Filed 12/30/13 Nickerson v. Scripps Health CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



DARLENE NICKERSON,                                                   D062538

         Plaintiff and Appellant,

         v.                                                          (Super. Ct. No. 37-2010-00093409-
                                                                     CU-PO-CTL)
SCRIPPS HEALTH,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of San Diego County, Randa

Trapp, Judge. Affirmed.



         Law Offices of Carolin K. Shining and Carolin K. Shining for Plaintiff and

Appellant.

         Higgs, Fletcher & Mack, John Morris, William M. Low, Margaret E. Mangin and

Loren G. Freestone for Defendant and Respondent.
          Darlene Nickerson, as successor-in-interest to her deceased husband Glenn

Nickerson,1 appeals the judgment dismissing her second amended complaint against

Scripps Health (Scripps). Darlene alleged Scripps violated the Elder Abuse and

Dependent Adult Civil Protection Act (the Act; Welf. & Inst. Code, § 15600 et seq.) and

committed willful misconduct in connection with the medical care and treatment it had

provided to Glenn. On Scripps's demurrer, the trial court ruled Darlene had not alleged

conduct that constituted a violation of the Act or willful misconduct (as distinguished

from professional negligence) and sustained the demurrer without leave to amend. We

affirm.

                                               I.

                                 FACTUAL BACKGROUND

          Because this case comes to us after entry of a judgment based on the sustaining of

a demurrer, we accept as true the material allegations of Darlene's pleadings. (Shoemaker

v. Myers (1990) 52 Cal.3d 1, 7.) According to her second amended complaint, the

following events led to the death of Glenn:

          In January 2007, Glenn became disabled in an automobile accident and could not

move his legs. He also suffered from diabetes and end-stage renal disease, for which he

began peritoneal dialysis in December.




1      Because Darlene and Glenn have the same last name, we use their first names for
brevity. In so doing, we intend no disrespect or undue familiarity.

                                               2
       Throughout 2008, Glenn gained weight, experienced high blood sugar levels, and

suffered periodic bouts of peritonitis. He and Darlene therefore decided to switch from

peritoneal dialysis to hemodialysis. In December, Glenn underwent surgery to create an

arteriovenous fistula in his right forearm to be used for hemodialysis.

       On January 27, 2009, Glenn was admitted to Scripps's hospital with a five-day

history of progressive generalized weakness, elevated white blood cell count, decreased

appetite, and weight loss. At the time of admission, Glenn had severe swelling of his

lower limbs and cellulitis at the site of the arteriovenous fistula. He was "essentially bed

bound" but had no pressure ulcers or other sores or wounds. Although Glenn was

assessed upon admission as being at extremely high risk for skin breakdown, not until

two days after admission did his chart indicate he was being turned every two hours, and

he was not provided a bariatric bed until February 11. By that time, pressure ulcers had

developed on his left heel and buttocks.

       Glenn also had other problems during the first two weeks of his hospital stay.

Scripps did not have the peritoneal dialysis equipment or supplies that Glenn used at

home, the nurses had little or no experience with that type of dialysis, and they did not

time the fluid exchanges properly. The dialysis routine was therefore "inconsistent" until

proper supplies were finally obtained at the insistence of Darlene and one of Glenn's

physicians. Glenn also received excessive amounts of morphine, which induced delirium

and loss of appetite. Darlene tried to contact the hospitalist about this, but he did not

return her calls the same day. When they eventually spoke, Darlene told the hospitalist

Glenn seemed unresponsive and needed to be more active in order to get to rehabilitation.

                                              3
       Over the first three months following his admission to Scripps's hospital, Glenn

suffered several setbacks. He developed aspiration pneumonia in mid-February 2009 and

had to be transferred to the intensive care unit for three weeks. In March, Glenn was

diagnosed with calciphylaxis,2 which contributed to his wounds and required placement

of another access for hemodialysis. By early April, the pressure ulcer on his buttocks had

become so large that subcutaneous fat was exposed, a foul odor emanated from the

wound, and negative pressure wound therapy and surgical debridement were required.

After debridement, the wound "appeared healthy and clean, however very deep." In late

April, Glenn's appetite decreased, and he became "extremely somnolent." During this

time period, Glenn was moved to different rooms multiple times, but Darlene was not

kept informed of his whereabouts despite her repeated requests for that information.

Darlene also repeatedly complained to physicians and nurses that Scripps's hospital staff

was not adequate to meet Glenn's needs.

       By the end of April 2009, one of Glenn's physicians decided to change his

hemodialysis access by inserting a central catheter so that Glenn could move to a

rehabilitation facility. After completion of the procedure, he was transferred to the

facility on May 2. The staff there was "overloaded," and none of the nurses seemed to

know anything about Glenn or his condition. Due to inadequate care at the rehabilitation


2      Calciphylaxis "is a serious, uncommon disease in which calcium accumulates in
small blood vessels of the fat and skin tissues. People who have this condition usually
have kidney failure and are on dialysis or recently had a kidney transplant. Calciphylaxis
causes painful skin ulcers and may cause serious infections that can lead to death."
(<http.www.mayoclinic.org/calciphylaxis/> [as of Dec. 26, 2013].)

                                             4
facility, Glenn developed a fever and hypotension, became "almost comatose," and had to

be returned by ambulance to Scripps's hospital on May 4.

       Glenn's condition deteriorated over the next month. He developed "non-stop

diarrhea," and the tube inserted in his rectum "leaked terribly." Glenn's pressure ulcers

worsened and became infected by antibiotic-resistant bacteria. Hospital staff failed to

cover some of his wounds, did not position him properly, and left him "fully exposed to

anyone passing his room." At the end of May 2009, Glenn developed a fever and

hypotension, and was transferred to the intensive care unit. He died of septic shock on

June 5.

                                              II.

                            PROCEDURAL BACKGROUND

       Darlene sued Scripps for damages and other relief based on its allegedly improper

treatment of Glenn. In her initial complaint, Darlene asserted multiple counts, including,

as relevant to this appeal, counts for violations of the Act and for willful misconduct. In

those counts, Darlene alleged that Scripps intentionally, willfully, or recklessly staffed its

facilities inadequately; consciously placed Glenn's person and health in danger;

recklessly failed to monitor Glenn's condition, and to provide medications and equipment

needed to treat him in a timely manner; and thereby caused Glenn to suffer physical and

mental pain and other injuries and, ultimately, to die. Scripps demurred to those counts.

(Code Civ. Proc., § 430.10, subd. (e).) The trial court ruled Darlene had not adequately

alleged any conduct constituting reckless neglect or willfulness and sustained the

demurrer with leave to amend.

                                              5
       Darlene then filed a first amended complaint, reasserting counts for violations of

the Act and for willful misconduct, among others. Although Darlene made some minor

modifications, the general factual allegations and the allegations of the counts for

violations of the Act and for willful misconduct were substantially the same as the

corresponding allegations of the original complaint. Scripps again demurred to the

counts alleging violations of the Act and willful misconduct. The trial court ruled

Darlene did "not allege sufficient facts showing [Scripps's] conduct was anything other

than medical negligence. To the extent [Darlene was] attempting to allege neglect, there

[were] no facts showing any such neglect was reckless or done with oppression, fraud or

malice." The court therefore sustained Scripps's demurrer and again granted Darlene

leave to amend.

       Darlene next filed a second amended complaint, the pleading at issue on this

appeal. She asserted for a third time counts based on violations of the Act and willful

misconduct, among others. This time, Darlene expanded the general factual allegations

to include much greater detail about the many deficiencies she perceived in Glenn's care

at Scripps's hospital, as described in part I., ante. The allegations of the counts for

violations of the Act and for willful misconduct remained largely the same as in the prior

two pleadings. Scripps demurred to those counts a third time. The trial court ruled:

"The allegations against [Scripps] relate to the rendition of professional services and

although the [s]econd [a]mended [c]omplaint may allege inadequate care by [Scripps], it

does not allege 'neglect' under [the Act]." The court also ruled that in her count for

willful misconduct, Darlene had alleged no facts "to show [Scripps] knew of the peril to

                                              6
be apprehended and consciously failed to act to avoid peril." The court therefore

sustained Scripps's demurrers, but denied leave to amend, noting that Darlene's prior two

attempts to cure the defects in her pleadings had been unsuccessful.

       Darlene subsequently filed a voluntary dismissal of her other counts. The court

then entered a judgment of dismissal against her and in favor of Scripps.

                                             III.

                                       DISCUSSION

       Darlene contends the trial court erred in sustaining Scripps's demurrers to her

counts for violations of the Act and for willful misconduct because she "has more than

adequately alleged distinct facts establishing egregiousness of conduct, neglect and

abuse." Alternatively, Darlene contends that if "more 'egregiousness' needs to be shown,"

she should be given a third opportunity to amend her complaint. As we shall explain, we

disagree with both contentions.

A.     Standard of Review

       "On appeal from a judgment dismissing an action after sustaining a demurrer

without leave to amend, the standard of review is well settled. The reviewing court gives

the complaint a reasonable interpretation, and treats the demurrer as admitting all

material facts properly pleaded. [Citations.] The court does not, however, assume the

truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be

affirmed 'if any one of the several grounds of demurrer is well taken. [Citations.]'

[Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff

has stated a cause of action under any possible legal theory. [Citation.] And it is an

                                              7
abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows

there is a reasonable possibility any defect identified by the defendant can be cured by

amendment." (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967 (Aubry).)

B.     Demurrer to Count Alleging Violations of the Act

       Darlene contends the trial court should have overruled Scripps's demurrer to the

count alleging violations of the Act because her "second amended complaint more than

adequately describes specific acts comprising egregious neglect and abuse."3

(Capitalization and boldface omitted.) We disagree.

       As relevant to this appeal, the Act authorizes the award of certain enhanced

remedies (attorney fees, costs, and damages for predeath pain and suffering) to a plaintiff

who proves by clear and convincing evidence both that a defendant committed neglect

against a dependent adult who died and that the defendant acted with recklessness,

oppression, fraud, or malice in committing the neglect. (Welf. & Inst. Code, § 15657,

subds. (a), (b).)4 The Act defines a "dependent adult" as a California resident between



3      "There is a split of authority on whether the [Act] creates an independent cause of
action or merely provides additional remedies for some other cause of action." (Carter v.
Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 403, fn. 6 (Carter).)
We need not decide this issue, however, because even if we assume the Act creates a
separate cause of action, Darlene's allegations do not state a claim against Scripps for
neglect of a dependent elder. (Ibid.)

4      The enhanced remedies are also available in cases of physical abuse of a
dependent adult committed with recklessness, oppression, fraud, or malice. (Welf. &
Inst. Code, § 15657.) The Act defines "physical abuse" to include assault, battery, assault
with a deadly weapon or force likely to produce great bodily injury, and certain sex
crimes; "[u]nreasonable physical constraint, or prolonged or continual deprivation of food
or water"; and improper use of a physical or chemical restraint or a psychotropic
                                             8
the ages of 18 and 64 years "who has physical or mental limitations that restrict his or her

ability to carry out normal activities or to protect his or her rights." (Id., § 15610.23,

subd. (a).)5 The Act defines "neglect" as the "negligent failure of any person having the

care or custody of . . . a dependent adult to exercise that degree of care that a reasonable

person in a like position would exercise." (Id., § 15610.57, subd. (a)(1).) Such neglect

includes failure (1) "to assist in personal hygiene, or in the provision of food, clothing or

shelter"; (2) "to provide medical care for physical and mental health needs"; (3) "to

protect from health and safety hazards"; and (4) "to prevent malnutrition or dehydration."

(Id., § 15610.57, subd. (b).) In short, neglect means "the failure of those responsible for

attending to the basic needs and comforts of . . . dependent adults, regardless of their

professional standing, to carry out their custodial obligations." (Delaney v. Baker (1999)

20 Cal.4th 23, 34 (Delaney).) Thus, when the medical care of a dependent adult is at

issue, "the statutory definition of 'neglect' speaks not of the undertaking of medical

services, but of the failure to provide medical care," and includes "the egregious

withholding of medical care for physical and mental health needs." (Covenant Care, Inc.

v. Superior Court (2004) 32 Cal.4th 771, 783, 786 (Covenant Care).)


medication. (Id., § 15610.63.) Although Darlene has accused Scripps of "abuse" of
Glenn, she has not alleged any conduct constituting "physical abuse" within the meaning
of the Act. Rather, she appears to have used the term "abuse" generally to refer to any
conduct that violates the Act. We thus treat her count alleging violations of the Act as
based solely on "neglect."

5     Glenn qualified as a dependent adult within the meaning of the Act because he
was 45 years old when he died, lived in San Diego County, and was so disabled in an
automobile accident that he could not work or manage his day-to-day affairs.

                                               9
       To recover the enhanced remedies available under the Act for neglect of a

dependent adult, a plaintiff must allege more than simple or even gross negligence in the

defendant's care or custody of the dependent adult. (Delaney, supra, 20 Cal.4th at p. 32;

Carter, supra, 198 Cal.App.4th at p. 405.) The plaintiff must plead facts establishing the

defendant's recklessness, oppression, fraud, or malice in the commission of the neglect.

(Welf. & Inst. Code, § 15657.)6 Thus, to withstand a demurrer, a plaintiff alleging

neglect of a dependent adult must state "facts establishing that the defendant (1) had

responsibility for meeting the basic needs of the . . . dependent adult, such as nutrition,

hydration, hygiene or medical care [citations]; (2) knew of conditions that made the . . .

dependent adult unable to provide for his or her own basic needs [citations]; and

(3) denied or withheld goods or services necessary to meet the . . . dependent adult's basic

needs, either with knowledge that injury was substantially certain to befall the . . .

dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious

disregard of the high probability of such injury (if the plaintiff alleges recklessness)

[citations]. The plaintiff must also allege . . . that the neglect caused the . . . dependent

adult to suffer physical harm, pain or mental suffering. [Citations.] Finally, the facts

constituting the neglect and establishing the causal link between the neglect and the




6       "Oppression, fraud and malice 'involve "intentional," "willful," or "conscious"
wrongdoing of a "despicable" or "injurious" nature.' [Citation.] Recklessness involves
' "deliberate disregard" of the "high degree of probability" that an injury will occur' and
'rises to the level of a "conscious choice of a course of action . . . with knowledge of the
serious danger to others involved in it." ' " (Carter, supra, 198 Cal.App.4th at p. 405.)

                                              10
injury 'must be pleaded with particularity,' in accordance with the pleading rules

governing statutory claims." (Carter, at pp. 406-407.)

       Darlene's count alleging violations of the Act did not satisfy these pleading

requirements. As we shall explain, she did not plead with particularity facts establishing

that Scripps denied or withheld goods or services needed to meet Glenn's basic needs,

either with knowledge that injury was substantially certain to befall Glenn or with

conscious disregard of the high probability of such injury. (Carter, supra, 198

Cal.App.4th at pp. 406-407.)

       In the second amended complaint, Darlene alleged many harmful failures she

perceived in Scripps's care and treatment of Glenn. Under separate headings of the

general factual allegations, she chronicled the "development of [Glenn's] skin breakdown

due to extremely outrageous failures of basic care," the "extreme failures in care

regarding [Glenn's] dialysis," the "improper and excessive admission [sic] of painkillers

and opiates," and "improper care during multiple moves between hospital rooms."

(Capitalization, boldface, and italics omitted.) Darlene later listed several separate

"actions and/or inactions" by which she alleged Scripps "failed to provide care in

connection with its custody of [Glenn]," including failing to place him on a proper

mattress in time to prevent the development of pressure ulcers, failing to correct

overmedication with painkillers and opiates, failing to dialyze Glenn properly with

normal commercial equipment, failing to provide adequate nursing staff, failing to




                                             11
communicate properly regarding Glenn's moves among hospital rooms,7 failing to

provide adequate nutrition, failing to protect Glenn's dignity and privacy, and failing to

prevent infection and disease. In the general factual allegations, Darlene also described

in great detail the injuries Glenn allegedly suffered as a result of Scripps's inadequate care

(including the dimensions of his pressure ulcers and the color and texture of their

exudates), and further alleged that Glenn died "as a result of [Scripps'] egregious failure

and outrageous oversights in care." In the count alleging violations of the Act, Darlene

incorporated the general factual allegations and additionally alleged that in caring for

Glenn, Scripps "willfully" or "recklessly" caused Glenn to suffer "pressure ulcers,

pneumonia, infection and sepsis," as well as "humiliation, shame, despair,

embarrassment, depression, and mental pain and anguish, culminating in his tragic and

premature death."

       Other facts alleged in the second amended complaint indicate, however, that

Scripps treated Glenn's medical conditions and otherwise provided for his needs, or at

least attempted to do so. With respect to the pressure ulcers, Darlene alleged Scripps

started to turn him every two hours shortly after admission, placed him on a bariatric bed

within two weeks, and treated the ulcers medically and surgically. As to dialysis,

Darlene alleged Scripps's nurses performed peritoneal dialysis, albeit with inadequate


7      Although we gather from the second amended complaint that Scripps's failure to
inform Darlene of Glenn's multiple moves among hospital rooms caused her great
distress, we fail to see how it harmed Glenn. Only neglect by Scripps that caused Glenn
to suffer physical harm, pain, or mental suffering would be actionable under the Act.
(Welf. & Inst. Code, § 15610.07, subd. (a); Carter, supra, 198 Cal.App.4th at p. 409.)

                                             12
training and supplies, but eventually the proper supplies were obtained and Glenn was

switched to hemodialysis. Other allegations indicate that Glenn was provided food,

fluids, and medications; given a medication to counteract the effects of painkillers when

he was oversedated with them; and transferred to the intensive care unit when he

developed infections and other complications. Darlene also alleged that throughout

Glenn's hospital course, she had multiple conversations about his condition with

physicians and nurses, who then sometimes made changes to his care in response to

Darlene's concerns, although not always as quickly as she desired.

       Accepting as true the material allegations of the second amended complaint and

giving it "a reasonable interpretation" (Aubry, supra, 2 Cal.4th at p. 967), we conclude

Darlene has not alleged facts constituting neglect within the meaning of the Act. She has

not pleaded with particularity any conduct by Scripps that constitutes "egregious

withholding of medical care for physical and mental health needs" (Covenant Care,

supra, 32 Cal.4th at p. 786) or "gross mistreatment in the form of abuse and custodial

neglect" (Delaney, supra, 20 Cal.4th at p. 33). Rather, the allegations indicate Glenn was

gravely ill when he entered the hospital; Scripps provided medical, surgical, and custodial

care in an attempt to meet his needs; but, due to inadequate and poorly trained staff and

untimely intervention, Scripps was unable to prevent Glenn's condition from steadily

deteriorating to the point of death. Although such allegations might state a claim for

professional negligence (see, e.g., Barris v. County of Los Angeles (1999) 20 Cal.4th 101,

113-114 [failure to prevent deterioration]; Carter, supra, 198 Cal.App.4th at p. 408

[untimely medical treatment]; Bell v. Sharp Cabrillo Hospital (1989) 212 Cal.App.3d

                                            13
1034, 1050-1051 [inadequate staff]), they do not establish a violation of the Act because

"the statutory definition of 'neglect' speaks not of the undertaking of medical services, but

of the failure to provide medical care" (Covenant Care, at p. 783). The additional

allegations that Scripps's conduct was "extreme," "outrageous," "egregious," "willful,"

"malicious," "oppressive," or "reckless" do not transform conduct that might constitute

negligence into neglect within the meaning of the Act, for we do not accept as true such

conclusory allegations when reviewing a ruling on a demurrer. (Aubry, at p. 967; Carter,

at p. 410.) Accordingly, Darlene's use of such terminology did not cure her failure to

state specific facts showing that Scripps's treatment of Glenn violated the Act, and the

trial court correctly sustained Scripps's demurrer to the count alleging such violations.

       At oral argument, Darlene contended the trial court should have overruled the

demurrer because, under a liberal construction of the complaint in her favor, an inference

of reckless neglect arises from the facts that Glenn entered Scripps's hospital with only a

minor infection in his forearm, remained in the hospital for several months, and

developed large pressure ulcers on his buttocks, which became contaminated by feces

from a leaking rectal tube and thereby caused the sepsis from which he ultimately died.

We reject this contention because it is inconsistent with basic pleading rules and the

distinction between professional negligence and neglect under the Act.

       Both the Act and cases interpreting it differentiate professional negligence from

neglect. The Act itself excludes from its scope professional negligence claims:

"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,

                                             14
shall be governed by those laws which specifically apply to those professional negligence

causes of action." (Welf. & Inst. Code, § 15657.2.) This "explicit exclusion of

'professional negligence' . . . make[s] clear the [Act's] goal was to provide heightened

remedies for . . . 'acts of egregious abuse' against elder and dependent adults [citation],

while allowing acts of negligence in the rendition of medical services to elder and

dependent adults to be governed by laws specifically applicable to such negligence."

(Delaney, supra, 20 Cal.4th at p. 35.) The Act thus applies when the reckless " '[f]ailure

to provide medical care' " (id. at p. 34) or "the egregious withholding of medical care"

constitutes the "gravamen" of the complaint (Covenant Care, supra, 32 Cal.4th at

pp. 786, 790). (See Smith v. Ben Bennett, Inc. (2005) 133 Cal.App.4th 1507, 1525

[gravamen of cause of action determines whether it is violation of Act or professional

negligence].) The Act does not apply, however, when "acts of simple or even gross

negligence" in "the undertaking of medical services" constitute the gravamen of the

complaint. (Covenant Care, at pp. 785, 783; accord, Delaney, at pp. 32, 34; Carter,

supra, 198 Cal.App.4th at pp. 404-405.)

       Darlene attempts to avoid this crucial distinction by emphasizing the allegations

concerning the "egregiousness" of the fecally contaminated pressure ulcers Glenn

developed during his lengthy hospitalization and ignoring the many specific allegations

that indicate Scripps did not recklessly neglect Glenn but actually provided him medical

care. We are mindful that the allegations of a complaint must be construed liberally in

favor of the plaintiff (Code Civ. Proc., § 452; Perez v. Golden Empire Transit Dist.

(2012) 209 Cal.App.4th 1228, 1238) and a "fact may appear by inference as well as by

                                              15
direct allegation" (United B. & T. Co. v. Fidelity & Deposit Co. (1928) 204 Cal. 460,

465). But in determining the legal effect of Darlene's complaint, we cannot focus on only

the allegations she emphasizes; we instead must give the complaint a reasonable

construction by reading it as a whole. (Speegle v. Board of Fire Underwriters (1946) 29

Cal.2d 34, 42; Hale v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1386). Darlene's

complaint included numerous and detailed allegations indicating that although Scripps

tried to prevent the development of pressure ulcers by repositioning Glenn every two

hours and placing him on a special mattress, tried to heal the ulcers by medical and

surgical treatments after they developed, and tried to treat his diarrhea by inserting a tube

in his rectum, the ulcers became infected and caused the sepsis that led to Glenn's death.

These specific allegations that Scripps actually undertook to provide necessary medical

care to Glenn but failed to prevent his death prevail over Darlene's conclusory allegations

that Scripps recklessly neglected him. (See Stowe v. Fritzie Hotels, Inc. (1955) 44 Cal.2d

416, 422 ["Where there is any inconsistency between the specific allegations upon which

a conclusion must be based and the conclusion, the specific allegations control."]; Gentry

v. eBay, Inc. (2002) 99 Cal.App.4th 816, 827 ["specific allegations control general

pleadings"].) Therefore, since the gravamen of Darlene's complaint is Scripps's

"negligence in the undertaking of medical services" (Delaney, supra, 20 Cal.4th at p. 34),

not its "egregious withholding of medical care" (Covenant Care, supra, 32 Cal.4th at

p. 786), the Act does not apply.

       We are not persuaded to reach a different conclusion by any of the cases on which

Darlene relies. Those cases involved wrongful conduct much more serious than that

                                             16
alleged by Darlene. For example, in Covenant Care, the defendants allegedly admitted

and discharged an elderly man suffering from Parkinson's disease to their facility without

his consent, left him unattended in his own excrement for excessively long periods of

time, deprived him of food and water so that he manifested signs of starvation and

dehydration, and concealed his true condition from his children. (32 Cal.4th at pp. 777-

778.) In Delaney, an elderly woman with a broken ankle was "frequently left lying in her

own urine and feces for extended periods of time," and the nursing home's numerous

violations of recordkeeping regulations prevented timely transmission to her physician of

necessary information, despite "persistent complaints to nursing staff, administration, and

finally, to a nursing home ombudsman." (20 Cal.4th at p. 27.) The other cases cited by

Darlene also involved facts indicating the defendants denied or withheld necessary care

or treatment with at least a conscious disregard of the probability of harm to the elder or

dependent adult. (See Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 85, 87

[rehabilitation facility ignored care plan and did not document or notify physician of skin

lesions of resident with genetic disorder that increased her risk of developing such

lesions]; Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 84-85 [Alzheimer's

patient broke her hip when other patient pushed her and nursing home staff failed to

intervene, and had to have leg amputated when staff failed to follow outside physician's

treatment plan for pressure ulcers]; Marron v. Superior Court (2003) 108 Cal.App.4th

1049, 1067, fn. 13 [nurses did not bathe elder soiled by her own blood and feces, help

elder to bathroom despite her incontinence, or brush elder's teeth to prevent fungal



                                             17
growth].) As we have explained, however, no comparable facts are at issue here. The

cases relied on by Darlene are therefore not on point.

C.     Demurrer to Count Alleging Willful Misconduct

       Darlene argues the trial court should not have sustained Scripps's demurrer to her

count for willful misconduct because she alleged "more than 'mere negligence,' " and

"[f]acts have been alleged that are different and distinct from professional misconduct."

We disagree.

       As an initial matter, we note it is unclear whether there is an independent cause of

action for "willful misconduct."8 Some courts have stated it is not an independent tort,

but merely an aggravated form of negligence. (See, e.g., Berkley v. Dowds (2007) 152

Cal.App.4th 518, 526 (Berkley)); Morgan, supra, 37 Cal.App.3d at p. 1011.) Others have

asserted that "[w]illful misconduct means something different from and more than

negligence, however gross." (Colich & Sons v. Pacific Bell (1988) 198 Cal.App.3d 1225,

1241; accord, Porter v. Hoffman (1938) 12 Cal.2d 445, 448; Helme v. Great Western

Milling Co. (1919) 43 Cal.App. 416, 421.) This latter view is supported by our Supreme

Court's statements that "[w]illfullness and negligence are contradictory terms.

[Citations.] If conduct is negligent, it is not willful; if it is willful, it is not negligent."

(Donnelly v. Southern Pac. Co. (1941) 18 Cal.2d 863, 869.) We need not decide whether



8      " 'Wilful or wanton misconduct' travels under several other names. Its aliases
include 'serious and wilful misconduct,' 'wanton misconduct,' 'reckless disregard,'
'recklessness,' and combinations of some or all of these. These terms are interchangeable
because they all identify the same thing . . . ." (Morgan v. Southern Pacific Trans. Co.
(1974) 37 Cal.App.3d 1006, 1011 (Morgan).)
                                                18
there exists a separate cause of action for willful misconduct, however, because even if

we assume there is, Darlene has not adequately pleaded such a claim.

       "Willful misconduct involves more than a failure to use ordinary care; it

' " ' "involves a more positive intent actually to harm another or to do an act with a

positive, active and absolute disregard of its consequences." ' " ' " (Carter, supra, 198

Cal.App.4th at p. 412.) "Three essential elements must be present to raise a negligent act

to the level of wilful misconduct: (1) actual or constructive knowledge of the peril to be

apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to

a possible, result of the danger, and (3) conscious failure to act to avoid the peril."

(Morgan, supra, 37 Cal.App.3d at p. 1012; accord, Berkley, supra, 152 Cal.App.4th at

p. 528; Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal.App.3d 341, 360.)

In addition, a "plaintiff asserting a cause of action for wilful misconduct must plead

specific facts upon which the charge is based" (Simmons, at p. 361), "so that it may be

determined whether they do constitute wilful misconduct rather than negligence or gross

negligence" (Snider v. Whitson (1960) 184 Cal.App.2d 211, 214). Merely alleging

defendant's conduct was willful, reckless, or wanton is not sufficient, because "[n]o

amount of descriptive adjectives or epithets may turn a negligence action into an action

for intentional or willful misconduct." (Mahoney v. Corralejo (1974) 36 Cal.App.3d 966,

973 (Mahoney).)

       Darlene complains the trial court erred by sustaining the demurrer to her willful

misconduct claim on the ground that she had alleged no facts "to show [Scripps] knew of

the peril to be apprehended." Darlene contends she adequately alleged Scripps had

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"actual or constructive knowledge of the peril to be apprehended" and "actual or

constructive knowledge that injury is a probable, as opposed to a possible, result of the

danger." (Morgan, supra, 37 Cal.App.3d at p. 1012.) In support of this contention, she

quotes the following sentence from her second amended complaint: "In light of [Glenn's]

physical condition, extreme high risk factors, weight and limited abilities, [Scripps]

knew, or should have known, that [its] conduct towards [Glenn] would expose him to

peril, including physical and psychological injuries, and death." It may well be that the

condition in which Glenn presented to Scripps's hospital was so dire that Scripps knew or

at least should have known that he was at serious risk of injury or death if proper medical

care and treatment were not timely provided. We need not decide the point, however,

because even if we assume that Darlene adequately alleged the knowledge elements of a

willful misconduct claim, she did not adequately allege conduct by Scripps that amounted

to a "conscious failure to act to avoid the peril," as the trial court also ruled in sustaining

Scripps's demurrer. (Ibid.)

       Darlene based her count for willful misconduct on the same conduct by Scripps

that underlay her count for violations of the Act. In fact, in her willful misconduct count,

she specifically alleged that Scripps "[f]ail[ed] to ensure that [Glenn] was not subjected to

acts of neglect as that term is defined under [the Act] . . . ." Darlene also alleged Scripps

failed to hire competent employees, to monitor Glenn's condition adequately, and to

provide him necessary medication and equipment. As we have explained, however,

Darlene also included detailed allegations that Scripps actually provided (or at least

attempted to provide) extensive medical, surgical, and custodial care, but was unable to

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prevent Glenn's condition from gradually deteriorating to the point of death. The second

amended complaint thus "does not present a picture of a defendant who harbors an intent

to do an act with a wanton and reckless disregard of its consequences or who

intentionally does an act with the knowledge that serious injury is a probable result.

[Citations.] At the most, the defendant here could be said to have failed to exercise

care—in brief, negligence." (Mahoney, supra, 36 Cal.App.3d at p. 974.) Further,

although Darlene alleged that Scripps "consciously and willfully failed to act to avoid the

peril," and "acted recklessly, and with deliberate indifference and conscious disregard for

[Glenn's] safety and well-being," " '[n]o amount of descriptive adjectives[, adverbs] or

epithets may turn a negligence action into an action for intentional or wilful

misconduct.' " (Carter, supra, 198 Cal.App.4th at p. 413.) The trial court therefore

correctly sustained Scripps's demurrer to the count alleging willful misconduct.

D.     Denial of Leave to Amend

       Darlene contends she should be given a third opportunity to amend her complaint

if "the actions and inactions already identified do not 'rise' to the level of 'despicableness'

required." We disagree.

       After a demurrer is sustained, a plaintiff seeking leave to amend has the burden to

show how she can cure the defects in her pleading. (Hendy v. Losse (1991) 54 Cal.3d

723, 742.) Darlene asserts she "can and will go into excruciating and gory details if

required," by stating "who performed these neglectful acts, the precise time of the acts,

further descriptions of the wounds, the infection, the feeding issues, the dates, times and

amounts of painkiller administered, etc." But she already added "excruciating and gory

                                              21
details" when she filed the second amended complaint (see pt. I., ante), and, as we have

explained, those details did not adequately allege either neglect under the Act or willful

misconduct. Adding even more such details would not change the legal effect of

Darlene's pleadings. Moreover, although the trial court granted Darlene leave to amend

twice, she failed to fix the pleading problems identified by the trial court. Under these

circumstances, it was not an abuse of discretion for the court to deny Darlene a third

opportunity to do so. (Carter, supra, 198 Cal.App.4th at p. 411; Khoury v. Maly's of

California, Inc. (1993) 14 Cal.App.4th 612, 618; Mitchell v. Franchise Tax Board (1986)

183 Cal.App.3d 1133, 1137.)

                                      DISPOSITION

       The judgment is affirmed.



                                                                                  IRION, J.

WE CONCUR:



         HUFFMAN, Acting P. J.



                  MCDONALD, J.




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