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Speiginer v. Bennett
Speiginer v. Bennett
01/31/13






Speiginer v








Speiginer v. Bennett

















Filed 1/25/13 Speiginer v.
Bennett CA4/2













NOT TO BE PUBLISHED IN OFFICIAL REPORTS







California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.





IN THE COURT OF APPEAL OF THE STATE OF >CALIFORNIA>



FOURTH APPELLATE DISTRICT



DIVISION TWO






>






GARY SPEIGINER, as Personal Representative, etc., et al.,



Plaintiffs
and Appellants,



v.



BEN BENNETT, INC.,



Defendant
and Respondent.








E052730



(Super.Ct.No.
RIC444667)



OPINION






APPEAL from the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County. Gary B. Tranbarger, Judge. Affirmed.

Kevin
P. Kane & Associates, Kevin P. Kane; Balisok & Associates and Russell
S. Balisok for Plaintiffs and Appellants.

Arne
Werchick and Anthony Chicotel for California Advocates for Nursing Home Reform
as Amicus Curiae on behalf of Plaintiffs and Appellants.

Law
Office of Barry M. Wolf and Barry M. Wolf for Defendant and Respondent.

This is an appeal from a judgment
in favor of Gary Speiginer and Rennae Speiginer, plaintiffs and appellants
(plaintiffs), following a jury trial on their complaint for href="http://www.mcmillanlaw.com/">damages against defendant and
respondent, Ben Bennett, Inc. (defendant), alleging among other things elder
abuse and the wrongful death of their 91-year-old father, Julius
Speiginer. The jury found defendant, the
operator of the nursing home where Julius Speiginer had been a resident a month
before his death, was negligent but that defendant’s negligence was not a cause
of Mr. Speiginer’s death. The jury found
that Julius Speiginer and defendant were equally liable for Mr. Speiginer’s
injuries, which included stage IV decubitus ulcers and metastatic prostate
cancer. The jury determined $25,000 to
be adequate compensation for Mr. Speiginer’s noneconomic damages.

Plaintiffs raise various claims of
purported error that occurred at trial, including the erroneous exclusion of
evidence and failure to properly instruct the jury. We recount the details of plaintiffs’ claims,
below, in our discussion of the pertinent issues. We conclude either the trial court did not
err in the ways about which plaintiffs complain, or if error occurred, that
plaintiffs have failed to demonstrate it was prejudicial. Therefore, we will affirm the judgment.

>FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs’ father, Julius
Speiginer, died at Riverside Community Hospital on May 8,
2005, at
the age of 91. From March 2, 2005, to
March 31, 2005, Mr. Speiginer was a patient at Community Care and
Rehabilitation Center (hereafter Community Care, also referred to by the
parties as CCRC), a skilled nursing facility operated by defendant. After their father’s death, plaintiffs sued
defendant, along with Riverside Community Hospital and Riverside Medical Clinic
(both of which settled with plaintiffs and are not parties to this appeal), on
various purported theories of recovery including elder abuse, negligence,
wrongful death, breach of fiduciary duty, and unfair business practices. In their complaint plaintiffs alleged, in
pertinent part, that Riverside Community Hospital had transferred their father
to Community Care without plaintiffs’ permission, and while at Community Care
their father developed sepsis, pneumonia, and a stage IV sacral decubitus ulcer
that became infected with an antibiotic resistant bacteria known as MRSA.href="#_ftn1" name="_ftnref1" title="">[1]
Julius Speiginer was also diagnosed with metastatic prostate cancer
shortly after his arrival at Community Care.
Due to his illness and injuries, plaintiffs’ father was transferred back
to Riverside Community Hospital at the end of March and he died there a month
later.href="#_ftn2" name="_ftnref2"
title="">[2]


Plaintiffs alleged that their
father’s injuries were the result of defendant’s staff willfully violating
regulations and statutes pertinent to the care of patients in nursing homes,
including state regulations that require staff to: reposition immobile patients
every two hours to avoid bedsores; protect patients from infection; provide
adequate toilet assistance to patients in order to prevent incontinence; and
provide patients with adequate hydration.
Plaintiffs also alleged that Riverside Medical Clinic and Riverside
Community Hospital knew at the time they transferred their father to
defendant’s nursing facility that the agency dispensing public funds for the
care of elderly patients had suspended payments to Community Care for its
repeated failure to prevent its patients from developing decubitus ulcers and
to heal the lesions once patients developed them.

Plaintiffs also alleged without
complaint that according to public records maintained by the California
Department of Health Services (DHS) during the four years before their father’s
death, state and federal regulatory agencies had repeatedly cited Community
Care “for regulatory violations arising from reckless neglect, abandonment, and
abuse substantially similar to that perpetrated by Defendant Community Care
upon [their father], and, in each of these prior instances, defendant Community
Care’s managing agents made a specific written commitment to correct these
violations to ensure that they would not occur again.”

After answering the complaint,
defendant twice unsuccessfully moved for summary adjudication on plaintiffs’
claims for elder abuse, emotional distress, and unfair business practices, as
well as on plaintiffs’ punitive damage allegations. At a pretrial hearing in October 2009, the
trial court ruled that documents entitled “statements of deficiency” that the
DPH issued to defendant from 2001 to 2007 were inadmissible hearsay. Plaintiffs’ expert witness, K.J. Page,
testified at an Evidence Code section 402 hearing that she had reviewed the DPH
statements of deficiency, and based on that review, formed the opinion that
defendant’s facility was not meeting the needs of the patients in its care. The trial court ruled that Page’s opinion was
inadmissible at trial because it was based entirely on the statements of
deficiency, which are inadmissible hearsay.

After bifurcating trial on
plaintiffs’ sixth and seventh causes of action, which alleged href="http://www.fearnotlaw.com/">unfair business practices (Bus. &
Prof. Code, § 17200) and violations of the patients’ bill of rights
(Health & Saf. Code, § 1430, subd. (b)), respectively, from trial on the
remaining theories of recovery, a jury trial commenced on those remaining
theories. During trial, the court ruled
inadmissible any testimony by defendant’s managing agent, Bruce Bennett,
regarding his knowledge of any regulatory violations that occurred before
plaintiffs’ father was admitted to defendant’s nursing home.

At the conclusion of plaintiffs’
case, the trial court granted defendant’s motion for nonsuit on the punitive
damage aspect of the elder abuse theory of recovery, and also on the breach of
fiduciary duty, and negligent infliction of emotional distress (or bystander
negligence, as defendant calls it) theories alleged in the first, third, and
fourth causes of action, respectively.
The jury considered plaintiffs’ claims for wrongful death and elder
abuse. In their special verdict, the
jurors found defendant was negligent in its care of Mr. Speiginer but that
defendant’s negligence was not a cause of Julius Speiginer’s death. The jury also found that Mr. Speiginer failed
to comply with medical advice while at defendant’s nursing home and that his
acts were a cause of the harm he suffered.
The jury attributed 50 percent of the harm Mr. Speiginer suffered to him
and the remaining 50 percent to defendant.
The jury determined the proper amount of noneconomic damages suffered by
Julius Speiginer to be $25,000.

In a court trial on plaintiffs’
unfair business practices and patients’ bill of rights regulatory violations,
the trial court found defendant had violated the patients’ bill of rights and
awarded plaintiffs $5,000 in statutory penalties. The trial court also awarded plaintiffs
$50,000 in attorneys’ fees, but denied their href="http://www.mcmillanlaw.com/">motion for new trial.

Plaintiffs appeal from the
subsequently entered judgment.

>DISCUSSION

The dispositive issue in this
appeal is whether the trial court properly sustained defendant’s hearsay
objection to DPH reports setting out deficiencies at defendant’s nursing
home. Plaintiffs raise various arguments
to support their claim that the ruling was in error and as a result of that
error they were prevented from showing that defendant was willfully negligent
in its care of their father, thereby causing his death and entitling them to
enhanced damages for elder abuse.

Before addressing the issue of
whether the records are inadmissible hearsay, we first address plaintiffs’
claim that the trial judge was precluded from considering the issue of
admissibility of those records because the judge who ruled on and denied
defendant’s motions for summary judgment had addressed and resolved that
issue. In denying defendant’s first
summary judgment motion, the judge overruled defendant’s hearsay objection to
the DPH statements of deficiency, which plaintiffs had submitted as part of the
evidence in opposition to defendant’s motion.
Plaintiffs contend here, as they did in the trial court, that the first
judge’s ruling could not later be reconsidered and effectively overruled by the
trial judge. We will not resolve the
issue, although we disagree with plaintiffs, because this court is not
precluded from reviewing either of the evidentiary rulings in question and
thereby resolving the issue of whether the records are inadmissible
hearsay. When faced with the same
contention in Payne v. City of Perris
(1993) 12 Cal.App.4th 1738 (Fourth Dist., Div. Two), albeit involving rulings
other than on the admissibility of evidence, we concluded it would be pointless
to apply the general principle that one trial court judge may not reconsider
and overrule a ruling of another judge in the same court. Reversal of the judgment on that basis would
result in a retrial and an inevitable second appeal in which the issue would
again be raised, this time by the other side.
That procedure would elevate form over substance. (Id.
at pp. 1742-1743.)

>1.

>ADMISSIBILITY OF DPH RECORDS

The DPH records in question are from
2001 to 2007 and consist of documents entitled “Statement of Deficiencies and
Plan of Correction” (hereafter deficiency statements or statements of deficiency). Defendant moved to exclude the deficiency
statements from evidence at trial on various grounds, including hearsay and
that the records constituted evidence of bad character and if offered to prove
conduct in conformity with that bad character, were inadmissible under Evidence
Code section 1101, subdivision (a). The
trial judge sustained the hearsay objection and ruled the DPH statements of
deficiency were inadmissible. As
previously noted, the trial judge also excluded the testimony of K.J. Page,
plaintiffs’ expert witness, who testified at an Evidence Code section 402
hearing that she reviewed 257 statements of deficiency issued by DPH to
defendant over the course of nine years and based on her review of those
reports, formed the opinion that “managers at CCRC did not manage the facility
in a way that was providing the care and services necessary for the people that
lived there, to the residents.”

Plaintiffs contend the statements of
deficiency are not hearsay and in any event were not offered for the truth of
their content, but rather for the nonhearsay purpose of showing that defendant
had notice of various deficiencies in the performance of its staff, and that it
ratified those deficiencies by failing to intercede and correct them. We disagree.

>A. Standard of Review

We review a trial court’s ruling on
the admissibility of evidence under the abuse of discretion standard. (Gordon
v. Nissan Motor Co., Ltd.
(2009) 170 Cal.App.4th 1103, 1111.) In order to prevail on their claim,
plaintiffs must not only show the trial court abused its discretion but also
that the error was prejudicial in that it resulted in a miscarriage of
justice. (Id. at p. 1114.) In this
context, a miscarriage of justice occurs only if we are able to say, based on
the entire record, that it is reasonably probable the jury would have reached a
result more favorable to plaintiffs absent the error. (Ibid.)

>B. Analysis

We begin our analysis with Evidence
Code section 1200, which sets out the hearsay rule. (Evid. Code, § 1200, subd. (c).) “‘Hearsay evidence’ is evidence of a
statement that was made other than by a witness while testifying at the hearing
and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) Hearsay evidence is inadmissible except as
provided by law. (Evid. Code, § 1200,
subd. (b).)

The statements of deficiency at
issue in this appeal set out the result of an investigation of a complaint
about defendant’s nursing home and/or an inspection of that facility conducted
by a representative of the DPH. The
statements cite deficiencies the DPH inspector/investigator found as a result
of the inspection/investigation. (See,
e.g., Statement of Deficiencies and Plan of Correction regarding survey
completed on January 22, 2001, by Carla Hill, H.F.E.N., representing the
Department of Health Services.) The
types of deficiencies cited in the various deficiency statements at issue here
run the gamut, from failing to comply with the statutory requirement to provide
a minimum of 3.2 hours of nursing care per patient per day, to failure to chart
physical changes in patients, such as weight loss, incontinence, and elevated
temperature, and to notify a physician of those changes, to failure to give a
patient medication as directed by a physician.

In addition, the deficiency
statements include defendant’s plan of correction. For example, in response to the statement of
deficiency regarding failure to provide 3.2 hours of nursing care per day per
patient, defendant included a plan of correction that, among other things,
explained “[i]llness among the staff resulted in less than desired attendance
with an inability of overtime staff and on-call staff to fill in to achieve the
necessary hours. This is being addressed
in the following ways: [¶] Additional staff is being recruited
(particularly CNAs) through advertising, signage, and calls to nursing
programs, offering bonuses to existing staff for recruitment.”

We agree with the trial court that
the statements of deficiency are hearsay if offered to prove the cited
deficiency, i.e., they are out-of-court statements offered to prove that the
deficiency cited in the statement actually occurred. Moreover, Health and Safety Code section
1280, subdivision (f) specifically states that “the act of providing a plan of
correction, the content of the plan of correction, or the execution of a plan
of correction, [is inadmissible] in any legal action or administrative
proceeding as an admission within the meaning of Sections 1220 to 1227,
inclusive, of the Evidence Code against the health facility, its licensee, or
its personnel.”

Plaintiffs contend the statements
of deficiency were admissible for their nonhearsay purpose—to show defendant’s
notice and knowledge that the DPH had repeatedly cited defendant for violations
of various statutory and regulatory requirements concerning the care of
patients. In plaintiffs’ view, use of
the statements of deficiency to show notice and knowledge of prior regulatory
and statutory violations is a nonhearsay purpose. While we agree that notice and knowledge is a
nonhearsay purpose, in order to be relevant for that purpose, the statements of
deficiency must involve the same types of violations that plaintiffs claim were
committed in caring for their father.
(See, e.g., Hickman v. Arons
(1960) 187 Cal.App.2d 167, 171 [inspector’s notice regarding dangerous
condition of building following fire was admissible to prove notice and
knowledge of that danger in action for damages by family of man killed when
wall of building collapsed two weeks later]; see also Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, 778-779.)

Unless the statements of
deficiency pertain to specific acts of negligence of the type plaintiffs claim
were committed by defendant in caring for their father, the statements
constitute evidence of defendant’s bad character. As such, the deficiency statements are
inadmissible under Evidence Code section 1101, subdivision (a) which makes
evidence of defendant’s character trait, such as a propensity to act negligently,
inadmissible if offered to prove conduct on a specific occasion, i.e., that
defendant acted negligently in caring for plaintiffs’ father. “‘It is a fundamental rule of evidence that
you cannot prove the commission of an act by showing the commission of similar
acts by the same person at other times and under other circumstances. Such evidence is simply not
relevant. . . .’
[Citation.]” (>Brokopp v. Ford Motor Co. (1977) 71
Cal.App.3d 841, 851 [Fourth Dist., Div. Two].)

Plaintiffs did not limit statements
of deficiency to those, if any, involving conduct of the type they contend
defendant committed in caring for their father.
They sought the wholesale admission of the statements of deficiency to
prove that because defendant was negligent in the past, it must have been
negligent in caring for their father.
The statements of deficiency are inadmissible for that purpose.

The question remains whether the
statements of deficiency are admissible under any exception to the hearsay
rule. The two that immediately come to
mind are the business records exception and the official records exception.

The hearsay exception for business
records is set out in Evidence Code section 1271 which states, “Evidence of a
writing made as a record of an act, condition, or event is not made
inadmissible by the hearsay rule when offered to prove the act, condition, or
event, if: [¶] (a)
The writing was made in the regular course of a business; [¶] (b)
The writing was made at or near the time of the act, condition, or event; [¶]
(c) The custodian or other qualified witness testifies to its identity
and the mode of its preparation; [¶] (d) The sources of information and method and
time of preparation were such as to indicate its trustworthiness.”

Plaintiffs argued in the trial court
as they do in this appeal, that the deficiency statements are not hearsay
because they are authenticated by the DPH and therefore are subject to judicial
notice under Evidence Code section 452, subdivisions (b) and (c). Authentication means simply to establish that
the document is what the proponent claims it to be, in this case a photocopy of
the DHS deficiency statements issued to defendant. (See Evid. Code, § 1400.) In response to a subpoena duces tecum, the
DPH provided plaintiffs with copies of statements of deficiency the DPH had
issued to defendant. Those photocopies
were accompanied by the affidavit required by Evidence Code section 1561. Plaintiffs submitted the photocopies of the
statements of deficiency as part of their opposition to defendant’s summary
judgment motion.

In Taggart v. Super Seer Corp. (1995) 33 Cal.App.4th 1697 (Fourth
Dist., Div. Two), we explained that the custodian’s declaration required under
Evidence Code section 1561 does not establish that a writing is a business
record under Evidence Code section 1271 because the custodian’s declaration “is
not required to state the ‘identity’ or ‘mode of preparation’ of the
records. As a result, it will usually
fail to show that ‘[t]he ‘sources of information and method and time of
preparation’ of the records indicate their trustworthiness. ‘Therefore, in the face of a hearsay
objection, the affidavit of the custodian, made pursuant to [section] 1561,
does not satisfy the requirements of the business-records exception to the
hearsay rule set forth in [section] 1271(c)-(d), and the copy of the business
record, produced pursuant to [sections] 1560-1561, is inadmissible
hearsay.’ [Citation.]” (Taggart,
at p. 1706.) Here, as in the quoted
case, the affidavit of the custodian of records does not satisfy the
requirements of Evidence Code section 1271, and therefore the DPH statements of
deficiency are inadmissible hearsay.


Unlike the business records exception, which requires testimony
regarding the identity of the record and its mode of preparation, the public
records exception to the hearsay rule does not have that requirement. The public records exception is set out in
Evidence Code section 1280 and states, “Evidence of a writing made as a record
of an act, condition, or event is not made inadmissible by the hearsay rule
when offered in any civil or criminal proceeding to prove the act, condition,
or event if all of the following applies:
[¶] (a) The writing was made by and within the scope
of duty of a public employee. [¶] (b)
The writing was made at or near the time of the act, condition, or
event. [¶] (c)
The sources of information and method and time of preparation were such
as to indicate its trustworthiness.”

Plaintiffs did not rely on the
public records exception in the trial court and therefore did not establish the
foundational requirements for the admissibility of the statements of deficiency
under that exception. Consequently, we
will not address that exception in this appeal.
Instead, we conclude the trial court did not abuse its discretion by
excluding the DPH deficiency statements from evidence at trial based on its
finding that the records were hearsay and not within any exception to the
hearsay rule.

Our conclusion that the DPH
records are hearsay not within any exception to the hearsay rule, compels the
further conclusion that the trial court did not abuse its discretion by
excluding the opinion testimony of plaintiffs’ expert witness because that
testimony was based entirely on inadmissible hearsay set out in the DPH
statements of deficiency. Moreover,
plaintiffs’ expert did not express an opinion related to a subject
“sufficiently beyond common experience,” and therefore requiring the testimony
of an expert. (See Evid. Code, §
801.) According to her testimony at the
Evidence Code section 402 hearing, plaintiffs’ expert witness intended to
express the opinion, based on her review of the DPH deficiency statements, that
defendant’s managers “did not manage the facility in a way that was providing
the care and services necessary for the people that lived there, to the
residents.” As plaintiffs’ expert
acknowledged, a layperson who had read the 257 statements of deficiency in
question would have come to the same conclusion. In short, plaintiffs’ expert witness did not
express an opinion related to a subject “sufficiently beyond common
experience.” Instead, she simply
synthesized the content of the statements of deficiency to form a conclusion
that anyone who had read the material would also have formed.

>2.

>TESTIMONY OF DEFENDANT’S MANAGING AGENT

Plaintiffs also contend the trial
court abused its discretion by excluding the deposition testimony of
defendant’s managing agent, Bruce Bennett, regarding his knowledge of the DPH
deficiency statements. Again we
disagree, although we confess to not fully appreciating plaintiffs’ complaint
because Mr. Bennett, defendant’s managing agent, testified at trial and
plaintiffs do not explain the relevance of his deposition testimony.

The trial court ruled that
evidence of Mr. Bennett’s knowledge of statements of deficiency issued by the
DPH to Community Care was inadmissible at trial because in his deposition, Mr.
Bennett testified he could not recall whether he knew about most of the
purported regulatory violations. In
addition, the trial court found that Mr. Bennett’s knowledge of regulatory
violations was obtained from information contained in the statements of
deficiency and therefore was based on hearsay, and that his action in
correcting any of the purported deficiencies was protected under Evidence Code
section 1157, which protects records of, and testimony about, matters discussed
during a meeting of the institution’s quality care committee.

Plaintiffs contend that, as the
trial court acknowledged, Mr. Bennett confirmed during his deposition that on
four occasions he recalled regulatory violations. Although we are not persuaded that the trial
court acknowledged four occasions, the point is irrelevant because plaintiffs
have not demonstrated that Mr. Bennett’s testimony would have been admissible
at trial.

Moreover, even if we were to
assume the trial court abused its discretion by excluding that evidence,
plaintiffs have not demonstrated the error was prejudicial, i.e., there is a
reasonable probability that the jury would have reached a result more favorable
to plaintiffs if the jury had heard the excluded evidence. (Evid. Code, § 354; People v. Watson (1956) 46 Cal.2d 818, 836-837.) Plaintiffs’ showing of prejudice consists of
a single sentence: “Little wonder that,
ignorant of the testimony of Mr. Bennett concerning his knowledge of these
regulatory violations, the jury found no recklessness and never reached the
issue of ratification.” That bald
assertion does not satisfy plaintiffs’ obligation to demonstrate prejudicial
error.href="#_ftn3" name="_ftnref3"
title="">[3]

>3.

>NONSUIT

Plaintiffs contend the trial court
erred in granting defendant’s nonsuit motion on their claims for willful
misconduct, breach of fiduciary duty, and punitive damages. Plaintiffs concede, absent the statements of
deficiency which the trial court excluded as hearsay, the testimony of their
expert witness which the trial court excluded because it was based on those
hearsay documents, and absent the testimony of Mr. Bennett regarding his
knowledge of the violations which the trial court also excluded, there was no
evidence to support the noted claims. We
have concluded the trial court correctly excluded the evidence in
question. Therefore, we must further
conclude the trial court did not err in granting defendant’s motion for
nonsuit. In other words, plaintiffs’
nonsuit argument is merely a different articulation of their claim that the
trial court abused its discretion by excluding the statements of deficiency
from evidence at trial.

>4.

>INSTRUCTIONAL ERROR

Plaintiffs contend the trial court
committed various errors in instructing or failing to instruct the jury. With three exceptions, plaintiffs’ claims are
all based on their previously addressed assertion that the trial court
erroneously excluded the DHS deficiency statements from evidence. The three exceptions are (1) the trial
court’s refusal to instruct the jury on the duty of care purportedly
established by the Title 22 Regulations pertinent to nursing homes; (2) the
trial court’s modification of the CACI jury instruction regarding ratification;
and (3) the trial court’s refusal to give CACI No. 431 requested by plaintiffs
which instructs on how to consider multiple causes of an injury.

>A. Title 22 Regulations

Plaintiffs contend pertinent Title
22 regulations establish the relevant standard of care and that violation of
the regulations entitled them to an instruction on negligence per se. Therefore, plaintiffs argue the trial court
should have instructed the jury in the language of the pertinent regulations.

The trial court was of the view that
all the regulations “boil down to thou shalt take reasonable care to prevent
avoidable injury.” The trial court
purportedly included the quoted principle in its proposed instructions. But it refused to instruct the jury in the
language of the pertinent Title 22 regulations.

Although we are of the view that the
trial court erred in refusing to give instructions based on the specific duties
of care set out in the Title 22 regulations (see, e.g., Conservatorship of Gregory (2000) 80 Cal.App.4th 514, 522-524), we
will not resolve the issue because the jury in this case found defendant was
negligent, but that defendant’s negligence was not a cause of Julius
Speiginer’s death. Plaintiffs do not,
and more importantly cannot, claim that a finding of negligence based on the
duties of care set out in the Title 22 regulations is somehow more significant
than a finding of negligence based on failure to use reasonable care to prevent
malnutrition or dehydration, and/or skin ulcers from starting, and/or skin
ulcers from worsening. Consequently, we
must conclude any error in this case was harmless.

>B. Ratification

Plaintiffs also contend that the
trial court’s instruction on ratification did not correctly state the law. We disagree.

“The standard of review for a
claim of instructional error of this kind is de novo: the question is one of
law, involving as it does the determination of the applicable legal principles
[citation].” (People v. Berryman (1993) 6 Cal.4th 1048, 1089, overruled on other
grounds in People v. Hill (1998) 17
Cal.4th 800.)

Liability under Welfare and
Institutions Code section 15610.57 for elder abuse can be based on the
negligence of “any person having the care or custody of an elder or a dependent
adult.” To recover so-called enhanced
damages for elder abuse under Welfare and Institutions Code section 15657,
plaintiffs must meet the standards of Civil Code section 3294, subdivision (b),
which states in pertinent part, “An employer shall not be liable for damages
pursuant to subdivision (a) [punitive damages], based upon acts of an employee
of the employer, unless the employer . . . authorized or ratified the
wrongful conduct for which the damages are awarded or was personally guilty of
oppression, fraud, or malice. With
respect to a corporate employer, the advance knowledge and conscious disregard,
authorization, ratification or act of oppression, fraud, or malice must be on
the part of an officer, director, or managing agent of the corporation.”

The trial court instructed the
jury in this case that defendant is responsible for enhanced damages if
plaintiffs prove among other things that Dianna Klarenbach (defendant’s chief
of nursing) was an officer or a managing agent of defendant acting on behalf of
defendant; that she “had advance knowledge of the unfitness of the employees
that treated Julius Speiginer with reckless disregard, and employed him or her
with a knowing disregard of the rights or safety of others”; or that she “knew
of the wrongful conduct against Julius Speiginer and approved of the conduct
after it occurred.”

Plaintiffs are of the view that
the trial court’s instruction is wrong because this “narrow test for
ratification” is “precisely” the one rejected by the judge who ruled on defendant’s
summary judgment motions. Although the
point is irrelevant, plaintiffs have not demonstrated that in ruling on
defendant’s summary judgment motion, the judge rejected the above quoted legal
definition of ratification. Plaintiffs’
only support for their assertion is a citation to the points and authorities
they filed in opposition to defendant’s motion for summary adjudication in
which they argue that the test is incorrect.
They have not shown that the judge, in ruling on defendant’s summary
judgment motion, actually adopted plaintiffs’ view.

Even if the judge ruling on the
summary judgment motion had expressly rejected the language the trial judge
later used in his jury instruction, that would not establish that the trial
judge was wrong. It would only show that
the two judges disagreed on the proper test.
In short, and simply put, plaintiffs have failed to demonstrate that the
trial court incorrectly articulated the pertinent legal principle.href="#_ftn4" name="_ftnref4" title="">[4]


>C. Multiple Causation

Plaintiffs’ final claim regarding
jury instructions is that the trial court erred when it refused to instruct the
jury according to CACI No. 431 entitled Causation: Multiple Causes, that “A
person’s negligence may combine with another factor to cause harm. If you find that the negligence of Defendant
was a substantial factor in causing Plaintiffs’ harm, then Defendant is
responsible for the harm. Defendant
cannot avoid responsibility just because some other person, condition, or event
was also a substantial factor in causing the harm.”

Plaintiffs contend that the trial
court’s failure to give the quoted instruction, and instead instructing the
jury on defendant’s theory that Julius Speiginer’s injuries and death were the
result of his failure to follow medical advice, “misled the jury into believing
it could not allocate fault for Mr. Speiginer’s death between these multiple
causes.” As a result of being misled,
plaintiffs contend the jury found defendant’s negligence was not a cause of Mr.
Speiginer’s death.

With respect to causation, the
trial court instructed the jury, “A substantial factor in causing harm is a
factor that a reasonable person would consider to have contributed to the
harm. It must be more than a remote or
trivial factor. It does not have to be the only cause of the harm. [Emphasis added.]” The emphasized language conveyed to the jury
the fact that plaintiffs’ harm, in this case the death of their father, could
be the result of more than one factor and that defendant was liable as long as
the harm it caused was a substantial factor.
In short, although the trial court did not instruct the jury according
to CACI No. 431, it did convey the critical principle to the jury by giving the
quoted jury instruction.

>5.

>SPECIAL VERDICT FORM

Plaintiffs contend the trial court’s
special verdict form was incorrect because it incorporated all of the
previously discussed errors. Because we
conclude the trial court did not err in any of the ways about which plaintiffs
complain, we must reject this final claim of error.href="#_ftn5" name="_ftnref5" title="">[5]

>DISPOSITION

The judgment is affirmed. Defendant to recover its costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS



MCKINSTER

J.





We concur:



RAMIREZ

P.
J.

RICHLI

J.





id=ftn1>

href="#_ftnref1"
name="_ftn1" title=""> [1] MRSA is an acronym for Methicillin-resistant
Staphylococcus aureus.



id=ftn2>

href="#_ftnref2"
name="_ftn2" title=""> [2] According to an autopsy performed at the
request of the Speiginer family, Mr. Speiginer died as the result of
complications from metastatic prostate cancer, as well as sepsis, pneumonia,
congestive heart failure, and arteriosclerotic and hypertensive cardiovascular
disease.

id=ftn3>

href="#_ftnref3"
name="_ftn3" title=""> [3] Plaintiffs also contend that the trial court
erred by excluding all evidence of or in reference to regulations applicable to
defendant’s nursing home. Plaintiffs do
not identify any evidence they intended to introduce, but instead cite to the
trial court’s ruling precluding mention of the regulations during trial,
including in their opening statement.
The crux of plaintiffs’ complaint is that the trial court erred in
finding the regulations did not state the pertinent standard of care, and therefore
refusing to instruct the jury in that regard.
Plaintiffs separately raise that claim in this appeal, and we address
that issue later in our discussion.

id=ftn4>

href="#_ftnref4"
name="_ftn4" title="">[4] Plaintiffs insist here, as they did in the
trial court, that the correct test for establishing ratification is set out in >College Hospital Inc. v. Superior Court
(1994) 8 Cal.4th 704: An employer
ratifies the conduct of an employee when the employer or its managing agent
fails to intercede in a known pattern of workplace abuse. Plaintiffs are incorrect. “For purposes of determining an employer’s
liability for punitive damages, ratification generally occurs where, under the
particular circumstances, the employer demonstrates an intent to adopt or
approve oppressive, fraudulent, or malicious behavior by an employee in the
performance of his job duties.” (>Id. at p. 726.) The language plaintiffs rely on is taken from
the example the Supreme Court cited of when the issue of ratification commonly
comes up: “The issue commonly arises where
the employer or its managing agent is charged with failing to intercede in a
known pattern of workplace abuse, or failing to investigate or discipline the
errant employee once such misconduct became known.” (Ibid.)

id=ftn5>

href="#_ftnref5"
name="_ftn5" title=""> [5] Plaintiffs have withdrawn their claim that it
was error for the trial court to deny them a jury trial on their sixth and
seventh causes of action.




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