George Fenimore, Jr. v. The Regents of the University of California

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 twoyear 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.

The judgment is vacated and the case is remanded for further proceedings. Fenimore shall recover costs on appeal.