Filed 1/27/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
GEORGE FENIMORE, JR., et al., B289797
Plaintiffs and Appellants, (Los Angeles County Super. Ct.
No. SC121657)
v.
THE REGENTS OF THE
UNIVERSITY OF CALIFORNIA et
al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Gerald Rosenberg, Judge. Vacated and
remanded.
Garcia & Artigliere, Stephen M. Garcia, Mark A. Schadrack
for Plaintiffs and Appellants.
Cole Pedroza, Curtis A. Cole, Cassidy C. Davenport, Danica
Lam; Steven D. Davis Law Group, Steven D. Davis, Diane M.
Daly for Defendants and Respondents.
Tucker Ellis, Traci L. Shafroth for California Medical
Association, California Dental Association, and California
Hospital Association as Amicus Curiae on behalf of Defendants
and Respondents.
__________________________
For a reason the defendant now concedes was mistaken,
the trial court denied a plaintiff leave to amend a complaint. We
reverse and remand.
I
George Fenimore was 92 and suffering dementia. On
March 27, 2013, his family took him to a local hospital because he
was incontinent and would not shower. This local hospital is not
a defendant.
On March 29, 2013, the local hospital transferred Fenimore
to a second hospital, which was UCLA Resnick Neuropsychiatric
Hospital. Within minutes of arriving at the second hospital,
which we refer to as Resnick, Fenimore fell down. His condition
deteriorated. On April 2, 2013, the Resnick hospital transferred
him to a third hospital called Ronald Reagan UCLA Medical
Center, which we refer to as Reagan. The same entity owns
Resnick and Reagan, which collectively we call Hospitals. The
Hospitals are defendants. (See Fenimore v. Regents of Univ. of
Cal. (2016) 245 Cal.App.4th 1339, 1342, fn. 1 (Fenimore I).)
At Reagan, x-rays revealed a hip fracture. Fenimore never
recovered. He allegedly developed severe bedsores and died from
his injuries on July 21, 2013. (Fenimore I, supra, 245
Cal.App.4th at p. 1342.)
Fenimore’s family sued under the elder abuse statute.
(Welf. and Inst. Code, §§ 15600 et seq.) Their first amended
complaint sought general and special damages, punitive
damages, attorney fees, and costs under this statute. There were
other claims too, but they are no longer pertinent.
For simplicity, from here on we refer to the plaintiffs in this
case collectively as Fenimore.
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In 2016, we reversed a demurrer ruling and remanded the
case for further proceedings. (See Fenimore I, supra, 245
Cal.App.4th at pp. 1342 & 1352.) We noted the elder abuse act
provides heightened remedies — attorneys fees and
compensation for predeath pain and suffering, for instance —
upon clear and convincing evidence of recklessness, oppression,
fraud, or malice in the commission of neglect. (Id. at p. 1347.)
We noted the act does not apply to simple, gross, or professional
negligence by health care providers. (Ibid.) Rather, the statute
requires heightened culpability for heightened remedies.
In Fenimore I, we applied this heightened standard to
analyze Fenimore’s first amended complaint. We held this
standard barred Fenimore from stating a cause of action against
Resnick for allowing him to fall within minutes of entering that
facility, for that at most would be mere professional negligence.
(Fenimore I, supra, 245 Cal.App.4th at pp. 1347–1348.) The
same prohibition applied to allegations about treatment for his
broken hip — again, mere professional negligence, at worst.
Fenimore’s fraud allegations also failed. (Id. at p. 1351.) So
those three theories were permanently out of the case.
Fenimore I reached a different result, however, regarding
Fenimore’s allegation that Resnick had a pattern and knowing
practice of violating staffing regulations and improperly
understaffing to cut costs, and that a proper staffing level would
have prevented Fenimore’s fall. (Fenimore I, supra, 245
Cal.App.4th at pp. 1348–1350.) “[T]he Fenimores have alleged
more than a simple understaffing here. The [first amended
complaint] identified the staffing regulation [Resnick] allegedly
violated and suggested a knowing pattern of violating it
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constituted recklessness.” (Id. at p. 1350.) We remanded for the
case to proceed on this limited basis. (Id. at p. 1352.)
After remand, Fenimore moved the trial court on October
17, 2016 for leave to file a second amended complaint that would
add new allegations about pressure sores. The trial court denied
this motion on December 1, 2016 on the logic the statute of
limitations barred the amendment. On May 4, 2017, the
Hospitals moved for summary judgment, which the trial court
granted on March 2, 2018. Fenimore appeals both the denial of
his motion for leave to amend and the grant of summary
judgment.
II
The trial court erred in denying Fenimore’s motion to
amend his complaint. The foundation of this ruling was an
incorrect timing computation about the statute of limitations.
The Hospitals concede the trial court’s timing computation
was in error. The statute of limitations did not bar Fenimore’s
motion for leave to file his second amended complaint. We
therefore reverse the denial of this motion.
The parties agree a two-year statute governs. This two-
year clock started when the incapacitated Fenimore died on July
21, 2013. (See Code Civ. Proc., §352, subd. (a).) The appeal of
Fenimore I tolled the clock from the notice of appeal on February
9, 2015 to the issuance of the remittitur on July 25, 2016. (See
Code Civ. Proc., §§ 356 & 916; Hoover v. Galbraith (1972) 7
Cal.3d 519, 525–526.) Fenimore filed his motion October 7, 2016,
which was within the two-year period. The trial court relied
upon incorrect dates, which yielded a mistaken conclusion.
The Hospitals suggest Fenimore suffered “different injuries
from different instrumentalities.” The Hospitals repeated this
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notion at oral argument, saying the proposed second amended
complaints would have totally shifted the focus of the litigation.
Their suggestion seems to be there is no pertinent relationship
between a 92 year old’s broken hip and bedsores resulting from
his immobilization caused by the broken hip. The Hospitals cite
no case to support their suggestion. Neither did the trial court.
We therefore reverse the denial of Fenimore’s motion for
leave to file his second amended complaint. This reversal means
we do not reach the merits of the summary judgment ruling,
which was briefed and decided on the basis of pleadings other
than the proposed second amended complaint.
DISPOSITION
The judgment is vacated and the case is remanded for
further proceedings. Fenimore shall recover costs on appeal.
WILEY, J.
WE CONCUR:
GRIMES, Acting P. J.
STRATTON, J.
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