Opposition ObjectionsCal. Super. - 6th Dist.January 17, 2018Electronically Filed by Superior Court of CA, County of Santa Clara, on 9/24/2018 12:29 PM Reviewed By: L. Nguyen Case #18CV322534 Envelope: 1981759.b V001 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PETER G. LOMHOFF, State Bar No. 61931 ' Attorney at Law 1300 Clay Street, Suite 820 Oakland, CA 94612 Tel. (510) 763-561 1; Fax (510) 763-3430 Attorney for Plaintiffs SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA EVELYN RIFFEL, deceased, by and through her personal and legal representatives, DAVID CAREY and NANCY BEVER, and DAVID ' CAREY and NANCY BEVER individually, Plaintiffs, vs. HUMANGOOD, d.b.a. The Terraces of Los Gates, AMERICAN BAPTIST HOMES OF THE WEST, d.b.a. The Terraces of Los Gatos, DIANE CHRISTINE SANDERS, SCOTT SANDERS, and DOES 1 through 100, Defendants. / No. 18CV322534 PLAINTIFFS’ POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO STRIKE TO FIRST AMENDED COMPLAINT Date: October 25, 2018 Time: 9:00 a.m. Dept: D-13 Judge: The Hon. James L.»St0elker Action filed: January 17, 2018 Trial Date: Not yet set PLAINTIFFS’ POINTS AND AUTHORITIES IN OPPOS. TO MO. TO STRIKE TO FIRST AMENDED COMPLAINT \OOONQUl-h 10 11 _12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. III. IV. VI. VII. VIII. TABLE OF CONTENTS INTRODUCTION ....................................................... 1 PROCEDURAL HISTORY ............................... _ ................ 1 THE FACTS ..................................................... ' ...... 2 PLAINTIFFS ALLEGE FACTS SUPPORTING THEIR CLAIMS FOR ENHANCED REMEDIES UNDER THE ELDER ABUSE ACT AND FOR PUNITIVE DAMAGES 4 A. The Motion t0 Strike Must Be Denied Because the First Amended Complaint Alleges Elder Abuse and Grounds for Punitive Damages . . . 4 B. Defendants’ Additional Grounds for Their Motion to Strike Are Also _ Mistaken .................................................. 5 PL'AINTIFFS ALLEGE FACTS SUPPORTING THEIR CLAIMS FOR TREBLE PUNITIVE DAMAGES UNDER CIVIL CODE §3345 ......................... 6 A. The Case Law Permits C.C. §3345 Trebling of C.C. §3294 Punitive Damages .................................................. 7 B. C.C. §3345 Itself Provides for Trebling of C.C. §3294 Punitive Damages7 PLAINTIFFS ALLEGE FACTS SUPPORTING INJUNCTIVE RELIEF UNDER H &s.C §1430(b) ....................................................... 8 PLAINTIFFS ALLEGE FACTS SUPPORTING INJUNCTIVE RELIEF T0 OBTAIN MEDICAL RECORDS UNDER H.&.s.c. §123 1 1o AND §123 120 ............... 11 CONCLUSION ...................................... . ........... . ...... 1 2 ii PLAINTIFFS’ POINTS AND AUTHORITIES IN OPPOS. TO MO. TO STRIKE TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 26 27 28 TABLE OF AUTHORITIES Cases California Assn. 0f Health Facilities V. Department 0f Health Services (1997) 16 Ca1.4th 284 10 Carter V. Prime Healthcare Paradise Valley LLC (201 1) 198 Cal. App. 4th 396 ............. 6 Clark V. Superior Court (2010) 50 Cal. 4th 605 ...................................... 7 Cochrum V. Costa Victoria Healthcare, LLC (2018) N0. G052934, 25 Cal. App. 5th 1034 . . 5, 6 Covenant Care, Inc. V. Superior Court (2004) 32 Ca1.4th 771 ....................... 4, 5, 7 Delaney V. Baker (1999) 20 Ca1.4th 23 ............................................. 5 Fenimore V. Regents 0f University 0f California (2016) 245 Ca1.App.4th 1339 ............. 6 Fitzhugh V. Granada Healthcare & Rehabilitation Center, LLC (2007) 150 Cal. App. 4th 469. . 9 Hilliard V. A. H. Robins C0, (1983) 148 Cal. App. 3d 374 ............................. 5 Hood V. Hartford Life & Accident Ins. C0., 567 F. Supp. 2d 1221 ....................... 7 Lemaire V. Covenant Care Cal., LLC (2015) 234 Cal. App. 4th 860 ..................... 10 Maher V. County 0f Alameda (2014) 223 Cal. App. 4th 1340 .......................... 12 Nevarrez V. San Marino Skilled Nursing & Wellness Centre, LLC (2013) 221 Cal.App.4th 102 ........................................................................... 10 Romo V. Ford Motor C0. (2002), 99 Cal. App. 4th 1115 ............................... 6 Ross v. Pioneer Life Ins. C0., 545 F. Supp. 2d 1061, 1067 (C.D.Cal. 2008) ................ 7 Sanchez V‘ Monumental Life Insurance Company, 102 F.3d 398 (9th Cir. 1996) ............ 7, Shuts V. Covenant Holdco LLC (2012) 208 Cal. App. 4th 609 ....................... 9,. 10 Statutes and Regulations 22 C.C.R. §72327(c) .......................................................... 3 22 C.C.R. §72527(a) ........................................................ 8-9 C.C. §3294 ................................................................ 4-7 C.C.P. §526 .............................................................. 10-11 C.C.P. §1008 ................................................................. 2 Civil Code §3345 ........................... L ............................... 6-8 Health & Safety Code §141 6.68(a) ................................................ 3 iii PLAINTIFFS’ POINTS AND AU’I‘HORH‘IES IN OPPOS. T0 M0. TO STRIKE TO FIRST AMENDED COMPLAINT \OOOVQU‘IAUJNt-A NNNNNNNNwr-tr-IHHr-Ap-er-LHH 00 V ON L11 b DJ [\3 H10 \D CO fl ON Ul_-l> b.) N H O Health&SafetyCode§1430(b)...................................; ............ ‘8-9 Health & Safety Code §123 100 ........... ’ ............ ' .......................... 11 Health & Safety Code §123 1 10 . ., ..................... ' ............. ‘ ....... . ...... 11 Health& Safety Code §123120 ......................... ~ ..' ................. '.. 11-12 Welfare and Institutions Code §15657 ........................................... 4-5 iv PLAINTIFFS’ POINTS AND AUTHORITIES IN OPPOS. TO MO. TO STRIKE TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 1'9 20 21 22 . 23 24 25 26 :7 28 I. INTRODUCTION This is an elder abuse and wrongful death action against a nursing home. It is before the court for the second time 0n a challenge to plaintiffs’ pleadings.1 Evelyn Riffel was a resident of defendants” nursing home. She was doubled oVer in pain and crying but for at least ten days. The defendants did little t0 help her‘even though her family repeatedly asked for help. Finally, when the nursing home failed to deal withthe situation, Ms. Riffel’s son had her transported to a hospital on his own. At the hospital she was diagnosed With a comminuted fracture 0f her pelvis and fractfires of her left hip, With the broken off top 0f the hip bone pushed up through the pelvis. That was the cause 0f her pain. The fractures occurred at the nursing home at the time the severe pain started. First Amended Complaint W1, 16-1 7, 20-26. Ms. Riffel had surgery t0 remove the broken off top 0f the hip bone in order t0 relieve her pain. The pain was reduced, but she continued t0 have moderate t0 severe pain over the next few months. She declined and died és a result 0f the fractures and 0f the delay in treating them. She was 94. First Amended Complaint W27-28. II. PROCEDURAL HISTORY Defendants moved to strike previously 0n July 10, 201 8 but did not demur. The court granted the motion as t0 claims for Elder Abuse Act remedies and punitive damages, finding that the original complaint failed to plead facts showing that the Administrator and Director ofNursing 0fthe nursing home were managing agents 0f the defendants. See p. 6, lines 1-3, of the court’s order filed July 1,1, 2018. It is Exhibit B to the declaration of Reuben Jacobson in support of the present motion t0 strike. On all other grounds the previous motion t0 strike was denied. Plaintiffs filed the First Amended Complaint (FAC) 0n July 16, 2018. The FAC alleges additional facts showing that the Administrator and Director ofNursing were managing agents and makes other minor changes. The FAC is Exhibit A to the Reuben Jacobson declaration. Defendants now move t0 strike and demur t0 the FAC. Most 0f their argument is in effect 1This Introduction, and the following Procedural History and Statement 0f Facts, are substantially identical to those in plaintiffs’ contemporaneous opposition to defendants” demurrer. 1 PLAINTIFFS” POINTS AND AUTHORITIES IN OPPOS. TO MO. TO STRIKE TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 amotion for reconsideration Without any intervening change ofcircumstances, in Violation of C.C.P. § 1 008, except as t0 the managing agent issue. Nevertheless plaintiffs will respond t0 each argument in turn. Plaintiffs oppose the motion to strike here, and oppése the demurrer separately. III. THE FACTS Evelyn Riffel was a resident of defendants’ nursing home at The Terraces ofLos Gatos from 2013 until her death 0n April 22, 2017. She died at the age 0f 94 as a result 0f the injuries she received there; FAC 1H. ‘ In 0r about September, 20 1 6 at the nursing home Ms. Riffel suffered a severe comminuted fracture ofher pelvis and severe fractures ofher left hip with the broken offtop ofher hip bone being pfished up through her pelvis at least 2;4 centimeters. FAC fil 6. The fractures did not occur spontaneously. They were caused When the nursing home staff transferred or moved Ms. Riffel, 0r dropped her. FAC 1H7. Defendants have n0 record of When 0r how the fractures occurred. FAC m9. The fractures were extremely painful, and Ms. Riffel complained about the pain tQ the staff. FAC flZO. I Ms. Riffel’s son, plaintiff David Carey, and his Wife weré away on vacation September 19- 29, 2016. FAC 1121. V When they returned Mr. Carey went t0 see his mother. He found her doubled over and crying out in pain. ’Her discomfort and posture and crying out were obvious. FAC 1123. I Ms. Riffel’s family repeatedly asked the nursing home staff to get help for Ms. Riffel’s obvious severe pain, but they did not take adequate and appropriate steps to deal With it for at least ten days, even though their own records showed that her pain had been severe for at least ten days. FAC W24-25. Finally, after defendants failed t0 deal with the situation, Mr. Carey got his mother transferred to a hospital emergency room on his own. At the ho spital the fractures Which were causing the pain were diagnosed. FAC fl26. Ms. Riffel had surgery to remove the broken off top 0f her hip bone, which was pushed up through her pelvis, in order to reduce her pain. FAC fl27. 2 PLAINTIFFS’ POINTS AND AUTHORITIES IN OPPOS. T0 MO. To STRIKE T0 FIRST AMENDED COMPLAINT \OOOQQ 10 11 12 13 14 15 ' 16 17 18 19 20 21 22 23 24 25 26 27 28 The surgery did reduce the pain, but she continued t0 have moderate t0 severe pain over the following months. She declined rapidly and died on April 22, 2017 as a result offhe fractures and of the delay in treating them. FAC 1128. The Director ofNursing and other managing agents 0fthe nursing home were aware ost. Riffel’s pain for at least ten days before her son got her t0 the hospital, but they disregarded her obvious very urgent need for help. We know the Director 0f Nursing was aware 0f Ms. Riffel’s severe pain for at least those ten days because the Director ofNursing made rounds and observed the residents, and was present at daily meetings where the residents” changes 0f condition were discussed. Nevertheless the Director ofNursing and other managing agents disregarded Ms. Riffel’ s obvious very urgent need for help. FAC 1129. Various facts show that the Director ofNursing at The Terraces ofLos Gatos is a managing ' agent. The Director of Nursing exercises substantial authority to make decisions that ultimafely determine corporate policy 0n his 0r her own, Without getting approval for those decisions from anyone else. The authority 0fthe Director ofNursing t0 determine corporate policy is also set forth in the job description for the Director 0f Nursing. The authority of the Director 0f Nursing t0 determine corporate policy is required by law including 22 C.C.R. §72327(c) Which provides that “The director of nursing service shall have, in writing, administrative authority, responsibility and accountability for the nursing services Within the facility.” FAC H30. I ' Other facts show that the Administrator at The Terraces 0f Los Gatbs is also a managing agent. The Administrator, like the Director of Nursing, exercises substantial authority t0 make decisions that ultimately determine corporate policy 0n his 0r her own, Without getting approval for those decisions from anyone else. The authority ofthe Administrator t0 determine corporate policy is also set forth in the job description for the Administrator. The authority of the Administrator t0 determine corporate policy is also required by law including Health & Safety Code § 1416.68(a) and (b) Which provide,‘as alleged at FAC 1B 1: (a) It is the responsibility 0f the nursing home administrator as the managing officer of the facility to plan, organize, direct, and control the day-to-day functions of a facility arid to maintain the facility's compliance With applicable laws, rules, and regulations. (b) The administrator shall be vested with adequate authority t0 comply With the laws, rules, and regulations relating to the management 0f the facility. 3 PLAINTIFFS’ POINTS AND AUTHORITIES IN OPPOS. TO MO. TO STRIKE TO FIRST AMENDED COMPLAINT H \D 0° H O\ Ul 4k UJ.N W \] O\ (J1 -P U) N H O o 0° N ON K11 g U.) N '-" O The Director-ofNursing, the Administrator, and other managing agents ofthe nursing home were also aware of several prior incidents of the staff ignoring Ms. Riffel’s care needs. These included When Ishe had a stroke and‘ When she had congestive heart failure, and her son ‘had t0 intervene to get her the emergency help she needed, as' Well as other prior examples of failing to provide needed care. FAC 1132. The Administrator and the Director ofNurs'ing were aware ofthjs pattern ofrepeated-failures to provide needed care for Ms. Riffel, and they permitfed that pattern to cofitinue including through the period of ten days or more When she was in obvious severe pain until her son intervened and got her transferred to the hospital on October 10, 2016. FAC 1133. IV. PLAINTIFFS ALLEGE FACTS SUPPORTING THEIR CLAIMS FOR ENHANCED REMEDIES UNDER THE ELDERABUSE ACT AND FOR PUNITIVE DAMAGES Defendants move to strike the prayers for Elder Abuse Act remedies and for punitive damages. They argue that the plaintiffs have failed to allege recklessness, oppression, fraud, 0r malice, or involvement by a corporate managing agent. Those elements are required under the Elder Abuse Act at W.&I.C. §15657 and for punitive damages at C.C. §3294.2 A. The Motibn t0 Strike Must Be Denied Because the First Amended Complaint Alleges Elder Abuse and Grounds for Punitive Dlamages Ifthe FAC alleges elder abuse, then the demurrer t0 the elder abuse cause of action should be denied, and also the motion t0 strike Elder Abuse Act remedies, including punitive damages, should be denied. Ifthe FAC does not allege elder abuse, then it does not allege grounds for Elder Abuse Act remedies or for punitive damages. It’s both 0r neither. The grounds for Elder Abuse Act remedies and for punitive damages are essentially the same. As the court stated in Covenant Care, Inc. v. Superior Court (2004) 32 Ca1.4th 771 , 789, “In order to obtain the [Elder Abuse] Act's heightened remedies, a plaintiff must allege conduct essentially equivalent t0 conduct that would support recovery of punitive damages.” As explairied in more 2Defendants actually argue that plaintiffs may not recover these remedies because plaintiffs fail to state a valid claim for “dependent adult abuse” under the Elder Abuse Act. P&A 9: 1 3-15. This is an elder abuse case, not a dependent adult abuse case, Which is another category covered by the Act. Apparently defendants have recycled an old brief without revising it thoroughly. 4 PLAINTIFFS” POINTS AND AUTHORITIES IN OPPOS. TO MO. TO STRIKE TO FIRST AMENDED COMPLAINT \oooQQUILwNH 'l\.) [\J N N [\J [\) [\J [\J [\J r.-A r-t H |- >-A I-t r-A H p-A >---\ 0° \l ON (J! b DJ N H O \O 00 \I C\ K11 -h U») N ."-‘ O detail in opposition to the pending demurrer, the grounds for elder abuse are neglect as defined in the Elder Abuse Act plus malice, oppression, fraud, or recklessness, plus involvement by a managing agent for liability by an employer. W.&I.C. §156_57.3 The grounds for punitive damages set out in C.C. §3294 are identical to the grounds for elder abuse in W.&I.C. §15657, except that elder abuse can be based on malice, oppression, fraud, or recklessness, but punitive damages can be based only on malice, oppression, or fraud, but not 6n recklessness. Recklessness appears to be a kind 0f lesser included offense Within malice, basfed on the language ofDelaney v. Baker (1999) 20 Cal.4th 23, 3 1, so in’ some circumstances it may be possible f0 a_llege grounds for Elder‘lAbuse Act remedies based on recklessness only which do not rise to grounds for punitive damages. ‘ As shown in more detail 'in plaintiffs’ opposition to the demurrer, this is not a case of elder ' abuse based only 0n recklessness. This complaint alleges facts showing both recklessnéss and malice, so it alleges grounds'for punitive damages as well as grounds for elder abuse. ‘ B. Defendants’ Additional Grounds for Their Motion t0 Strike Are Also Mistaken Defendants assert grounds to strike Elder Abuse Act remedies and punitive damages which they do not discuss in their demurrer. Defendants cite Hilliardv. A. H Robifis C0. (1 983) 148 Cal. App. 3d 3 74, 390 for a quotation that does not appear on the cited page or anywhere else in the opinion. P&A 1 1 :4-6.4 Hffliard was a Dalkon Shield case .in Which the court reversed a directed verdict denying punitive damages because sufficient evidence to support punitive damages was presented at trial. Similarly here, sufficient facts t0 support elder abuse and pfinitive damages are alleged in the FAC. Defendants also cite Cochrum v. Costa Victoria Healthcare, LLC (201 8) No. G052934, 25 3Defendant does not mention it, but t0 avoid confilsion the Court should note that When punitive damages are based on elder abuse by a health care provider, such as the defendant here, plaintiff does not need to comply With C.C.P. §425.13 concerning claims for punitive damages arising out of the professional negligence of a health care provider because elder abuse is not professional negligence. Covenant Care, Inc. v. Superior Court (2004) 32 Ca1.4th 771, 776.- 4111 fact a search on LexisNexis shows that the quoted language does not appear in any California case. ' 5 PLAINTIFFS’ POINTS AND AUTHORITIES IN OPPOS. TO MO. TO STRIKE TO FIRST AMENDED COMPLAINT NONUI-bUJN ‘10 11 ‘12 13 14 ' 15 16 17 18 19 20 21 22 23 '24 25 26 27 28 Cal. App. 5th 1034, ordered published on August 8, 20 1 8. Cochrum held, summarizing the'evidence in that case, “a slight understaffing, without any indication that it created an imminent risk ofharm, does not amount t0 recklessness.” P. 12 of 16, 25 Cal. App. 5th at 1048. The Cochrum opinion then goes on t0 recognize, id, citing Fenimore v. Regents 0f University 0f California. (2016) 245 Cal.App.4th 1339, that “understaffing can amount to recklessness under the right circumstances. . understaffing could amount to recklessness if it is sfifficiently egregious. That was not the case here.” Fenimore is discussed in the accompanying opposition to the demurrer, Where plaintiffs show that the conduct her: is more than sufficiently egregious to amount to recklessness under Fenimore. It is also more than enough to qualify as recklessness under the detailed roadmap to recklessness discussed in Carter v. Prime Healthcare Pafadise Valley LLC (201 1) 198 Cal. App. 4th 396 at fn. 1 0f plaintiffs’ opposition t0 the demurrer. Defendants also cite Roma v. Fofd Motor C0. (2002), 99 Cal. App. 4th 1115, 1141 for the principle that to impute malice t0 a corporation, authorized persons must have acted With malice. The important point in Roma is what specificity 0f evidence, 0r pleading, is needed t0 showth is authorized. As Romo also held, 99 Cal. App. 4th at 1140, “There is n0 requirement that the evidence establish that a particular committee or officer‘ofthe corporation acted on a particular date With ‘malice."' By that standard the FAC is more than sufficient to show malice by managing agents. Two ofthe particular management personnel involved, thaf is the Director ofNursing and the Administer, are identified at FAC W296 1 , and the dates of their conscious disregard of Ms. Riffel’s rights find safety are specified, Sept. 29 to Oct. 10, 2016. V. PLAINTIFFS ALLEGE FACTS SUPPORTING THEIR CLAIMS FOR TREBLE " PUNITIVE DAMAGES UNDER CIVIL CODE $3345 Civil Code §3345 allows up to treble the amount ofpenalties designed “to punish or deter” in cases involving elderly persons. C.C. §3345(b). Defendants move to strike the claim for treble punitive damages under C.C. §3345 on two grounds. I First, they assert the FAC does not allege grounds for punitive damages. As shown in opposition to defendants’ demurrer and above, the FAC does allege grounds for punitive damages. 6 PLAINTIFFS’ POINTS AND AUTHORITIES IN OPPOS. TO MO. TO STRIKE TO FIRST AMENDED COMPLAINT \OOONQUI-hwwr-A NNNNNNNNNHHH_L_._HHH.- mqoxmgwmwoxomqoxmgww.~o Second, defendants assert that C.C. §3345 treble damages do not apply to Elder Abuse Act claims. That may be correct, but it is besides the point. The FAC seeks treble punitive damages, not treble Elder Abuse Act claims for pre-death pain and suffering and for attorney fees. A. The Case Law Permits C.C. 83345 Trebling 0f C.C. $3294 Punitive Damages Punitive damages under C.C. §3294 clearly are pefmitted for elder abuse in addition to other enhanced remedies under the Elder Abuse Act. Covenant Care v. Superior Court (2004) 32 Ca1.4th 771, 789. The issue really is whether (5r not C.C. §3294 punitive damages, whether arising from an Elder Abuse Act case or from another basis for punitive damages, can be trebled under C.C. §3345. Several cases hold that C.C; §3345 trebling applies to punitive damages under C.C. §3294. As the court held i_n Ross v. Pioneer Life Ins. Co. , 545 F. Supp. 2d 1061, 1067 (C.D.Ca1. 2008), “Common law punitive damages fail within the definition ofthe statutory ‘fines and penalties’ within the meaning of Civil Code §3345.” Sanchez v. Monumental Life Insurance Company, 1027 F.3d 398 (9th Cir. 1996) at 405 also states that C.C §3345 “provides for trebling punitive damages. for ‘unfair or deceptive practices against senior citizens or disabled persons.” I The Supreme Court also held in Clark v. Superior Court (2010) 50 Cal. 4th 605, 612 that C.C. §3345 applies whenever a senior citizen is authorized t0 rrecover a penalty such aé punitive damages. I Defendants cite Hood v. HarlfordLife &Accidem‘ Ins. C0. , 567 F. Supp. 2d 1221 which also holds that punitive damages under CHC §3294 can be trebled under C.C. §3345. 567 F. Supp. 2d af 1221, 123 1V. As defendants note, Hood discusses, in dicta, ah unpublished case which rejected a claim for §3345 treble damages for “a negligence claim brought under the California Elder Abuse Actf’ At issue here is trebling punitive damages under C.C. §3294, not trebling Elder Abuse Act remedies. I V > B. C.C. 83345 Itself Provides for Trebling 0f C.C. 83294 Punitive Damages The statute provides, at §3345(a), that it Applies to actions on behalf of senior citizens and disabled persons “to redress unfair or deceptive acts or practices or unfair methods 0f competition.” 7 PLAINTIFFS’ POINTS AND AUTHORITIES'IN OPPOS. TO MO. TO STRIKE TO FIRST AMENDED COMPLAINT \OOOVON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Civil Code §3345 authorizes up t0 treble the amount 0f any other statutory fine 0r penalty available in a case on behalf of a senior citizen or disabled person if the trier 0f factvmakes an affirmative finding as to one or mbre 0f three listed factors. A senior citizen is anyone age 65 or older. C.C. §3345(a). The three factors, listed at §3345(b)5, include, (b)(l), whether the defendant knew the Victim was a senior citizen or disabled person, and, (b)(3), whether the senior citizen 0r disabled person was more vulnerable than the genefal public because 0f age or poor health. Obviously §3345 was tailor made for senior citizens like Ms. Riffel. Punitive damages, as claimed here, are among the types Ofstatutory fines 0r penalties subj ect to trebling if the jury finds any 0f the factors listed at §3345(b). If the jury finds that the defendant knew that Ms. Riffel was a senior citizen, or knew that she was more vulnerable than the general public because 0f age 0r poor health, then under C.C. §3345 the jury can award up t0 three times the amount 0f the punitive damages it would otherwise award. VI. PLAINTIFFS ALLEGE FACTS SUPPORTING INJUNCTIVE RELIEF UNDER H.&S.C. §14301 b1 Defendants move t0 strike injunctive relief under H.&S.C. §1430(b) 0n three grounds. First they argue that the FAC does not state facts that constitute a Violation ofpatient’ s rights under 22 C.C.R. §72527(a). As explained in opposition to the demurrer, H.&S.C. §143 O(b) provides SThe factors for the jury'to consider under C.C. §3345(b) are as follows: (1) Whether the defendant knew 0r should have known that his or her conduct was directed t0 one or more senior citizens 0r disabled persons. (2) Whether the defendant's conduct caused one 0r more senior citizens 0r disabled persons t0 suffer: loss 0r encumbrance of a primary residence, principal employment, 0r source of income; substantial loss 0f property set aside for retirement, or for personal 0r family care and maintenance; or substantial loss of payments received under a pension or retirement plan or a government benefits program, 0r assets essential t0 the health 0r welfare of the senior citizen or disabled person. ‘ (3) Whether one 0r more senior citizens or disabled persons are substantially more vulnerable than other members 0fthe public to the defendant's conduct because of age, poor health 0r infirmity, impaired understanding, restricted mobility, or disability, and actually suffered substantial physical, emotional, or economic damage resulting from the defendant’s conduct. 8 PLAINTIFst POINTS AND AUTHORITIES IN OPPOS. TO MO. TO STRIKE TO FIRST AMENDED COMPLAINT \o'ooxlox 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 injunctive relief and damages for Violations of22 C.C.R. §72527(a) and also for Violations of “any other right provided for by federal 0r state law 0r regulation.” And as also shown in opposition to the demurrer, the FAC alleges multiple Violations of22 C.C.R. §72527(a) as well as other Violations z of other rights. Second, defendants argue that plaintiffs d0 not have standing to make a claim for inj unctive relief under H.&S.C. §143 O(b) because Ms. Riffel herself cannot benefit from it. They are wrong. The statutory language itself, the case law, and the legislative intent 0f the statute, all show that a deceased former nursing home resident such as Evelyn Riffel has standing to seek inj unctive relief. H.&S.C. §1430(b) is as follows: (b) A current 0r former resident 0r patient of a skilled nursing facility, as defined in subdivision (c) of Section 1250, or intermediate care facility, as defined in subdivision (d) of Section 1250, may bring a civil action against the licensee 0f a facility Who violates any rights of the resident or patient as set forth in the Patients Bill of Rights in Section 72527 of Title 22 ofthe California Code 0f Regulations, or any other right provided for by federal 0r state law 0r regulation. The suit shall be brought in a court 0f competent jurisdiction. The licensee shall be liable for the acts of the licensee’s employees. The licensee shall be liable for up t0 five hundred dollars ($500), and for costs and attorney fees, and may be enj oined from permitting the violation to continue. A11 agreement by a resident or patient 0f a skilled nursing facility or intermediate care facility t0 waive his or 'her rights to sue pursuant to this subdivision shall be void as contrary to public policy. [Emphasis added] As the statute clearly states, “a current 0r former” resident may bring an action to enj oin the licensée ofthe nursing home from permitting Violations ofthe resident’s rights t0 continue. There is no distinction in the statute between the rights of current and former residents. It is clear ffom the language ofthe statute itselfthat a former resident, such as plaintiff Evelyn Riffel, can bring an action t0 enj oin permitting Violations t0 continue. Furthermore it is clear that a deceased former resident has standing t0 bring an action under H.&S.C. §143 O(b). As the court held in Fitzhugh v. Granada Healthcare &'Rehabilitati0n Center, LLC (2007) 150 Cal. App. 4th 469, 474: Since there is no contrary statutory provision, the death ofa patient 0r resident does not abate any cause ofaction pursuant to Health'and Safety Code section 1430, subdivision (b). Thus, any cause of action pursuant t0 Health and Safety Code section 1430, subdivision (b) survived decedent's death and was not subj ect to arbitration. [Emphasis added] 9 PLAINTIFFS’ POINTS AND AUTHORITIES IN OPPOS. TO MO. TO STRIKE TO FIRST AMENDED COMPLAINT \OOOQQU‘I-PUJND-n NNNNNNNNNHHHp-tr-Ap-AHHHr-I OONONU‘I-PWNI-‘Ooooflam-QWNHO In Shuts v. Covenant Holdco LLC (20 1 2) 208 Cal. App. 4th 609 a class ofpresent and former nursing home residents sought damages and injunctive relief pursuant to H.&S.C. §1430(b) for Violations ofresident’ s rights. The first named plaintiffwas the personallrepresentative ofa deceased former resident. 208 Cai. App. 4th at 613, fn. 1. The court held, 208 Cal. App. 4th at 625.: California law clearly and unambiguously grants current and former residents ofskilled nursing facilities an absolute right t0 have their claims for statutory damages and injunctive relief decided‘‘in a court 0f competent jurisdiction. ” (§ 1430, subd. (b).) [Emphasis added] Shuts could not be more clear. A “former resident” has “an absolute right” to bring a claim for “injunctive relief.” Id. The legislative intent in passing H.&S.C. §1430(b) also supports standing for a deceased former resident to seek injunctive relief. As the court-held in Lemaire v. Covenant Care Cal, LLC (2015) 234 Cal. App. 4th 860, 864: This is also a remedial statute. It must therefore be “liberally construed 0n behalfofthe class 0f persons it is designed t0 protect.” (California Assn. ofHealth Facilities v. Department ofHealth Services (1 997) 16 Ca1.4th 284, 295 [65 Cal. Rptr. 2d 872, 940 P.2d 323].) Those individuals are nursing care» patients, “one 0f the most vulnerable segments 0f our p0pu1ation.”(1bid.) . . “[B]y enacting section 1430, subdivision (b), the Legislature specifically authorized skilled nursing facility residents themselves t0 bring actions to remedy Violations 0f their rights rather than forcing them to depend upon the []DPH t0 take action.” (Shuts v Covenant HoldcoLLC, supra, 208 Cal.App.4th at pp. 623-624.) . The Lemaire court concludes, 234 Cal; App. 4th at 866: The “focus” 0fthe private right ofaction is “to encourage regulatory compliance and prevent injury.” (Nevarrez V. San Marina Skilled Nursing & Wellness Centre, LLC (2013) 221 Cal.App.4th 102, 135 [1 63 Cal. Rptr. 3d 874], italics added.)Lemaire's [successor 1n interest t0 deceased former resident] action furthers these goals by enforcing regulations involving the rights 0f residents 0f nursing care facilities? , For all 0fthese reasons it is clear that Ms. Riffel, acting through her personal representative, plaintiff David Carey, has standing t0 seek injunctive relief under H.&S.C. §143 O(b). Third, defendants argue that plaintiffs cannot seek inj unctive reliefunder H.&S.C. § 143 O(b) ' because C.C.P. §526 lists the only grounds for inj unctive relief, and §526 does not refer to the claims 6Lemaire sought only statutory damages under §1430(b), not injunctive relief, but the court’s discussion of the legislative intent 0f the statute remains pertinent. 10 PLAINTIFFS’ POINTS AND AUTHORITIES IN OPPOS. TO MO. TO STRIKE TO FIRST AMENDED COMPLAINT \OOONQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26' 27 28 asserted'in the FAC. Ofcourse H.&S.C. §1430(b) clearly does provide for inj unctive réliefwithout reference to C.C.P. §526. Moreover C.C.P. §526(a)(1) does describe this case: (a) An injunction may be granted in the following cases: ( 1) When it appears by the éomplaint that the plaintiffis éntitled t0 the relief demanded, and the relief, 0r any part thereof, consists in restraining the commission 0r continuance of the act complained 0f, either for a limited period 0r perpetually. Ms. Riffel here seeks t0 enj oin the type 0f disregard ofpatients’ obvious needs for medical care that caused her so much suffering and eventually contributed to her death, Which is a Violation 0f various of her rights as discussed in opposition the demurrer. ‘ Another Violation 0f her patient’s rights is the denial of access to her‘medical records, for Which she is also entitled tQ inj unctive reliefunder both H.&S.C. §1430(b) and H.&S.C. §123 120, as discussed in thé opposition t0 the demurrer and also in the court’s previous opinion of July 11, 201 8. When a former nursing home resident, acting through her personal representative, seeks to enj oin ongoing and future Violations similar to what‘the nursing home did to her, she has standing t0 do so, by the language 0f the statute, H.&S.C. §1430(b), by the case law, and by the legislative purpose 0f the statute. > V > Similarly she and her son have standing t0 enforce their right to see her medical records. VII. PLAINTIFFS ALLEGE FACTS SUPPORTING INJUNCTIVE RELIEF TO OBTAIN MEDICAL RECORDS UNDER H.&S.C. 8123110 AND $123120 ' Defendants argue that plaintiffs have no rightvto inj unctive relief for defendants’ failure to permit access t0 Ms. Riffel’s medical records because they have not stated a claim for Violation 0f her right t0 get her fecords. As explained'in opposition t0 the demurrer, plaintiffs have clearly stated - such a claim. Defendants also argue that the Patient Access Law, H.&S.C. § 123 100 et seq., does not provide for injunctive relief. This argument simply fails to read §123 120 Which is entitled “Action .to enforce right to inspect or cbpy.” As the statute clearly provides: Any patient 0r representative aggrieved by a Violation of Sectidn 123 1 10 may, ih addition t0 any other remedy provided by law, bring an action against the health care provider t0 enforce the obligations prescribed by Section 1231 10. 11 PLAINTIFFS’ POINTS AND AUTHORITIES IN OPPOS. TO ‘MO. TO STRIKE TO FIRST AMENDED COMPLAINT NO 11 12 14 15 16 17 18 19 20 22 23 24 25 26 27 28 This statute clearly means What it says. A patient acting through her personal representative can bring an action t0 get access t0 her medical records. Plaintiffs have found only one case dealing With H.&S.C. §123 120, the enforcement prévision. It is Maker v. County ofAlameda (2014) 223 Cal. App. 4th 1340. Maker held that the plaintifchuld not state a cause ofaction for failure to produce the patient’ s medical records because the patient’s attorney made the records request, not the patient or his personal representative. The court noted that the purpose 0f the statute was t0 give patients access t0 their medical records, not t0 help them in litigation 223 Cal. App. 4th at 1353. In the Riffel case, unlike Maker, supra, the patient’s personal representative made the request, not the attorney, but defendants refused t0 produce the records. Plaintiffs are accordingly entitled t0 injunctive relief and attorney’s fees‘ VIII. CONCLUSION The First Amended Complaint alleges more than sufficient facts t0 support each cause 0f action as explained in the contemporaneous opposition t0 defendants’ demurrer. As explained above there are proper grounds for all 0fthe reliefplaintiffs seek for each cause 0f action. For these reasons this motion t0 strike should be denied. “w”DATED: September ‘ ,2018 E . ' y a ' PETER G. LOMH‘OFF Attorney for Plaintiff 12 PLAINTIFFS’ POINTS AND AUTHORITIES IN OPPOS. TO MO. TO STRIKE TO FIRST AMENDED COMPLAINT DECLARATION OF SERVICE BY MAIL (CCP S 101338)) I am over eighteen years 0f age and not a party to this action. My business address is 1300 Clay Street, Suite 820, Oakland, California 94612. On September i , 2018 I served the following document attached hereto in this action: Plaintiffs' Points and Authorities in Opposition T0 Motion t0 Strike t0 First Amended Complaint by depositing a copy thereof in the United States mail in Oakland, California, enclosed in a sealed envelope, postage prepaid, addressed t0 the following: Reuben B. Jacobson Attorneys for defendants Elizabeth A. Burns LEWIS BRISBOIS BISGAARD & SMITH LLP 333 Bush Street, Suite 1100 San Francisco, CA 94104-2872 I declare under penalty ofperj ury under the laws 0fthe State of California that thG foregoi lg is true and correct. DATED: September Q2018 13 PLAINTIFFS: POINTS AND AUTHORITIES IN OPPOS. TO MO. TO STRIKE TO FIRST AMENDED COMPLAINT
