Civil Complaint filed

Cal. Super. - 5th Dist.April 23, 2021

1 COMPLAINT FOR DAMAGES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LANZONE MORGAN, LLP Amber M. Tham, SBN 266207 5001 Airport Plaza Drive, Suite 210 Long Beach, California 90815 Telephone: 562-596-1700 Facsimile: 562-596-0011 Email: eservice@lanzonemorgan.com Attorneys for Plaintiff, Samuel Rodriguez SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF FRESNO - B. F. SISK COURTHOUSE SAMUEL RODRIGUEZ, individually, Plaintiff, vs. FRESNO VALLEY SNF, LLC dba ORCHARD POST ACUTE; PROVIDENCE GROUP, INC.; and DOES 1 through 100, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: Complaint Filed: Assigned to Department: Hon. COMPLAINT FOR DAMAGES 1. Elder Abuse and Neglect (Welfare and Institutions Code § 15600 et seq.) 2. Violation of Residents’ Bill of Rights (Health & Safety Code § 1430(b)) 3. Negligence 21CECG01153 E-FILED 4/23/2021 9:44 AM Superior Court of California County of Fresno By: A. Rodriguez, Deputy 2 COMPLAINT FOR DAMAGES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMES NOW, Plaintiff, who alleges upon information and belief as follows: THE PARTIES 1. Plaintiff SAMUEL RODRIGUEZ (“PLAINTIFF” or “RODRIGUEZ”) is an individual who, at all times relevant to this action, was domiciled in the County of Fresno, State of California. RODRIGUEZ was, at all relevant times, over the age of 65. RODRIGUEZ’ residency and age qualify him as an “elder adult” under Welfare and Institutions Code section 15610.27. 2. RODRIGUEZ brings these causes of action for: (1) Elder Abuse and Neglect pursuant to Welfare and Institutions Code section 15600, et seq.; (2) Violation of Residents’ Bill of Rights pursuant to Health and Safety Code section 1430, subdivision (b); and (3) negligence. 3. Defendant FRESNO VALLEY SNF, LLC, a California limited liability company, and DOES 1 through 25 were the licensees and operators of and actively participated in the business of providing custodial care and services to residents, authorized and directed day-to-day operations of, and otherwise did business as a skilled nursing facility known as ORCHARD POST ACUTE, physically located at 4840 East Tulare Avenue, Fresno, California 93727. At all relevant times, FRESNO VALLEY SNF, LLC dba ORCHARD POST ACUTE and DOES 1 through 25 (collectively “FACILITY”) were licensed with the California Department of Public Health (“CDPH”) as a skilled nursing facility and were therefore subject to the requirements of laws and regulations regarding operation of a skilled nursing facility. 4. Defendant PROVIDENCE GROUP, INC., a California corporation, and DOES 26 through 50 (collectively “MANAGEMENT DEFENDANTS”) were the management companies, owners, operators, administrators, employers, and/or managers of the FACILITY. MANAGEMENT DEFENDANTS actively participated in, authorized, and/or directed the operation of the FACILITY and the conduct of its agents and employees through employment, training, and supervision of Administrators, Directors of Nursing, and other employees of the FACILITY. MANAGEMENT DEFENDANTS are therefore liable for the acts and omissions of the FACILITY and its agents and employees, as alleged infra. MANAGEMENT DEFENDANTS had a duty at all relevant times to ensure the FACILITY complied with all laws 3 COMPLAINT FOR DAMAGES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and regulations concerning the operation of a skilled nursing facility and to provide all care and services necessary to meet each resident’s needs and prevent harm. 5. PLAINTIFF is informed and believes, and therefore alleges, that at all times relevant to this Complaint, DOES 51 through 100 were individuals and/or entities rendering care and services to RODRIGUEZ and whose conduct caused the injuries and damages alleged herein. 6. PLAINTIFF is ignorant of the true names and capacities of those Defendants sued herein as DOES 1 through 100, and for that reason have sued such Defendants by fictitious names. PLAINTIFF will seek leave of Court to amend this Complaint to identify said Defendants upon their discovery. 7. PLAINTIFF is informed and believes, and therefore alleges, that each Defendant designated as a DOE was responsible in any actionable manner for the events and happenings herein referred to, which proximately caused the injuries and damages to RODRIGUEZ as alleged infra. (Hereinafter, all references to “DEFENDANTS” are in collective reference to FRESNO VALLEY SNF, LLC dba ORCHARD POST ACUTE; PROVIDENCE GROUP, INC.; and DOES 1 through 100.) JURISDICTION AND VENUE 8. PLAINTIFF hereby incorporates by reference the allegations set forth supra. 9. This Court has personal jurisdiction over DEFENDANTS because DEFENDANTS were, at all times relevant herein, doing business in the County of Fresno, State of California. While engaged in such business, DEFENDANTS’ conduct caused injury to RODRIGUEZ in the County of Fresno, State of California. 10. Venue is proper in this judicial district because DEFENDANTS conducted business within this district, and because DEFENDANTS’ conduct caused RODRIGUEZ’ injuries within this district, as set forth more fully infra. DEFENDANTS ARE DIRECTLY AND VICARIOUSLY LIABLE AS “ALTER-EGOS” OF EACH OTHER, AND AS A JOINT VENTURE 11. PLAINTIFF hereby incorporates by reference the allegations set forth supra. 12. The FACILITY and MANAGEMENT DEFENDANTS are sufficiently united in 4 COMPLAINT FOR DAMAGES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 their ownership and financial interest, such that the acts of one must be imputed to the others. The FACILITY and MANAGEMENT DEFENDANTS operated in such a way as to make their individual identities indistinguishable, and they are therefore the mere alter-egos of one another. 13. Specifically, DEFENDANTS’ corporate and business shell layers were formed for the sole purpose of insulating MANAGEMENT DEFENDANTS from liability while simultaneously obscuring the identities of those responsible for the care and services being provided to the residents at the FACILITY. By creating separate entities to hold the individual licenses for each facility, the owners and/or beneficiaries of the management fees may hide from public disclosure ownership, management, and control over other facilities to create the false appearance of each individual facility being independent of one another. However, at all relevant times to this action, DEFENDANTS had a unity of interest and ownership such that their separate identities did not meaningfully exist. 14. According to the Articles of Organization of a Limited Liability Company filed by FRESNO VALLEY SNF, LLC with the California Secretary of State on March 11, 2019, the initial mailing address was 140 North Union Avenue, Suite 320, Farmington, Utah 84025. This is identical to PROVIDENCE GROUP, INC.’S entity address and entity mailing address. The Statement of Information for FRESNO VALLEY SNF, LLC, filed April 1, 2021, provides that the Street Address of Principal Office address was changed to the address for the FACILITY, with the mailing address still at 140 North Union Avenue, Suite 320, Farmington, Utah 84025. This Utah address is also the listed address for FRESNO VALLEY SNF, LLC Managers Mark Hancock and Jason Murray. The Statement of Information for FRESNO VALLEY SNF, LLC, filed April 12, 2021, did not change this. 15. FRESNO VALLEY SNF, LLC and PROVIDENCE GROUP, INC. use the same agency for service of process in California. 16. Jason Murray and Mark Hancock also serve as two members of the FACILITY’S Governing Body and as CEO and President/CFO, respectively, as indicated by the Long-Term Care Facility Integrated Disclosure and Medi-Cal Cost Report filed by the FACILITY under its former name of Valley Health Care Center with the Office of Statewide Health Planning and 5 COMPLAINT FOR DAMAGES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Development (“OSHPD”) for 2019. 17. Therefore, the individual identities of the FACILITY and MANAGEMENT DEFENDANTS are substantially identical, and have identical ties to, identical interests in, and identical control over the FACILITY. Moreover, the FACILITY and MANAGEMENT DEFENDANTS shared a common pool of officers, directors, and managers such that their individual identities ceased to meaningfully exist. 18. Additionally, the FACILITY and MANAGEMENT DEFENDANTS operate pursuant to a common scheme and plan of operation which renders them a joint venture. 19. Thus, the FACILITY and MANAGEMENT DEFENDANTS operated in a manner which could not meaningfully exist without the other: as a joint venture sharing in profits and losses. This joint venture was operated in furtherance of the maximization of profits from the operation of the FACILITY by underfunding and understaffing the FACILITY at the expense of its residents while shielding assets from liability. 20. As part of their profit scheme, DEFENDANTS implemented cost cutting and care cutting measures at the FACILITY, which included failing to adequately train and/or screen existing or incoming staff to ensure that they were competent in meeting the needs of their residents, including RODRIGUEZ. DEFENDANTS also hired and retained incompetent service personnel, many of whom were not properly trained or qualified to care for the residents, including RODRIGUEZ. 21. Therefore, at all times relevant, the FACILITY and MANAGEMENT DEFENDANTS, and each of their tortious acts and omissions as alleged herein, were done in concert with one another, with reasonable certainty that the scheme of promoting profits over the wellbeing of the FACILITY’S residents would and did in fact result in withholding of goods and services, which posed an extreme risk to the health, safety, and welfare of RODRIGUEZ and other residents. 22. Thus, DEFENDANTS managed themselves, governed, and controlled the care and custodial services provided to RODRIGUEZ, and, by virtue of their management and control, each of them voluntarily and intentionally assumed responsibility for and provided supervisory 6 COMPLAINT FOR DAMAGES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and custodial services to RODRIGUEZ while he was a resident of their facility. 23. Accordingly, each and every DEFENDANT is directly liable for the damages PLAINTIFF suffered, as alleged infra. 24. Furthermore, DEFENDANTS were the knowing agents and/or alter-egos of one another, and each of their officers, directors, and managing agents directed, approved, and/or ratified all the acts and omissions of each other, their agents, and employees, thereby making each of them vicariously liable for the acts and omissions of their co-defendants, their agents, and employees, as is more fully alleged herein. Moreover, through identical managing agents, DEFENDANTS, and each of them, agreed, approved, authorized, ratified, and/or conspired to commit all the acts and omissions alleged herein. 25. The term “managing agent” means “one who exercises substantial discretionary authority over decisions that ultimately determine corporate policy.” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 573.) Title 22 of the California Code of Regulations, section 72513 requires every skilled nursing home to have an “Administrator,” who “shall be responsible for the administration and management” of the facility, who is responsible to “carry out the policies of the licensee” and who is responsible for “the management and administration of the facility.” (Cal. Code Regs., tit. 22, § 72513, subds. (a) and (b).) Brett Dobbs, the Administrator of the FACILITY, was the highest managing agent of the FACILITY during RODRIGUEZ’ residency and was hired by the Governing Board to carry out the day-to-day operations at the direction of DEFENDANTS. Also, Natalie Salsedo has been the Director of Nursing and another managing agent of the FACILITY, hired by the Governing Board, since September 11, 2017. 26. Further, Brett Dobbs and Natalie Salsedo were hired and authorized by DEFENDANTS to establish and implement the policies adopted by the governing body regarding the management and operation of the FACILITY, including the staffing, budgeting and the training of employees, pursuant to laws and regulations. 27. Thus, at all relevant times, DEFENDANTS, through Brett Dobbs and Natalie Salsedo, their “governing body,” “managing agent,” managers, directors, officers, and other agents directly oversaw, managed and/or controlled all aspects of the operation and management 7 COMPLAINT FOR DAMAGES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of the FACILITY, including, but not limited to, the budget, the staffing, staff training, the policy and procedures manual, accounts payable, accounts receivable, the facility’s development and leasing, general accounting, cash management, pricing, reimbursement, capitalization, and profit and loss margins. 28. Thus, at all relevant times, DEFENDANTS, through their managers, directors, officers, and other agents created and authorized the budgets, policies, and procedures that their employees were required to implement and follow. Accordingly, all DEFENDANTS are vicariously liable for the acts and omissions of each other. 29. Thus, DEFENDANTS, by their acts and omissions as alleged, operated pursuant to an agreement, with a common purpose and community of interest, with an equal right of control, and subject to participation in profits and losses, such that they operated a joint enterprise or joint venture, subjecting each of them to direct liability for the acts and omissions of each other. 30. Therefore, DEFENDANTS are each directly and vicariously liable for the injuries alleged herein such that if each of the DEFENDANTS are not found liable, fraud or injustice will result. FIRST CAUSE OF ACTION ELDER ABUSE AND NEGLECT (Pursuant to Welfare and Institutions Code section 15600, et seq.) [By PLAINTIFF against all DEFENDANTS] 31. PLAINTIFF hereby incorporates by reference the allegations set forth supra. 32. At all relevant times, RODRIGUEZ was an “elder adult” as defined by Welfare and Institutions Code section 15610.27. RODRIGUEZ was born on October 19, 1949, and was approximately 71 years of age during the events and circumstances described infra. At all relevant times, RODRIGUEZ was a resident of the County of Fresno in the State of California. 33. PLAINTIFF is informed and believes, and therefore alleges, that the DEFENDANTS were and are required to provide custodial care, room and board, twenty-four- hour supervision, and personal care and assistance to their residents. Care and supervision 8 COMPLAINT FOR DAMAGES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 required of DEFENDANTS included custodial care and services, physician services, skilled nursing services, dietary services, pharmaceutical services, and activities services as described in Title 22 of the California Code of Regulations, section 72301, et seq. 34. In light of the foregoing, RODRIGUEZ became a resident of the FACILITY on January 13, 2021, to receive custodial care and services. 35. Therefore, at all relevant times, the DEFENDANTS owed statutory, regulatory, and custodial duties to RODRIGUEZ to provide for his custodial needs, health, safety, and well- being. RODRIGUEZ’ INJURIES WERE A RESULT OF DEFENDANTS’ WRONGFUL CONDUCT 36. Prior to his admission to the FACILITY, RODRIGUEZ lived at home with his family and was mobile with a walker. 37. On January 6, 2021, RODRIGUEZ fell at home and had a scrape on his right arm. RODRIGUEZ was emergently taken to Fresno Community Hospital, where he was diagnosed with a stroke that caused right-side paralysis and issues with swallowing. RODRIGUEZ was fully alert but had difficulty speaking and was assessed as unable to walk independently, likely due to vertigo while standing. 38. RODRIGUEZ was admitted to the FACILITY on January 13, 2020, for post-acute care including physical therapy, occupational therapy, and speech therapy with muscle strengthening and activities of daily living re-training. The initial plan was for RODRIGUEZ to be discharged home with his family after 30 days. 39. At the time of RODRIGUEZ’ admission to the FACILITY, his primary diagnoses included, among others, COPD, high blood pressure, depression, fibromyalgia, and right-side hemiplegia. RODRIGUEZ was identified upon admission as a fall risk and was assessed as incontinent of bowel and bladder. The FACILITY’S Social Services Director assessed RODRIGUEZ with impaired gait and balance with cognitive impairment, as well as inability to even recognize family members and lack of safety awareness. Plus, RODRIGUEZ was prescribed 60 milligrams daily of duloxetine and 325 milligrams of hydrocodone every six hours 9 COMPLAINT FOR DAMAGES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 as needed for pain; both of these medications cause drowsiness and dizziness, which increased RODRIGUEZ’ fall risk. Thus, DEFENDANTS knew RODRIGUEZ was dependent on the FACILITY to help fulfill his daily needs. 40. Upon RODRIGUEZ’ arrival, the FACILITY wrote care plans in order to address his risk of falls and ensure that he did not suffer any harm or injury resulting from falls. Despite the fact that the FACILITY assessed RODRIGUEZ as a fall risk, the FACILITY’S primary intervention was encouraging RODRIGUEZ, despite his confusion, to use his call light when needing assistance with transfers, rather than trying to get up independently. 41. Accordingly, DEFENDANTS had knowledge of the substantial risk that RODRIGUEZ would suffer severe injuries and/or death if DEFENDANTS denied or withheld services to ensure his basic needs were met. Thus, the FACILITY acted with a conscious disregard of the high probability and substantially certain risk that RODRIGUEZ would suffer injuries, which resulted in him suffering from falls. 42. On January 16, 2021, RODRIGUEZ was found on the floor by FACILITY staff. RODRIGUEZ allegedly fell from his wheelchair when trying to transfer back to bed and manifested confusion. FACILITY staff instructed RODRIGUEZ to use his call light to assist with transfers. RODRIGUEZ’ daughter was informed of the fall and complained to FACILITY staff of how she was having difficulty communicating with the FACILITY staff and RODRIGUEZ. 43. After the first unwitnessed fall, RODRIGUEZ was assessed as tolerating therapy with no complaints of pain or injury, but manifested frustration with his current status. The FACILITY again identified RODRIGUEZ as a fall risk, primarily as he attempts to get out of bed unassisted. 44. On January 24, 2021, RODRIGUEZ suffered another fall at the FACILITY while transferring himself from his wheelchair back to his bed after lunch. No injury or pain was identified, in part due to floor mats softening the fall, and RODRIGUEZ was added to the FACILITY’S Falling Star Program. Thus, the FACILITY had increasing awareness of the extent of RODRIGUEZ’ fall risk. 10 COMPLAINT FOR DAMAGES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 45. For the next week after the January 24, 2021, fall, RODRIGUEZ was assessed with no pain or trauma status post fall. RODRIGUEZ was progressing well in physical therapy, even able to ambulate 8 feet during physical therapy with moderate assistance and using a front- wheeled walker. 46. On February 1, 2021, RODRIGUEZ participated in physical therapy, with no remarkable comments aside from his general progress. 47. Sometime after physical therapy on February 1, 2021, RODRIGUEZ suffered another fall. On February 2, 2021, RODRIGUEZ complained during therapy of pain in his right hip. Upon examination, RODRIGUEZ’ right hip appeared to be externally rotated, and an x-ray was taken. The radiology study showed a right hip intertrochanteric fracture with slight impaction. Accordingly, RODRIGUEZ was admitted to Fresno Community Hospital and diagnosed with a closed displaced intertrochanteric right femur fracture. RODRIGUEZ also had skin tears and bruising on his arms and legs. The hospital reported that this was the result of a ground level fall during a transfer. The FACILITY did not report any fall. 48. On February 3, 2021, RODRIGUEZ underwent surgery at Fresno Community Hospital to repair his right femur fracture. RODRIGUEZ’ daughter retrieved RODRIGUEZ’ belongings at the FACILITY and complained to FACILITY Administrator Brett Dobbs and the FACILITY’S Social Services Director about the FACILITY’S failure to meet RODRIGUEZ’ custodial needs. RODRIGUEZ was discharged from the hospital and sent home on February 9, 2021. RODRIGUEZ still currently lives at home with his family. 49. Following his surgery, as a result of his injuries, RODRIGUEZ suffered a decline in his condition. 50. As a result of DEFENDANTS’ neglectful withholding of care to FACILITY residents, RODRIGUEZ suffered unnecessary pain, injury, and emotional distress from the abuse and neglect caused by DEFENDANTS. Despite DEFENDANTS’ increasing awareness that RODRIGUEZ was at a particularly high risk of falls, and that he required consistent monitoring and assistance, DEFENDANTS failed to create and implement adequate care plans to ensure that he did not suffer from falls and resulting injuries. 11 COMPLAINT FOR DAMAGES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 51. Even with the knowledge of RODRIGUEZ’ requirements of assistance with his care needs, the FACILITY failed to adequately provide the proper custodial care that RODRIGUEZ required for his well-being. 52. The injuries that RODRIGUEZ suffered at the FACILITY were due to DEFENDANTS’ failure to provide basic custodial services to him, such as providing sufficient supervision, monitoring and observing his condition, and providing assistance as needed. DEFENDANTS’ neglect was not a one-time mistake, but rather, RODRIGUEZ’ injuries were such that they could have only resulted from a pattern of reckless neglect by DEFENDANTS by failing to provide him with basic care to adequately observe, monitor, and prevent serious harm. 53. As a direct and proximate result of DEFENDANTS’ reckless neglect, RODRIGUEZ was allowed to suffer the injuries as described herein. The injuries listed are merely illustrative of the abuse and neglect that RODRIGUEZ suffered and are not meant to limit the extent of his injuries. RODRIGUEZ’ INJURIES RESULTING FROM DEFENDANTS’ WRONGFUL CONDUCT CONSTITUTE ELDER ABUSE AND NEGLECT 54. The California Legislature has acknowledged that elder adults are particularly susceptible to abuse and neglect at the hands of caretakers because of “physical impairments and other poor health that place them in a dependent and vulnerable position.” (Welf. & Inst. Code, § 15600.) The Legislature made clear its public policy regarding the care of elderly adults and sought to incentivize litigation to protect the rights of these vulnerable elders and prosecute those who engaged in elder abuse and neglect. 55. “Elders,” as protected by Welfare and Institutions Code section 15600, et seq. are defined at Welfare and Institutions Code section 15610.27 as California residents aged 65 or older. 56. “Abuse,” as it relates to elders, is defined at Welfare and Institutions Code section 15610.07 as either: a. “Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering” (emphasis added). 12 COMPLAINT FOR DAMAGES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 b. “The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” 57. “Neglect,” as it relates to elders, is defined at Welfare and Institutions Code section 15610.57 as “[t]he negligent failure of any person having the care and custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise,” and includes but is not limited to the: “[f]ailure to protect from health and safety hazards”; “failure to assist in personal hygiene, or in the provision of food, clothing, or shelter”; “failure to provide medical care for physical and mental health needs”; and “failure to prevent malnutrition or dehydration.” (Welf. & Inst. Code, § 15610.57, subds. (b)(1)-(4).) 58. In addition to the above, regulations set the standard of care in the skilled nursing facility industry and help define the care duty to elders and dependent adults. Said regulations are appropriate in determining whether DEFENDANTS’ conduct amounted to physical abuse, neglect, recklessness, oppression, or malice. (See Shuts v. Covenant Holdco LLC (2012) 208 Cal.App.4th 609, 623 n.8; Norman v. Life Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233.) Failure to exercise the degree of care that a reasonable person in a like position would exercise with respect to caring for elders, then, can constitute neglect and therefore abuse of an elder pursuant to Welfare and Institutions Code section 15600, et seq. 59. DEFENDANTS failed to exercise the degree of care that a reasonable person in a like position would exercise with respect to caring for RODGRIGUEZ by, among other things, ensuring RODRIGUEZ was properly cared for as to prevent falls and injury and making sure that appropriate fall interventions, supervision, safety procedures, and care plans were adequate and actually implemented. 60. DEFENDANTS owed duties to RODRIGUEZ, yet failed to operate and provide services in compliance with all applicable federal, state, and local laws and regulations, and with accepted standards and principles that apply to those providing services in such a facility as required by the Code of Federal Regulations, the Health and Safety Code, and Title 22 of the California Code of Regulations. By way of example, the FACILITY owed duties to residents including, but not limited to: 13 COMPLAINT FOR DAMAGES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a. Developing, implementing, and reviewing and updating a patient care plan that indicates what care is necessary for each patient and which goals the plan aims to achieve. (Cal. Code Regs., tit. 22, §§ 72311, subd. (a)(1)(B), 72311, subd. (a)(1)(C), 72311, subd. (a)(2).) b. Hiring and scheduling sufficient staff to care for patients based on the patients’ needs. (Cal. Code Regs., tit. 22, § 72329.1, subd. (g)(1).) c. Accepting and retaining only those patients for whom it can provide adequate care. (Cal. Code Regs., tit. 22, § 72515, subd. (b).) 61. The conduct of DEFENDANTS, as alleged herein, constitutes “neglect of an elder or dependent adult” as defined in Welfare and Institutions Code section 15610.57 in ways which include but are not limited to: a. Failure to protect from health and safety hazards such that RODRIGUEZ suffered a fall and resulting right femur fracture; and b. Failure to provide and implement adequate care plans. 62. By engaging in the conduct, neglect, and abuse, as alleged supra, despite the known risks of such conduct, DEFENDANTS’ actions were malicious, oppressive, fraudulent, and/or reckless. 63. DEFENDANTS were aware or should have been aware that RODRIGUEZ was at risk of the aforementioned injuries upon his admission to the FACILITY. 64. Despite knowledge of the risks of harm to RODRIGUEZ, DEFENDANTS denied or withheld the necessary services with knowledge that injury was substantially certain to result, or at a minimum with conscious disregarded of the high probability that injury would result. 65. By engaging in the conduct, neglect, and abuse, as alleged supra, including but not limited to the profit scheme by which the DEFENDANTS undercapitalized, understaffed, and undertrained their respective employees, despite the known risk to elders while at the same seeking to increase residency rates to increase revenue, DEFENDANTS’ actions were malicious, oppressive, fraudulent, and/or reckless. 66. DEFENDANTS each willfully, intentionally, and/or recklessly caused or permitted 14 COMPLAINT FOR DAMAGES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RODRIGUEZ to be injured and/or placed in a situation such that his health was in danger, as set forth supra. 67. DEFENDANTS’ actions, as alleged supra, created circumstances or conditions likely to cause great bodily harm, and DEFENDANTS willfully caused or permitted RODRIGUEZ to suffer, or inflicted upon him, unjustifiable physical and emotional pain, injuries, damages, suffering, and indignity. 68. As a direct, actual, legal, and proximate cause of the conduct of DEFENDANTS, as alleged herein, RODRIGUEZ suffered unjustifiable and substantial physical pain, mental suffering, and indignity. 69. Because of the malicious, oppressive, fraudulent, and/or reckless nature of DEFENDANTS’ conduct, an award of punitive damages in a sum according to proof at trial is therefore justified and appropriate. SECOND CAUSE OF ACTION VIOLATION OF RESIDENTS’ BILL OF RIGHTS (Pursuant to Health and Safety Code § 1430(b)) [By PLAINTIFF against the FACILITY] 70. PLAINTIFF hereby incorporates by reference the allegations set forth supra. 71. Health and Safety Code section 1430, subdivision (b) provides in pertinent part that a former resident of a skilled nursing facility may bring an action against the licensee of a facility who violates any of the rights of the residents as set forth in the Residents’ Bill of Rights found in Title 22 of the California Code of Regulations, section 72527. 72. During his time at the FACILITY, RODRIGUEZ was entitled to all rights provided by the Residents’ Bill of Rights, as he was a resident of the FACILITY, which was and is a skilled nursing facility. The FACILITY had a mandatory duty to ensure that RODRIGUEZ’ rights were not violated. 73. As provided by the Residents’ Bill of Rights, the Health and Safety Code, the California Code of Regulations, and the Code of Federal Regulations, in addition to those rights listed supra, RODRIGUEZ’ rights included but were not limited to the following rights: 15 COMPLAINT FOR DAMAGES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a. The right to provision of sufficient numbers of qualified personnel to appropriately staff the facility. (Health & Saf. Code § 1599.1, subd. (a); Cal. Code Regs., tit. 22, § 72515, subd. (b).) b. The right to be free from mental and physical abuse. (Cal. Code Regs., tit. 22, § 72527, subd. (a)(10).) c. The right to be treated with consideration, respect, and full recognition of dignity in care of personal needs. (Cal. Code Regs., tit. 22, § 72527, subd. (a)(12).) d. The right to have his medical records completely and accurately documented. (Cal. Code Regs., tit. 22 § 72547.) 74. PLAINTIFF is informed and believes, and therefore alleges, that RODRIGUEZ’ rights as a resident were violated in ways which include but are not limited to: a. The suffering of abuse and neglect by the FACILITY, as stated supra. b. The failure to treat RODRIGUEZ with consideration, respect and full recognition of dignity and individuality, as the FACILITY did not care for his personal needs, as stated supra, including but not limited to failing to create and implement proper care plans and interventions to prevent him from falling and suffering severe injury, and failing to completely and accurately document RODRIGUEZ’ falls. 75. The singular examples set forth above are not meant to limit the number of allegations of violations contained herein, but are merely illustrative of the depth of the FACILITY’S malicious, oppressive, fraudulent, and/or reckless conduct, to be more fully proven through discovery and at time of trial. 76. Pursuant to Health and Safety Code section 1430, subdivision (b), in addition to all other remedies provided by law, Plaintiff is entitled to statutory damages against the FACILITY for the violations of RODRIGUEZ’ rights as a nursing home resident, as well as punitive damages and costs and attorneys’ fees in this proceeding. // // // 16 COMPLAINT FOR DAMAGES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRD CAUSE OF ACTION NEGLIGENCE [By PLAINTIFF against all DEFENDANTS] 77. PLAINTIFF hereby incorporates by reference the allegations set forth supra. 78. DEFENDANTS, and each of them, owed standard of care and reasonable person duties to RODRIGUEZ. In addition, DEFENDANTS owed RODRIGUEZ statutory and regulatory duties imposed by law. One of the purposes of the statutes and regulations is to protect against the type of injuries that RODRIGUEZ sustained. 79. DEFENDANTS’ conduct, as alleged herein, was in violation of those statutes and regulations, and was the direct, actual, legal, and proximate cause of RODRIGUEZ’ injuries. Such conduct is therefore negligent per se. 80. DEFENDANTS’ conduct as alleged herein also breached their standard of care duties to RODRIGUEZ. 81. As a result of DEFENDANTS’ conduct alleged herein, RODRIGUEZ sustained serious injuries from his falls at the FACILITY. 82. DEFENDANTS’ breaches of their duties were the direct, actual, legal, and proximate cause of RODRIGUEZ’ injuries. 83. RODRIGUEZ would not have suffered the injuries described herein but for DEFENDANTS’ conduct and breaches of duty. 84. The injuries suffered by RODRIGUEZ were foreseeable as DEFENDANTS knew or should have known that their conduct would lead to injuries of the kind suffered by RODRIGUEZ. RODRIGUEZ sustained injuries and damages a result of DEFENDANTS’ breaches. // // // // // 17 COMPLAINT FOR DAMAGES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PRAYER FOR RELIEF WHEREFORE, PLAINTIFF prays for judgment and damages as follows: 1. For general damages according to proof against DEFENDANTS; 2. For special damages according to proof against DEFENDANTS; 3. For all damages and remedies pursuant to Health and Safety Code section 1430, subdivision (b) against the FACILITY; 4. For attorney’s fees against DEFENDANTS; 5. For punitive and exemplary damages against DEFENDANTS; 6. For costs of suit against DEFENDANTS; 7. For such other and further relief as the Court deems just and proper. Dated: April 23, 2021 Respectfully submitted, LANZONE MORGAN, LLP By: ____________________________________ Amber M. Tham Attorneys for Plaintiff 7~