Response Reply

Cal. Super. - 6th Dist.January 17, 2018

LEWIS BRISBOIS BISGAARD & SMHH u.P AnCRNEYS AI LAW UIBWN ©W\IQ 10 l] 12 l3 l4 15 l6 l7 18 l9 20 2] 22 23 24 25 26 27 LEWIS BRISBOIS BISGAARD & SMITH LLP REUBEN B. JACOBSON, SB# 167972 Email: Reuben.Jacobson@lewisbrisbois.com ELIZABETH A. BURNS, SB# 180160 Email: Elizabeth.Bums@lewisbrisbois.com JOHN W. FAULCONER, SB# 298015 Email: John.Faulconer@lewisbrisbois.com 333 Bush Street, Suite 1100 San Francisco, California 94104-2872 Telephone: 415.362.2580 Facsimile: 415.434.0882 Attorneys for Defendants, HUMANGOOD and AMERICAN BAPTIST HOMES OF THE WEST DBA THE TERRACES OF LOS GATOS Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/18/2018 2:29 PM Reviewed By: S. Crabtree Case #1 BCV322534 Envelope: 2073086 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA EVELYN RIFFEL, dcccascd by and through hcr personal and lcgal representatives, DAVID CAREY and NANCY BEVER, and DAVID CAREY and NANCY BEVER individually, Plaintiff, vs. HUMANGOOD, d.b.a. Thc Terraces 0f Los Gatos, AMERICAN BAPTIST HOMES OF THE WEST, d.b.a. Thc Terraces of Los Gatos, DIANE CHRISTINE SANDERS, SCOTT SANDERS, and DOES 1 through 100, Defendant. CASE NO. 18CV322534 DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO STRIKE FIRST AMENDED COMPLAINT The Hon. James L. Stoelker October 25, 2018 9:00 a.m. D-13 Judge: Date: Time: Dept: Action Filcd: Trial Datc: January 17, 2018 None Sct l. REPLY INTRODUCTION Despite Plaintiffs’ Opposition t0 Defendants’ Motion to Strike (“Opposition”), the factual and legal allegations in the Complaint d0 not support a claims for enhanced remedies pursuant t0 EADACPA, punitive damages, treble punitive damages, 0r injunctive relief pursuant t0 Health and Safety Code sections 1430(b), 1231 10 or 123 120. Theses prayers against Defendants HumanGood and American Baptist Homes 0f the West dba The Terraces 0f Los Gatos (“Defendants” 0r “The Terraces”) are improperly plead t0 support Plaintiffs’ claims and must be stricken from the Complaint. / / / / / / 4832-992 l -2664Al DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO STRIKE FIRST AMENDED COMPLAINT 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 4832-9921-2664.1 2 DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO STRIKE FIRST AMENDED COMPLAINT LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW II. LEGAL ARGUMENT A. The Terraces Were Not Required To File A Motion For Reconsideration Because Plaintiffs Filed An Amended Complaint Plaintiffs argue, briefly, that because The Terraces take similar positions in this Motion as it did in the Motion to Strike the original complaint, and that the FAC is substantially similar to the previous complaint, then The Terraces were required to make a motion for reconsideration pursuant to Code of Civil Procedure section 1008 before filing this Motion. This is incorrect. “It is well established that an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading.” (Meyer v. State Board of Equalization, 42 Cal.2d 376, 384.) Another plaintiff made the same argument in the case Carlton v. Dr. Pepper Snapple Group, Inc. (2014) 228 Cal.App.4th 1200. In that case, a defendant’s demurrer to multiple claims was sustained in part and denied in part. The plaintiff’s breach of contract claim overcame the demurrer. The plaintiff filed an amended pleading which included the same breach of contract claim. The defendant demurred on the same, previously overruled grounds and the plaintiff argued that the new demurrer violated Code of Civil Procedure section 1008. The Court found otherwise and stated: “[w]e would agree with [the plaintiff], if he had not filed the SAC. However, by filing the SAC, [the plaintiff] opened the door to a demurrer to the entire SAC, including the breach of contract cause of action. The SAC superseded the FAC, which permitted a demurrer to the entire SAC to be filed.” (Id. at 1211.) While that case involves a demurrer, and this is a motion to strike, the logic is clearly the same: Plaintiffs FAC is a new pleading that supersedes the original. In addition, at the hearing defense counsel requested and the court agreed that any issues raised in the motion to strike the initial complaint could be re-raised without prejudice should plaintiff file an amended complaint. B. Plaintiffs Do Not Allege Facts Demonstrating Statutory Neglect With Recklessness, Malice, Oppression, Or Fraud Plaintiffs refer the Court to their Opposition to The Terraces’ Demurrer for responses to many of the arguments presented in Defendants’ Motion to Strike on the issues of EADACPA exemplary damages and punitive damages. Defendants’ arguments are also substantially similar to those found 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 4832-9921-2664.1 3 DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO STRIKE FIRST AMENDED COMPLAINT LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW in the Demurrer reply; therefore, The Terraces will provide a condensed version here but refers the Court to its Reply in support of its Demurrer for further discussion. Plaintiffs fail to sufficiently plead facts demonstrating statutory neglect; therefore, claims for exemplary and other damages pursuant to EADACPA are improper. Defendant incorporates by reference the arguments made in support of the Demurrer Reply. However, even to the extent the statutory neglect is pled, Plaintiffs fail to plead facts establishing the entitlement to enhanced remedies under W&IC section 15657 which requires recklessness, fraud, oppression or malice. Plaintiffs have not alleged, as required to establish recklessness, that The Terraces exhibited a “deliberate disregard” of the “high degree of probability that an injury will occur” as required. Plaintiffs do not allege conduct that is “’so vile, base contemptible, miserable, wretched, or loathsome that it would be looked down upon and despised by ordinary decent people.’ [Citation.]” (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050.) Because Plaintiffs have not properly alleged statutory neglect with recklessness, oppression, fraud or malice they cannot recover exemplary damages pursuant to EADACPA, including pre-death pain and suffering or attorney’s fee. They also thus do not state facts sufficient for recovery of punitive damages pursuant to Code of Civil Procedure section 3294. C. Plaintiffs Fail To Establish That A Managing Agent Ratified Wrongful Conduct Or Was Personally Guilty Of The Conduct Like the previous section, this argument is also similarly found in the Reply to Opposition to Demurrer, for the Court’s reference. Plaintiffs fail to establish that either the “Director of Nursing” or “Administrator” qualify as managing agents. A managing agent is somehow who, like a corporate officer or director, exercises “substantial discretionary authority over significant aspects of a corporation’s business” and policies. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 577-578.) Plaintiffs improperly rely on conclusory allegations and job titles to establish that the “Director of Nursing” or “Administrator” qualify as managing agents. They also cite to 22 Code of California Regulations section 72327(c) and Health and Safety Code section 1416.68(a) and (b) to establish that those individuals are required to 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 4832-9921-2664.1 4 DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO STRIKE FIRST AMENDED COMPLAINT LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW determine “corporate policy.” However, the term “corporate policy” does not even appear in either the regulation or codes cited and do not establish that either of the individuals are “managing agents.” Plaintiffs further fail to properly allege that a “managing agent” was personally guilty of wrongful conduct. Plaintiffs argue that the allegation that the Director of Nursing consciously disregarded Decedent’s obvious very urgent need for help thus establishing personal wrongful conduct. However, Plaintiffs’ allegations are conclusory and improper. Plaintiffs allege that the Director of Nursing was aware of Decedent’s condition because he/she “was present in the building, made rounds of the residents and observed them, and were present in daily meetings where changes of condition of the residents were discussed. (FAC ¶ 29.) Plaintiffs fail to demonstrate why the Director of Nursing’s presence in the same building as Decedent gives awareness of her condition. The remaining allegations are not specific as to Decedent but are alleged generally as to all ‘residents.’ Plaintiffs fail to properly plead specific non-conclusory facts that the Director of Nursing was aware of Decedent’s condition and consciously ignored it. Further, Plaintiffs argue that the “managing agents” acted with malice, however, as demonstrated above, none of the conduct that Decedent was alleged to have suffered satisfies the definition of “malice.” Further, Plaintiffs do not address whether a ‘managing agent’ ratified wrongful conduct, therefore, there are no grounds for any damages on that basis. Because Plaintiffs have not properly plead that the “Director of Nursing” or the “Administrator” are “managing agents,” and have not properly plead that a “managing agent” either ratified or is personally guilty of committing wrongful conduct, their prayers for punitive damages pursuant to Code of Civil Procedure section 3294 and enhanced remedies under EADACPA are improper and must be stricken. D. Plaintiffs Fail To Allege Facts Supporting A Claim For Treble Punitive Damages Plaintiffs are not entitled to treble punitive damages under Civil Code section 3345 for two reasons. First, they fail to properly allege facts establishing grounds for punitive damages as argued here, in the Motion to Strike, the Demurrer and the reply in support of each. Second, Civil Code section 3345 does not apply to Plaintiffs’ claims. 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 4832-9921-2664.1 5 DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO STRIKE FIRST AMENDED COMPLAINT LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW Civil Code section 3345’s purpose is to “redress unfair or deceptive acts or practices or unfair methods of competition.” (Civ. Code. section 3345(a).) It is not to redress any other conduct. Here there is no such conduct alleged. The cases plaintiffs rely on to support the claim are all for such conduct. Ross v. Pioneer Life Ins. Co., 545 F.Supp.2d 1061 (C.D. Cal.2008) was an action by an insured senior citizen for breach of contract and for breach of the covenant of good faith and fair dealing. Sanchez v. Monumental Life Insurance Company, 102.3d 398 (9th Cir. 1996), was an action by a senior citizen for breach of implied covenant and fair dealing, breach of contract, and a violation of California Business and Professions Code section 17200, et seq. Clark v. Superior Court (2010) 50 Cal.4th 605 was an action by senior citizens alleging deceptive business practices relating to the purchase and sale of annuity contracts. Hood v. Hartford Life & Accident Ins. Co., 567 F.Supp. 23 1221(E.D. cal.2008) was an action by a senior alleging an insurance bad faith claim against defendant insurance company. Here, the underlying claim to which Plaintiffs seek punitive damages, according to the Prayer for Judgment in the FAC, is the elder abuse claim. The underlying facts of all of Plaintiffs’ claims are premised on medical care provided to Decedent and are not claims to “redress unfair or deceptive acts or practices or unfair methods of competition.” (Civ. Code. section 3345(a).) Civil Code section 3345 is not applicable to Plaintiffs’ causes of action as demonstrated by the Code and case law. To circumvent the fact that Plaintiffs have not alleged unfair or deceptive acts or practices or unfair methods of competition, Plaintiffs misstate the law. They argue that if any of three factors listed in Civil Code 3345(b)(1)-(3) are alleged, they are able to avail themselves of the treble provision. However, these are merely factors the trier of fact “shall consider [], in addition to other appropriate factors, in determining the amount of the fine to impose. . . “ (Civ. Code. § 3294 (b).) All three factors refer to a defendant’s ‘conduct,’ the nature of which clearly refers to unfair business practices pursuant to Civil Code section 3294(a). In other words, if a defendant commits unfair business practices, and that conduct falls within any of those three factors, then punitive damages, if available, can be trebled. Plaintiffs do not allege unfair business practices, therefore, there prayer for Civil Code 3345 treble damages is improper and must be stricken. 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 4832-9921-2664.1 6 DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO STRIKE FIRST AMENDED COMPLAINT LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW E. Plaintiffs Improperly Request Injunctive Relief Pursuant To Health And Safety Code Section 1430(b) Plaintiffs cannot avail themselves of injunctive relief pursuant to Health and Safety Code section 1430(b) for four reasons set forth below. First, as set forth in the demurrer and associated reply, Plaintiffs do not allege facts that establish a claim for violation of patients’ rights pursuant to 22 California Code of Regulations section 72527. Plaintiffs do not state sufficient facts to establish violation of any of myriad rights in that regulation, nor do they sufficiently allege The Terraces violated any “rights provided by federal and state law or regulation.” Plaintiffs’ allegations are general and conclusory and therefore improper. Thus, the accompanying request for injunctive relief must be stricken. Second, Decedent does not have standing to bring a claim for injunctive relief because her rights are not being violated. Plaintiffs’ argument is that because a “current or former resident” may bring an action to enjoin the licensee of the nursing home from permitting violations of the resident’s right to continue,” (Opposition, 9:18-19) Decedent has the right to “bring an action to enjoin permitting [sic] violations to continue.” (Opposition, 9:21-22.) However, nowhere in Health & Safety Code section 1430(b) is a patient given the right to enjoin behaviors violating other patient’s rights. Plaintiffs appear to be under the false impression that only the rights of a ‘current resident’ can be violated. The code clearly allows a former resident to enjoin a violation of her rights that continues once they are no longer a resident, but does not allow a former resident to enjoin violations committed against a third party. Plaintiff’s position that injunctive relief is available to a person whose rights are not being violated is not correct. Plaintiffs cite Fitzhugh v. Granada Healthcare & Rehabilitation Center, LLC (2007) 150 Cal.App. 4th 469 to establish that a Health & Safety Code section 1430(b) claims survive death. Fitzhugh does not involve the request for injunctive relief. In addition, what Plaintiffs overlook is that there are other remedies in Health & Safety Code section 1430(b) aside from injunctive relief (a $500 fine for example), that clearly would survive someone’s passing. The Terraces do not seek to strike the injunctive relief because Decedent is 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 4832-9921-2664.1 7 DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO STRIKE FIRST AMENDED COMPLAINT LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW passed; they seek to strike the request because her rights are not being currently violated. The cses cited by plaintiffs do not support their position they are entitled to injunctive relief. Shuts v. Covenant Holdco, LLC (2012) 208 Cal.App.4th 609 affirmed the right of a class of current and former residents to bring a claim for injunctive relief. This does not conflict with The Terrace’s position: a former resident can seek an injunction, if his or her rights are being violated by a skilled nursing facility. That is simply not the case here. In Lemaire v. Covenant Care Cal., LLC (2015) 234 Cal.App.4th 860, the plaintiffs did not seek an injunction, no right was given to a former patient’s whose rights were not being violated, and the Court made findings interpreting Health & Safety Code section 1430(b) that had nothing to do with injunctive relief. Third, Plaintiffs argue that they seek to “restrain[] the commission or continuance of the act complained of. . .” (Code Civ. Proc. § 526(a).) Plaintiffs state they wish to stop the violation of other patients’ rights. (Opposition 11:6-7.) For the reasons set forth above, Plaintiffs do not have standing to bring such a claim. The language of Code of Civil Procedure 526(a) does not give a party the right to seek an injunction on behalf of a third party, and makes clear that injunctions are available to enjoin acts complained of against the moving party, not others. Fourth, Plaintiffs claim that they seek an injunctive relief based upon their request for patients’ records under Health & Safety Code section 1430(b). They make this request pursuant to another code, and this will be discussed below. Plaintiffs request for injunctive relief pursuant to Health & Safety Code section 1430(b) is improper and must be stricken. F. Plaintiffs’ Do Not State A Cause Of Action for Violation Of A Patient’s Right To Inspect And Copy Medical Records In the demurrer Opposition, but not in opposition to the Motion to Strike, Plaintiffs have argued that a non-current version of the Patient Access Law is applicable to that claim. The Terraces does not agree with the position (the claim was filed after the current version of the law was passed), but will address Plaintiffs’ arguments here. 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 4832-9921-2664.1 8 DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO STRIKE FIRST AMENDED COMPLAINT LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW Plaintiffs’ argue that the applicable law allows a ‘patient representative’ rather than a ‘personal representative’ to request medical records on behalf of a patient. The Terraces have demonstrated that Plaintiff David Carey (“Carey”) was not a ‘personal representative,’ Health and Safety Code section 123105(e)(4) states a patient representative is “[t]he beneficiary as defined in Section 24 of the Probate Code or personal representative as defined in Section 58 of the Probate Code, of a deceased patient.” The definition is clear that a beneficiary or personal representative is not a ‘patient representative’ until after the passing of a patient. This is logical, otherwise any beneficiary could make a demand for private, HIPAA protected medical records regardless of the wishes of the patient. Here, Plaintiffs allege in the FAC that Davey requested the Decedent’s records “several times in 2017.” Decedent passed on April 22, 2017. Plaintiffs have not alleged facts establishing that Davey made records requests after Decedent’s passing, when he would arguably have been a ‘patient representative,’ therefore, they have not stated a claim. Further, Plaintiffs did not plead that they agreed to pay reasonable copying costs, and their argument in Opposition that it is clear that they did so because they received ‘some’ records, is not legally sufficient because the Court cannot consider facts outside the four corner of the FAC. Finally, the FAC is clear that the Plaintiffs did receive records, therefore, they cannot make a claim for violation of that right. Therefore the request for injunctive relief pursuant to Health & Safety Code section 123110 and 123120 is improper because the underlying claim fails. III. CONCLUSION For the foregoing reasons, Plaintiffs’ Opposition does not rebut any of The Terrace’s positions in its demurrer, which must be sustained. DATED: October 18, 2018 LEWIS BRISBOIS BISGAARD & SMITH LLP By: Reuben B. Jacobson Elizabeth A. Burns John W. Faulconer Attorneys for Defendants, HUMANGOOD and AMERICAN BAPTIST HOMES OF THE WEST DBA THE TERRACES OF LOS GATOS LEWIS BRISBOIS BISGAARD & SMHH u.P AnCRNEVS Al LAW kUJN wmflam 10 l] 12 l3 l4 15 l6 l7 l8 l9 20 2] 22 23 24 25 26 27 28 CALIFORNIA STATE COURT PROOF OF SERVICE Riffel v. Human Good, dba The Terraces 0fL0s Gatos , et al. Santa Clara County Superior Court Case No. 18CV322534 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO At the time of service, Iwas over 18 years 0f age and not a party to the action. My business address is 333 Bush Street, Suite 1100, San Francisco, CA 94104. On October 18, 2018, I served the following document: DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO STRIKE FIRST AMENDED COMPLAINT I served the document 0n the following person at the following address (including fax numbers and email addresses, if applicable): Peter G. Lomhoff, Esq. Tel: 510.763.5611 1300 Clay Street, suite 820 Faxa 510-763-3430 Oakland, CA 9461 2 Emallz pl@peterlomhoff.net Attorneys for Plaintiffs Evelyn Riffel, David Carev and Nancv Bever The document was served by the following means: E (BY ELECTRONIC SERVICE VIA FIRST LEGAL) Pursuant t0 CRC 2.25 1 (e), I caused the above-entitled document t0 be served through First Legal at htgpszflwwwfirstlegaLcom addressed t0 all patties appearing 0n the electronic service list for the above-entitled case. The service transmission was reported as complete and a copy ofthe First Legal Filing Receipt Page/Confirmation will be filed, deposited, 0r maintained with the original document in this office. E (BY EMAIL OR ELECTRONIC TRANSMISSION) I also caused the documents to be sent from email address anna.perez@lewisbrisbois.com to the pemon at the email address listed above. I did not receive, within a reasonable time afier the transnfission, any electronic message 0r other indication that the transmission was unsuccessful. I declare under penalty 0f perjury under the laws 0f the State of California that the above is true and correct. Dated: October 18, 201 8 I(flma13W Anna Perez 4832-992 l -2664Al 9 PROOF OF SERVICE