Opposition ObjectionsCal. Super. - 6th Dist.January 22, 2019\OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: 1QCV341 588 Santa Clara - Civil PECK LAW GROUP, APC Steven C. Peck (SBN 097343) Adam J. Peck (SBN 262549) Spencer E. Peck (SBN 325419) 6454 Van Nuys Boulevard, Suite 150 Van Nuys, California 91401 Telephone: 8 1 8-908-0509 Facsimile: 8 1 8-908-1 158 Email: stevenpeck@thepecklawgroup.com Attorneys for Plaintiffs Electronically Filed by Superior Court of CA, County of Santa Clara, on 11/25/2019 4:16 PM Reviewed By: L. Nguyen Case #1 9CV341 588 Envelope: 36971 17 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA ASSURHADOUN G. KHOFRI, by and through his Successor-in-interest, Dorida Yaghoub, DORIDA YAGHOUB, individually, Plaintiffs, VS. Golden Oak Holdings, LLC dba Vasona Creek Healthcare Center; Kaiser Foundation Hospitals dba Kaiser Foundation Hospital- San Jose; The Permanente Medical Group; Kaiser Foundation Health Plan, Inc.; and Does 1 through 200, inclusive, Defendants, I CASE NO.:19CV341588 Assigned t0 the Hon. Peter Kirwan Dept. I9 OPPOSITION TO GOLDEN OAK HOLDINGS, LLC dba VASONA CREEK HEALTH CARE CENTER’S PETITION TO COMPEL ARBITRATION AND MOTION TO STAY ACTION; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF STEVEN PECK ESQ. DATE: TIME: DEPT.: December 10, 2019 9:00 a.m. 13 Action Filed: Trial Date: January 22, 20 1 9 None Set OPPOSITION TO DEFENDANTS MOTION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: II. III. IV. V. VI. VII. VIII. IX. TABLE 0F CONTENTS INTRODUCTION .................................................................................... 1 STANDARDS 0F REVIEW............................................................................................... 6 THE FAA, CAA, 0R BOTH ....................................................................... 8 MICRA 0R NOT MICRA 8 APPLICABILTY 0F THE ARBITRATION AGREEMENT T0 DORIDA, AND KAISER.................................................................................................12 THE COURT SHOULD USE ITS DISCRETION UNDER CODE 0F CIVIL PROCEDURE §1281.2(C) TO DENY THE PETITION TO COMPEL ARBITRATION IN ORDER TO AVOID CONFLICTING RULINGS IN THIS MATTER PURSUANT TO CODE 0F CIVIL PROCEDURE § THE DELEGATION CLAUSE IS UNENFORCEABLE AS THERE IS NO ENFORCEABLE CONTRACT .................................................................. 15 THE ARBITRATION AGREEMENT IS UNENFORCEABLE BECAUSE IT VIOLATES MANDATORY STATUTORY REQUIREMENTS ..........................16 A. The Arbitration Agreement Does Not Comply With Health & Safety Code §§1599.65 And 1599.81 ........................................................................... 16 1. The Agreement Was Not Signed Prior t0 0r at the Time of Admission ......... 16 2. Plaintiff Was Required t0 Sign the Agreement .................................... 16 PLAINTIFF’S HEALTH AND SAFETY CODE § 1430(b) CAUSE OF ACTION CANNOT BE COMPELLED TO ARBITRATION AS A MATTER OF LAW PURSUANT TO HEALTH AND SAFETY CODE § 1599.81(B) ..........................17 CONCLUSION ...................................................................................... 18 II OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION The moving party must prove by a preponderance 0f evidence the existence 0f the arbitration agreement and that the dispute is covered by the agreement. (Cruise v. Kroger C0. (2015) 233 Cal.App.4th 390, 396-397, 399-400; Graphic Arts Int'l Union v. Oakland Nat'l Engraving C0. (1986) 185 Cal.App.3d 775, 781; see also County 0f Contra Costa v. Kaiser Foundation Health Plan, Inc. (1996) 47 Ca1.App.4th 237, 245; Marsch v. Williams (1994) 23 Cal.App.4th 250, 255.) Although California has a strong public policy in favor 0f arbitration, there is n0 preference for the arbitral forum When the parties have not agreed t0 arbitrate. (Freeman v. State Farm Mut. Auto. Ins. C0. (1975) 14 Cal.3d 473, 481; Cione v. Foresters Equity Services, Inc. (1997) 58 Ca1.App.4th 625, 634.) A written durable power 0f attorney is usually the only way in which a patient’s adult child can legally act as an agent. (Garrison, supra, 132 Cal.App.4th at 265; see also Golinger v. AMS Properties, Inc. (2004) 123 Cal.App.4th 374 [applied t0 wrongful death personal injury claims against nursing facility]; Pagarigan v. Libby Care Ctr. Inc. (2002) 99 Ca1.App.4th 298 [same] (“Pagarigan”).) Pagarigan, supra, 99 Cal.App.4th at 298 is directly on point. There, Plaintiff was the daughter of decedent who brought suit for wrongful death against a nursing facility after she had signed arbitration agreements without any real authority t0 d0 so. Defendant moved t0 compel arbitration, so it bore the burden 0f establishing a valid agreement to arbitrate. But it admitted that decedent did not sign an arbitration agreement, and that decedent was mentally incompetent at the time she was admitted to their facility. Defendant also failed to provide evidence that decedent signed a durable power 0f attorney. It followed that decedent lacked the capacity to authorize Plaintiff t0 enter into any arbitration agreements on her behalf. The court held that n0 valid arbitration contract existed. Here, as in Pagarigan, Defendant is the moving party, so it bears the burden 0f establishing a valid agreement t0 arbitrate. Defendant admits that ASSHOURDOUHN KHOFRI (“KHOFRI”) did not sign the arbitration agreement, specifically relying on the fact that DORIDA YAGHOUB 1 OPPOSITION TO DEFENDANTS MOTION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: (“DORIDA”) was the alleged agent of KHOFRI, and as her alleged agent had the legal authority to bind KHOFRI to binding arbitration. But, Defendant specifically fails t0 provide any admissible evidence that KHOFRI ever Signed a durable power 0f attorney, specifically authorizing DORIDA t0 bind KHOFRI as her agent, 0r that there was any such agency between KHOFRI and DORIDA. Additionally, Defendant has also not shown that KHOFRI possessed the capacity to authorize DORIDA t0 enter into the arbitration agreements 0n her behalf. Defendant, thus has failed to show any admissible evidence that a valid arbitration contract even exists. “Defendant attempt[s] nevertheless t0 evade the fatal consequences 0f the undisputed facts.” (Pagarigan, supra, 99 Cal.App.4th at 301.) First, Defendant argues that the signature of DORIDA on the arbitration agreement proves that she represented herself as having the power to bind KHOFRI t0 this arbitration document. However, a person cannot become the agent 0f another merely by representing himself as such. To be an agent she must actually be so employed by the principal or “the principal intentionally, 0r by want 0f ordinary care, [has caused] a third person to believe another t0 be his agent Who is not really employed by him.” (Pagarigan, supra, 99 Ca1.App.4th at 301-302, citing CiV. Code § 2300.) And here, as in Pagarigan, Defendant has produced n0 legally admissible evidence that KHOFRI ever employed DORIDA as her agent in any capacity. This arbitration clause is therefore in fact not legally binding on KHOFRI. Defendant Golden Oak Holdings, LLC dba Vasona Creek Healthcare Center (“GOLDEN”) Petition t0 Compel Arbitration is therefore not enforceable as a matter of law, and must be denied since Defendant has failed to meet its burden of establishing the existence of a valid arbitration agreement as herein follows: 1) The agreements are not binding on Plaintiff because she did not sign the alleged Arbitration Agreement. (a) There is n0 evidence that DORIDA was legally authorized and in fact received any actual legal authority from KHOFRI t0 enter into any arbitration contract 0r any contract 0n KHOFRI’S behalf, (b) Nor is there any legally admissible evidence proffered that substantiates that 2 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: DORIDA received any actual and /or ostensible authority to bind KHOFRI to any contractual obligations. (c) The arbitration agreements contained in this petition contain n0 signatures by KHOFRI and DORIDA agreeing to arbitrate Elder Abuse, Negligence, and Wrongful Death causes 0f action. (d) The arbitration agreement fatally fails t0 comply With mandatory statutory requirements ofHealth & Safely Code §§1599.65 and 1599.81 2) Defendant KAISER FOUNDATION HOSPITALS, et a1. (“KAISER”) and DORIDA are Third Parties t0 the Arbitration Agreement and DORIDA may not be compelled t0 Arbitrate her Claims pursuant to California Code of Civil Procedure Section 1282.1(0). 3) The Arbitration agreement attached t0 the petition contains signature pages solely attributable t0 medical malpractice. The First Amended Complaint does not allege any medical malpractice cause of action. Therefore, the alleged arbitration is void or voidable. It is well settled that "[t]he strong public policy in favor 0f arbitration does not extend t0 those Who are not parties to an arbitration agreement, and a party cannot be compelled t0 arbitrate a dispute that he/she has not agreed to resolve by arbitration. In the matter ofDanz'els v. Sunrise Senior Living, Ina, 212 Cal. App. 4th 674 (County ofContra Costa v. Kaiser Foundation Health Plan, Inc. (1996) 47 Cal.App.4th 237, 245 [54 Ca1.Rptr.2d 628].)" (Benasra v. Marciano (2001) 92 Cal.App.4th 987, 990 [1 12 Cal.Rptr.2d 358]. Avila v. Southern California Specially Care, Inc. (2018) 20 Ca1.App.5th 835 supports the denial 0f GOLDEN’S'S Motion. The Avila plaintiff signed the arbitration agreement as decedent's agent, there was no evidence he intended t0 waive his right to a jury trial for his personal claims; thus, the Avila court held the trial court did not err in finding no agreement t0 arbitrate existed as t0 the plaintiff. (Avila, supra,20 Cal.App.5th at p. 845.)The Avila court also held the trial court did not abuse its 3 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: discretion in exercising its discretion t0 deny the motion t0 compel arbitration, as "both parties are litigants In both the survivorship and wrongful death claims. Those claims involve the same set 0f operative facts. If the survivorship claims were arbitrated While the wrongful death claim was litigated, there is a strong possibility of inconsistent rulings. The courts in Daniels, supra, 212 Cal.App.4th at page 680, and FItzhugh, supra, 150 Ca1.App.4th at page 476, each reached the same conclusion. We find, accordingly, no abuse of the court's discretion." (Avila, supra, 20 Cal.App.Sth at p. 845.) Last Avila rejected the defendants' public policy argument, 1.6., that the law favors arbitration. "'Even though it is true as defendants point out that "arbitration has become an accepted and favored method 0f resolving disputes " [citation], it is well settled that an arbitration agreement requires consent. Simply put, "'[t]he strong public policy in favor 0f arbitration does not extend t0 those Who are not parties t0 an arbitration agreement, and a party cannot be compelled t0 arbitrate a dispute that he 0r she has not consented t0. Much like Avila, Plaintiffs Complaint alleges elder abuse, not medical, professional, 0r common law negligence. Since this case also involves third-parties, not parties to any arbitration agreement, this Court should use its absolute discretion t0 deny the instant petition pursuant t0 Code 0f Civil Procedure Section 1281.2(0), due t0 the risk 0f conflicting rulings on a common issue 0f law 01‘ fact. 4) GOLDEN fails to identify any document 0r any verbal expression 0f KHOFRI by Which she gave DORIDA any authority t0 sign an arbitration agreement on her behalf. 5) GOLDEN has completely failed to meet their burden 0f proving the existence 0f a valid agreement in Which KHOFRI 0r someone had actual valid authority t0 bind her, agreed t0 arbitrate any disputes. 6) Defendant did not introduce any evidence that KHOFRI, by words or actions, authorized DORIDA t0 sign any arbitration agreements 0r make health care decisions for 4 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: her. Thus, defendants failed to meet their burden ofproof to establish that KHOFRI agreed t0 arbitration 0f any legal disputes. Garrison v. Superior Court (2005) 132 Cal.App.4th 253, 263 at (p. 263.) 7) The FEDERAL ARBITRATION ACT “FAA”, which includes both procedural and substantive provisions, governs agreements involving interstate commerce. Although the agreement does mention the FAA, and says it “evidences a transaction a transaction in interstate commerce governed by the Federal Arbitration Act”,( FAA), it also specifically states California law specifically applies, including the statement in the article 1.1 and 1.2 of the Arbitration Agreement “will be determined by California law” and that disputes “will be determined by submission t0 arbitration as provided by California law.” and in the Notice to Compel Arbitration pursuant t0 California Code 0f Civil Procedure Sections 1281.2, 1281.4 and 1295. Even Where agreement specifies FAA possibly governs any disputes, the CALIFORNIA ARBITRATION ACT “CAA” governs procedures please see Cronus Investments, Inc. v. Concierge Services (2005)35 Cal.4th 376, 388-390 [25 Cal. Rptr. 3d 540, 107P.3d 217]; see Volt Info. Sciences v. Leland Stanford JKU. (1989) 489 U.S. 468, 477, fn. 6 [103 L.Ed.2d 488,109 S.Ct. 1248]; Los Angeles Unified School Dist. v. Safely National Casually Corp. (2017) 13 Cal.App.5th471, 479-480 [220 Cal. Rptr. 3d 546].) The FAA‘S procedural rules, therefore, do not apply here. Any state law procedural provisions regarding arbitration are valid unless they defeat the rights granted by the FAA to equal enforcement of arbitration clauses. Defendant seemingly argues section 1281.2, subdivision (c), places arbitration agreements “0n an unequal footing than other contracts,” but d0 not cite any case where California 0r federal courts reach that conclusion. Indeed, there is ample case law t0 the contrary, including from the California Supreme Court, Which has held that section 1281.2, subdivision (c), does not defeat the rights granted by the FAA, and is therefore not preempted. Cronus Investments, Inc. v. Concierge 5 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: Services, supra,35 Ca1.4th at p. 393.) 8) The FAA “does not preempt the application 0f section 1281.2, subdivision (c) Where the parties have agreed that their arbitration agreement would also be governed by the Laws of the State 0f California (please see arbitration agreement and petition stating brought pursuant to California Law.) This is also evidenced in this petition by the defendant/petitioning party stating as the legal procedural basis for the petition on the Notice of Petition Which states: “It is understood that any dispute as t0 medical malpractice, that is whether any medical services rendered under this contract were unnecessary 0r unauthorized or were improperly, negligently or incompetently rendered, will be determined by submission to arbitration as provided by California law, and not by lawsuit 0r resort to court process except as California law provides for judicial review 0f arbitration proceedings.” Defendant petitions this Court pursuant t0 California Code 0f Civil Procedure Sections 1281.2, 1281.4 and 1295 and for an order staying Plaintiff. (Please see paragraphs 1.1 and 1.2 inclusive 0f the Petition t0 Compel Arbitration) II. STANDARD OF REVIEW Defendants have the burden of establishing the existence 0f a valid agreement t0 arbitrate. Pagarian v. Libby Care Center, Inc. (2002) 99 Cal. App. 4th 298, 301; Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal. 4th 951, 972; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal. 4th 394, 413. Defendants must establish the existence 0f an arbitration agreement between the parties to be bound thereby. Condee v. Longwood Management Corp. (2001) 88 Cal. App. 4th 215, 218-219. “It follows, 0f course, that if there was no valid contract t0 arbitrate, the petition must be denied.” See Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal. App. 4th 348, 356. California “Code 0f Civil Procedure §1280 et seq. provides a procedure for the summary determination of Whether a valid agreement to arbitrate exists, and such summary procedure satisfies both state and federal law.” Id. Under this procedure, the petitioner bears the burden 0f establishing the existence 0f a valid agreement t0 arbitrate, and a party opposing the petition bears 6 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: 0f proving by a preponderance of the evidence any fact necessary t0 its defense. The trial court sits as a trier 0f fact, weighing all the affidavits, declarations, and other evidence, as well as oral testimony received at the court’s discretion, t0 reach a final determination 0n the issue 0f arbitrability.” Id. at 356-57. When a petition t0 compel arbitration is filed and accompanied by prima facie evidence of a written agreement t0 arbitrate the controversy, the court itself must determine Whether the agreement exists, and if any defense to its enforcement is raised, whether it is enforceable. Because the existence 0f the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden 0f proving its existence by a preponderance 0f the evidence. Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal. 4th 394, 413. The threshold question for the court is therefore Whether a valid arbitration agreement exists between the parties. “[A]rbitration is a matter 0f contract and a party cannot be required t0 submit t0 arbitration any dispute which he has not agreed t0 submit.” Main v. Merrill Lynch, Pierce, Fenner & Smith (1977) 67 Cal. App. 3d 19, 32. There is no uniform standard of review for evaluating an order denying_a motion t0 compel arbitration. If the court's order is based 0n a decision 0f fact, then we adopt a substantial evidence standard. Alternatively, if the court's denial rests solely 0n a decision 0f law, then a de novo standard 0f review is employed. (Ramos v. Westlake Services LLC (2015) 242 Cal.App.4th 674, 686 [195 Cal. Rptr. 3d 34].) The issue of whether a third party is bound by an arbitration agreement is a question 0f law. (Daniels v. Sunrise Senior Living, Inc. (2013) 212 Ca1.App.4th 674, 680 [151 Cal. Rptr. 3d 273] (Daniels).) “The ultimate determination Whether to stay 0r deny arbitration based 0n the possibility of conflicting rulings on common questions of law or fact is reviewed for an abuse 0f discretion. ‘The court's discretion under section 1281.2, subdivision (c) does not come into play until it is ascertained that the subdivision applies, which requires the threshold determination of Whether 7 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: there are non-arbitrable claims against at least one of the parties t0 the litigation (e.g., g nonsignatory)?” (Daniels, supra, 212 Ca1.App.4th at p. 680; see Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 971 [153 Cal. Rptr. 3d 135] (Acquire).) Q THE FAA, CAA, 0R BOTH Defendant argues the FAA applies t0 the agreement; plaintiffs argue, and this defendant actually petitions this court pursuant to the California Arbitration Act (S 1280 et seq.), i.e. California Code 0f Civil Procedure Sections 1281.2, 1281.4, and 1295 then the (CAA) applies instead. The reason this is of relevance here is because 0f the trial court's exercise of its discretion under section 1281.2, subdivision (c), to refuse arbitration in certain cases. Defendants argues that the FAA applies, and this trial court shall error as a matter 0f law in applying section 1281.2 subdivision gc 1. Defendant, is, however, incorrect. Any state law procedural provisions regarding arbitration are valid unless they defeat the rights granted by the FAA t0 equal enforcement 0f arbitration Clauses. Defendant might also try t0 argue that section 1281.2, subdivision (c), places arbitration agreements “0n an unequal footing than other contracts,” There is ample case law t0 the contrary, including from the California Supreme Court, which has held that section 1281.2, subdivision (c), does not defeat the rights granted by the FAA, and is therefore not preempted. (Cronus Investments, Inc. v. Concierge Services, supra, 35 Cal.4th at p. 393.) m MICRA OR NOT MICRA A key issue in this case is Whether DORIDA, & KAISER are actually bound by the agreement. Defendants must concede that DORIDA, & KAISER did not sign this agreement, specifically DORIDA, individually. But they argue that nonetheless, her wrongful death claim brought in their personal capacities is subj ect t0 arbitration pursuant t0 section 1295. 8 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: Section 1295 is part 0f California's Medical IniurV Compensation Reform Act (MICRA). It created certain requirements for arbitration agreements 0f “any dispute as t0 professional negligence 0f a health care provider.” (§ 1295, subd. gag.) It defines “professional negligence” as “a negligent act 0r omission t0 act by a health care provider in the rendering 0f professional services, Which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for Which the provider is licensed and which are not within any restriction imposed by the licensing agency 0r licensed hospital.” (§ 1295, subd. ggngQ.) Carving out an exception to the general rule that arbitration agreements must be the subj ect of consent rather than compulsion, in Ruiz v. Podolsky (2010) 50 Ca1.4th 838, 849 [1 14 Cal. Rptr. 3d 263, 237 P.3d 584] (Ruiz), the California Supreme Court held that section 1295 permitted patients who consented to arbitration to bind their heirs in actions for wrongful death. (M p. 841 .) It concluded that “all wrongful death claimants are bound by arbitration agreements entered into pursuant to section 1295, at least when, as here, the language 0f the agreement manifests an intent to bind these claimants.” (Ibid) The question, then, is Whether Ruiz is controlling here, and we must therefore determine whether this case is about “professional negligence,” (n0 professional negligence cause 0f action pled in this matter) as defined by MICRA, or something else.Ruiz's focus was 0n section 1295 and the intent behind it. (Ruiz, supra, 50 Cal.4th at pp. 843-844, 849-854.) The court was “persuaded that section 1295, construed in light of its purpose, is designed to permit patients who sign arbitration agreements to bind their heirs in wrongful death actions.” (Id. at p. 849.) Not only did “section 1295, subdivision (a) contemplatefl arbitration ‘of any dispute as t0 professional negligence of a health care provider,” including wrongful death, but it “was part 0f MICRA'S 9 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: efforts to control the runaway costs 0f medical malpractice by promoting arbitration 0f malpractice disputes .” (Ibid) In Daniels, the plaintiff sued a residential care facility (as distinguished from a health care facility, as here) in her personal capacity. She alleged causes of action for wrongful death, elder abuse, and related claims. She alleged the facility had failed t0 properly care for her 92-year-old mother and caused her mother's death. The defendant unsuccessfully petitioned to compel arbitration under a clause in a residency agreement the plaintiff signed 0n her mother's behalf pursuant t0 a durable general power 0f attorney. (Daniels, supra, 212 Ca1.App.4th at p. 678.) The arbitration clause at issue, like the one here, purported to bind the patient's heirs. (Ibid) The Court of Appeal affirmed, rejecting the argument that Ruiz required arbitration of the independent wrongful death claim. “Ruiz is based squarely 0n section 1295, Which governs agreements t0 arbitrate professional negligence or medical malpractice claims in medical services contracts with health care providers.” (Daniels, supra, 212 Ca1.App.4th at p. 682; see also Herbert v. Superior Court (1985) 169 Cal.App.3d 718 [215 Cal. Rptr. 477].) Defendants Will argue that Daniels is irrelevant because the defendant in that case was not a licensed health care provider. This Court must disagree. (The clauses Sections 1.1 and 5.1 in the arbitration agreement attached to this petition, as t0 claims of medical malpractice are irrelevant, as there is n0 cause 0f action for professional negligence / medical malpractice claimed in the complaint.) What matters is not the license status of the defendant, but the basis of the claims as pleaded in the complaint. If the primary basis for the wrongful death claim sounds in professional negligence ( again n0 professional negligence cause 0f action pled in this matter) as defined by MICRA, then section 1295 applies. 1 0 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: If, as plaintiff claims here, the primary basis is under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, é 15600 et seq.)_(the Act), then section 1295 does not apply and neither does Ruiz's exception to the general rule that one Who has not consented cannot be compelled t0 arbitrate. The first amended complaint includes allegations 0f elder abuse, Violation 0f resident’s rights and wrongful death. There is n0 cause 0f action in this complaint for professional negligence. But the complaint was pleaded as one for “elder abuse and neglect under the Act, and wrongful death by neglect. The first amended complaint seemingly alleges elder abuse not professional negligence. “Neglect includes the failure t0 assist in personal hygiene, 0r in the provision 0f food, clothing, 0r shelter; the failure t0 provide medical care for physical and mental health needs; the failure to protect from health and safety hazards; and the failure t0 prevent malnutrition 0r dehydration.” (Sababin v. Superior Court (2006) 144 Ca1.App.4th 81, 88 [50 Cal. Rptr. 3d 266].) Under the Act, neglect “‘refers not to the substandard performance 0f medical services but, rather, to the “failure of those_responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.” Thus, the statutory definition 0f “neglect” speaks not of the undertaking of medical services, but 0f the failure 3” to provide medical care. (Sababin, at p. 89.) Plaintiffs, within the limits of established law, are essentially free t0 plead their case as they choose. They chose t0 plead a cause 0f action under the Act, and have not pled anV cause 0f action for professional negligence. The fact that they could have also pleaded a claim for medical malpractice, had they wished t0 d0 so, is irrelevant. (Please see Avila supra.) 11 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: Accordingly, it is the plaintiffs' legal position that this claim is not one within the ambit 0f section 1295, and therefore, Ruiz’s holding does not apply. We next turn to the question 0f whether DORIDA, and KAISER actually agreed to arbitrate. L APPLICABILTY OF THE ARBITRATION AGREEMENT TO DORIDA, AND KAISER Having determined that section 1295 does not apply here, we must now 100k t0 the general rules governing arbitration agreements t0 determine if a valid agreement exists between DORIDA, KAISER and the defendants. California has a strong public policy in favor of arbitration as an expeditious and cost- effective way 0f resolving disputes. (Moncharsh v. Heilv & Blase (1992) 3 Cal.4th 1, 9 [10 Cal. Rptr. 2d 183, 832 P.2d 899].) Even so, parties can only be compelled t0 arbitrate when they have agreed t0 d0 so. (Westra v. Marcus & Millichap Real Estate Investment Brokerage C0., Inc. (2005) 129 Cal.App.4th 759, 763 [28 Cal. Rptr. 3d 752].)“Arbitration is a matter 0f consent, not coercion .” (Volt, supra, 489 U.S. at p. 479.) Whether an agreement t0 arbitrate exists is a threshold issue of contract formation and state contract law. (M pp. 475-476; see Mission Viejo Emergency Medical Associates v. Beta Healthcare Group (2011) 197 Cal.App.4th 1146, 1153 [128 Cal. Rptr. 3d 330].) The party seeking t0 compel arbitration bears the burden of proving the existence of a valid arbitration agreement. (Garrison v. Superior Court (2005) 132 Cal.App.4th 253, 263 [33 Cal. Rptr. 3d 350].) In California, a wrongful death claim is an independent claim. “Unlike some jurisdictions wherein wrongful death actions are derivative, Code 0f Civil Procedure section 377.60 ‘creates a new cause 0f action in favor of the heirs as beneficiaries, based upon their own independent pecuniary injury suffered by loss 0f a relative, and distinct from any the deceased might have 12 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: maintained had he survived.’” (Harwich v. Superior Court (1999) 21 Cal.4th 272, 283 [87 Cal. Rptr. 2d 222, 980 P.2d 927].) In Daniels, the court rejected any claim that signing an arbitration agreement as agent gave the agent's consent to arbitrate independent claims, including a claim for wrongful death. “Because Daniels signed the residency agreement solely as agent and not in her personal capacity, there is no basis to infer that Daniels agreed to arbitrate her wrongful death claim. In context, the provision making the arbitration clause binding 0n heirs means only that the duty t0 arbitrate the survivor claims is binding 0n [the mother] and other persons Who would assert the survivor claims 0n [the mother's] behalf . The agreement does not indicate an intent to bind third parties with claims independent 0f the survivor claims, such as wrongful death claimants.” (Daniels, supra, 212 Cal.App.4th at p. 681; see Monschke v. Timber Ridge Assisted Living, LLC (2016) 244 Cal.App.4th 583, 587 [197 Cal. Rptr. 3d 921].) Daniels relied 0n Fitzhugh v. Granada Healthcare & Rehabilitation Center, LLC (2007) 150 Ca1.App.4th 469 [58 Cal. Rptr. 3d 585] (Fitzhugh). In that case, the court rejected the defense contention that signing an arbitration agreement as an agent also constituted an agreement t0 arbitrate in a personal capacity. In that case, Ruth Fitzhugh was admitted to a health care facility. Her husband George Fitzhugh signed two arbitration agreements as her “‘Legal Representative/Agent.”’ (Id. at pp. 471-472.) Each of the agreements stated: “‘This arbitration agreement binds the parties hereto, including the heirs, representatives, executors, administrators, successors, and assigns of such parties.” (Id. at p. 472.) After Ruth died, George sued the facility for wrongful death (among other causes of action). (Id. at pp. 471-472.) The court held that George was not required t0 arbitrate his wrongful death cause 0f action. “It is irrelevant t0 the wrongful death cause 0f action whether George Fitzhugh may have signed the arbitration agreements as the decedent's ‘legal representative/agent.’ Because there is n0 13 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: evidence that George Fitzhugh signed the arbitration agreements in his personal capacity there is no basis t0 infer that [he] waived [his] personal right t0 jury trial 0n the wrongful death claim. (Fitzhugh, supra, 150 Ca1.App.4th at p. 474, Such is the case here. There is simply n0 evidence that when this agreement was signed by an agent, nor is there any evidence that the agent had any intent t0 waive his right nor anyone else’s right t0 a jury trial for any 0f their personal claims; nor did DORIDA, or KAISER in fact sign any agreement in any capacity that could be legally enforced against them. This arbitration agreement is unenforceable. Avila v. Southern California Specially Care, Ina, 20 Cal. App. 5th 835. VI. THE COURT SHOULD USE ITS DISCRETION UNDER CODE OF CIVIL PROCEDURE $1281.2(C) TO DENY THE PETITION TO COMPEL ARBITRATION IN ORDER TO AVOID CONFLICTING RULINGS AS THERE IS NO CLAIM FOR MEDICAL MALPRACITCE IN THIS MATTER PURSUANT TO CODE OF CIVIL PROCEDURE S 1295 The trial court ruled: “Even if decedent and his heirs are bound by the arbitration agreement for survivor claims, the court exercises its discretion t0 ‘refuse t0 enforce the arbitration agreement.’ [Citation] Compelling arbitration of the survivor claims would unreasonably risk ‘conflicting rulings 0n a common issue of law 0r fact.’ [Citations.]” As noted above, we review this issue for abuse of discretion. (Acquire, supra, 213 Ca1.App.4th at p. 971; Daniels, supra, 212 Ca1.App.4th at p. 680.) Defendants Will argue, once again, that section 1295 makes section 1281.2, subdivision (c), inapplicabnle. But as we already discussed, the provisions 0f MICRA d0 not apply t0 this case. Therefore this argument must be rej ected. 14 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: As to the exercise 0f the court's discretion, section 1281.2, subdivision (c), permits a stay if: “‘[A] party to the arbitration agreement is also a party t0 a pending court action or special proceeding With a third party aris[ing] out of the same transaction or series of related transactions’; and ‘there is a possibility 0f conflicting rulings on a common issue 0f law 0r fact.”’ (Acquire, supra, 213 Ca1.App.4th at pp. 967-968.) A11 three requirements must be satisfied before section 1281.2, subdivision (c), may be used to deny a motion to compel arbitration. (Acguire, at p. 968.) Here, all three factors were met. Parties are litigants in both the elder abuse and wrongful death claims. Those claims involve the same set of operative facts. If the survivorship claims were arbitrated While the wrongful death claim was litigated, there is a strong possibility of inconsistent rulings. The courts in Daniels, supra, 212 Ca1.App.4th at page 680, and Fitzhugh, supra, 150 Cal.App.4th at page 476, each reached the same conclusion. Therefore, the Court must deny this Petition to Compel Arbitration. Please see Avila v. Southern California Specially Care, Ina, 20 Cal. App. 5th 835. VII. THE DELEGATION CLAUSE IS UNENFORCEABLE AS THERE IS NO ENFORCEABLE CONTRACT. The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement. Flores v. San Diego, LLC (2007) 148 Cal App. 4th 581. The defendant has not provided this Court any evidence to support a finding that DORIDA was KHOFRI’S true agent. KHOFRI didn’t sign the agreement. Nor is there any evidence that KHOFRI’S conduct created any belief that any agency existed. This defendant thus has failed t0 establish its burden 0f proof that there is a contract, and that DORIDA had the authority t0 act 0n behalf 0f KHOFRI behalf such that a valid contract to arbitrate was ever actually formed. 15 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: VIII. THE ARBITRATION AGREEMENT IS UNENFORCEABLE BECAUSE IT VIOLATES MANDATORY STATUTORY REQUIREMENTS A. The Arbitration Agreement Does Not Complv With Health & Safety Code 861599.65 and 1599.81 The legislature has taken the time t0 devote an entire chapter 0f the Health & Safety Code t0 admission agreements for long-term health care facilities. Chapter 3.9 of the California Health & Safety Code, beginning with §1599.60 defines and specifies the requirements 0f admission agreements for long-term health care facilities. Defendant’s Facility, is duly licensed as such and falls under the definitions contained in the California Health & Safety Code. 1. The Agreement Was Not Signed Prior to or at the Time 0f Admission California Health & Safely Code §1599.65(a) mandates that “fpkior t0 0r at the time 0f admission, the facility shall make reasonable efforts to communicate the content 0f the contract to, and obtain 0n the contract the signature 0f, the person who is t0 be admitted t0 the facility.” As such, there is n0 evidence that the facility made any reasonable efforts t0 communicate the content of the contract, and obtain 0n the contract the signature of, the person who is to be admitted t0 the facility “prior to or at the time 0f admission.” 2. Plaintiff Was Required t0 Sign the Agreement Defendant has also failed t0 put forth any legal admissible evidence indicating that Plaintiff was incompetent or unable t0 understand and sign the contract because 0f her medical condition. See Garrison v. Sup.Ct. (2005) 132 CA4th 253; Hogan v. Country Villa Health Services (2007) 148 CA 4th 259; see also Civil Code §1556 (“all persons are capable 0f contracting except minors, persons 0f unsound mind, and persons deprived 0f civil rights.”) Accordingly, if Plaintiff had capacity, then Defendant was required t0 obtain Plaintiff’s signature. See Health & Safety Code § 1599.65 (“Unless the prospective resident has been declared 1_ega_llxincompetent 0r is unable t0 understand and sign the contract because 0f his 0r her medical condition, he 0r she shall sign or cosign the admission agreement”) (Emphasis added). “In the event the patient is unable t0 sign the contract, the reason shall be documented in the resident’s medical record bV the admitting physician.” Id. (Emphasis added). Not only did 16 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: Plaintiff not sign the Agreement, but Defendant has failed to provide any admissible evidence that the reason for this failure was documented by his admitting physician in his medical record or that Plaintiff had been deemed legally incompetent. Defendant therefore violated Health & Safely Code §1599.65. K PLAINTIFF’S HEALTHAND SAFETY CODE S 1430(b) CAUSE OF ACTION CANNOT BE COMPELLED TO ARBITRATION AS A MATTER OF LAW PURSUANT TO HEALTHAND SAFETY CODE 8 1599.81(B). Health and Safety Code § 1430(b) states that “[a] current or former resident or patient 0f a skilled nursing facility . . . or intermediate care facility . . . may bring a civil action against the licensee 0f a facility who violates the Patient’s Bill 0f Rights in Title 22 Code ofRegulations § 72527 0r any other right provided for by state 0r federal law.” Health and Safely Code §1430(b) further states that, “the suit shall be brought in a court of competent iurisdiction.” Health and Safety Code § 1430(b) specifically states that an “agreement by a resident 0r patient 0f a skilled nursing facility or intermediate care facility to waive his 0r her rights t0 sue pursuant t0 this subdivision shall be void as contrary t0 public policy.” Pursuant t0 Health and Safely Code § 1599.81(d), “the patient may not waive his 0r her ability t0 sue for Violation 0f the Patient’s Bill 0f Rights” under Health and Safety Code § 1430(b). Additionally, there is no text in the Arbitration Agreement, at issue in this case, Which expressly provides that the resident, in signing the Agreements, is not agreeing t0 waive her rights under §1430(b). Health and Safely Code § 1599.81 sets forth strict statutory format and language requirements in order t0 enforce arbitration clauses contained in long-term care facility admission agreements. It requires arbitration provisions pertaining to medical malpractice claims to be segregated and separately signed and t0 comply With Code ofCivil Procedure Section 1295. Please see Health and Safety Code §1599.81(c) which states “ On the attachments, clauses referring t0 arbitration of medical malpractice claims, as provided for under Section 1295 of the Code 0f Civil Procedure, shall be Clearly separated from other arbitration clauses, and separate 1 7 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION H signatures shall be required for each clause.” A11 arbitration language in this matter is contained in just one document and are not clearly segregated, separated, and signed in Violation 0f the law. There is also no compliance With California Code of Civil Procedure Section 1295(a) and 1295(b). As a result thereof, the petition \OWQQUIhUJN NNNNNNNNNHHHHHHHHHH “\IQUIhUJNHwaflGNUIAb-DNHG must be denied. X. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that the Court deny this Defendant’s Petition t0 Compel Arbitration. DATED: November 25, 2019 By: PECK LAW GROUP, APC Steven C. Peck, Esq. Attornevs for Plaintiffs 18 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhUJNH NNNNNNNNNHHHHHHHHHH “\IQUIhUJNHwaflGNUIAb-DNHG DECLARATION OF STEVEN C. PECK, ESQ. I, STEVEN C. PECK, declare and state as follows: 1. I am an attorney at law duly admitted t0 practice before all 0f the courts 0f the State of California, and am the attorney of record in this matter for the plaintiffs. The following statements are based upon my personal knowledge 0f this matter, and if called upon t0 testify, I could and would competently testify t0 the matters asserted herein. 2. Attached hereto as Exhibit “1” is a true and correct copy of the operative Complaint. I declare under penalty of perjury under the laws 0f the State 0f California that the foregoing is true and correct. Executed this 25th day 0fNovember 2019, at Van Nuys, California. Steven C. Peck, Esq. EXHIBIT “1” \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: 1QCV341 588 Santa Clara - Civil PECK LAW GROUP, APC Steven C. Peck (SBN 097343) Adam J. Peck (SBN 262549) 6454 Van Nuys Boulevard, Suite 150 Van Nuys, California 9 140 1 - 1407 Telephone: 8 1 8-908-0509 Facsimile: 818-908-1 158 stevenpeck@thepecklawgroup.com Attorneys for Plaintiff Y. Chava Electronically Filed by Superior Court of CA, County of Santa Clara, on 8/8/2019 4:13 PM Reviewed By: Y. Chavez Case #1 9CV341 588 Envelope: 3239449 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA Assurhadoun G. Khofri by and through his Successor-in-Interest, Dorida Yaghoub, Dorida Yaghoub, individually, Plaintiffs, VS. Golden Oak Holdings, LLC dba Vasona Creek Healthcare Center; Kaiser Foundation Hospitals dba Kaiser Foundation Hospital - San Jose; The Permanente Medical Group, Inc.; Kaiser Foundation Health Plan, Inc., and Does 1 through 200, inclusive, Defendants, CASE NO.: 19CV34 1 588 Hon. Peter Kirwan Department 19 FIRST AMENDED COMPLAINT FOR DAMAGES 1. ELDER ABUSE (Pursuant t0 Welfare and Institutions Code §§15600, et. seq.) 2. VIOLATION OF RESIDENTS RIGHTS (Pursuant t0 Health and Safely Code § 1430(b)) 3. WRONGFUL DEATH DEMAND FOR JURY TRIAL Action Filed: Trial Date: January 22, 2019 Not Set COMES NOW Plaintiffs and alleges upon information and belief as follows: THE PARTIES 1. Plaintiff ASSURHADOUN G. KHOFRI (herein referred to as “KHOFRI”), deceased, is an individual Who at all relevant times herein alleged was a resident 0f the County of Santa Clara, State 0f California. KHOFRI died on January 31, 2018, and brings this action by and 1 FIRST AMENDED COMPLAINT FOR DAMAGES \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: through his Successor-in-Interest, Dorida Yaghoub. Upon information and belief, during all relevant times, KHOFRI was under a continuous disability Which caused the inability to clearly communicate, and as such, was insane Within the meaning 0f California Code 0f Civil Procedure §352. 2. Plaintiff DORIDA YAGHOUB is an individual who at all relevant times herein alleged was a resident 0f the County 0f Santa Clara, State 0f California and is the daughter 0f decedent KHOFRI. She brings this action as the decedent's Successor-in-Interest pursuant to Welfare and Institutions Code §15657.3(d), as defined in section 377.11 0f the California Code 0f Civil Procedure, and succeeds t0 the decedent's interest in the instant proceeding in that as the decedent's surviving daughter, she is the beneficiary of the decedent's estate. She is therefore authorized t0 act 0n behalf of the decedent as her Successor-in-Interest and has complied With the filing requirements pursuant t0 Code 0f Civil Procedure section 377.32. She also brings the Wrongful Death cause 0f action individually on her own behalf. 3. Defendant, GOLDEN OAK HOLDINGS, LLC DBA VASONA CREEK HEALTHCARE CENTER (herein referred to as “VASONA”) were at all relevant times in the business of providing long-term custodial care as a licensed 24-hour skilled nursing facility located at 16412 Los Gatos Blvd, Los Gatos, CA 95032 and were subject to the requirements of federal and state law governing the operation of skilled nursing facilities operating in the State 0f California. 4. Defendant, KAISER FOUNDATION HOSPITALS DBA KAISER FOUNDATION HOSPITAL - SAN JOSE (herein referred t0 as “SAN JOSE”) were at all relevant times in the business 0f providing general acute care as a hospital located at 250 Hospital Pkwy, San Jose, Ca 951 19, and were subject t0 the requirements 0f federal and state law governing the operation 0f general acute care hospitals in the State of California. 5. Defendant THE PERMANENTE MEDICAL GROUP, INC., (herein referred to as “PERMANENTE”) located at 1950 FRANKLIN STREET, OAKLAND, CA 94612, was and is a corporation that employs all physicians at Kaiser Hospitals 0f Northern California. 6. Defendant KAISER FOUNDATION HEALTH PLAN, INC, (herein referred t0 2 FIRST AMENDED COMPLAINT FOR DAMAGES \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: as “KHP”) located at ONE KAISER PLAZA, OAKLAND, CA 94612, was and is a corporation that owned, managed, controlled, maintained, and/or operated Kaiser Foundation Hospitals and was subject t0 the requirements 0f federal and state law governing the operation of general acute care hospitals in the State of California. 7. Plaintiff is ignorant 0f the true names and capacities 0f those Defendants sued herein as DOES 1 through 200, and for that reason have sued those Defendants by such fictitious names. Plaintiffs Will seek leave from the court t0 amend this Complaint to identify said Defendants When their identities are ascertained. 8. Defendant VASONA, by and through its corporate officers, directors, and managing agents presently unknown t0 Plaintiffs and according t0 proof at the time 0f trial, ratified the misconduct alleged herein in that they were aware of the understaffing 0f their skilled nursing facilities, in both number and training, the relationship between understaffing and sub-standard provision of care t0 residents and patients of their skilled nursing facilities, including KHOFRI, the unfitness of licensed and unlicensed nursing personnel employed at their skilled nursing facilities, the rash and truth 0f lawsuits against their hospitals and skilled nursing facilities, and their customary practice 0f not adequately responding t0 correct deficiencies issued by the State 0f California’s Department 0f Public Health. That notwithstanding this knowledge, these officers, directors, and/or managing agents meaningfully disregarded the issues even though they knew the understaffing could, would, and did lead t0 unnecessary injuries to the residents and patients of their hospitals and skilled nursing facilities, including KHOFRI. 9. Defendants KAISER, PERMANENTE, KHP, by and through its corporate officers, directors, and managing agents, presently unknown t0 Plaintiffs and according to proof at the time of trial, ratified the misconduct alleged herein in that they were aware of the understaffing 0f their hospitals, in both number and training, the relationship between understaffing and sub-standard provision of care t0 residents and patients 0f their hospitals, including KHOFRI, the unfitness of licensed and unlicensed nursing personnel employed at their hospitals, the rash and truth 0f lawsuits against their hospitals, and their customary practice of not adequately responding t0 correct deficiencies issued by the State 0f California’s Department 0f Public Health. That 3 FIRST AMENDED COMPLAINT FOR DAMAGES \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: notwithstanding this knowledge, these officers, directors, and/or managing agents meaningfully disregarded the issues even though they knew the understaffing could, would, and did lead t0 unnecessary injuries t0 the residents and patients 0f their hospitals and skilled nursing facilities, including KHOFRI. 10. VASONA, KAISER, PERMANENTE, KHP and DOES 1-200 (sometimes collectively referred herein as “DEFENDANTS”) 11. Upon information and belief, it is alleged that the misconduct of the DEFENDANTS, which led to the injuries t0 KHOFRI as alleged herein, was the direct result and product 0f the financial and control policies and practices dictated by and forced upon the their hospitals and skilled nursing facilities by and through the corporate officers and directors enumerated in paragraph 9 ofthe complaint and others presently unknown and according t0 proof at time 0f trial. 12. Based upon information and belief, DOES 1 through 200 were members 0f the “Governing Body” 0f DEFENDANTS responsible for the creation and implementation 0f policies and procedures for the operation 0f their skilled nursing facilities and for supervising the administration 0f the same pursuant to 42 C.F.R. §483.75 . That these members, as executives, managing agents and/or owners 0f the DEFENDANTS, were focused 0n unlawfully increasing the earnings in the operation 0fDEFENDANTS' businesses as opposed t0 providing the legally mandated minimum care to be provided to elder and/or infirm residents in their skilled nursing facilities, including KHOFRI . That the focus 0f these individuals 0n their own attainment 0f profit played a part in the underfunding 0f the skilled nursing facilities Which led t0 DEFENDANTS Violating state and federal rules, laws and regulations and led t0 the injuries and to KHOFRI as alleged herein. 13. The DEFENDANTS were the knowing agents and/or alter-egos 0f one another, and each 0f their officers, directors, and managing agents directed, approved and/or ratified all of the acts and omissions 0f each other, and their agents and employees, thereby making each of them vicariously liable for the acts and omissions 0f their co-defendants, their agents and employees, as is more fully alleged herein. Moreover, through their managing agents, DEFENDANTS and each 0f them, agreed, approved, authorized, ratified and/or conspired to commit all of the acts and omissions alleged herein. 4 FIRST AMENDED COMPLAINT FOR DAMAGES \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: 14. At all relevant times, the DEFENDANTS and each 0f their tortious acts and omissions as alleged herein, were done in concert with one another in furtherance 0f their common design and agreement t0 accomplish a particular result, namely decreasing costs and increasing revenues from the operation of the hospitals and skilled nursing facilities by underfunding and understaffing with an insufficient number of care personnel, many 0f whom were not trained and qualified t0 care for the patients and residents. Moreover, the DEFENDANTS aided and abetted each other in accomplishing the acts and omissions alleged herein. (Restatement (Second) 0f Torts § 876 (1979)). FIRST CAUSE OF ACTION ELDER ABUSE [Against All Defendants and DOES 1-200] 15. Plaintiff hereby incorporates the allegations asserted in paragraphs 1 through 14 0f this Complaint as though set forth at length below. 16. At all relevant times, KHOFRI was over 65 years 01d Who resided in this state, had physical 0r mental limitations that restricted his 0r her ability t0 carry out normal activities, 0r t0 protect his or her rights, including, but not limited t0, physical or developmental disabilities, and Who was admitted as an inpatient t0 a 24-hour health facility pursuant to §1250.3 0f the California Health and Safely Code, and was an “elder” as that term is defined in California Welfare and Institutions Code §15610.27. 17. That DEFENDANTS were t0 provide “care 0r services” to elders, including KHOFRI and were t0 be the “care custodians” ofKHOFRI in a trust and fiduciary relationship with KHOFRI. 18. That the DEFENDANTS “neglected” KHOFRI as that term is defined in Welfare and Institutions Code §15610.57 in that the DEFENDANTS themselves, as well as their employees, failed to exercise the degree of care that reasonable persons in a like position would exercise by denying 0r withholding goods or services necessary t0 meet the basic needs 0f KHOFRI as is more fully alleged herein. 19. As a result 0f the DEFENDANTS’ wrongdoing, KHOFRI suffered physical harm, pain or mental suffering. 5 FIRST AMENDED COMPLAINT FOR DAMAGES \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: 20. The DEFENDANTS had advance knowledge of the unfitness 0f their employees and employed him or her With a conscious disregard 0f the rights 0r safety of others, “authorized 0r ratified the wrongful conduct,” and the DEFENDANTS conduct was “0n the part 0f an officer, director, 0r managing agent 0f the corporation.” (CiV. Code, § 3294, subd. (b).) Admission t0 DEFENDANTS 21. While under the care and treatment 0fDEFENDANTS, KHOFRI suffered from malnutrition, dehydration, sepsis, and other infections Which led to his untimely death. 22. Based on KHOFRI’S prior medical history and assessments, DEFENDANTS, knew that KHOFRI’S health and safety would be put at great risk, especially because he was a dependent person, if he was not provided With necessary supervision as well as needed medical care and services. DEFENDANTS also knew that due t0 KHOFRI’S physical condition, he was unable to provide for his own basic needs and was dependent 0n them for meeting his basic needs such as nutrition, hydration, as well as medical care and health services, assistance and monitoring with feeding, the provision of safety and assistance devices t0 prevent infections. Nevertheless, not only was said care and services routinely withheld from KHOFRI but he was not even provided with the minimum care mandated by federal and/or state nursing home laws even though DEFENDANTS knew it was substantially certain that KHOFRI would suffer injury due t0 the failure t0 provide the care and services he needed and Which was mandated by law. Moreover, the ongoing and repeated nature 0f DEFENDANTS’ failure t0 provide such services and care demonstrates that DEFENDANTS acted With conscious disregard of the high probability that KHOFRI would suffer injury as a result of their failure t0 provide the care and services he needed Which was mandated by law. 23. DEFENDANTS neglected t0 provide medical care for KHOFRI’S physical and mental health needs by failing t0 take all the necessary steps t0 properly care for him. DEFENDANTS failed to adequately inform KHOFRI’S physician 0f the nature and extent 0f him medical issues, and failed t0 adequately and completely carry out doctor’s orders for their treatment and failed t0 adequately and appropriately document KHOFRI’S plan 0f care. 24. DEFENDANTS’ neglect of KHOFRI was reckless, oppressive, and malicious. Specifically, the individuals Who cared for KHOFRI knew that taking the necessary precautions t0 prevent him from incurring malnutrition, dehydration, sepsis, and other infections, was critical t0 6 FIRST AMENDED COMPLAINT FOR DAMAGES \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: his health, well-being, and prognosis. By failing to address KHOFRI’S patient care issues, DEFENDANTS knew that it was highly probable that he would suffer injury. 25. KHOFRI’S injuries would not have occurred had the DEFENDANTS simply adhered to applicable rules, laws and regulations, as well as the acceptable standards of practice governing the operation 0f a skilled nursing facility and general acute care hospitals. 26. DEFENDANTS were in Violation 0f Title 42 C.F.R. 483.10(b)(1)&(11), Title 22 C.C.R. section 72311(a) and 72527(a)(3), DEFENDANTS’ failed t0 report the status 0f the deteriorating and changing condition of KHOFRI’S hydration and nutritional status t0 his attending physician 0r family. In further Violation 0f Title 42 C.F.R. 483.20(k)(ii), neither KHOFRI’S attending physician 0r family was asked t0 participate in an interdisciplinary team care plan meeting t0 ensure he was receiving the treatment he needed to stay properly hydrated and nourished. 27. In Violation 0f 42 C.F.R. Section 483.750), DEFENDANTS’ records containing KHOFRI’S records were not complete 0r accurate. Additionally, neither the notes 0f the nurses complied with Title 22 C.C.R. Section 72547(a)(5). Moreover, DEFENDANTS’ personnel consistently failed t0 document the true status of KHOFRI’S decubitus ulcer, his hydration and/or the infection, Which progressively worsened under the care 0fDEFENDANTS. As a result, he was denied the needed medical care because other health professionals and service providers detrimentally relied 0n the fraudulent, inaccurate and/or incomplete records in evaluating and ordering care and services and based 0n those records did not order necessary care and services that would have been ordered had the records been true, accurate and complete. Further, DEFENDANTS’ staff failed to maintain KHOFRI’S records with the appropriate and correct patient records. 28. That as a direct result 0f the chronic understaffing at DEFENDANTS’ facilities in both number and training, DEFENDANTS failed t0 provide KHOFRI with proper care t0 prevent infections, and failed t0 ensure that KHOFRI received adequate hydration and nutrition t0 starve off infections, and failed t0 timely react to KHOFRI’S emergent conditions including the development 0f entirely preventable and treatable infections. KHOFRI suffered these injuries 7 FIRST AMENDED COMPLAINT FOR DAMAGES \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: because the DEFENDANTS’ staff simply did not have adequate time 0r the inclination t0 provide him with the required care and t0 document and address his emergent conditions. These injures were entirely preventable had there been sufficient staff on duty, in both number and competency, t0 actually implement the protections required by the DEFENDANTS’ own Plan 0f Care and Physician Orders and assessments for KHOFRI. Unfortunately, there was not sufficient staff 0n duty at the DEFENDANTS’S facilities t0 implement the protections called for in KHOFRI’S Plan of Care and Physician Orders and assessments for KHOFRI and he suffered the painful and preventable injuries alleged herein. 29. That KHOFRI’S infections, malnutrition, dehydration, went unnoticed 0r untreated by the facility staff simply because they did not have adequate staff, 0r adequately trained and supervised staff, and because staff was unfit to provide nursing care to elderly and dependent residents. 30. Accordingly, decisions by the DEFENDANTS as t0 staffing and census were made irrespective 0f patient and resident population needs Within the facility and hospital, but rather, were determined by the financial needs 0f the companies. 3 1. Minimum staffing of personnel in VASONA was dependent by law upon the acuity (need) level 0f the patients of VASONA. VASONA residents’ acuity level during the residency 0f KHOFRI in VASONA was so high that the required “minimum” staffing ratios exceeded the applicable numeric minimum requirement of Health and Safely Code §1276.5 pursuant t0 the provisions 0f Title 22 C.C.R. §§72515(b). During the residency of KHOFRI in the VASONA, VASONA did not meet these minimum staffing requirements based 0n its residents’ acuity levels, including KHOFRI. 32. DEFENDANTS represented t0 the general public and t0 KHOFRI and/or his family members, that DEFENDANTS were sufficiently staffed s0 as t0 be able to meet the needs 0f KHOFRI and that DEFENDANTS operated in compliance With all applicable rules, laws and regulations governing the operation of general acute care hospitals and skilled nursing facilities in the State of California. These representations were, and are, false. 33. In the operation 0f DEFENDANTS’ facilities, DEFENDANTS and each 0f them, 8 FIRST AMENDED COMPLAINT FOR DAMAGES \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: held themselves out t0 the general public Via websites, brochures, admission agreements and other mechanisms presently unknown to Plaintiffs and according to proof at time 0f trial, t0 KHOFRI and others similarly situated, that their skilled nursing facilities provided services Which were in compliance with all applicable federal and state laws, rules and regulations governing the operation 0f a general acute care hospital and skilled nursing facility in the State of California. In the operation 0f DEFENDANTS’ facilities, DEFENDANTS held itself out t0 KHOFRI and/or his family members that DEFENDANTS would be able to meet the needs of KHOFRI. These representations 0f the nature and quality of the nature 0f services t0 be provided were, in fact, false. 34. At all relevant times hereto, KAISER, PERMANENTE, KHP was aware of the legally mandated minimum staffing ratios and requirements 0f general acute care hospitals as set forth in Title 22 C.C.R. §70217. KAISER, PERMANENTE, KHP was also aware that Where they failed t0 meet their regulatory requirement, injuries such as those suffered by KHOFRI could, would, and did occur. Notwithstanding their knowledge and requirement 0f law, DEFENDANTS failed t0 comply with their regulatory requirement proximately causing injury t0 KHOFRI. 35. That at all times relevant hereto, DEFENDANTS owed a duty t0 KHOFRI pursuant to Title 22 C.C.R. §70211 and promised t0 provide nursing service that was organized, staffed, equipped and supplied to meet the needs of KHOFRI. DEFENDANTS did not comply with their requirement 0f law in their care ofKHOFRI thereby causing injury t0 KHOFRI. 36. That at all relevant times hereto, DEFENDANTS owed a duty t0 KHOFRI pursuant t0 Title 22 C.C.R. §70213, and promised to develop, maintain, and implement written policies and procedures for patient care including assessment, nursing diagnosis, planning, intervention, and evaluation. DEFENDANTS did not comply With their requirement of law in their care ofKHOFRI thereby causing injury to KHOFRI. 37. KAISER owed a duty t0 KHOFRI pursuant t0 Title 22 C.C.R. §70215(a)(1) t0 provide an ongoing patient assessment. DEFENDANTS did not comply With their requirement 0f law in their care ofKHOFRI thereby causing injury to KHOFRI. 38. KAISER owed a duty t0 KHOFRI t0 provide planning and delivery of KHOFRI’S 9 FIRST AMENDED COMPLAINT FOR DAMAGES \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: care including assessment, diagnosis, planning, intervention, and evaluation pursuant to Title 22 C.C.R. §70215(b). DEFENDANTS did not comply With their requirement of law in their care of KHOFRI thereby causing injury t0 KHOFRI. 39. KAISER owed a duty to KHOFRI to provide a written, organized in service education program for its patient care personnel pursuant to Title 22 C.C.R. §70214. DEFENDANTS did not comply With their requirement 0f law in their care 0f KHOFRI thereby causing injury to KHOFRI. 40. KAISER owed a duty to KHOFRI t0 provide services with a sufficient budget and staffing t0 meet KHOFRI’S care needs pursuant t0 Title 22 C.C.R. §70217 and 42 C.F.R. §482.23(b). KAISER did not comply with their requirement 0f law in their care 0f KHOFRI thereby causing injury to KHOFRI. 41. KAISER owed a duty t0 KHOFRI to provide services and activities t0 attain 0r maintain the highest practicable physical, mental, and psychosocial well-being 0f each patient in accordance With a written plan 0f care pursuant t0 22 C.C.R. §70709. KAISER did not comply With their requirement 0f law in their care 0fKHOFRI thereby causing injury t0 KHOFRI. 42. KAISER owed a duty t0 KHOFRI pursuant t0 42 C.F.R. §482.28(b)(2) in that nutritional needs must be met in accordance With recognized dietary practices and in accordance With orders 0f the practitioner or practitioners responsible for the care 0f the patients. KAISER did not comply with their requirement of law in their care 0f KHOFRI thereby causing injury to KHOFRI. 43. The DEFENDANTS owed a duty to KHOFRI, to provide him With the necessary custodial and professional care t0 attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance With the comprehensive assessment and plan of care, as required by 22 C.C.R. §72515(b). The facility failed to meet their duty t0 KHOFRI thereby causing him injury. 44. VASONA owed a duty t0 KHOFRI t0 respect his right t0 be free from mental and physical abuse, which right is protected by 22 C.C.R. §72527(a)(9). VASONA failed to meet their duty t0 KHOFRI thereby causing him injury. 10 FIRST AMENDED COMPLAINT FOR DAMAGES \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: 45. VASONA owed a duty t0 KHOFRI t0 notify a physician 0f any sudden and marked adverse change in signs, symptoms, 0r behavior exhibited by a patient, Which right is protected by 22 C.C.R. §72311(3)(b). VASONA failed t0 meet their duty to KHOFRI thereby causing him injury. 46. VASONA owed a duty t0, and represented they would, provide services to KHOFRI pursuant t0 22 C.C.R. §72329 t0 have sufficient number 0f personnel 0n duty at the facilities 0n a 24-hour basis to provide appropriate custodial and professional services to KHOFRI in accordance with KHOFRI resident care plans. VASONA did not provide these legally required services. VASONA failed t0 meet their duty t0 KHOFRI thereby causing him injury. 47. Title 22 C.C.R. §72311 and 42 C.F.R. §483.20 mandates that a skilled nursing facility, such as VASONA, shall provide, and VASONA promised to provide KHOFRI With, nursing service Which shall include an individual, written plan 0f care Which indicates the care t0 be given, and the objectives t0 be accomplished and which shall be updated as frequently as necessary, including when a resident undergoes a change in condition. VASONA represented that they would provide services consistent With the regulations yet failed t0 d0 so causing injury to KHOFRI. 48. Title 22 C.C.R. §72315 mandates that a skilled nursing facility, such as VASONA, provide, and VASONA represented that they would provide each patient with good nutrition and with necessary fluids for hydration. VASONA represented that they would provide services consistent with the regulations yet failed t0 d0 so causing injury to KHOFRI. 49. Title 22 C.C.R. §72517 mandates that a skilled nursing facility, such as VASONA, have an ongoing education program planned and conducted for the development and improvement of necessary skills and knowledge for all facility personnel Which shall include: the prevention and control of infections, and preservation of resident dignity. VASONA represented that they would provide services consistent with the regulations yet failed t0 d0 s0 causing injury t0 KHOFRI. 50. While KHOFRI was in the care and custody 0f DEFENDANTS, DEFENDANTS recklessly neglected KHOFRI by breaching their duties 0f care owed to KHOFRI in failing to provide KHOFRI with the care and treatment t0 which he was entitled as a dependent citizen 0f 11 FIRST AMENDED COMPLAINT FOR DAMAGES \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: California. These failures included, but are not limited to: failing to prevent the development of infections and urinary tract infections, failing t0 report his change of condition and providing timely care, failing t0 developing and implementing care plans, failing t0 provide hydration support to prevent dehydration, failing t0 treat the infections, failing to assist with personal hygiene resulting in skin breakdown to KHOFRI’S body, failing t0 provide staff With the knowledge, skills and competencies to care for residents with infection, and the risks that exist for potential weight loss, and failing to prevent KHOFRI from experiencing pain and suffering. 5 1. The injuries suffered by KHOFRI were the result of the DEFENDANTS’ illegal and reckless plan and effort t0 cut costs in the operation 0f their facilities and in other ways as alleged, t0 usurp the sole legal responsibility of the facility Administrator and governing body in the planning and operation 0f the facilities, and thereby in the undertaking assumed all 0f the responsibilities 0f the facilities, including the duty 0f due care and compliance with all legal standards applicable t0 general acute care hospitals and skilled nursing facilities. In doing so, the DEFENDANTS knew 0r should have known that their staff would be unable to comply With the standards for care set forth above, and other legal standards, all at the expense 0f their residents such as KHOFRI. Integral t0 their plan was the practice and pattern of staffing with an insufficient number 0f service personnel, many of whom were not properly trained or qualified to care for the elders and/or dependent adults, whose lives were entrusted t0 them. The “under staffing” and “lack 0f training” plan was designed as a mechanism as t0 reduce labor costs and predictably and foreseeably resulted in the abuse and neglect 0f many residents and patients and most specifically, KHOFRI. 52. At all times herein mentioned, the DEFENDANTS had actual and/or constructive knowledge 0f the unlawful conduct and business practices alleged herein, yet represented to the general public and KHOFRI that their facilities would provide care that met all applicable legal standards. Moreover, such unlawful business practices were mandated, directed, authorized, and/or personally ratified by the officers, directors and/or managing agents of the DEFENDANTS as set forth in paragraph 9, and other management personnel Whose names are presently unknown t0 the KHOFRI and according t0 proof at time 0f trial. 12 FIRST AMENDED COMPLAINT FOR DAMAGES \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: 53. The DEFENDANTS, by and through the corporate officers, directors and managing agents set forth in paragraph 9, and other corporate officers and directors presently unknown t0 KHOFRI and according t0 proof at time 0f trial, authorized and ratified the conduct of their co- defendants in that they were, or in the exercise of reasonable diligence should have been, aware 0f the understaffing, in both number and training, the relationship between understaffing and sub- standard provision 0f care t0 the residents, including KHOFRI, and the DEFENDANTS practice of being issued deficiencies by the State 0f California's Department of Public Health in the State 0f California. Furthermore, the DEFENDANTS, by and through the corporate officers and directors enumerated in paragraph 9, and others presently unknown t0 KHOFRI and according t0 proof at time 0f trial, ratified the conduct of themselves and their co-defendants in that they were aware that such understaffing and deficiencies would lead to injury to the residents, including KHOFRI and insufficiency 0f financial budgets t0 lawfully operate their facilities. The ratification by the DEFENDANTS itself, is that ratification 0f the customary practice and usual performance 0f the DEFENDANTS as set forth in Schnafel v. Seaboard Finance Company, (1951) 108 Ca1.App.2d 420, 423-424. 54. Upon information and belief, the DEFENDANTS enacted, established, and implemented the financial plan and scheme which led to their facilities being understaffed, in both number and training, by way 0f imposition 0f financial limitations on their facilities in matters such as, and without limiting the generality 0f the foregoing, the setting 0f financial budgets which clearly did not allow for sufficient resources to be provided to KHOFRI. These choices and decisions were, and are, at the express direction of the management personnel including the corporate officers and directors enumerated in paragraph 9, and others presently unknown t0 KHOFRI and according to proof at time of trial, having power to bind as set forth in McInerney v. United Railroads 0f San Francisco, (1920) 50 Ca1.App.538, 549; Bertero v. National General Corporation (1974) 13 Cal. 3d 43, 67. 55. The corporate authorization and enactment 0f the DEFENDANTS, alleged in the preceding paragraphs, constituted the permission and consent 0f the facilities’ misconduct by the DEFENDANTS, by and through the corporate officers and directors enumerated in paragraph 9, 13 FIRST AMENDED COMPLAINT FOR DAMAGES \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: and others presently unknown to KHOFRI and according to proof at time of trial, who had within their power the ability and discretion to mandate that they employ adequate staff to meet the needs 0f their patients, including KHOFRI, as required by applicable rules, laws and regulations governing the operation of general acute care hospitals and skilled nursing facilities in the State of California. The conduct constitutes ratification 0f the facilities” misconduct by DEFFENDANTS, Which led t0 injury t0 KHOFRI as set forth in O’Hara v. Western Seven Trees Corp, (1977) 75 Cal.App.3d. 798, 11806 and Kisesky v. Carpenters Trust for S0. Cal (1983) 144 Cal.App.3d 222,235. 56. Plaintiffs have reason to believe that the focus and intent t0 carry out the above strategies t0 increase revenues and profit margins and t0 decrease costs caused widespread neglect of patients, including KHOFRI. 57. Due t0 the DEFENDANTS’ direct conduct, as well as their practice 0f aiding and abetting the wrongful acts and omissions alleged herein, KHOFRI suffered malnutrition, dehydration, sepsis, and other infections, and death. These injuries were not the product 0f isolated failures but rather the result 0f prolonged neglect and abuse that arose out 0f four (4) calculated business practices by DEFENDANTS: (1) Understaffing; (2) relentless marketing and sales practices t0 increase resident and patient census despite knowledge 0f ongoing care deprivation; (3) ongoing practice of utilizing unqualified and untrained employees Who, by law, were forbidden by law to administer nursing care t0 residents; and (4) ongoing practice 0f recruiting heavier care residents for Which the nursing home received higher reimbursements, despite the dangerous levels of staff who were incapable of meeting the needs of the existing resident population. 58. The injuries suffered by KHOFRI and the misconduct by the DEFENDANTS, and each of them, as alleged herein, resulted from the DEFENDANTS failure t0 provide basic custodial care t0 KHOFRI. 59. Thus, the specified acts 0f neglect alleged herein constitute neglect 0f "custodial" duties, not “professional” duties. N0 professional license is required t0 ensure that KHOFRI was cleaned, supervised, monitored, and provided With preventative measures, provided With proper 14 FIRST AMENDED COMPLAINT FOR DAMAGES \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: nutrition, provided with proper hydration or otherwise not neglected. N0 professional license is required t0 ensure that DEFENDANTS’ facilities not be underfunded 0r inadequately staffed. In sum, the acts and omissions alleged herein are acts 0r omissions related t0 "custodial" services, not “professional” services. 60. The Violations of state and federal laws and regulations as specifically set forth herein as alleged against DEFENDANTS are not meant to limit the generality 0f the allegations contained herein, but are merely illustrative 0f the depth 0f the DEFENDANTS’ malicious, oppressive, fraudulent and/or reckless conduct. 61. The state and federal regulations set forth hereinabove set the standard 0f care in the nursing home industry and help define the care duty to patients, and said regulations are appropriate in determining whether the facilities conduct amounted to physical abuse, neglect, recklessness, oppression, 0r malice. (Lindsey Fenimore v. Regents 0f the University 0f California (2016) 245 Cal.App.4th 1339, Norman v. Life Care Centers 0f America, Inc. (2003) 107 Ca1.App.4th 1233, and Gregory v. Beverly Enterprises (2000) 80 Ca1.App. 4th 514). 62. As a direct result 0f the DEFENDANTS conduct as alleged herein, DEFENDANTS allowed KHOFRI to suffer pain, indignity, humiliation, and injury, which were entirely preventable had DEFENDANTS provided enough sufficiently trained staff at their facilities t0 provide KHOFRI with the amount of care, monitoring, and supervision that state and federal regulations required. 63. In addition t0 their direct liability for the abuse and neglect 0f KHOFRI, the DEFENDANTS ratified the mistreatment 0f KHOFRI. Knowing of KHOFRI’S injuries, and knowing of his neglect, DEFENDANTS failed to terminate, discipline, reprimand, or otherwise repudiate the acts and omissions of any employee due to or based upon the care, treatment, monitoring or supervision, 0r lack thereof, rendered t0 KHOFRI. 64. KHOFRI suffered pain and suffering as a result of the DEFENDANTS’ abuse and neglect as alleged herein. DEFENDANTS are responsible for that pain and suffering as well as all subsequent damages and expenses that were incurred in treating KHOFRI for the injuries she suffered at the hands ofDEFENDANTS. 15 FIRST AMENDED COMPLAINT FOR DAMAGES \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: SECOND CAUSE OF ACTION VIOLATION OF RESIDENTS RIGHTS [Against VASONA and DOES 1-100] 65. Plaintiff hereby incorporates the allegations asserted in paragraphs 1 through 64 above as though set forth below. 66. Health and Safely Code §1430(b) provides that “a current 0r former resident or patient of a skilled nursing facility as defined in subdivision (c) of section 1250 . . . may bring a civil action against the licensee of a facility who violates any rights 0f the resident 0r patient as set forth in the Patients’ Bill 0f Rights in Section 72527 0f Title 22 0f the California Code 0f Regulations [which incorporates Health and Safely Code §1599. 1], 0r any other right provided for by federal 0r state law 0r regulation.” 67. At all relevant times, GOLDEN OAK HOLDINGS, LLC was the licensee 0f skilled nursing facility known as VASONA CREEK HEALTHCARE CENTER. ALLEGATIONS AGAINST VASONA 68. For the reasons set forth above and incorporated herein by reference, and for further reasons as will be presented at trial, VASONA failed t0 treat KHOFRI With respect, consideration, and full recognition of dignity in care 0f her personal needs as required by the Patient’s Bill of Rights and other rights provided by federal 0r state law or regulation. VASONA and violated these rights ofKHOFRI, including, but not limited to: a. Title 22 C.C.R. §72527(a)(12), Which mandates that a resident shall be treated With consideration, respect and full recognition of dignity and individuality, including privacy in treatment and in care 0f personal needs. VASONA violated this regulation by failing t0 prevent TAMAIZO from developing pressure ulcers during her residency at VASONA. b. Title 22 C.C.R. §72527(a)(25), Which incorporates by reference the rights enumerated in Health and Safely Code §1599.1, Which mandates that the “facility shall employ an adequate number 0f qualified personnel t0 carry out all 0f the functions 0f the facility .” (Health and Safely Code §1599.1(a)). VASONA violated this regulation by understaffing it’s facility in quality and quantity 0f staff during KHOFRI’S residency. 16 FIRST AMENDED COMPLAINT FOR DAMAGES \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: c. Title 22 C.C.R. §72527(a)(25), Which incorporates by reference the rights enumerated in Health and Safety Code §1599.1, which mandates that “The facility shall provide food 0f the quality and quantity t0 meet the patients’ needs in accordance with physicians’ orders.” (Health and Safely Code §1599.1(c). VASONA violated this regulation by failing to prevent KHOFRI from developing malnutrition, dehydration, sepsis, and other infections during his residency at VASONA. d. Title 42 C.F.R. §483.25, Which mandates that a skilled nursing facility, such as the facility, must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance With the comprehensive assessment and plan 0f care. VASONA violated this regulation by failing to prevent KHOFRI from developing malnutrition, dehydration, sepsis, and other infections during his residency at VASONA. e. Title 42 C.F.R. §483.10(b)(11), stating that residents have the right t0 have all significant changes 0f condition reported t0 them, their families, and their physicians immediately. VASONA violated this regulation by failing t0 advise KHOFRI’S family 0f the existence and nature of his malnutrition, dehydration, sepsis, and other infections during his residency at VASONA. f. Title 22 C.C.R. §72315(g), Which mandates that a skilled nursing facility provide that each patient requiring help in eating shall be provided with assistance when served, and shall be provided with training or adaptive equipment in accordance With identified needs, based upon patient assessment, to encourage independence in eating. VASONA violated this regulation by failing to prevent KHOFRI from becoming malnourished, dehydrated during his residency at VASONA. g. Title 22 C.C.R. §72315(h), which mandates that a skilled nursing facility provide that each patient shall be provided with good nutrition and with necessary fluids for hydration. VASONA violated this regulation by failing t0 prevent KHOFRI from becoming malnourished and dehydrated during his residency at VASONA. 69. While a resident of VASONA, KHOFRI’S rights were repeatedly violated. 17 FIRST AMENDED COMPLAINT FOR DAMAGES \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: KHOFRI developed malnutrition, dehydration, sepsis, and other infections as a result 0f the above mentioned Violations by VASONA. 70. Most notably while at VASONA, KHOFRI developed and suffered from malnutrition, dehydration, sepsis, and other infections. 71. These injuries would not have occurred had VASONA simply adhered to the applicable rules, laws, and regulations, as well as the acceptable standards of practice governing the operation 0f a skilled nursing facility. 72. One 0f the purposes 0f Health and Safety Code §1430(b) is t0 protect against the type 0f injuries that KHOFRI sustained. 73. KHOFRI is a member 0f a group 0f persons that Health and Safely Code §1430(b) is intended t0 protect. 74. Among other remedies, Health and Safely Code §1430(b) authorizes the recovery 0f damages up t0 $500.00 and mandatory attorneys’ fees and costs. These remedies are cumulative t0 any other remedies provided by law. THIRD CAUSE OF ACTION WRONGFUL DEATH [Against All Defendants, and DOES 1-200] 75. Plaintiffs hereby incorporate the allegations asserted in paragraphs 1 through 74 above as though set forth below. 76. Dorida Yaghoub, individually, is the surviving heirs of decedent KHOFRI. 77. DEFENDANTS owned statutory and common law duties t0 KHOFRI as more fully set forth above. 78. That the DEFENDANTS failed t0 meet their statutory and common law duties t0 KHOFRI as more fully set forth above. 79. As a proximate result 0f negligence and “neglect” as that term is defined in Welfare & Institutions Code §15610.57 as more particularly alleged above perpetrated by all of the DEFENDANTS, and each of them, KHOFRI died 0n January 3 1 , 2018. 80. Prior t0 the death 0f KHOFRI, Dorida Yaghoub, individually, enjoyed the love, 18 FIRST AMENDED COMPLAINT FOR DAMAGES \OWQQUIAUJNH NNNNNNNNNHHHHHHHHHH “\IQUIhUJNHwaflGNUIAb-DNHG society, comfort, and attention ofKHOFRI. 81. As a proximate result 0f the negligent acts (both negligence and neglect as that term is defined in Welfare & Institutions Code §15610.57) 0f all 0f the DEFENDANTS as alleged herein, DORIDA YAGHOUB, individually, has sustained loss of the society, comfort, attention, and love ofKHOFRI in a sum according t0 proof at trial and Within the jurisdictional limits 0f this Court. WHEREFORE, PLAINTIFFS pray for judgment and damages as follows: 1. For general damages according t0 proof; 2. For special damages according to proof; 3. For attorney’s fees and costs pursuant t0 Welfare and Institutions Code §15657(a) (As to the First Cause of Action only); 4. For exemplary and punitive damages pursuant to Civil Code §3294 (As t0 the First Cause of Action only); 5. For attorney’s fees and costs pursuant t0 Health and Safely Code §1430(b) (As t0 the Second Cause of Action only); 6. For costs of suit; and 7. For such other and further relief as the Court deems just and proper. DATED: August 8, 2019 PECK LAW GROUP, APC Steven C. Peck, Esq. Attornevs for Plaintiffs 19 FIRST AMENDED COMPLAINT FOR DAMAGES \OWQQUIkUJNH NNNNNNNNNHHHHHHHHHH “\IQUIhUJNchmQGNUIBMNHG PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State 0f California. I am over the age 0f 18 and not a party t0 the action; my business address is 6454 Van Nuys Boulevard, Suite 150, Van Nuys, California 91401. On November 25, 2019, I served the foregoing document described as set forth below on the interested parties in this action by placing true copies thereof enclosed in sealed envelopes, at Van Nuys, addressed as follows: Document Served: OPPOSITION TO GOLDEN OAK HOLDINGS, LLC dba VASONA CREEK HEALTH CARE CENTER’S PETITION TO COMPEL ARBITRATION AND MOTION TO STAY ACTION; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF STEVEN PECK ESQ. Person(s) Served: See Attached SERVICE / MAILING LIST XX (BY OVERNIGHT DELIVERY/ EXPRESS MAIL) I enclosed said document(s) in a sealed envelope 0r package provided by an overnight delivery carrier to each addressee. Iplaced the envelope 0r package, delivery fees paid for, for collection and overnight delivery at an office 0r at regularly utilized drop box maintained by the express service carrier at 6454 Van Nuys Blvd. #150 Van Nuys, California 91401. fl (STATE) I declare under penalty of perjury under the laws 0f the State 0f California that the above is true and correct. = (FEDERAL) I declare that I am employed in the office of a member of the bar of this court at Whose direction the service was made. EXECUTED at Van Nuys, California 0n November 25, 2019 Declarant, Kevin Hodgkinson 1 PROOF OF SERVICE \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: SERVICE / MAILING LIST Khofri v. Golden Oak Holdings, et al. Santa Clara Superior Court Case N0. 19CV341588 Jason Curliano, Esq. BUTY & CURLIANO 516 16m Street Oakland, CA 94612 Tel: (510) 267-3000 Fax: (510) 267-01 17 Attorneys for Defendant Kaiser Foundation Hospitals and Kaiser Foundation Health Plan, Inc. William Wilson, Esq. Kim S. Cruz, Esq. WILSON GETTY LLP 12555 High Bluff Drive, Suite 270 San Diego, CA 92130 Tel: (858) 847-3237 Fax: (858) 847-3365 Attorneys for Defendant Golden Oak Holdings, LLC dba Vasona Creek Healthcare Center Denise Ngo, Esq. MARION’S INN LLP 1611 Telegraph Avenue, Suite 707 Telephone: (5 10) 45 1 -6770 Facsimile: (5 1 0) 45 1 - 1 711 Attorneys for Defendant Kaiser Foundation Health Plan, Inc. and Kaiser Foundation Hospitals 2 PROOF OF SERVICE
