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Ara Living Centers v. Superior Court of San Mateo County9/28/1993
COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT DISTRICT, DIVISION THREE
No. A059580.
1993.CA.42125 ; 18 Cal. App. 4th 1556; 23 Cal. Rptr. 2d 224
Decided: September 28, 1993.
ARA LIVING CENTERS - PACIFIC, INC., ET AL., PETITIONERS,
v.
THE SUPERIOR COURT OF SAN MATEO COUNTY, RESPONDENT; DENNIS M. DAY, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR, ETC., REAL PARTY IN INTEREST.
Superior Court of San Mateo County, No. 368072, Harlan K. Veal, Judge.
Nancy E. Hudgins, Rebecca R. Paul and Kathleen D. Fong for Petitioners.
No appearance for Respondent
Houck & Balisok, Russell S. Balisok, Mark B. Buehler, O'Donnell, Prieston & Cahill and John M. Cahill for Real Party in Interest
Opinion by White, P. J., with Chin and Werdegar, JJ., Concurring.
White
This action is against operators of a skilled nursing facility, seeking damages for elder abuse. It alleges conduct occurring after the Legislature defined elder abuse and made it a crime under some circumstances, but before it amended the statutes to provide attorney fees for persons bringing civil actions and to allow heirs to recover damages for the pain and suffering of deceased patients. (Welf. & Inst. Code, ยง 15657.) The issue presented here is whether to apply these changes to events taking place before amendment to the statute. We conclude the attorney fees subsection applies, but that the lifting of the limitation on pain and suffering damages may be applied prospectively only. We direct issuance of a peremptory writ of mandate.
Dennis M. Day is the special administrator of the estate of Hazel Evelyn Ervasti, who died at age 80. In his capacity as administrator, Day filed a civil complaint against ARA Living Centers - Pacific, Inc. (ARA) and others, alleging that Ervasti died from infected bedsores, attributed to neglect while in the care of the defendants at the College Park Convalescent Hospital (Hospital) between August 1 and November 20, 1990. The original complaint, filed before the 1991 amendments to the elder abuse statutes, alleged causes of action for wrongful death, negligence, battery, fraud, and negligent and intentional infliction of emotional distress.
After the Legislature's 1991 amendments to the elder abuse laws, Day twice amended the complaint to allege defendants' actions came within provisions of the new law, which provides for attorney fees, punitive damages and survival of actions seeking damages for pain and suffering.
After each amendment to the complaint, ARA and Hospital (referred to as ARA for convenience) moved to strike and demurred to allegations dependent upon the 1991 amendments to the elder abuse law, contending the new provisions could not be applied to events occurring before January 1, 1992, the effective date of the amendments. After briefing and hearings, the court overruled the demurrers in pertinent part, granted the motions to strike Day's allegations of punitive damages (and a surplus prayer in one of the amended complaints) and denied both motions to strike in all other respects. ARA challenges the court's rulings.
We denied ARA's petition, but the California Supreme Court granted review and retransferred the matter with directions to reconsider it in light of Evangelatos v. Superior Court (1988) 44 Cal. 3d 1188 [246 Cal. Rptr. 629, 753
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