Kathlyn Koulos et al vs Powers Park Healthcare Inc et al
Kathlyn Koulos et al vs Powers Park Healthcare Inc et al
Case Number
23CV02840
Case Type
Hearing Date / Time
Mon, 10/23/2023 - 09:00
Nature of Proceedings
Petition to Bring Elder Abuse Action
Tentative Ruling
Case No. 23CV02840
Hearing Date: October 23, 2023
HEARING: Plaintiff Jeani Burke’s Petition to Bring Elder Abuse Action in the Name of Decedent Kathlyn Koulos, as Personal/Legal Representative
ATTORNEYS: For Plaintiffs Kathlyn Koulos, deceased, by and through her personal/legal representative, Jeani Burke, Jeani Burke individually, Kathy Silkett, and Chris Beck: Jacob L. Stipp and Robert F. Bristow
For Defendant Powers Park Healthcare, Inc. dba Channel Islands Post Acute: Lisa A. Cross
For Defendant Jacqueline Cabrera: No appearance
For Defendant Bernie Butac: No appearance
TENTATIVE RULING:
Plaintiff Jeani Burke’s petition to bring elder abuse action in the name of decedent Kathlyn Koulos, as personal/legal representative is granted. The court will sign the proposed order submitted by plaintiffs.
Background:
On June 29, 2023, plaintiffs Kathlyn Koulos, deceased, by and through her personal/legal representative, Jeani Burke, Jeani Burke individually, Kathy Silkett, and Chris Beck filed their complaint against defendants Powers Park Healthcare, Inc. dba Channel Islands Post Acute, Jacqueline Cabrera, and Bernie Butac. The complaint sets forth causes of action for: (1) Statutory Abuse/Neglect of an Elder; (2) Violation of the Patient’s Bill of Rights/Health & Safety Code section 1430; (3) Negligence, and (4) Wrongful Death.
As alleged in the complaint:
Plaintiff Kathly Koulos (Koulos) was 86 years old and was a resident and patient of defendant Powers Park Healthcare, Inc. dba Channel Islands Post Acute (Channel Islands), a 24-hour skilled nursing facility. (Complaint, ¶ 1.) Plaintiff Jeani Burke (Burke) is the daughter of Koulos and brings this action against defendants both as a personal/legal representative of Koulos and for wrongful death in her individual capacity. (Id. at ¶ 3.) Plaintiffs Kathy Silkett and Chris Beck are also children of Koulos and bring this action against defendants for wrongful death. (Id. at ¶ 4.)
Koulos “had significant cognitive deficits and was incapable of caring for her own property, transacting her own business and fully understanding the nature and effects of her own acts.” (Complaint, ¶ 11.) On January 25, 2023, Koulos was sent to Channel Islands for skilled nursing care, therapy, and rehabilitation care. (Id. at ¶ 16.) Upon admission, Koulos diagnoses included “weakness, deconditioning, severe osteoarthritis of the right knee, persistent atrial fibrillation, lower extremity swelling, asymptomatic bacteriuria, chronic diastolic heart failure, suspected sleep apnea, chronic obstructive pulmonary disorder, thrombocytopenia, history of cerebrovascular accident, cognitive decline, right-side meningioma, primary hyperparathyroidism, hyperlipidemia, depression, dementia, and repeated falls.” (Ibid.) At the time of admission, Koulos’ physician assessed her as having a fair prognosis and expected a two to four week stay before being discharged back home to live with Burke. (Id. at ¶ 17.)
Upon Koulos’ admission to Channel Islands, defendants were responsible for meeting Koulos’ basic needs including nutrition, hydration, hygiene and medical care. (Complaint, ¶ 18.) Defendants “ also knew of her preexisting medical diagnoses, that she was not able to provide for her own basic needs, that she had suffered multiple fall incidences in 2021, was weak, was deconditioned, was confused and demented, had poor safety awareness, had difficulty standing and walking, was unsafe to walk on her own, required max assistance with walking and was a high fall risk.” (Ibid.) Defendants denied and withheld goods and services necessary to meet Koulos’ basic needs, with knowledge that injury was substantially certain. (Id. at ¶ 20.) Channel Islands was understaffed, and the defendants were negligent, which resulted in Koulos suffering a fall resulting in serious injuries. (Id. at ¶ 21.) Following a series of negligently attended to conditions and injuries, Koulos died on April 6, 2022. (Id. at ¶¶ 23-27.)
Burke now petitions the court, pursuant to Welfare and Institutions Code section 15657.3, subdivision (d), to bring elder abuse action in the name of Koulos, as personal and legal representative. The petition was filed on the same date as the complaint was filed. After Channel Islands appeared, by the filing of its answer, Channel Islands was served with the petition and accompanying documents. No opposition to the petition has been filed.
Analysis:
Welfare and Institutions Code section 15657.3, subdivision (d) provides, in pertinent part:
“(d)(1) Subject to paragraph (2) and subdivision (e), after the death of the elder or dependent adult, the right to commence or maintain an action shall pass to the personal representative of the decedent. If there is no personal representative, the right to commence or maintain an action shall pass to any of the following, if the requirements of Section 377.32 of the Code of Civil Procedure are met:
“(A) An intestate heir whose interest is affected by the action.
“(B) The decedent’s successor in interest, as defined in Section 377.11 of the Code of Civil Procedure.
“(C) An interested person, as defined in Section 48 of the Probate Code, as limited in this subparagraph.”
Probate Code section 48 provides:
“(a) Subject to subdivision (b), ‘interested person’ includes any of the following:
“(1) An heir, devisee, child, spouse, creditor, beneficiary, and any other person having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding.
“(2) Any person having priority for appointment as personal representative.
“(3) A fiduciary representing an interested person.
“(b) The meaning of ‘interested person’ as it relates to particular persons may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, any proceeding.”
Code of Civil Procedure section 377.32 provides:
“(a) The person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent's successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following:
“(1) The decedent’s name.
“(2) The date and place of the decedent's death.
“(3) ‘No proceeding is now pending in California for administration of the decedent's estate.’
“(4) If the decedent’s estate was administered, a copy of the final order showing the distribution of the decedent's cause of action to the successor in interest.
“(5) Either of the following, as appropriate, with facts in support thereof:
“(A) ‘The affiant or declarant is the decedent's successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) and succeeds to the decedent's interest in the action or proceeding.’
“(B) ‘The affiant or declarant is authorized to act on behalf of the decedent's successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) with respect to the decedent's interest in the action or proceeding.’
“(6) ‘No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding.’
“(7) ‘The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct.’
“(b) Where more than one person executes the affidavit or declaration under this section, the statements required by subdivision (a) shall be modified as appropriate to reflect that fact.
“(c) A certified copy of the decedent’s death certificate shall be attached to the affidavit or declaration.”
Burke has provided a declaration, under penalty of perjury, providing and declaring all of the information required under Code of Civil Procedure section 377.32 and appears to be an interested person as defined by Probate Code section 48. A copy of Koulos’ death certificate is attached as required. As declared, Koulos’ two other living adult children are Silkett and Beck. Both Silkett and Beck have consented, under penalty of perjury, that Burke be appointed to act as the personal and legal representative of Koulos.
As all of the statutory requirements have been met, the petition will be granted.