Filed 5/19/16




      IN THE SUPREME COURT OF CALIFORNIA


KATHLEEN A. WINN, et. al,              )
                                       )
           Plaintiffs and Appellants,  )
                                       )                          S211793
           v.                          )
                                       )                    Ct.App. 2/8 B237712
PIONEER MEDICAL GROUP, INC., et. al, )
                                       )                    Los Angeles County
           Defendants and Respondents. )                  Super. Ct. No. BC455808
____________________________________)


        The Elder Abuse and Dependent Adult Civil Protection Act affords certain
protections to elders and dependent adults. Section 15657 of the Welfare and
Institutions Code 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.‖ Section 15610.57, in turn, defines
―neglect‖ in relevant part 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.‖ (Welf. & Inst. Code
§ 15610.57, subd. (a)(1).)




                                          1
       We granted review to determine whether the definition of neglect under the
Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code,
§ 15600 et seq.; the Elder Abuse Act or Act)1 applies when a health care provider
— delivering care on an outpatient basis –– fails to refer an elder patient to a
specialist. What we conclude is that the Act does not apply unless the defendant
health care provider had a substantial caretaking or custodial 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. Because defendants did not have a
caretaking or custodial relationship with the decedent, we find that plaintiffs
cannot adequately allege neglect under the Elder Abuse Act.
                                  I.   BACKGROUND
       This case involves the Court of Appeal‘s reversal of a trial court order
sustaining defendants‘ demurrer. In considering whether that demurrer should
have been sustained, we treat the demurrer as an admission by defendants of all
material facts properly pled in plaintiffs‘ first amended complaint –– but not
logical inferences, contentions, or conclusions of fact or law. (Evans v. City of
Berkeley (2006) 38 Cal.4th 1, 6.)
       Plaintiffs Kathleen A. Winn and Karen Bredahl allege the following facts.
They are the daughters and surviving heirs of Elizabeth M. Cox. As early as
November 2000, Mrs. Cox sought medical care on an outpatient basis at the
facilities of Pioneer Medical Group, Inc. (Pioneer) and received treatment from
Dr. Csepanyi, a medical doctor working at Pioneer and another named defendant.

1     All subsequent statutory references are to the Welfare and Institutions
Code, unless otherwise noted.



                                          2
In 2004, Dr. Lowe, a podiatrist and one of the named defendants in this case,
treated Mrs. Cox for ―painful onychomycosis,‖ a condition that may limit mobility
and impair peripheral circulation. Dr. Lowe recorded pulses that reflected
impaired vascular flow in the lower legs, and sent a copy of his report to Dr.
Csepanyi.
       In January and February 2007, Mrs. Cox‘s lower extremity vascular
symptoms worsened, and in February 2007, Dr. Csepanyi diagnosed Mrs. Cox
with peripheral vascular disease. In December 2007, Dr. Lowe evaluated Mrs.
Cox and found a reduced pulse in her extremities. He advised her to return for a
follow-up visit in two months, but did not refer her to a vascular specialist. In
February 2008, Dr. Lowe found an abscess and cellulitic changes, both of which
are consistent with tissue damage resulting from vascular insufficiency. Dr. Lowe
drained the infection, prescribed medication, and recommended another follow-up
appointment, but again did not refer Mrs. Cox to a specialist.
       When Dr. Csepanyi examined Mrs. Cox in July 2008, he found that she still
suffered from peripheral vascular disease. He saw her a month later but did not
perform a vascular examination. After suffering a laceration on her right foot in
December 2008, Mrs. Cox sought treatment from Dr. Lee — another podiatrist at
Pioneer — who prescribed antibiotics and instructed Mrs. Cox to return for
follow-up treatment in January 2009. Mrs. Cox returned to Dr. Lee in January
2009, but the wound had not healed and Mrs. Cox saw Dr. Csepanyi later that
month. She noted the wound was painful and Dr. Csepanyi recommended
medication and foot soaks. The following month, Dr. Csepanyi diagnosed
cellulitis of the toes, cyanosis, and a toe abscess, all of which point to cellular
deterioration and tissue destruction from peripheral vascular ischemia.
       Mrs. Cox saw Dr. Lowe four times in February and March 2009. Dr. Lowe
noted that Mrs. Cox suffered from chronic nondecubitus ulcer of the toes, caused

                                           3
by vascular compromise. He recommended topical cream and a special shoe, but
did not refer Mrs. Cox to a specialist. During two visits, Dr. Lowe reported that he
could not feel a pulse in Mrs. Cox‘s feet. On March 18, 2009, Mrs. Cox saw Dr.
Csepanyi. Dr. Csepanyi noted that Mrs. Cox had suffered abnormal weight loss,
but also failed to refer Mrs. Cox to a specialist.
       The following day, Mrs. Cox was admitted to a hospital 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. In April of that year doctors amputated
Mrs. Cox‘s right leg below the knee and in June doctors performed an above-the-
knee amputation. In January 2010 Mrs. Cox was hospitalized for blood poisoning.
She died several days later.
       Plaintiffs filed a complaint alleging medical malpractice against defendants
on March 19, 2010. Later, on February 23, 2011, plaintiffs filed a complaint for
elder abuse, alleging that defendants consciously failed ―to make a vascular
referral.‖ The trial court sustained defendants‘ demurrer based on plaintiffs‘
failure to sufficiently allege more than ―mere negligence‖ and the ―provision of
inadequate care.‖ In their first amended complaint, plaintiffs alleged again the
conduct highlighted above.
       Defendants again demurred. They also sought and obtained judicial notice
of the March 2010 complaint plaintiffs had filed alleging medical malpractice.
The trial court sustained defendants‘ demurrer to the first amended complaint
without leave to amend. It concluded that plaintiffs had not offered facts sufficient
to show that defendants had recklessly denied the needed care to Mrs. Cox, as
would be necessary to show a violation of the Elder Abuse Act. Instead, the trial
court concluded, plaintiffs‘ allegations again showed only professional negligence
and ―incompetence.‖ Absent malice, oppression, or fraud, the trial court

                                           4
determined, plaintiffs could not support a claim of neglect under the Act. The
court ordered the complaint dismissed and plaintiffs appealed.
       The Court of Appeal then reversed the trial court in a split opinion. It held
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.2 The court also
rejected defendants‘ contention that the trial court should determine, as a matter of
law, whether defendants‘ conduct constituted professional negligence rather than
neglect. The Court of Appeal distinguished two of our opinions interpreting the
Act — Delaney v. Baker (1999) 20 Cal.4th 23 (Delaney) and Covenant Care, Inc.
v. Superior Court (2004) 32 Cal.4th 771 (Covenant Care) — and found that
sections 15657, 15610.57, and 15657.2 did not impose any special relationship
requirement.
       Citing Mack v. Soung (2000) 80 Cal.App.4th 966 (Mack), the Court of
Appeal concluded that the ―statutory language simply does not support
defendants‘ contention that only ‗care custodians‘ are liable for elder abuse.‖ And
besides, the majority concluded, defendants here were in fact ―care custodians.‖
The majority likewise rejected defendants‘ claim that Delaney and Covenant Care
suggested the Act‘s inapplicability to health care providers who have no custodial
obligations, but instead ―merely provide care.‖ In dissent, Presiding Justice
Bigelow criticized the majority as blurring the lines between Elder Abuse Act
neglect and professional negligence. The dissent read Delaney as ―reject[ing] the
theory that a cause of action could be based on professional negligence within the


2The Court of Appeal further concluded that even if section 15610.57 requires a
defendant to have a custodial relationship with the elder or dependent adult,
defendants in the instant case were ―care custodians.‖ As discussed post, the
Court of Appeal erred on both counts.



                                           5
meaning of section 15657.2 and also constitute reckless neglect within the
meaning of section 15657,‖ and it focused on language in both Delaney and
Covenant Care defining ―neglect‖ as the failure to provide medical care.
Examining the statutory language and the cases most on point, the dissent
concluded that the ―gravamen of plaintiffs‘ claim is one of professional
negligence, not elder abuse.‖
       We granted review 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. Taking account of
the statutory text, structure, and legislative history of the Elder Abuse Act, we
conclude that it does.
                                  II.   DISCUSSION
       When legislators enacted the Elder Abuse Act, they enhanced the potential
sanctions for neglect of elders or certain dependent adults. They did so by
establishing heightened remedies –– allowing not only for a plaintiff‘s recovery of
attorney fees and costs, but also exemption from the damages limitations
otherwise imposed by Code of Civil Procedure section 377.34. Unlike other
actions brought by a decedent‘s personal representative or successor in interest,
claims under the Act allow for the recovery of damages for predeath pain,
suffering, and disfigurement. (Welf. & Inst. Code § 15657.) The question before
us turns on the availability of these very remedies –– a question that, in turn,
depends on the presence of neglect under the Act, as defined in section 15610.57.
       Our analysis begins with the text of this provision, as the statutory language
is typically the best indication of the Legislature‘s purpose. (Larkin v. Workers’
Comp. Appeals Bd. (2015) 62 Cal.4th 152, 157-158; see Fitch v. Select Products

                                          6
Co. (2005) 36 Cal.4th 812, 818; Baker v. Workers’ Comp. Appeals Bd. (2011) 52
Cal.4th 434, 442.) We consider the ordinary meaning of the statutory language, its
relationship to the text of related provisions, terms used elsewhere in the statute,
and the overarching structure of the statutory scheme. (Larkin, supra, 62 Cal.4th
at pp. 157-158; California Teachers Assn. v. San Diego Community College Dist.
(1981) 28 Cal.3d 692, 698; Lonicki v. Sutter Health Central (2008) 43 Cal.4th
201, 209; see also Clean Air Constituency v. State Air Resources Bd. (1974) 11
Cal.3d 801, 814; People v. Rogers (1971) 5 Cal.3d 129, 142 (conc. & dis. opn. of
Mosk, J.) [in construing a statute, we do not look at each term as if ―in a vacuum,‖
but rather gather ―the intent of the Legislature . . . from the statute taken as a
whole‖].) When the language of a statutory provision remains opaque after we
consider its text, the statute‘s structure, and related statutory provisions, we may
take account of extrinsic sources –– such as legislative history –– to assist us in
discerning the Legislature‘s purpose. (Holland v. Assessment Appeals Bd. No. 1
(2014) 58 Cal.4th 482, 490.)
       The Elder Abuse Act‘s heightened remedies are available only in limited
circumstances. A plaintiff must prove, by clear and convincing evidence, that a
defendant is liable for either physical abuse under section 15610.63 or neglect
under section 15610.57, and that the defendant committed the abuse with
―recklessness, oppression, fraud, or malice.‖ (§ 15657.) Section 15610.57, in
turn, provides two definitions of neglect. First, ―[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).) Second, ―[t]he negligent failure of an elder or
dependent adult to exercise that degree of self care that a reasonable person in a
like position would exercise.‖ (Id., subd. (a)(2).) Because plaintiffs allege neglect



                                           7
arising in the context of medical care and not self-care, we deal only with section
15610.57‘s first definition of neglect.
         Complementing these two definitions is the statute‘s explicitly
nonexhaustive list of ―neglect‖ examples. These include failures ―to assist in
personal hygiene‖ or to provide ―food, clothing, or shelter‖ (§ 15610.57, subd.
(b)(1)); ―to provide medical care for physical and mental health needs‖ (id., subd.
(b)(2)); ―to protect from health and safety hazards‖ (id., subd. (b)(3)); and ―to
prevent malnutrition or dehydration‖ (id., subd. (b)(4)).
         What these provisions show is that neither section 15610.57, subdivision
(a)(1) nor other relevant portions of the statute flatly preclude the statute‘s
applicability to outpatient medical treatment. Instead, the statute simply refers
explicitly to ―any person having the care or custody of an elder.‖ (§ 15610.57,
subd. (a)(1).) As defendants contend, ―care‖ and ―custody‖ may sometimes be
used as synonyms, (see Oxford Engl. Dict. Online (2016) <http://oed.com> [as of
May 19, 2016] [defining ―care‖ as ―[c]harge‖ or ―oversight with a view to
protection, preservation, or guidance,‖ and defining ―custody‖ as ―[s]afe keeping,
protection, defence; charge, care, guardianship‖ italics added]), and defendants
would construe ―care‖ and ―custody‖ as identical and synonymous. Plaintiffs‘
interpretation, in contrast, would construe ―any person having the care or custody
of‖ as ―any person having either the care or the custody of‖ an elder or dependent
adult.
         To rebut this interpretation, defendants emphasize two textual elements of
section 15610.57. First, they note the Legislature‘s decision to use the definite
article ―the‖ before ―care or custody.‖ From defendants‘ perspective, this definite
article, used with the modifier ―having,‖ suggests that the Legislature sought to
signal a distinction as to the relationship between someone who has been charged
with ―having‖ ―the care‖ of an elder or dependent adult and someone who merely

                                           8
provides care to a recipient. As defendants see it, had the Legislature not meant to
signal a custodial relationship, it could have drafted section 15610.57 to apply to
―any person caring for an elder or a dependent adult.‖ Second, defendants argue
that the Legislature‘s failure to use a definite article before the word ―custody‖
suggests that we should read ―care‖ and ―custody‖ as ―identical or synonymous.‖
Plaintiffs, in turn, argue that the ―or‖ in ―care or custody‖ is an ―inclusive
disjunctive conjunction — that is, a conjunction that denotes separation or
alternatives, while also allowing that both alternatives may be true.‖
       These dueling textual and grammatical arguments may tell us something
about the statute‘s scope, but neither interpretation fully answers a question
implicit in the statute‘s use of the terms ―having the care or custody‖: what kind
of caretaking or custodial relationship is required to justify the conclusion that an
individual or organization may be subjected to the Act‘s heightened remedies?
Indeed, while defendants‘ interpretation is not categorically excluded by the
statutory language, it not especially persuasive on its face, nor does the argument
that the words ―care‖ and ―custody‖ should be read together as synonyms –– even
if it were availing –– offer much insight into what those terms mean in the context
of section 15610.57. The parties‘ dispute about whether ―care or custody‖ should
be taken individually or together does, however, highlight the fact that the text of
section 15610.57, subdivision (a)(1) standing alone does not fully elucidate the
scope of the relationship that the statute evokes by using these terms.
       The content of section 15610.57, subdivision (b) nonetheless proves
particularly instructive. Neglect includes the ―[f]ailure to assist in personal
hygiene, or in the provision of food, clothing, or shelter.‖ (§ 15610.57, subd.
(b)(1).) It also includes the ―[f]ailure to protect from health and safety hazards‖
(id., subd. (b)(3)), and the ―[f]ailure to prevent malnutrition or dehydration‖ (id.,
subd. (b)(4)). These examples add some context elucidating the statute‘s meaning

                                           9
–– 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.
       One would not normally expect an able-bodied and fully competent adult to
depend on another for ―assist[ance] with personal hygiene‖ or ―protect[ion] from
health and safety hazards,‖ any more than one would expect a party with only
circumscribed, intermittent, or episodic engagement to be among those who ―have
. . . care or custody‖ of someone who may be particularly vulnerable.
(§ 15610.57, subd. (b)(1), (3).). An individual might assume the responsibility for
attending to an elder‘s basic needs in a variety of contexts and locations, including
beyond the confines of a residential care facility. Certain in-home health care
relationships, for example, may satisfy the caretaking or custodial relationship
requirement set forth under the Act. Ultimately, 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 Act entails more than casual or
limited interactions.
       The remaining example of neglect — the ―[f]ailure to provide medical care
for physical and mental health needs‖ (§ 15610.57, subd. (b)(2)) — 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

                                         10
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 professional standing or expertise –– that makes the
defendant potentially liable for neglect.
       Section 15610.57, subdivision (b) is a case in point. By invoking failure to
provide food or clothing, or neglect in providing mental health care, its provisions
convey the broad range of conduct encompassed by the Elder Abuse Act‘s
definition of neglect. What those examples nonetheless also suggest is that the
statute was not meant to encompass every course of behavior that fits either legal
or colloquial definitions of neglect. In construing statutes, we bear in mind that
the scope of certain terms may sometimes be elucidated by related provisions.
(See, e.g., Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 141
[―[I]f the Legislature intends a general word to be used in its unrestricted sense, it
does not also offer as examples peculiar things or classes of things since those
descriptions then would be surplusage.‖]; see also Internat. Federation of Prof. &
Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319,
341-342 [applying the principle of ejusdem generis to ascertain Legislature‘s
intended purpose where a general term was followed by a nonexhaustive list of
specific examples].) The examples of neglect in subdivision (b), though
nonexhaustive, are nonetheless related terms that shed light on the type of conduct
the Legislature sought to forestall — and on the conditions that could place an
individual or organization in a position to commit ―neglect‖ in the first place.
       Contrast the examples from section 15610.57, subdivision (b) –– and the
underlying concept of neglect they imply –– with the sort of conduct triggering

                                            11
more conventional tort liability. A doctor‘s failure to prescribe the right medicine,
or refer a patient to a specialist may give rise to tort liability even in the absence of
a caretaking or custodial relationship. (See Code Civ. Proc., § 364 [defining
professional negligence as the ―negligent act or omission to act by a health care
provider in the rendering of professional services, which act or omission is the
proximate cause of a personal injury or wrongful death‖]; see also Fein v.
Permanente Medical Group (1985) 38 Cal.3d 137, 143-145, 151 [affirming
medical malpractice judgment where defendants misdiagnosed plaintiff]; Evans v.
Ohanesian (1974) 39 Cal.App.3d 121, 129 [failure to refer to specialist].) What
seems beyond doubt is that the Legislature enacted a scheme distinguishing
between –– and decidedly not lumping together –– claims of professional
negligence and neglect. (See § 15657.2 [―Notwithstanding this article, any cause
of action for injury or damage against a health care provider . . . 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‖);
see also Covenant Care, supra, 32 Cal.4th at p. 785.) The 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. (See Delaney, supra, 20 Cal.4th at pp. 36-37.)
Blurring the distinction between neglect under the Act and conduct actionable
under ordinary tort remedies –– even in the absence of a care or custody
relationship –– risks undermining the Act‘s central premise. Accordingly,
plaintiffs alleging professional negligence may seek certain tort remedies, though
not the heightened remedies available under the Elder Abuse Act. (See, e.g., Code
Civ. Proc., § 377.34 [generally limiting recovery of predeath pain and suffering
damages].)



                                           12
       Aside from neglect situations, the only other circumstances where those
heightened remedies are available under the Act must involve ―physical abuse‖ as
defined in section 15610.63. (See § 15676.) This, too, is consistent with the
distinction between neglect and other forms of negligent conduct. Though the Act
sets forth a rather broad definition of ― ‗abuse of an elder,‘ ‖ including physical
abuse, neglect, financial abuse, isolation, abandonment, and the deprivation by a
care custodian of certain goods or services (§ 15610.07), section 15657 is
explicitly limited to physical abuse and neglect. This 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.
(§ 15657.) 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 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.
       Our reading of section 15610.57 also fits our conclusions in prior cases.
Delaney concluded that ― ‗neglect‘ as defined in former section 15610.57 and used
in section 15657 . . . [refers] 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 p. 34; see Covenant Care, supra, 32 Cal.4th at p. 786.) In both

                                           13
Delaney and in Covenant Care, the defendants had explicitly assumed
responsibility for attending to the elders‘ most basic needs. In Delaney, the elder
resided at a skilled nursing facility where she had been left lying in her own urine
and feces for extended periods of time because the defendants, upon whom she
had relied to provide basic care, had failed to carry out their caretaking and
custodial obligations. (Delaney, 20 Cal.4th at p. 27.) Similarly, in Covenant
Care, we noted that the elder suffered ―from Parkinson‘s disease and was unable
to care for his personal needs.‖ (Covenant Care, 32 Cal.4th at p. 778.) The elder
in Covenant Care relied on the defendants to provide nutrition, hydration, and
medication — needs that an able-bodied and fully competent adult would
ordinarily be capable of handling on his or her own. (See ibid.) Our prior case
law thus illustrates the type of caretaking or custodial relationship that the Act
requires: one where a party has accepted responsibility for attending to the basic
needs of an elder or dependent adult.
       Appearing not only in section 15610.57 but also elsewhere in the Act, the
phrase ―care or custody‖ evokes a bond that contrasts with a casual or temporally
limited affiliation. We generally presume that when the Legislature uses a word or
phrase ―in a particular sense in one part of a statute,‖ the word or phrase should be
understood to carry the same meaning when it arises elsewhere in that statutory
scheme. (People v. Dillon (1983) 34 Cal.3d 441, 468.) Section 15610.05 defines
― ‗abandonment,‘ ‖ for example, as the ―desertion or willful forsaking of an elder
or a dependent adult by anyone having care or custody of that person‖ where a
reasonable person ―would continue to provide care and custody.‖ (§ 15610.05.) It
is difficult to imagine under what circumstances an individual could ―abandon‖ an
elder or dependent adult absent the existence of a caretaking or custodial
relationship (e.g., a degree of dependence and reliance that would make
abandonment possible). Similarly, section 15656, which imposes fines and jail

                                          14
time for subjecting an elder to great bodily harm or death, defines ― ‗caretaker‘ ‖
as it is used in that section as a ―person who has the care, custody, or control of . . .
an elder or a dependent adult.‖ (§ 15656, subd. (d).) Here again, the terms ―care‖
and ―custody‖ are used together, and are best understood to denote a distinctive
caretaking or custodial relationship.
       It is this reading of the Act that most readily fits with how we have
interpreted analogous statutory provisions arising beyond the Act that nonetheless
use the phrase ―having the care or custody.‖ We construe this phrase in context,
with the understanding that statutes ―relating to the same subject must be
harmonized, both internally and with each other, to the extent possible.‖ (Dyna-
Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387; see
Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1090-1091 [―It is a basic canon of
statutory construction that statutes in pari materia should be construed together so
that all parts of the statutory scheme are given effect‖].) For example, Penal Code
section 368 imposes criminal liability upon any person ―having the care or custody
of any elder or dependent adult‖ who ―willfully causes or permits‖ the elder or
dependent adult to be injured or endangered.3 In People v. Heitzman (1994) 9


3 Penal Code section 368, subdivision (b)(1) provides: ―Any person who knows or
reasonably should know that a person is an elder or dependent adult and who,
under circumstances or conditions likely to produce great bodily harm or death,
willfully causes or permits any elder or dependent adult to suffer, or inflicts
thereon unjustifiable physical pain or mental suffering, or having the care or
custody of any elder or dependent adult, willfully causes or permits the person or
health of the elder or dependent adult to be injured, or willfully causes or permits
the elder or dependent adult to be placed in a situation in which his or her person
or health is endangered, is punishable by imprisonment in a county jail not
exceeding one year, or by a fine not to exceed six thousand dollars ($6,000), or by
both that fine and imprisonment, or by imprisonment in the state prison for two,
three, or four years.‖



                                           15
Cal.4th 189, 204 (Heitzman), we considered the scope of Penal Code section 368,
and noted that the statutory language was ―derive[d] verbatim from the felony
child abuse statute.‖ Analyzing the statutory language and legislative history, we
concluded that the underlying purpose of both felony abuse statutes was to
―protect the members of a vulnerable class from abusive situations,‖ which usually
arose where caretakers or custodians responsible for the basic needs of these
vulnerable, dependent populations failed to provide for their charges. (Heitzman,
at p. 203.) Though section 15610.57 defines neglect for civil liability purposes,
the statutory language invokes a similar caretaking or custodial relationship
requirement.
       What the text of section 15610.57 conveys about the Legislature‘s purpose
here –– along with related provisions, and similar language in other statutes ––
supports tethering the concept of neglect to caretaking or custodial situations. But
the legislative history of the Act likewise suggests that the Legislature was
principally concerned with particular caretaking and custodial relationships, and
the abuse and neglect that can occur in that context. First, the legislative
declarations accompanying the Elder Abuse Act tend to reinforce a reading of
section 15610.57 that imposes a caretaking or custodial prerequisite. The
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.‖ (§ 15600, subd. (d), italics added.) The Legislature took note of the
―factors which contribute to abuse, neglect, or abandonment of elders and
dependent adults [such as] economic instability of the family, resentment of
caretaker responsibilities, stress on the caretaker, and abuse by the caretaker of
drugs or alcohol.‖ (Id., subd. (e).) As these declarations make clear, the
Legislature expressed concern for those who are vulnerable and dependent on

                                          16
others for their most basic needs. And the Legislature recognized certain factors
that might arise in a custodial setting — emphasizing abuse and neglect by
caretakers — in highlighting its rationale for the Act‘s passage.
       Second, the legislative history tends to support the view that the Legislature
enacted section 15657 in large part to combat pervasive abuse and neglect in
certain health care facilities. (Delaney, supra, 20 Cal.4th at pp. 35-36.) As we
concluded in Delaney, ―one of the major objectives of this legislation was the
protection of residents of nursing homes and other health care facilities.‖ (Id. at
pp. 36-37.) That recognition led us to hold as ―contrary‖ to the Legislature‘s
objective the exemption of nursing homes and other similar facilities from section
15657‘s reach. (Delaney, at p. 37.)
       Third, nothing in the legislative history suggests that the Legislature
intended the 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. Senate Bill No. 679 [1991-1992 Reg. Sess.] was
the bill that contained the Act. No portion of its legislative history contains any
indication that the Legislature‘s purpose was to effectuate such a transformation of
medical malpractice liability. (See Jones v. Lodge at Torrey Pines Partnership
(2008) 42 Cal.4th 1158, 1169 [discussing ―the absence of legislative history‖ in
concluding that amendment described as ― ‗technical and conforming‘ ‖ was not
intended to effect a substantial change in the law]; Donovan v. Poway Unified
School Dist. (2008) 167 Cal.App.4th 567, 597 [―the absence of legislative history
[can] be of significance in deciphering legislative intent‖ (citing Lodge at Torrey
Pines, at p. 1169)].) While the absence of legislative history alone is of limited
significance, here we see only evidence that cuts against any argument that the
Legislature was not aware of the scope of health care providers‘ potential liability
under the Act. (See Delaney, supra, 20 Cal.4th at p. 41 [noting that § 15657‘s

                                         17
―legislative history suggests that nursing homes and other health care providers
were among the primary targets of the Elder Abuse Act‖]; see also section 15657.2
[distinguishing claims ―based on the health care provider‘s alleged professional
negligence‖ from those governed by the Elder Abuse Act].)
       Moreover, finding a caretaking or custodial relationship prerequisite is also
consistent with our prior case law, and the Court of Appeal‘s reliance on Mack,
supra, 80 Cal.App.4th 966, in holding to the contrary is unpersuasive. The
defendant doctor in Mack assumed a caretaking relationship with a reliant,
vulnerable patient who was unable to access other health care providers — indeed,
the defendant actively prevented the patient from being hospitalized and failed to
provide any medical care. (Ibid. [―When her condition worsened . . . Dr. Soung
abruptly abandoned [decedent] as her physician without further notice‖].) In
resolving the dispute arising from these facts, the Mack court ignored a key
limiting factor in Delaney — the presence of a custodial relationship. Moreover,
as Mack predated Covenant Care, the Mack court did not have the benefit of our
clear pronouncement on the Act‘s caretaking or custodial prerequisite. (See
Covenant Care, supra, 32 Cal.4th at p. 786 [―[C]laims 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 that may or may
not, incidentally, also be health care providers‖].) Accordingly, we disapprove of
Mack v. Soung, supra, 80 Cal.App.4th 966, to the extent it finds claims of neglect
under the Elder Abuse Act may be brought irrespective of a doctor‘s caretaking or
custodial relationship with an elder patient.




                                         18
       In the alternative, plaintiffs contend that if neglect under section 15610.57,
subdivision (a)(1), requires a caretaking or custodial relationship,4 then defendants
assumed ―custody‖ of Mrs. Cox by treating her at Pioneer‘s outpatient facilities.
According to plaintiffs, section 15610.17‘s definition of a care custodian under the
Act includes clinics, Pioneer‘s outpatient facilities are clinics, and Pioneer is
therefore a care custodian. This argument also fails to persuade. What plaintiffs
erroneously assume is that the 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 ― ‗care 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, 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.
       Section 15610.17 broadly defines a care custodian as an ―administrator or
an employee of any of the following public or private facilities or agencies, or
persons providing care or services for elders or dependent adults, including
members of the support staff and maintenance staff.‖ (§ 15610.17.) It then lists a
variety of public and private agencies and facilities, from ―[t]wenty-four-hour


4      Amicus curiae California Advocates for Nursing Home Reform contends
that Senate Bill No. 1681 [1993-1994 Reg. Sess.], which enacted section
15610.17, ―has nothing to do with the [Elder Abuse] Act.‖ We disagree, and we
interpret provisions added by later legislation ―to preserve statutory harmony and
effectuate the intent of the Legislature.‖ (McLaughlin v. State Bd. of Education
(1999) 75 Cal.App.4th 196, 219-220.)



                                          19
health facilities‖ (§ 15610.17, subd. (a)), to ―[h]umane societies and animal
control agencies‖ (§ 15610.17, subd. (v)). The list concludes with a catchall
provision for ―[a]ny other . . . person providing health services or social services to
elders or dependent adults.‖ (Bernard v. Foley (2006), 39 Cal.4th 794, 807
[describing § 15610.17, subd. (y) as a ―broad catchall provision‖].) While one
might reasonably conclude that a 24-hour health facility (§ 15610.17, subd. (a)), or
a residential care facility for the elderly (§ 15610.17, subd. (j)), could have ―the
care or custody‖ of an elder or dependent adult, it is less evident why fire
departments (§ 15610.17, subd. (w)), animal control agencies (§ 15610.17, subd.
(v)), or offices of environmental health and building code enforcement
(§ 15610.17, subd. (x)), would necessarily have the type of caretaking or custodial
relationship with an elder or a dependent adult required to show neglect under
section 15610.57.
       Beyond the assertion that defendants treated Mrs. Cox 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 Mrs. Cox and defendants. No allegations in the
complaint support an inference that Mrs. Cox 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.




                                          20
                                 III.   CONCLUSION
         Plaintiffs cannot bring a claim of neglect under the Elder Abuse Act unless
the defendant health care provider has a caretaking or custodial relationship with
the elder or dependent adult. Here, 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. Our conclusion is grounded in the text of sections 15657
and 15610.57 and related provisions, the extent to which those provisions make
heightened remedies available only in specific circumstances, the applicable
legislative history, and the light these shed on the Legislature‘s intended purpose.
Our conclusion that a claim of neglect under the Elder Abuse Act depends on the
existence of a caretaking or custodial relationship is also consistent with our prior
cases.
         Accordingly, we reverse the Court of Appeal and remand to that court for
further proceedings consistent with our opinion.
                                                   CUÉLLAR, J.


WE CONCUR:

CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
KRUGER, J.



                                          21
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Winn v. Pioneer Medical Group, Inc.
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 216 Cal.App.4th 875
Rehearing Granted

__________________________________________________________________________________

Opinion No. S211793
Date Filed: May 19, 2016
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Joanne B. O‘Donnell

__________________________________________________________________________________

Counsel:

Magaña, Cathcart & McCarthy and Clay Robbins III for Plaintiffs and Appellants.

Balisok & Associates and Russell S. Balisok for California Advocates for Nursing Home Reform, Inc., as
Amicus Curiae on behalf of Plaintiffs and Appellants.

Evans Law Firm, Ingrid Evans and Elliot Wong for Consumer Attorneys of California as Amicus Curiae on
behalf of Plaintiffs and Appellants.

Cole Pedroza, Curtis A. Cole, Kenneth R. Pedroza, Matthew S. Levinson, Cassidy C. Davenport; Carroll,
Kelly, Trotter, Franzen & McKenna, Carroll, Kelly, Trotter, Franzen, McKenna & Peabody, Richard D.
Carroll, David P. Pruett and Jennifer A. Cooney for Defendants and Respondents.

Tucker Ellis, E. Todd Chayet and Rebecca A. Lefler for California Medical Association, California Dental
Association, California Hospital Association and American Medical Association as Amici Curiae on behalf
of Defendants and Respondents.

Manatt, Phelps & Phillips and Harry W.R. Chamberlain II for Association of Southern California Defense
Counsel as Amicus Curiae on behalf of Defendants and Respondents.

Fred J. Hiestand for The Civil Justice Association of California as Amicus Curiae on behalf of Defendants
and Respondents.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Clay Robbins III
Magaña, Cathcart & McCarthy
1900 Avenue of the Stars, Suite 650
Los Angeles, CA 90067-5899
(310) 553-6630

Russell S. Balisok
Balisok & Associates
330 N. Brand Boulevard, Suite 702
Glendale, CA 91203
(818) 550-7890

Kenneth R. Pedroza
Cole Pedroza
200 S. Los Robles Avenue, Suite 300
Pasadena, CA 91101
(626) 431-2787
