226 Cal.App.4th 331, H037749, Worsham v. O'Connor Hospital

Docket Nº:H037749
Citation:226 Cal.App.4th 331, __ Cal.Rptr.3d__
Opinion Judge:RUSHING, P.J.
Party Name:GREGORY WORSHAM, Plaintiff and Appellant, v. O'CONNOR HOSPITAL et al., Defendants and Respondents.
Attorney:Garcia, Artigliere & Schadrack, Stephen M. Garcia and David Medby for Plaintiff and Appellant. Sheuerman, Martini & Tabari and Cyrus A. Tabari for Defendants and Respondents.
Judge Panel:Premo, J., and Elia, J., concurred.
Case Date:April 23, 2014
Court:California Court of Appeals
 
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Page 331

226 Cal.App.4th 331

__ Cal.Rptr.3d__

GREGORY WORSHAM, Plaintiff and Appellant,

v.

O'CONNOR HOSPITAL et al., Defendants and Respondents.

H037749

California Court of Appeals, Sixth District

April 23, 2014

Santa Clara County Super. Ct. No. CV197683.

Page 332

[Copyrighted Material Omitted]

Page 333

COUNSEL

Garcia, Artigliere & Schadrack, Stephen M. Garcia and David Medby for Plaintiff and Appellant.

Sheuerman, Martini & Tabari and Cyrus A. Tabari for Defendants and Respondents.

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OPINION

RUSHING, P.J.

Appellant Gregory Worsham1 has two appeals pending in this court. They both arise from the same case in the Santa Clara County Superior Court. In the underlying case, Worsham alleged negligence and elder abuse against two separate defendants, O’Connor Hospital (O’Connor) and Daughters of Charity Health System (Daughters of Charity). The court sustained O’Connor and Daughters of Charity's demurrer to Worsham’s elder abuse claim in his second amended complaint without leave to amend. Following this ruling, Worsham dismissed his negligence cause of action, and judgment was entered in favor of O’Connor and Daughters of Charity.

Worsham now appeals the court’s ruling sustaining the demurrer to the elder abuse cause of action without leave to amend. Despite filing an appeal as to defendant Daughters of Charity Health, Worsham states in his opening brief that he only challenges the trial court’s rulings as they pertain to O’Connor. We deem Worsham’s statement as a request for dismissal of the appeal as to defendant Daughters of Charity and will dismiss the appeal accordingly.

With regard to defendant O’Connor, Worsham asserts the trial court abused its discretion in sustaining the demurrer to the elder abuse claim without leave to amend.

Statement of the Facts and Case

Juanita Worsham entered O’Connor on July 31, 2010 to undergo hip surgery to treat a fractured hip she suffered as a result of falling in her home. Following surgery, Ms. Worsham was discharged to O’Connor's transitional care unit (Transitional Care Unit” for rehabilitative care.

On August 20, 2010, Ms. Worsham suffered a fall at the Transitional Care Unit. As a result of the fall, Ms. Worsham broke her right arm and rebroke her hip.

Ms. Worsham filed her original complaint on March 30, 2011, and her first amended complaint on April 18, 2011 alleging violation of the Elder Abuse Act (Welf. & Inst. Code, §§ 15600, et seq.), and professional negligence. The basis of Ms. Worsham’s claim was that O’Connor’s Transitional Care Unit was understaffed and undertrained, and that the lack of sufficient well-trained staff caused Ms. Worsham’s fall.

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O’Connor demurred to the first amended complaint and the court sustained the demurrer on the ground that Ms. Worsham failed to plead sufficient facts regarding O’Connor’s understaffing and undertraining.

Ms. Worsham filed her second amended complaint on July 15, 2011 to which O’Connor also demurred. The hearing for the demurrer was set for September 15, 2011. The court issued a tentative ruling prior to the hearing that stated: “Because we test for liability under the Elder Abuse Act, a statutory cause of action, we apply ‘the general rule that statutory causes of action must be pleaded with particularity.’ [Citation.] Although [Ms. Worsham] alleges [O’Connor] acted recklessly by deliberately understaffing and undertaining, [Ms. Worsham] has not sufficiently supported the allegations with particular facts.” The tentative ruling also stated that the court would sustain the demurrer without leave to amend.

Ms. Worsham did not challenge the tentative...

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