1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

MARGARET WARD, et al.,

Plaintiffs,

v.

THE COUNTY OF MENDOCINO, et al.,

Defendants.

Case No. 17-cv-00911-PJH 

ORDER GRANTING KINDRED’S 

MOTION TO DISMISS

Re: Dkt. No. 66

Defendant Kindred Healthcare Operating Inc.’s (“Kindred”) motion to dismiss count 

three of plaintiffs’ Third Amended Complaint (“TAC”), for elder abuse, came on for 

hearing before this court on May 2, 2018. Plaintiffs appeared through their counsel, 

Nathaniel Leeds. Defendant appeared through its counsel, Robert Sanford. Having read 

the papers filed by the parties and carefully considered their arguments and the relevant 

legal authority, and good cause appearing, the court hereby grants defendant’s motion, 

for the reasons stated at the hearing and the following reasons.

BACKGROUND

The survivors of Earl Ward (“Ward”) bring this case. For purposes of this motion 

to dismiss, the court considers the non-conclusory facts as pled. The court has 

recounted many of the complaint’s allegations in previous orders (Dkts. 39, 51), so an 

abbreviated recitation of facts relevant to this motion follows.

Ward was a 77-year-old man who suffered from dementia. TAC ¶ 1. He was 

taken into custody by the Mendocino County Sheriff's Department following a call to the 

police by his wife, Margaret Ward. TAC ¶ 1. He was arrested on March 20, 2016 and 
2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

held in custody at the Mendocino County Jail, where he suffered numerous injuries. TAC 

¶¶ 1, 57. 

On April 16, 2016, Ward was discovered lying on the floor with multiple vertebral 

fractures and broken ribs, internal bleeding, a partially collapsed lung, and acute kidney 

failure. TAC ¶ 57. Ward underwent surgery on April 22, 2016 at Santa Rosa Memorial 

Hospital and was discharged to the care of Magnolia Manor on May 18, 2016. TAC 

¶¶ 58–59. Defendant Kathy Goodman cared for Ward at Magnolia Manor in the scope of 

her employment by defendant Kindred. TAC ¶ 60. She cared for Ward's surgical 

wounds during the time that he was a resident of Magnolia Manor. TAC ¶¶ 60–61.

Goodman was operating under physician orders to change Ward’s wound dressings daily 

and to notify Ward’s doctor if his surgical wound had redness/bleeding and/or drainage. 

TAC ¶ 61. 

Plaintiffs allege that from May 21, 2016 to May 26, 2016, Goodman observed that 

Ward' s wound was increasingly draining, that his pain was increasing, and that the 

wound site had increased in diameter. TAC ¶¶ 62–64. Plaintiffs allege that Goodman did 

not inform doctors of any of these events, even though the physician ordered that he be 

notified of those events, and that Goodman instead used products to dress Ward’s

wounds that were not ordered by the physician. TAC ¶¶ 61–65.

On May 27, 2016, Ward was readmitted to Santa Rosa Memorial Hospital. TAC 

¶ 66. His surgical wound was infected by MRSA, and he died on May 30, 2016, with the 

causes of death listed as sepsis, MRSA, wound infection, and spinal fusion procedure. 

TAC ¶¶ 66–68.

Plaintiffs Margaret Ward (in her personal capacity, and as the executor of Ward’s 

estate), Kevin Ward, and Ina Ward (surviving heir of Jeff Ward, deceased) assert four 

claims against various defendants: (1) 42 U.S.C. § 1983 for Fourteenth Amendment

violations in certain defendants’ personal capacities; (2) 42 U.S.C. § 1983 for Fourteenth 

Amendment violations in certain defendants’ capacities as supervisors; (3) elder abuse; 

and (4) wrongful death based on medical negligence. See TAC.
3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

The present motion was brought by Kindred to dismiss plaintiffs’ third claim, elder 

abuse, against Kindred. Kindred’s counsel sought to join defendant Goodman to 

Kindred’s motion in Kindred’s reply brief. Dkt. 71 at 2 n.1. That request to join Goodman 

to the present motion is DENIED. The court addresses Kindred’s motion to dismiss 

plaintiffs’ claim for elder abuse against Kindred.

DISCUSSION

A. Legal Standard

A motion to dismiss under Rule 12(b)(6) tests for the legal sufficiency of the claims 

alleged in the complaint. Ileto v. Glock, 349 F.3d 1191, 1199-1200 (9th Cir. 2003). 

Under the minimal notice pleading requirements of Federal Rule of Civil Procedure 8, 

which requires that a complaint include a "short and plain statement of the claim showing 

that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), a complaint may be 

dismissed under Rule 12(b)(6) if the plaintiff fails to state a cognizable legal theory, or 

has not alleged sufficient facts to support a cognizable legal theory. Somers v. Apple, 

Inc., 729 F.3d 953, 959 (9th Cir. 2013). 

While the court is to accept as true all the factual allegations in the complaint, 

legally conclusory statements, not supported by actual factual allegations, need not be 

accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); see also In re Gilead Scis. 

Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). The complaint must proffer sufficient 

facts to state a claim for relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 

550 U.S. 544, 555, 558–59 (2007) (citations and quotations omitted). A claim has facial 

plausibility when the plaintiff pleads factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 

U.S. at 678 (citation omitted). 

“[W]here the well-pleaded facts do not permit the court to infer more than the mere 

possibility of misconduct, the complaint has alleged - but it has not ‘show[n]’ - ‘that the 

pleader is entitled to relief.’” Id. at 679. Where dismissal is warranted, it is generally 

without prejudice, unless it is clear the complaint cannot be saved by any amendment. 
4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

Sparling v. Daou, 411 F.3d 1006, 1013 (9th Cir. 2005).

B. Analysis

Elder abuse claims arise under the Elder Abuse Act (“the Act”) found in sections 

15600 et seq. of the Welf. & Inst. Code (“WIC”). The Elder Abuse Act makes certain 

enhanced remedies available to a plaintiff who proves abuse of an “elder”—a “person 

residing in this state, 65 years of age or older.” WIC § 15610.27. The statute provides 

for recovery of costs and attorneys’ fees where a plaintiff proves by clear and convincing 

evidence that (1) the defendant is a caretaker or custodian of an elder; (2) the defendant 

is liable for physical abuse or neglect, and (3) the defendant is guilty of “recklessness, 

oppression, fraud, or malice” in the commission of the abuse. See Winn v. Pioneer Med. 

Grp., Inc., 63 Cal. 4th 148, 161 (2016); Worsham v. O'Connor Hospital, 226 Cal. App. 4th 

331, 336 (2014); WIC §§ 15610.57, 15657. A claim against an employer based upon the 

acts of an employee also requires that (4) a managing agent authorized or ratified the 

activities. WIC § 15657(c).

Plaintiffs must sufficiently plead each element to state a claim against Kindred.

1. Caretaker or Custodian

The Elder Abuse Act does not apply unless the defendant health care provider had 

a caretaking or custodial relationship with the elder patient, involving ongoing 

responsibility for one or more basic needs of the elder or dependent adult that an ablebodied and fully competent adult would ordinarily be capable of managing without 

assistance. Winn, 63 Cal. 4th at 153–55. “It is the nature of the elder or dependent 

adult’s relationship with the defendant—not the defendant’s professional standing [as a 

health care provider]—that makes the defendant potentially liable for neglect.” Id. at 152.

A plaintiff must allege, as a distinct element, that the defendant had a caretaking or 

custodial relationship with the elder patient. Winn, 63 Cal. 4th at 162 (the Act “imposes a 

caretaking or custodial prerequisite”). 

At the hearing on the motion, defendant’s counsel agreed that Kindred was 

providing custodial as well as other caretaker services for Ward. Defendant instead 
5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

argues that the general custodial care relationship between Kindred and Ward is not the 

relevant inquiry—rather, the medical nature of the particular services Kindred allegedly 

provided requires that the claim be considered as one for medical negligence rather than 

elder neglect.

However, this element requires a “substantial caretaking or custodial relationship, 

involving ongoing responsibility for one or more basic needs, with the elder patient[.]” 

Winn, 63 Cal. 4th at 152. This distinct element focuses on “the nature of the elder or 

dependent adult’s relationship with the defendant” rather than the particular actions that 

gave rise to the complaint. Id. Plaintiffs allege that Ward was discharged to the care of 

Kindred following major surgery and was in Kindred’s custody and care “by virtue of his 

housing at the residential care facility.” TAC ¶¶ 58–59, 93. As such, plaintiffs have 

sufficiently pled that Kindred had a caretaking or custodial relationship with Ward during 

the relevant period.

2. Neglect

The parties dispute whether it is possible for a health care provider to neglect an 

elder under the Act while providing medical services. Defendant argues that the

provision of medical services cannot be actionable under the Act, because inadequate 

provision of medical services, as opposed to withholding of medical services, can 

constitute only professional negligence and not elder neglect under WIC § 15657.2.

Neglect within the meaning of WIC § 15610.57 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 v. Baker, 20 Cal. 4th 23, 34 (1999) (discussing the “former section 15610.57,” 

although the relevant language is substantively the same as the current version); Winn, 

63 Cal. 4th at 160. Actions brought against health care providers who engage in reckless 

neglect are “subject to section 15657’s remedies”—the Act does not provide a blanket 

exemption for health care providers performing “any act directly related to [their]

performance of professional services.” Delaney, 20 Cal. 4th at 31, 37 (internal quotation 
6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

marks omitted).

The California Supreme Court has rejected the argument that the “professional 

negligence” standard “applies to any actions directly related to the professional services 

provided by a health care provider” because doing so would lead to the “anomalous 

result” that “[a] custodian who allowed an elder or dependent adult in his or her care to be 

become malnourished would be subject to 15657’s heightened remedies only if he or she 

was not a licensed health care professional.” Delaney, 20 Cal. 4th at 35. Rather than 

classifying an act as a health care activity or a caretaking activity, the Delaney court 

provided clear guidance: “if the neglect is ‘reckless[],’ or done with ‘oppression, fraud or 

malice,’ then the action falls within the scope of section 15657 and as such cannot be 

considered simply ‘based on ... professional negligence’ within the meaning of section 

15657.2.”1 Delaney, 20 Cal. 4th at 35.

Here, plaintiffs allege that Ward’s physician ordered that he was to be notified if 

Ward had any wound redness/bleeding and/or drainage from the surgical site, that Ward 

had those conditions, and that Kindred’s employee Goodman did not follow the doctor’s 

order by notifying the physician but instead treated the wound in a manner “that had not 

been ordered by Mr. Ward’s physician.” TAC ¶¶ 61–65. The question is whether 

plaintiffs adequately allege that Kindred through its employee Goodman neglected Ward

under the Act, regardless of whether the alleged acts of neglect can also be 

characterized as medical services. The allegations that Goodman intentionally defied 

physician orders by failing to notify the physician when she observed Ward’s wound 

developing the very symptoms the doctor warned of is sufficient to allege neglect under 

the Act.

3. Recklessness, Oppression, Fraud, or Malice

 

1 WIC § 15657.2 clarifies that the Act does not apply a “professional negligence” standard 

to health care providers and that the attorneys’ fees, costs, damages cap waiver, and 

other damages provisions of § 15657 do not apply to regular negligence or malpractice 

claims brought against health care providers treating elders. It does not exclude health

care providers from the Act, nor does it exclude acts of reckless neglect that can be 

described as the provision of medical services. Delaney, 20 Cal. 4th at 35.
7

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

“The Elder Abuse Act does not apply to simple or gross negligence by health care 

providers.” Worsham, 226 Cal. App. 4th at 336. WIC § 15657 applies only when “the 

defendant has been guilty of recklessness, oppression, fraud, or malice in the 

commission of [the] abuse[.]” WIC § 15657.

“Recklessness refers to a subjective state of culpability greater than simple 

negligence, which has been described as a deliberate disregard of the high degree of 

probability that an injury will occur. Oppression, fraud and malice involve intentional or 

conscious wrongdoing of a despicable or injurious nature.” Sababin v. Superior Court, 

144 Cal. App. 4th 81, 88–89 (2006) (citations and internal quotation marks omitted); 

Delaney, 20 Cal. 4th at 31–32. “Recklessness, unlike negligence, involves more than 

inadvertence, incompetence, unskillfulness, or a failure to take precautions but rather 

rises to the level of a conscious choice of a course of action ... with knowledge of the 

serious danger to others involved in it.” Delaney, 20 Cal. 4th at 34 (citation and internal 

quotation marks omitted).

The court finds that plaintiffs have sufficiently pled recklessness, oppression, 

fraud, or malice. Assuming the allegations are true, a trier of fact could find recklessness 

where a caretaker intentionally ignored a physician’s care plan, where the surgical wound 

that was the express subject of that care plan was worsening daily, and where the wound 

was treated in a manner contrary to the care plan rather than being reported to the 

physician. Such conduct sufficiently alleges deliberate disregard of a high degree of 

probability that the patient will suffer injury, and a finder of fact could find it reckless. See

Sababin, 144 Cal. App. 4th at 89–90.

4. Authorization or Ratification By a Managing Agent

To bring an Elder Abuse Act claim against an employer for the acts of an 

employee, the Act requires plaintiffs allege the “standards set forth in subdivision (b) of 

Section 3294 of the Civil Code[.]” WIC § 15657(c). Cal. Civ. Code § 3294(b) in turn 

provides, in relevant part:
8

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

An employer shall not be liable for damages . . . based upon 

acts of an employee of the employer, unless the employer had 

advance knowledge of the unfitness of the employee and 

employed him or her with a conscious disregard of the rights 

or safety of others or 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.

This element requires plaintiffs to allege both that (1) Kindred had advance 

knowledge of Goodman’s unfitness and employed her with a conscious disregard of the 

rights or safety of others; or that Kindred authorized or ratified Goodman’s wrongful 

conduct; or that Kindred was personally guilty of oppression, fraud, or malice; and (2) that 

such act was done by an officer, director, or managing agent of the corporation.

“[T]he term ‘managing agent’ [under that statute] . . . include[s] only those 

corporate employees who exercise substantial independent authority and judgment in 

their corporate decisionmaking so that their decisions ultimately determine corporate 

policy.” White v. Ultramar, Inc., 21 Cal. 4th 563, 566–67 (1999). The ability to hire and 

fire alone is not necessarily enough. Id. at 565. The determination is “a question of fact 

for decision on a case-by-case basis.” Id. at 567.

Regarding the first requirement, plaintiffs attempt to allege that Kindred ratified 

Goodman’s wrongful conduct. They fail to adequately do so. Plaintiffs allege in 

conclusory fashion that Goodman’s acts were done “with the consent and/or ratification of 

KINDRED” (TAC ¶¶ 62–63, 65), but they allege no facts in support other than that 

Goodman “noted” Ward’s condition at various times (presumably in a medical chart, 

although that is not alleged). Plaintiffs fail to allege that a supervisor or anyone else even 

knew of, much less authorized or ratified, any of the conduct underlying plaintiffs’ claim: 

Goodman’s notations about Ward’s condition, the physician’s care plan, and Goodman’s 

subsequent actions (or inaction) in light of that information when caring for Ward. In 

absence of the specific ratifying conduct, plaintiffs also fail to allege plausible facts that 

“permit the court to infer more than the mere possibility of misconduct[.]” Iqbal, 556 U.S. 
9

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

at 679. Plaintiffs must plead “factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. 

Regarding the second requirement, plaintiffs must plead that an officer, director, or 

managing agent at Kindred authorized or ratified Goodman’s conduct. Plaintiffs’ 

complaint makes no such allegation, and it is far from obvious that an employee at the 

organizational level of Goodman’s direct supervisor—even if she ratified Goodman’s 

conduct—would exercise sufficient independent authority and judgment to determine 

corporate policy, as plaintiffs must allege. 

As such, plaintiffs fail to adequately allege that a Kindred managing agent 

authorized or ratified the conduct underlying their claim for elder neglect.

5. Request for Judicial Notice

Plaintiffs ask the court to take judicial notice that on October 12, 2017, Goodman 

was charged by the California Board of Registered Nursing, Department of Consumer 

Affairs, for gross negligence in her treatment of Earl Ward, as well as for her treatment of 

other patients during the same time period, and based on those accusations, faced 

discipline, including the revocation of her license. Dkt. 70. They also request the court 

take judicial notice of the nursing board’s formal accusation document. Dkt. 70, Ex. A.

The professional nursing organization’s actions with respect to Goodman are 

irrelevant to the present motion. This Rule 12(b)(6) motion tests the adequacy of the 

pleadings, but plaintiffs do not identify any relevant facts in the materials that would cure 

their inadequate pleading.

Because the materials are irrelevant to the present motion, the court DENIES THE 

REQUEST FOR JUDICIAL NOTICE AS MOOT without addressing defendant’s

arguments.

CONCLUSION

For the foregoing reasons, the motion to dismiss is GRANTED with respect to 

plaintiffs’ third claim against defendant Kindred, for elder abuse. Claim 3 against Kindred 

is DISMISSED WITH LEAVE TO AMEND, to plead facts showing that a managing agent 
10

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

ratified or authorized Goodman’s conduct underling plaintiffs’ elder abuse claim. 

Plaintiffs’ amended complaint must be filed within 28 days of the date of the hearing.

IT IS SO ORDERED.

Dated: May 4, 2018

__________________________________

PHYLLIS J. HAMILTON

United States District Judge