address two
problems. First, the Legislature sought in all cases to require greater certainty of
the propriety of imposing punitive damages by requiring clear and convincing
evidence of fraud, malice, or oppression and by modifying the definition of malice
to include despicable, willful conduct. [¶] Second, because it was concerned that
unsubstantiated claims for punitive damages were being included in complaints
against health care providers, the Legislature sought to provide additional
protection by establishing a pretrial hearing mechanism by which the court would
determine whether an action for punitive damages could proceed.” (Central
Pathology, supra, 3 Cal.4th at p. 189.)
Applying section 425.13 to Elder Abuse Act causes of action would not
significantly heighten the “certainty of the propriety of imposing punitive
damages” (Central Pathology, supra, 3 Cal.4th at p. 189), because a plaintiff
18
prosecuting a claim for heightened civil remedies under the Elder Abuse Act is
required in any event to plead and to prove by clear and convincing evidence
“recklessness, oppression, fraud, or malice” (Welf. & Inst. Code, § 15657). Thus,
with or without application of section 425.13(a), a health care provider sued for
violating the Elder Abuse Act must defend against allegations of egregious
conduct.
Neither would applying section 425.13 to Elder Abuse Act causes of action
afford health care providers significant additional protection against the type of
unsubstantiated claims for punitive damages that concerned the Legislature when
it enacted section 425.13(a). As we have noted, the fundamental problem section
425.13 seeks to address arises because the kinds of negligent acts supporting a
malpractice cause of action might also support a cause of action for an intentional
tort, such that plaintiffs might through artful pleading “sidestep” the section by
including an intentional tort cause of action in a negligence action and thereby
annul the protection the Legislature intended to afford health care providers in the
medical malpractice context. (Central Pathology, supra, 3 Cal.4th at pp. 191,
192.) No analogous threat looms here; praying for punitive damages in an action
based on a violation of the Elder Abuse Act does not substantively transform the
action as does adding an intentional tort claim in a malpractice action. While
“minimally culpable defendants are often charged with intentional torts” (Far
West Financial Corp. v. D & S Co. (1988) 46 Cal.3d 796, 830 (conc. & dis. opn.
of Eagleson, J.)) supporting punitive damage claims, elder abuse triggering the
Act’s heightened remedy provisions entails by its nature egregious conduct.
(Welf. & Inst. Code, §§ 15657, 15610.30, 15610.57, 15610.63.) And while in the
medical malpractice context “there may be considerable overlap of intentional and
negligent causes of action” (Central Pathology, supra, at p. 192), no such overlap
occurs in the Elder Abuse Act context, where the Legislature expressly has
19
excluded ordinary negligence claims from treatment under the Act (Welf. & Inst.
Code, § 15657.2; Delaney, supra, 20 Cal.4th at p. 30).10
In order to obtain the Act’s heightened remedies, a plaintiff must allege
conduct essentially equivalent to conduct that would support recovery of punitive
damages. (Compare Welf. & Inst. Code, § 15657 [requiring “clear and convincing
evidence that a defendant is liable for” elder abuse and “has been guilty of
recklessness, oppression, fraud, or malice in the commission of the abuse”] with
Civ. Code, § 3294, subd. (a) [requiring “clear and convincing evidence” that the
defendant has been guilty of oppression, fraud, or malice].) Accordingly, that
plaintiffs in an Elder Abuse Act action may, on appropriate proof (Civ. Code,
§ 3294, subd. (a)), recover punitive damages entails no danger directly analogous
to the danger that exists when “ ‘punitive damages may be awarded on what is
traditionally considered a negligence cause of action’ ” (Central Pathology, supra,
3 Cal.4th at p. 190).
Section 425.13(a) also contains timing requirements, including the
requirement at issue in this case that any motion under the statute be “filed within
two years after the complaint or initial pleading is filed . . . .” The purpose of this
requirement is to provide a health care provider with adequate notice of a punitive
damages claim, as well as to prevent “last minute” insertion of punitive damages
issues into a case that has been prepared for trial without consideration of such,
and past the time when positions and discovery issues have become fixed.
10 In so noting, we have no occasion to decide whether or on what theory a
plaintiff may be able to obtain common law remedies for ordinary negligence that
also constitutes neglect as defined in the Elder Abuse Act. (See, e.g., Norman v.
Life Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233, 1242-1243, rev.
den. Aug. 13, 2003.)
20
(Goodstein v. Superior Court (1996) 42 Cal.App.4th 1635, 1642.) As discussed,
however, in any Elder Abuse Act action issues of egregious conduct are by
definition always present, so a defendant has the relevant notice from the outset.
Judicial precedent. To the extent we are presented in this case with the
necessity of choosing between application of Central Pathology’s holding to facts
only at its outer reaches and Delaney’s well-documented understanding of the
Elder Abuse Act’s subject matter and purposes, we choose the latter.
Where the gravamen of an action is violation of the Elder Abuse Act,
Central Pathology’s rationale for applying section 425.13 to the common law
intentional torts at issue in that case does not obtain. In contrast with Central
Pathology, this case cannot be resolved by application of the principle “that a
statute should not be interpreted in a manner that would lead to absurd results”
(Central Pathology, supra, 3 Cal.4th at p. 191), because neither of the possible
results—i.e., that section 425.13 applies to Elder Abuse Act claims or that it does
not—is absurd. Thus, in declining to apply section 425.13, the courts below did
not by implication “render the statute virtually meaningless” (Central Pathology,
supra, at p. 191). Central Pathology itself guarantees that, notwithstanding our
affirmance of the Court of Appeal’s judgment in this case, section 425.13 will
continue to apply to a broad range of intentional torts typically pled in medical
malpractice cases. (See Central Pathology, supra, at p. 184.)
Defendants fail to acknowledge the factual aspects of Central Pathology
that qualify its holding, including that the case addressed common law causes of
action for fraud and intentional infliction of emotional distress that arose in the
medical malpractice context. (Central Pathology, supra, 3 Cal.4th at pp. 185,
21
192.)11 While Central Pathology thus speaks to situations in which claims for
punitive damages are, as a factual matter, “predicated on mere negligence or a
conscious disregard of the rights or safety of others” in which intentional torts are
nevertheless alleged (Central Pathology, supra, at p. 191), its rationale does not
extend to situations, as here, in which a claim for punitive damages accompanies
allegations of a statutory violation, proof of which will require clear and
convincing evidence the defendant has been guilty of recklessness, oppression,
fraud, or malice in the commission of physical, neglectful, or financial elder abuse.
(See Welf. & Inst. Code, §§ 15657, 15610.30, 15610.57, 15610.63.)
In light of the general rule that statutory causes of action must be pleaded
with particularity (Lopez v. Southern Cal. Rapid Trans. Dist. (1985) 40 Cal.3d
780, 795), a rule plaintiffs’ fourth amended complaint satisfies, we cannot
conclude, as we concluded in Central Pathology when considering section
425.13’s application to common law intentional torts, that the Legislature intended
the statute to apply in an action under the Elder Abuse Act.
11 It is axiomatic that an unnecessarily broad holding is “informed and limited
by the fact[s]” of the case in which it is articulated. (Cassista v. Community
Foods, Inc. (1993) 5 Cal.4th 1050, 1061; see generally id. at p. 1057; Thor v.
Superior Court (1993) 5 Cal.4th 725, 743.)
22
Disposition
The judgment of the Court of Appeal is affirmed.12
WERDEGAR,J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
BROWN, J.
MORENO, J.
RYLAARSDAM, J.P.T.*
12 To the extent it is inconsistent with our opinion here, Community Care &
Rehabilitation Center v. Superior Court, supra, 79 Cal.App.4th 787, is
disapproved.
* Associate Justice of the Court of Appeal, Fourth Appellate District,
Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
23
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Covenant Care v. Superior Court
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 89 Cal.App.4th 928
Rehearing Granted
__________________________________________________________________________________
Opinion No. S098817
Date Filed: March 25, 2004
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Richard B. Wolfe
__________________________________________________________________________________
Attorneys for Appellant:
Horvitz & Levy, Julie L. Woods, David S. Ettinger; Even, Crandall, Wade, Lowe & Gates, Randolph M.
Even & Associates, Randolph M. Even and Stephanie Charles for Petitioners.
Hooper, Lundy & Bookman, Mark E. Reagan and Mark A. Johnson for California Association of Health
Facilities as Amicus Curiae on behalf of Petitioners.
Hanson, Bridgett, Marcus, Vlahos & Rudy, Paul A. Gordon and Michelle L. Sullivan for California
Association of Homes and Services for the Aging as Amicus curiae on behalf of Petitioners.
Fred J. Hiestand for Californians Allied for Patient Protection and the Civil Justice Association of
California as Amici Curiae on behalf of Petitioners.
Thelen Reid & Priest, Curtis A. Cole, Kenneth R. Pedroza and E. Todd Chayet for California Medical
Association, California Dental Association and California Healthcare Association as Amici Curiae on
behalf of Petitioners.
__________________________________________________________________________________
Attorneys for Respondent:
No appearance for Respondent.
Houck & Balisok, Russell S. Balisok, Steven Wilheim, Patricia L. Canner; Law Office of Carol S. Jimenez
and Carol S. Jimenez for Real Parties in Interest.
Peter G. Lomhoff for California Advocates for Nursing Home Reform, Inc., as Amicus Curiae on behalf of
Respondent and Real Parties in Interest.
Wilkes & McHugh, Stephen M. Garcia, David T. Bamberger; Robinson, Calcagnie & Robinson and Sharon
J. Arkin for Consumer Attorneys of California as Amicus Curiae on behalf of Real Parties in Interest.
24
Counsel who argued in Supreme Court (not intended for publication with opinion):
David S. Ettinger
Horvitz & Levy
15760 Ventura Blvd., 18th Floor
Encino, CA 91436-3000
(818) 995-0800
Curtis A. Cole
Thelen Reid & Priest
333 South Grand Avenue, Suite 3400
Los Angeles, CA 90071-3193
(213) 621-9800
Russell S. Balisok
Houck & Balisok
535 North Brand Boulevard, Suite 501
Glendale, CA 91203
(818) 506-7890
25