Opposition Objections

Cal. 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 S. Crabtn Electronically Filed by Superior Court of CA, County of Santa Clara, on 11/20/2019 4:45 PM Reviewed By: S. Crabtree Case #1 9CV341 588 Envelope: 36781 10 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 Walnut 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, CASE NO.:19CV341588 Assigned t0 the Hon. Peter Kirwan Dept. I9 OPPOSITION TO KAISER FOUNDATION HOSPITAL’S PETITION TO COMPEL ARBITRATION AND MOTION TO STAY ACTION; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF STEVEN PECK ESQ. DATE: December 5, 2019 TIME: 9:00 a.m. DEPT.: 13 Action Filed: Trial Date: January 22, 20 1 9 None Set I OPPOSITION TO DEFENDANTS MOTION TO COMPEL ARBITRATION Be \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: TABLE OF CONTENTS Page I. INTRODUCTION ................................................................................................................. 1 II. STANDARD OF REVIEW .................................................................................................. 3 III. THE MEDICARE ACT DOES NOT PREEMPT APPLICATION OF CALIFORNIA HEALTH & SAFETY CODE SECTION 1363.1 TO PRECLUDE ENFORCEMENT OF THE CONTRACTUAL ARBITRATION PROVISION IN THIS CASE .......................................................................................... 4 IV. THE SUBJECT ARBITRATION AGREEMENT IS NOT GOVERENED BY THE FEDERAL ARBITRATION ACT .......................................................... 6 V. CALIFORNIA HEALTH & SAFETY CODE §1363.1 DICTATES THAT MANDATORY DISCLOSURES SHALL BE MADE IN ORDER FOR PROSPECTIVE ENROLLEES TO WAIVE THEIR CONSTITUTIONAL RIGHT TO A JURY TRIAL .............................................................................................................. 8 VI. THE PURPORTED EVIDENCE OF COVERAGE ARBITRATION PROVISION ALSO FAILS TO COMPLY WITH THE CALIFORNIA HEALTH & SAFETY CODE §1363.1 MANDATORY DISCLOSURES AND IS NOT LEGALLY ENFORCEABLE ................................................................................................................ 1 O VII. THE EOC 2018 ARBITRATION AGREEMENT FAILS TO COMPLY WITH CALIFORNIA CODE 0F CIVIL PROCEDURE § 1295 ........................................................ 12 VIII. MICRA OR NOT MICRA .......................................................................... 13 IX. APPLICABILTY OF THE ARBITRATION AGREEMENT TO DORIDA. and GOLDEN ...................................................................................................... 1 6 X. THE COURT SHOULD USE ITS DISCRETION Under Code ofCivil Procedure §1281.2(c) TO DENY THE PETITION TO COMPEL ARBITRATION AVOID CONFLICTING RULINGS ................................................................................................ 18 XI. CONCLUSION ................................................................................................................... 25 II OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: TABLE OF AUTHORITIES Cases Avila v. Southern California Specially Care, Inc. Page(s) (2018) 20 Cal. App. 5th 835 .......................................... 2, 19, 20, 21, 22, 23, 24, 25 Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal. App. 4th 348, 356............................................... Condee v. Longwood Management Corp. (2001) 88 Caz. App. 4th 215, 218-219........................................ Camus Investments, Inc. v. Concierge Services (2005) 35 Ca1.4th 376, 393 .................................................... Donald Imbler v. Pacificare ofCalifornia, Inc. ez‘ al. (2002) 103 Cal.App.4rh 567.................................................... Engalla v. Permanente Medical Group, Inc. (1997) 15 Caz. 4th 951, 972 ................................................... Erickson v. Aetna Health Plans ofCalifomia, Inc. (1999) 71 Cal. App. 4th 646 ..................................................... Malek v. Blue Cross ofCalifornia, ......................2 ....................... 3 .................. 3, 19 .................... 1,6 .......................3 .....................3,6 (2004)121 Cal.App.4th 44, 61 ............................................................... 9, 11, 12 Main v. Merrill Lynch, Pierce, Fenner & Smith (1977) 67 Caz. App. 3d 19, 32 ................................................ Medeiros v. Superior Court, (2007)]46 Cal.App.4th I 008, I01 7 ........................................... Pagarian v. Libby Care Center, Inc. (2002) 99 Cal. App. 4th 298, 301 ............................................. Robertson v. Health Net 0fCalif0rnia, Ina, (2005) I32 Cal.App.4th I419, I429 .......................................... Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Caz. 4th 394, 413 .................................................................... Smith v. PacifiCare Behavioral Health ofCal, Inc. ..................,4,17 ................. 3,8,9 .......................3 ................ 8, 9, 12 ...........................3,4 (2001) 93 Cal.App.4th I39, I43, 113 Cal.Rptr.2d 140 .................................. 3, 4, 6, 7 United States v. South-Eastem Underwriters Assn. (1944) 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440 ....................... Zolezzi v. Pacificare ofCalifomia 105 Cal.App.4th 573 (2003)129 Cal.Rptr.2d 526 .......................... /// III OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION ...................... 6 ...................... 1 \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: m Health & Safely Code Section 1340 ............................................................................. 1 California Health and Safely Code Section 1363.1 .................. 1, 2, 4, 5, 6, 7, 8, ,9, 10 ,1 1, 12 California Code ofCivil Procedure Sections 1281.2 ..................................... 1, 2, 3, 18, 19 Code ofCivil Procedure §1280 ............................................................................. 3 California Code ofcz'vil Procedure Section 1295 ...................2, 5, 8, 12, 13, 14, 15, 16, 18, 19 IV OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIAUJNH NNNNNNNNNHHHHHHHHHH WQQUI£UJNHG©WQONUIhMNHG TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that ASSURHADOUN G. KHOFRI, by and through his Successor-in-interest, Dorida Yaghoub, DORIDA YAGHOUB, individually, hereby submits the following Memorandum 0f Points & Authorities in Opposition t0 Defendant Kaiser Foundation Hospital, et a1. Petition t0 Compel Arbitration made pursuant t0 California Code 0f Civil Procedure Sections 1281.2 and 1281.4 only. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendant Kaiser Foundation Hospitals (“Kaiser”) Petition to Compel Arbitration is not enforceable as a matter of law and must be denied since Defendant has failed t0 meet its burden 0f establishing the existence of a valid arbitration agreement. a) There is n0 competent declaration filed in support of Kaiser’s petition, nor any evidence before this court, substantiating that Kaiser is licensed in accordance with the Knox- Keene Health Care Service Plan Act 0f 1975, as amended, Health & Safety Code Section 1340 et seq., and that Kaiser is a health care service plan that arranges for and facilitates the provision 0f health services for employer groups with which they contract. b) Kaiser asserts that The Medicare Act Preempts the Application of Section 1363.1 0f the California Health and Safely Code in their attempt t0 enforce the purported Contractual Arbitration Provision . The Violation of California Health and Safety Code Section 1363.1 shall preclude the legal enforcement of any purported Contractual Arbitration Provision. See Zolezzz' v. Pacificare 0f California, 105 Ca1.App.4th 573 (2003)129 Cal.Rptr.2d 526 c) The subject arbitration agreement is not governed by the Federal Arbitration Act. Please see Health & Safely Code Section 1363.1 and Donald Imbler v. Pacificare 0f California, Inc. et al. (2002) 103 Ca1.App.4th 567. The matter is being brought pursuant t0 California Code 1 OPPOSITION TO DEFENDANTS MOTION TO COMPEL ARBITRATION \OWQQUIhUJNH NNNNNNNNNHHHHHHHHHH WQQUI£UJNHG©WQONUIhMNHG ofCivil Procedure Sections 1281.2 and 1281.4 only. d) The purported Arbitration Disclosures are Not "Prominently Displayed, See California Health and Safely Code Section 1363.1(b). e) The Kaiser Arbitration Disclosure Does Not Stand Out and Is Not Readily Noticeable. See California Health and Safely Code Section 1363.1(b) f) The Arbitration Agreement does not comply With California Code 0f Civil Procedure Section 1295(a). See also California Health and Safely Code Section 1361.3(0). g) This case involves a Third-Party Co-Defendant (GOLDEN) and an individual wrongful death claimant (DORIDA) n_0t parties t0 the arbitration agreement. Therefore, this Court should use its absolute discretion to deny the instant petition pursuant t0 Code 0f Civil Procedure section 1281.2(0), due to the absolute risk of conflicting rulings on common issues 0f law 0r fact and they may not be compelled t0 arbitrate their claims. Please see Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal. App 5th 835 (infra.) h) Additionally, California Code 0f Civil Procedure Section 1295 is inapplicable as there is n0 cause 0f action for Hospital Negligence / Medical Malpractice contained in plaintiffs’ operative complaint therefore Code ofCivil Procedure section 1281.2(0) is applicable. It is well settled that "[t]he strong public policy in favor of arbitration does not extend to those who are not parties t0 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 ofDam'els v. Sunrise Senior Living, Ina, 212 Cal. App. 4th 674 (County 0f Contra Costa v. Kaiser Foundation Health Plan, Inc. (1996) 47 Ca1.App.4th 237, 245 [54 Cal.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, Ina, 20 Cal. App. 5th 835 (2018). A11 the above-referenced parties, DORIDA and GOLDEN did not agree to arbitrate their individual claims. Furthermore, DORIDA, and GOLDEN are not even parties t0 this Kaiser arbitration agreement and did not agree to arbitrate their claims per the agreement alleged. 2 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: i) Accordingly, where so much uncertainty as to the enforceability of an arbitration agreement exists, fairness and common sense suggest that the Court should find inferences in favor of Plaintiff. Constitutional rights should not be so easily disregarded especially Where the alleged waiver of those rights is supported by flimsy, controverted evidence that fails t0 make the case that the alleged waiver was made knowingly, voluntarily, legally and intelligently, if at all. II. STANDARD OF REVIEW Defendants have the burden of establishing the existence of a valid agreement to 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 t0 be bound thereby. Condee v. Longwood Management Corp. (2001) 88 Cal. App. 4th 215, 218-219. “It follows, 0f course, that if there was n0 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 0f whether a valid agreement t0 arbitrate exists, and such summary procedure satisfies both state and federal law.” Id. Under this procedure, the petitioner bears the burden of establishing the existence 0f a valid agreement to arbitrate, and a party opposing the petition bears 0f proving by a preponderance of the evidence any fact necessary to its defense. The trial court sits as a trier of 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 0f a written agreement t0 arbitrate the controversy, the court itself must determine whether the agreement exists, and if any defense t0 its enforcement is raised, Whether it is enforceable. Because the existence 0f the agreement is a statutory prerequisite t0 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. 3 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIAUJNH NNNNNNNNNHHHHHHHHHH WQQM£MNHG©WQQUIhMNHG 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. III. THE MEDICARE ACT DOES NOT PREEMPT APPLICATION OF CALIFORNIA HEALTH & SAFETY CODE SECTION 1363.1 TO PRECLUDE ENFORCEMENT OF THE CONTRACTUAL ARBITRATION PROVISION IN THISfl See Zoelezzi v. Pacificcare 0f California, 105 Ca1.App.4th 573 (2003)129 Ca1.Rptr.2d 526 "As part 0f its regulation 0f health care service plans, California imposes certain disclosure requirements as a predicate to the enforcement of arbitration clauses contained in plan subscriber agreements." (Smith v. PacifiCare Behavioral Health ofCal, Inc. (2001) 93 Ca1.App.4th 139, 143, 113 Cal.Rptr.2d 140.) California Health and Safely Code Section 1363.1 provides: "Any health care service plan that includes terms that require binding arbitration to settle disputes and that restrict, 0r provide for a waiver 0f, the right t0 a jury trial shall include, in clear and understandable language, a disclosure that meets all of the following conditions: "(a) The disclosure shall clearlv state whether the plan uses binding arbitration to settle disputes, including specifically Whether the plan uses binding arbitration to settle claims of medical malpractice. "(b) The disclosure shall appear as a separate article in the agreement issued to the employer group 0r individual subscriber and shall be prominentlv displaved on the enrollment form signed by each subscriber or enrollee. 4 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhUJNH NNNNNNNNNHHHHHHHHHH WQQUI£UJNHG©WQONUIhMNHG "(0) The disclosure shall clearly state Whether the subscriber 0r enrollee is waiving his 0r her right to a jury trial for medical malpractice, other disputes relating t0 the delivery 0f service under the plan, or both, and shall be substantially expressed in the wording provided in subdivision (a) of Section 1295 0f the Code osz'vil Procedure. "(d) In any contract or enrollment agreement for a health care service plan, the disclosure required by this section shall be displayed immediately before the signature line provided for the representative 0f the group contracting with a health care service plan and immediately before the signature line provided for the individual enrolling in the health care service plan." (e) “Federal Medicare Act (42 U.S.C. § 1395 et seq., hereafter the Act) does not preempt application 0f Health and Safety Code section 1363.1 and PacifiCare‘s noncompliance With section 1363.1's specific arbitration disclosure requirements precludes the enforcement 0f the contractual arbitration provision.” Zoelezzi v. Pacificcare 0fCalifornia infra. Accordingly, Plaintiff’s argument herein, is that Medicare does not preempt California Health and Safety Code §1363.1, and that Kaiser’s failure t0 comply With California Health and Safety Code §1363.1 makes this arbitration agreement legally unenforceable. IV. THE SUBJECT PETITION TO COMPEL ARBITRATION IS NOT GOVERNED BY THE FEDERAL ARBITRATION ACT The KAISER Petition to Compel Arbitration is brought Llely under California Code 0f Civil Procedure Sections 1281.2 and 1281.4. Please see Health & Safely Code Section 1363.1 and Donald Imbler v. Pacificare 0f California, Inc. et al. (2002) 103 Cal.App.4th 567. Smith v. PacifiCare Behavioral Health 0fCal., Inc. (2001) 93 Ca1.App.4th 139, 150, 113 Ca1.Rptr.2d 140, Pagarigan v. Superior Court (2002) 5 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIAUJNH NNNNNNNNNHHHHHHHHHH WQQM£MNHG©WQQUIhMNHG 102 Cal.App.4th 1121, 1133-1 134. Smith decided the precise issue in this case: The McCarran-Ferguson Act Precludes the Preemption 0f Section 1363.1 bv the FAA. In Smith, supra, 93 Ca1.App.4th 139, 113 Ca1.Rptr.2d m, another health care plan (PacifiCare) sought to compel arbitration, asserting FAA preemption 0f § 1363.1 under Erickson v. Aetna Health Plans 0f California, Inc (1999) 71 Cal. App. 4th 646 (just as Kaiser urges here in their purported arbitration agreement KAISER Exhibit “A” pp. 252 & 253 ). The difference in Smith, however, was that the plaintiffs responded With an argument never considered in Erickson. They asserted that the FAA could not preempt § 1363.1 because the McCarran-Ferguson Act foreclosed application 0f the FAA. (Id. at p. 152, 113 Ca1.Rptr.2d 140.) After reviewing the analysis under Erickson, Division Three turned to the McCarran- Ferguson Act, enacted by Congress in 1945, Which "sets forth a policy declaration that it is in the public interest that the primary regulation 0f the business 0f insurance be in the states, not in the national government. (15 U.S.C. § 1011.) It was passed in response t0 a United States Supreme Court decision (United States v. South-Eastern Underwriters Assn. (1944) 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440 [parallel citation omitted] ), which held that the business 0f insurance was ‘commerce' Within the meaning of the commerce clause and therefore the business 0f insurance was subject to all federal laws, including those relating to antitrust. (Id. at p. 553, 64 S.Ct. 1162 [citation omitted].) This was a major change in the law. In 1869, the Supreme Court had held (Paul v. Virginia (1868) 75 U.S. (8 Wall.) 168, 183, 19 L.Ed. 357 [citation 0mitted]) that insurance was not 'commerce' and therefore was not subject t0 federal commerce clause statutes." (Smith, supra, 93 Ca1.App.4th at pp. 152-153, 113 Cal.Rptr.2d 140, italics added.) /// 6 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIAUJNH NNNNNNNNNHHHHHHHHHH WQQUIfiUJNchmQGNUIAMNHG "The clear purpose 0fMcCarran-Ferguson was t0 abrogate this change and t0 insure that the states would continue t0 enjoy broad authority in regulating the dealings between insurers and their policyholders." (Smith, supra, 93 Cal.App.4th at p. 153, 113 Cal.Rptr.2d 140, citation omitted.) "The mandate of McCarran-Ferguson appears to be both plain and clear. An act of Congress may not be construed t0 ‘invalidate, impair, 0r supersede' a state law enacted ‘for the purpose 0f regulating the business 0f insurance’ unless the federal act ‘specifically relates to the business 0f insurance.” (Id. at p. 154, 113 Ca1.Rptr.2d 140, citing 15 U.S.C. § 1012(b) and adding italics.) Noting that there was no dispute that application 0f the FAA would supersede the application 0f section 1363.1 nor any dispute that the FAA is a statute 0f general application that does not specifically relate t0 the business 0f insurance, the Smith court turned t0 examine the "integrally related questions as to Whether health care service plans are engaged in the business 0f insurance and whether section 1363.1 is a statute enacted ‘for the purpose 0f regulating the business 0f insurance.” (Smith, supra, 93 Cal.App.4th at p. 154, 113 Cal. Rptr.2d 140.) After carefully examining both factors, Division Three determined that health care service plans "are engaged in the business 0f insurance When they offer health coverage t0 their members, and section 1363.1 clearly regulates this aspect 0f their endeavor." (Smith, supra, 93 Cal. App.4th at p. 162, 113 Ca1.Rptr.2d 140.) The court concluded "[therefore, [that] the FAA, a federal statute of general application, which does not ‘specifically relate' t0 insurance, is foreclosed from application t0 prevent the operation 0f section 1363.1." (Ibid) As a result, Kaiser’s arbitration provision could not be enforced for its failure t0 satisfy the "specific and unambiguous. Pagarigan v. Superior Court, 126 Ca1.Rptr.2d 124, 102 Ca1.App.4th 1121 (Cal. App, 2002) /// 7 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: V. CALIFORNIA HEALTH & SAFETY CODE 81363.1 DICTATES THAT MANDATORY DISCLOSURES SHALL BE MADE IN ORDER FOR PROSPECTIVE ENROLLEES TO WAIVE THEIR CONSTITUTIONAL RIGHT TO A JURY TRIAL On September 19, 1994, California added § 1363.1 to the Health and Safely Code “due t0 concern‘ some health care service plans failed t0 adequately advise prospective enrollees that terms 0f the plan restrict 0r waive the right t0 a jury trial in medical malpractice cases. Medeiros v. Superior Court, 146 Ca1.App.4th 1008, 1017 (2007). “The plain language 0f §1363.1 is clear.” Id. at 1018 states “ A health plan that wishes to impose arbitration on subscribers “must make the mandatory disclosures.” Id. The disclosure requirements 0f § 1363.1 “are necessary t0 create an enforceable arbitration provision in a health service plan, regardless of Whether the subscriber actually had notice of the term requiring arbitration.” Id. at 1019. California Health and Safety Code § 1363.1 requires any health care service plan requiring binding arbitration t0 state “in clear and understandable language,” in a “prominently displayed,” “separate article,” immediately above the signature line, that the enrollee is waiving his or her right to a jury trial, using substantially the wording in subdivision (a) of California Code 0f Civil Procedure § 1295. “‘Prominent’ is defined as ‘standing out 0r . . . readily noticeable.” Robertson v. Health Net 0f California, Ina, 132 Ca1.App.4th 1419, 1429 (2005). An arbitration provision that “does not stand out and [is] not readily noticeable from” other provisions is not prominently displayed. Please see Malek v. Blue Cross 0f California, 121 Ca1.App.4th 44, 61 (2004). Placing the arbitration clause immediatelv before the signature line does not bV itself fulfill the requirement 0f prominence. Imbler v. Pacificare 0f California, Ina, 103 Ca1.App.4th 567, 579 (2002) 8 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: Further, placing the disclosure in a separate article and using bold typeface for the title 0f the provision does not fulfill the requirement 0f prominence. Robertson, 132 Ca1.App.4th at 1429. California Health and Safety Code § 1363.1 applies to all health care consumers, including those Who enroll in an employee group plan, and not just individual subscribers. Medeiros, 146 Cal.App.4th at 1017. Non-compliance With § 1363.1 renders an arbitration provision in an enrollment form unenforceable. Malek, 121 Ca1.App.4th at 62-63. The arbitration provisions signed by a Plaintiff 0r their representative must stand out 0r be readily noticeable from other provisions. California Health and Safely Code § 1363.1 states that it applies t0 “[a]ny health care service plan.” Plan members that enroll Via a form received from an employer are afforded n0 less protection than those that enroll directly with an insurance company. Medeiros, 146 Cal.App.4th at 1018. Plaintiff argues that the purported arbitration agreement / provision (Agreement / EOC Form Exhibit “A” pp.252-253 and Exhibit “C” p. 1-2 ) d0 not meet the “prominently displayed” requirement 0f § 1363.1, subdivision (b). The arbitration clauses (Exhibits “A” and “C” to the Petition) are not highlighted or bolded. Nowhere does it highlight or anywhere does it say “Arbitration Agreement” [The text of the disclosure itself is printed in the same typeface as that used in the rest 0f the election EOC form, is not highlighted and is totally buried in the form, (277 pages) and there is no form that has a specific bold title stating “Arbitration A2reement”] The Imbler court disposed 0f a similar argument raised by the health care plan provider in that case. There, the contested clause was set forth in the middle 0f a paragraph Which included reference t0 several subjects. The clause was neither highlighted nor printed in typeface that in any way distinguished it from the type in the rest 0f the agreement. With regard t0 the 9 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: “prominence” question, the court explained: ‘Prominent’ is defined as ‘standing out 0r proiecting bevond a surface 0r line,’ 0r ‘readilv noticeable.’ The disclosure was in the same font as the rest of the paragraph, not underlined 0r italicized. The disclosure sentence neither stood out nor was readily noticeable. We simply fail to see how this disclosure can be deemed as being ‘prominently displayed.’ Because the arbitration disclosure fails t0 comply With §1363.1, subdivision (b), we hold that the trial court properly denied PacifiCare’s petition to compel arbitration.” (Imbler v. Pacz'fiCare 0f Cal., Ina, supra, 103 Cal.App.4th at p. 579, 126 Ca1.Rptr.2d 715, fn. omitted.) Similarly, the trial judge observed that Health Net's arbitration agreement does not “stand out” 0r “stick[s] out” from the rest 0f the text 0n the page as t0 which it was “[V]irtually indistinguishable.” Given the fact here that: (1) the provisions are printed in the same font 0r typeface as the rest of the form, and (2) there is absolutely no Arbitration Agreement title nor signature located within this document, this Court, following Imbler, must conclude that the arbitration clauses legally fails t0 meet the mandatory “prominence” requirement 0f § 1363.1, subdivision (b), and is thus legally unenforceable. VI. THE PURPORTED EVIDENCE OF COVERAGE ARBITRATION PROVISION FAILS TO COMPLY WITH THE CALIFORNIA HEALTH & SAFETY CODE 81363.1 MANDATORY DISCLOSURES AND IS NOT LEGALLY ENFORCEABLE Defendant’s major arbitration enforceability argument alludes to an Arbitration provision contained and buried in Exhibit “A” pages 252-253 to the Petition to Compel Arbitration, also known as the Evidence of Coverage (“EOC”) a 277 page document attached t0 the petition. The EOC fails to comply With California Health and Safely Code §1363.1 as follows: (1) The provision is printed in the same font 0r typeface as the rest of the form, and, (2) Only the title is in bolded type, (buried in pages Exhibit “A” pp. 252-253 of the 1 0 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhUJNH NNNNNNNNNHHHHHHHHHH WQQUI£UJNHG©WQONUIhMNHG EOC Which also fails t0 meet the mandatory “prominence” requirement 0f California Health and Safely Code § 1363.1, subdivision (b), and is thus unenforceable; and (3) Violates California Health and Safety Code § 1363.1, Subdivision (d), by Failing to Meet the Placement Requirement. California Health and Safely Code § 1363.1 subdivision (d), requires that the arbitration disclosure be "displayed immediately before the signature line."M is absolutelv n0 such signature line nor signature 0n this document. (4) Kaiser actually acknowledges, in their petition and memorandum, that the EOC plan “constitutes the contract” for the health care service plan. Because these contracts were formed after section California Health and Safety Code §1363.1 was enacted, (1994) the disclosure requirements of the statute apply to them. (5) Even “technical Violations” 0f §1363.1 render an arbitration provision in a health service plan unenforceable. (Madeiros v. Superior Court (2007) 146 Ca1.App.4th 1008, 1015, citing Malek, supra, 121 Ca1.App.4th at p. 50.) Strict compliance with the statute is required to enforce such an arbitration provision. (Robertson, supra, 132 Ca1.App.4th at p. 1428; Madeiros, supra, 146 Ca1.App.4th at p. 1015; Malek, supra, 121 Ca1.App.4th at p. 63.) “[A]bsent the arbitration disclosure requirements 0f California Health and Safely Code § 1363.1, the minimal requirements under state law contract principles have not been met and there is no contract to arbitrate that can be enforced.” (Malek, supra, 121 Ca1.App.4th at p. 65.) “Because the disclosure requirements in §1363.1 are mandatory, they are necessary t0 create an enforceable arbitration provision in a health service plan, regardless of Whether the subscriber actually had notice 0f the term requiring arbitration.” (Madeiros, supra, 146 Ca1.App.4th at p. 1019, citing Malek, supra, 121 Ca1.App.4th at pp. 64, 67, 69, (6) Thus, because there was no signature by a representative of Kaiser on the designated signature line immediately following any purported arbitration disclosure, the arbitration clause of 11 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: the EOC plan is also legally unenforceable for lack 0f compliance With California Health and Safely Code § 1363.1(d). VII. THE EOC ARBITRATION AGREEMENT FAILS TO COMPLY WITH CALIFORNIA CODE 0F CIVIL PROCEDURE S 1295: California Code of Civil Procedure § 1295 (a) states as follows: Any contract for medical services which contains a provision for arbitration of any dispute as t0 professional negligence 0f a health care provider shall have such provision as the first article 0f the contract and shall be expressed in the following language: "It is understood that any dispute as to medical malpractice, that is as t0 whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently 0r incompetently rendered, will be determined by submission to arbitration as provided by California law, and not by a lawsuit or resort to court process except as California law provides for judicial review of arbitration proceedings. Both parties t0 this contract, by entering into it, are giving up their constitutional right t0 have any such dispute decided in a court 0f law before a jury, and instead are accepting the use 0f arbitration." (b) Immediately before the signature line provided for the individual contracting for the medical services must appear the following in at least 10-point bold red type: "NOTICE: BY SIGNING THIS CONTRACT YOU ARE AGREEING TO HAVE ANY ISSUE OF MEDICAL MALPRACTICE DECIDED BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP YOUR RIGHT TO A JURY OR COURT TRIAL. SEE ARTICLE 1 OF THIS CONTRACT." Neither Exhibit “A”, The Contract nor Exhibit “C”, The Election Form, appended t0 the petition, have the legally necessary provision in the first article 0f the contract as required, making them legally unenforceable. /// 12 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: VIII. MICRA 0r Not MICRA A key issue in this case is Whether DORIDA and GOLDEN are actually bound by the agreement. Defendants must concede that DORIDA and GOLDEN did not sign the agreement at issue. But they argue that nonetheless, the wrongful death claim, brought by DORIDA in her personal capacitiy is subject t0 arbitration pursuant t0 section 1295. Section 1295 is part of California's Medical Injury 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. gal.) 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 0r omission is the proximate cause of a personal injury 0r wrongful death, provided that such services are within the scope 0f services for Which the provider is licensed and which are not within any restriction imposed by the licensing agency 0r licensed hospital.” (§ 1295, subd. ggnZQ.) Carving out an exception t0 the general rule that arbitration agreements must be the subj ect 0f 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 t0 section 1295, at least When, as here, the language of 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. Please see First Amended Complaint Exhibit “1” attached herein) as defined by MICRA, 01‘ something else. Ruiz's focus was 0n section 1295 and the intent behind it. 13 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: (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 (g) contemplatefl arbitration ‘of any dispute as t0 professional negligence 0f a health care provider,” including wrongful death, but it “was part 0f MICRA's efforts to control the runaway costs of medical malpractice by promoting arbitration of 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 0f action for wrongful death, elder abuse, and related claims. She alleged the facility had failed to 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 t0 bind the patient's heirs. (Ibid) The Court 0f Appeal affirmed, rejecting the argument that Ruiz required arbitration 0f the independent wrongful death claim. “Ruiz is based squarely on section 1295, which governs agreements t0 arbitrate professional negligence or medical malpractice claims in medical services contracts With health care providers.” (Daniels, supra, 212 Cal.App.4th at p. 682; see also Herbert v. Superior Court (1985) 169 Ca1.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. What matters is not the license status of the defendant, but the basis 0f 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. 14 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 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. The complaint as pled is for “elder abuse and neglect under the Act, and includes allegations 0f wrongful death by neglect. The complaint alleges elder abuse n0 professional negligence. “Neglect includes the failure to assist in personal hygiene, or in the provision of food, Clothing, or shelter; the failure to provide medical care for physical and mental health needs; the failure t0 protect from health and safety hazards; and the failure t0 prevent malnutrition 0r dehydration.” (Sababin v. Superior Court (2006) 144 Cal.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 0r dependent adults, regardless 0f their professional standing, t0 carry out their custodial obligations.” Thus, the statutory definition of “neglect” speaks not of the undertaking 0f medical services, but of the failure to provide medical care.” (Sababin, at p. 89.) Plaintiff, 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 pled a claim for medical malpractice, had they wished to do so, is irrelevant. /// 15 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. g APPLICABILTY OF THE ARBITSTRATION AGREEMENT TO DORIDA AND THIRD PARTY DEFENDANTS Having determined that section 1295 does not apply here, we must now look to the general rules governing arbitration agreements to determine if a valid agreement exists between DORIDA and all the defendants. California has a strong public policy in favor of arbitration as an expeditious and cost- effective way 0f resolving disputes. (Moncharsh v. Heily & 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].)“Arbitrati0n is a matter 0f consent, not coercion .” (Volt, supra, 489 U.S. at p. 479.) Whether an agreement to arbitrate exists is a threshold issue 0f contract formation and state contract law. (Id. at 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 0f proving the existence 0f a valid arbitration agreement. (Garrison v. Superior Court (2005) 132 Ca1.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 0f the heirs as beneficiaries, based upon their own independent pecuniary injury suffered by loss of a relative, and distinct from any the deceased might have maintained had he survived.” (Harwich v. Superior Court (1999) 21 Cal.4th 272, 283 [87 Cal. Rptr. 2d 222, 980 P.2d 927].) 16 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: In Daniels, the court rejected any claim that signing an arbitration agreement as agent gave the agent's consent t0 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 t0 infer that Daniels agreed t0 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 on [the mother] and other persons Who would assert the survivor claims on [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 Ca1.App.4th 583, 587 [197 Cal. Rptr. 3d 921].) Daniels relied 0n Fitzhugh v. Granada Healthcare & Rehabilitation Center, LLC (2007) 150 Cal.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 to arbitrate in a personal capacity. In that case, Ruth Fitzhugh was admitted t0 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 0f 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 to arbitrate his wrongful death cause of action. “It is irrelevant t0 the wrongful death cause of action Whether George Fitzhugh may have signed the arbitration agreements as the decedent's ‘legal representative/agent.’ Because there is n0 evidence that George Fitzhugh signed the arbitration agreements in his personal capacity there 17 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: is no basis to infer that [he] waived [his] personal right to jury trial 0n the wrongful death claim. (Fitzhugh, supra, 150 Ca1.App.4th at p. 474, Such is the case here. There is simply no evidence that DORIDA had any intent to waive her right nor anyone else’s right t0 a jury trial for any 0f their personal claims; nor did DORIDA, 0r GOLDEN in fact sign any agreement in any capacity that could be legally enforced against them. This arbitration agreement is thus unenforceable. X. THE COURT SHOULD USE ITS ABSOLUTE DISCRETION UNDER CODE OF CIVIL PROCEDURE 81281.2(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 8 1295 WHICH IS INAPPLICABLE HERE 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 to 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 Cal.App.4th at p. 971; Daniels, supra, 212 Cal.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 do not apply t0 this case. Therefore this argument must be rejected. (c) A party t0 the arbitration agreement is also a party t0 a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law 0r fact. California Code ofCivil Procedure §1281.2(c) further provides that: “If the court determines that a party t0 the arbitration is also a party t0 litigation in a pending court action 0r special proceeding With a third party as set forth under subdivision (c) herein, the court (1) may refuse to enforce the arbitration agreement and may order intervention 0r joinder of all parties in a single action 0r special proceeding. . .” 18 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: Section 1281.2(0) “addresses the peculiar situation that arises When a controversy also affects claims by 0r against other parties not bound by the arbitration agreement.” Camus Investments, Inc. v. Concierge Services (2005) 35 Cal.4th 376, 393. As t0 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 t0 deny a motion t0 compel arbitration. (Acquire, 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 t0 Compel Arbitration. Please also see Avila v. Southern California Specially Care, Ina, 20 Cal. App. 5th 835 The specific holding in Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th 835 supports the specific denial of Kaiser's Motion. In Avila, decedent executed a power of attorney form, naming plaintiff, his son, as his agent. (Avila, supra, 20 Ca1.App.5th at p. 838.) Approximately eight years after executing the power 0f attorney form, Decedent was transferred from another facility to the defendant, a long-term acute care hospital. (Ibid.) The day after admission, plaintiff 19 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: signed a stack 0f documents, including an arbitration agreement, which purported t0 bind decedent and plaintiff for any claims relating to decedent's hospitalization. (Avila, supra, 20 Cal.App.5th at p. 838.) Decedent died five days after admission due to defendant'sneglect Approximately a year after decedent's death, plaintiff filed his complaint, asserting causes of action for negligence/Willful misconduct, elder abuse, and wrongful death. (Avila, supra, 20 Cal.App.5th at pp. 838-839.) Defendant filed a motion t0 compel arbitration, Which the trial court denied, concluding defendants had failed t0 show a valid arbitration agreement With respect to plaintiff; the trial court also exercised its discretion under section 1281.2, subdivision (c), and it refused t0 order arbitration 0f the remaining claims, citing the risk 0f inconsistent rulings. (Id. at p. 839.) The Court 0f Appeal affirmed. Examining Ruiz and Daniels v. Sunrise Senior Living, Inc. (2013) 212 Ca1.App.4th 674, the Avila court held Ruiz was not controlling, as the Avila plaintiffs claims sounded in Elder Abuse, not medical/professional negligence. (Avila, supra, 20 Ca1.App.5th at pp. 841-842.) Rejecting the defendants' attempts to distinguish Daniels, the Avila court held "What matters is not the license status 0f 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 as defined by MICRA, then section 1295 applies. If, as plaintiffs claim here, the primary basis is under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 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." (Avila, supra, 20 Ca1.App.5th at p. 842.) While the Avila court acknowledged the complaint included allegations that could 20 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: be categorized as either medical/professional negligence 0r elder abuse, it also recognized the reality that the complaint was pled under the Elder Abuse Act. "Plaintiffs, within the limits of established law, are essentially free t0 plead their case as they choose. They chose to plead a cause 0f action under the Act, and they did so successfully. The fact that they could have also pleaded a claim for medical malpractice, had they wished t0 do so, is irrelevant. Accordingly, we conclude the plaintiffs' claim is not one Within the ambit 0f section 1295, and therefore, Ruii5 holding does not apply." (Avila, supra, 20 Ca1.App.5th at p. 843.) The Avila court then went 0n t0 recognize that, “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 ofaction in favor 0f 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 maintained had he survived.” [Citati0n.]" (Avila, supra, 20 Cal.App.5th at p. 844; Daniels, supra, 212 Cal.App.4th at pp. 680-681.) Since the Avila plaintiff signed the arbitration agreement as decedent's agent, there was no evidence he intended to 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 to arbitrate existed as to the plaintiff. (Avila, supra, 20 Cal.App. 5th at p. 845 .) The Avila court also held the trial court did not abuse its 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 of operative facts. If the survivorship claims were arbitrated while the wrongful death claim was litigated, there is a strong possibility 0f inconsistent rulings. The courts in Daniels, supra, 212 Ca1.App.4th at page 680, and Fitzhugh, supra, 150 Ca1.App.4th at 21 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: page 476, each reached the same conclusion. We find, accordingly, no abuse 0f the court's discretion." (Avila, supra, 20 Cal.App.5th at p. 845.) Last the Avila rejected the defendants' public policy argument, i.e., 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 to those who are not parties t0 an arbitration agreement, and a party cannot be compelled t0 arbitrate a dispute that he [or she] has not agreed t0 resolve by arbitration.” [Citation], [Citation] We therefore reject defendants' tacit argument that 'public policy' may override the lack 0f consent t0 arbitration." (Avila, supra, 20 Ca1.App.5th at p. 846.) Much like Avila, Plaintiff‘s Complaint alleges elder abuse, not medical, professional, or common law negligence. The only cognizable difference is that, in Avila, the plaintiff signed the arbitration agreement on behalf of the decedent, whereas, here, Decedent signed the Agreement himself. Despite this difference, the principles enumerated in Avila support a denial of Kaiser's Motion. In addition, Avila did not involve Medicare, but none of the moving parties have discussed how the presence of the Medicare Act, other than its exclusion from state disclosure requirements, would otherwise affect the holding of Avila. As discussed, "If the primary basis is under the [Elder Abuse Act], then section 1295 does not apply and neither does Ruiz’s exception t0 the general rule that one who has not consented cannot be compelled t0 arbitrate." (Avila, supra, 20 Cal.App.5th at p. 842; Daniels, supra, 212 Ca1.App.4th at pp. 683-684; Bush, supra, 205 Ca1.App.4th at pp. 930-931.) Even though Plaintiff sued health care providers such as Kaiser, and even 22 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: though some 0f the allegations 0f the Complaint might be categorized as medical, professional, 0r common law negligence, rather than elder abuse, any distinction is irrelevant. (Avila, supra, 20 Ca1.App.5th at p. 843.) As in Avila, Plaintiff, "within the limits 0f established law, [is] essentially free to plead [his] case as [he] choosers]. [He] chose to plead a cause of action under the [Elder Abuse] Act, and [he] did so successfully." (Ibid) Thus, Plaintiffs "claim is not one Within the ambit of section 1295, and therefore, Ruiz ’s holding does not apply. (Ibid). A cause 0f action for elder abuse was ordered t0 arbitration but the third cause of action for wrongful death was not. (Avila, supra, 20 Ca1.App.5th at p. 845; Daniels, supra, 212 Ca1.App.4th at pp. 686-687; see Metis Development LLC v. Bohacek (2011) 200 Ca1.App.4th 679, 692-693 [What a trial court chooses t0 d0 When a petition to compel arbitration gives rise to the possibility of inconsistent rulings on common questions is a matter of its discretion, guided largely by the extent to which the possibility 0f inconsistent rulings may be avoided].) There is also a possibility 0f inconsistent rulings Plaintiff‘s claims against Kaiser are ordered t0 arbitration, but the claims against Dignity, Community and Sea Cliff, Which are not parties t0 the Agreement, are not sent t0 arbitration. Hogan and Garrison, two cases Kaiser cites for the proposition that the Court broadly interprets the Agreement t0 include elder abuse claims, are distinguishable because, in both cases, the limited issue on appeal was Whether a Probate Code section 4701 health care power 0f attorney authorized the decedent's attorney-in-fact to execute an arbitration agreement on the decedent's behalf{ which is an issue not present before this Court. (Hogan v. Country Villa Health Services (2007) 148 Ca1.App.4th 259, 262-263; Garrison v. Superior Court (2005) 132 Ca1.App.4th 253, 256. In addition, the Garrison plaintiffs did not assert a cause of action for wrongful death. (Garrison, supra, 1 32 Ca1.App.4th at p. 256.) 23 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhb-DNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHGfiWQO‘xMhMNH: Kaiser also cites t0 Roberts v. United Healthcare Services, Inc. (2016) 2 Cal.App.5th 132 for the proposition that the federal Medicare Act expressly preempts state law requirements. However Roberts only held that the plaintiff‘s claims, which included claims for financial elder abuse, were preempted by the Federal Medicare Act's marketing standards. (Roberts, supra, 2 Cal.App.5th at p. 143.) In fact, Kaiser's Reply argues, at length, about how the disclosure requirements of section 1363.1 of the Health and Safety Code have been preempted by the Federal Medicare Act. (Reply, 3:20-7:22.) In other words, the Medicare preemption has n0 bearing 0n the holding 0f Avila. 10:3-10zl3.) However, subdivisions (a), (b), and (f) 0f section 1295 apply only to the marketing/disclosure requirements 0f an arbitration agreement. Again, it has n0 effect on the Avila holding, and it has no bearing 0n Whether Plaintiff‘s claims are subject t0 arbitration. "negligence and 'neglect’ as that term is defined in Welfare & Institutions Code §15610.57 ....” However, section 15610.57 only defines “neglect,” not negligence, so Kaiser argues the reference t0 "negligence" should be interpreted to mean Plaintiff has pled a cause of action for common law negligence. Following this logic, since Plaintiff pled a cause 0f action for common law negligence, Ruiz applies, and Plaintiff must arbitrate all of his claims, including his claim for wrongful death. (Reply, 10:13-10:21.) Complaint, it is clear Plaintiff alleges the defendants, including Kaiser violated the Elder Abuse statute, and this Violation resulted in the wrongful death 0f Decedent. There is otherwise n0 allegation Kaiser violated its common law duties t0 Plaintiff, that Kaiser was negligent, 0r that Kaiser committed medical malpractice/was professionally negligent, such that Ruiz, rather than Avila, would apply. 24 OPPOSITION TO DEFENDANT’S PETITION TO COMPEL ARBITRATION \OWQQUIhUJNH NNNNNNNNNHHHHHHHHHH “\IQUIhUJNchmflGNUIAU-DNHG then section 1295 applies. If, as plaintiffs claim here, the primary basis is under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) (the Act), then section 1295 does not apply and neither does Ruiz’s exception t0 the general rule that one who has not consented cannot be compelled t0 arbitrate." (Avila, supra, 20 Cal.App.5th at p. 842; Daniels, supra, 212 Ca1.App.4th at pp. 683-684; Bush, supra, 205 cal.App.4th at pp. 930-931.) Again, it is irrelevant Plaintiff could have plead a claim for professional negligence/medical malpractice 0r for common law negligence, 0r that some 0f his allegations could be categorized as either negligence 0r elder abuse. In choosing t0 plead a cause 0f action under the Elder Abuse Act, Plaintiffs claim does not fall "within the ambit of section 1295, and therefore, Ruiz’s holding does not apply." (Avila, supra, 20 Ca1.App.5th at p. 843.) XI. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that the Court deny this Defendant’s Petition t0 Compel Arbitration. DATED: November 20, 2019 PECK LAW GROUP, APC Steven C. Peck, Esq. Attornevs for Plaintiffs 25 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 of 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 of the State 0f California that the foregoing is true and correct. Executed this 20th day 0f November 201 9, 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 20, 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 KAISER FOUNDATION HOSPITAL"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 fl (BY MAIL) I am readily familiar with the firm’s practice 0f collection and processing correspondence for mailing. Under that practice it would be deposited With the U.S. Postal Service 0n that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that 0n motion 0f the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit. fl (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. = (FEDERAL) I declare that I am employed in the office 0f a member 0f the bar 0f this court at whose direction the service was made. EXECUTED at Van Nuys, California 0n November 20, 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 1 0) 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