Motion OtherCal. Super. - 6th Dist.April 1, 2021\GmflQUIAUJNH t-tt-tr-tr-tt-tr-t UIhMNflG PHONE: (858) 350-8855 FAX: (858) 350-9855 H GNBERMAN & RIEDEL, LLP 12264 EL CAMINO REAL, SUITE 300 SAN DIEGO, CALIFORNIA 92130 NNNNNNNNNHHH WQQUI-BUJNflcwmq William M. Berman, Esq., State Bar No.2 190078 E-Mail: wberman@bermanlawvers.com Harlan J. Zaback, Esq., State Bar No.2 266498 E-Mail: hzaback@bermanlawvers.com BERMAN & RIEDEL, LLP 12264 E1 Camino Real, Suite 300 San Diego, California 92130 phone: (858) 350-8855 ° fax: (858) 350-9855 Attorneys for Plaintiff Electronically Filed by Superior Court of CA, County of Santa Clara, on 2/1 0/2022 4:36 PM Reviewed By: R. Tien Case #21 CV381447 Envelope: 8268685 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA MARIE ROMERO an individual, by and through her Guardian ad Litem/legal-personal representative, DARLENE D. DRACE, as Plaintiff, V. ALMADEN OPERATING COMPANY LP dba ALMADEN HEALTHCARE AND REHABILITATION CENTER, a California Skilled Nursing Facility; CHARO LAGUNILLA as Director 0fNursing for ALMADEN OPERATING COMPANY LP dba ALMADEN HEALTHCARE AND REHABILITATION CENTER; and DOES 1-50, inclusive, as Defendants. Case No.: 21CV381447 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR TRIAL PREFERENCE; DECLARATION OF HARLAN J. ZABACK Date: B 5-1 2-2022 Time: K 9:00am Dept: 7 Judge: Hon. Christopher G. Rudy Complaint Filed: April 1, 2021 Trial Date: Not Set TO THE HONORABLE ABOVE REFERENCED COURT AND ALL INVOLVED DEFENDANTS AND THEIR RESPECTIVE ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on May12,2022 at 9:00am , plaintiff, by and through her Attorneys of Record, will appear in Department 7 of the above-entitled court, located at 191 North First Street San Jose, CA 951 13 and will move this Honorable Court for an order granting her trial preference and setting trial 120 days from the date 0f the hearing of this motion. PLAINTIFF ’ S NOTICE OF MOTION AND MOTION FOR TRIAL PREFERENCE; DECLARATION OF HARLAN J. ZABACK BERMAN & RIEDEL LLP 12264 EL CAMINO REAL, SUITE 300 SAN DIEGO, CALIFORNIA 92 13 0 PHONE: (858) 350-8855 FAX: (858) 350-9855 \GwflQUthJNH NNNNNNNNNHHHHHHHHHH WQQUI-BOJN#G\DQ\IG\UIhWNHO This motion is made pursuant to California Code 0f Civil Procedure §§36(a), 36.5 0n the grounds that plaintiff Marie Romero is over the age 0f 70, has a substantial interest in the case, and has medical conditions that warrant the granting ofpreference. This motion is further made pursuant t0 California Code 0f Civil Procedure §36(e) on the basis that the granting 0f preference would serve the interests ofjustice. This motion will be based upon this Notice of Motion, Memorandum of Points and Authorities, Declaration 0f Harlan J. Zaback, and upon all other supporting documents filed, including, but not limited t0, any and all other papers and records on file herein in this matter, and any other oral and documentary evidence that may be presented prior to, or at the hearing of this noticed motion. Respectfully submitted. DATED: February 10, 2022 ' - Hénw V ' arlah J. a , squire Attorneys for Plaintiff /// /// /// /// /// /// /// /// /// /// 2 PLAINTIFF ’ S NOTICE OF MOTION AND MOTION FOR TRIAL PREFERENCE; DECLARATION OF HARLAN J. ZABACK BERMAN & RIEDEL, LLP 12264 EL CAMINO REAL, SUITE 300 SAN DIEGO, CALIFORNIA 92130 PHONE: (858) 350-8855 FAX: (858) 350-9855 hMN \OmflQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Marie Romero is currently 81 years 01d, suffers from multiple medical conditions, and has a substantial interest in being alive for trial 0f this matter. Accordingly, Ms. Romero requests that this Court grant her trial preference pursuant to California Code 0f Civil Procedure §36. California Code 0f Civil Procedure §36(a) requires that a Court grant preference t0 a party that is over the age 0f 70 and has a substantial interest in the case. Ms. Romero meets these requirements and respectfully requests that the Court grant her trial preference and set trial n0 later than 120 days from the date of this hearing. II. STATEMENT OF FACTS On December 28, 2019, Ms. Romero was admitted t0 Almaden Operating Company LP dba Almaden Healthcare and Rehabilitation Center (Almaden), a skilled nursing facility, following hospitalization for a cerebrovascular accident (stroke). Ms. Romero was admitted to Almaden t0 receive 24-hour care, treatment, assistance, and therapy. Upon her admission, Ms. Romero presented With additional medical issues, including but not limited to polyarthritis, chronic pain syndrome, obstructive and reflux uropathy, atherosclerotic heart disease, hyperlipidemia, overactive bladder, flaccid hemiplegia affecting left nondominant side, cerebral infarction, dysphagia, and hypertension. Almaden noted that Ms. Romero did not present t0 its facility With any pressure injuriesl 0n her left heel. However, Almaden did note upon Ms. Romero’s admission to its facility that she was at a high risk for developing pressure wounds and other skin integrity issues if she was not provided With care and treatment that it knew Ms. Romero required. Specifically, at the time of Ms. Romero’s admission t0 the facility, Almaden was aware that Ms. Romero had just suffered a stroke, Which caused her to be completely dependent on the staff at Almaden for assistance With her 57 661 The term “Pressure Injury” includes the terms “bedsores , pressure ulcers 1 ’9 CG , pressure sores”, 0r “decubitus ulcers”. PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR TRIAL PREFERENCE; DECLARATION OF HARLAN J. ZABACK BERMAN & RIEDEL, LLP 12264 EL CAMINO REAL, SUITE 300 SAN DIEGO, CALIFORNIA 92130 PHONE: (858) 350-8855 FAX: (858) 350-9855 hMN \OmflQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 basic needs and activities of daily living, including, but not limited to, supervision, provision of medical care, receiving medication, daily hygiene, assistance with transfers, and monitoring. Almaden staff knew that Ms. Romero was unable t0 provide for her own basic needs. Almaden staffknew that if they failed t0 provide Ms. Romero with assistance With her daily needs, she could suffer serious harm. Specifically, Almaden was aware that at the time of her admission, Ms. Romero presented with left sided paralysis as a result 0f her recent stroke. In fact, Almaden documented that Ms. Romero was at a high risk for skin integrity issues as a result of her left sided paralysis since she was unable t0 transfer 0r turn in bed independently. As such, Almaden was aware that Ms. Romero would require skin care and monitoring t0 the bony prominences 0f Ms. Romero’s body in order t0 prevent harm 0r serious injury t0 Ms. Romero. As such, Almaden was aware that Ms. Romero would require skin integrity care and wound care in order to prevent harm 0r serious injury t0 Ms. Romero. Despite knowing that it needed t0 provide care t0 Ms. Romero for skin integrity and wound care management, Almaden Withheld such care. As a result 0f failing to provide such care, Ms. Romero developed significant medical complications that eventually resulted in significant hospitalizations, medical treatment, and an above knee leg amputation. Specifically, Almaden failed t0: a. Assist in turning and repositioning every two hours and as needed; b. Encourage mobility and change 0f position When in bed or in chair; c. Identify risk factors making Ms. Romero at risk for development of pressure sores; d. Implement pressure relieving/reducing devices in bed or in wheelchair; e. Provide skin care; and f. Conduct weekly skin checks. Despite Almaden noting that these interventions needed t0 be implemented in order to minimize Ms. Romero’s risk of developing pressure injuries/skin breakdown issues and maintain skin integrity, Almaden failed t0 implement these interventions. As a result 0f the failures outlined above, Ms. Romero’s skin integrity quickly deteriorated. Specifically, by January 11, 2020, it was noted by Almaden that Ms. Romero developed an 2 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR TRIAL PREFERENCE; DECLARATION OF HARLAN J. ZABACK BERMAN & RIEDEL LLP 12264 EL CAMINO REAL, SUITE 300 SAN DIEGO, CALIFORNIA 92 13 0 PHONE: (858) 350-8855 FAX: (858) 350-9855 hMN \OmflQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unstageable pressure injury on her left heel that measured 9 cm X 9 cm With necrotic tissue in the wound bed. In response to the development 0f the unstageable pressure injury, Almaden noted that it would implement the additional relevant interventions: a. Reposition resident during care and as needed; b. Implement a 10W air loss mattress. Once again, despite Almaden noting that these interventions needed to be implemented to promote healing of the pressure injury, there is n0 evidence that Ms. Romero was being repositioned. Additionally, the low air loss mattress was first implemented by Almaden on January 22, 2020, eleven days after Ms. Romero’s attending physician first ordered it. Due to the continued neglect by Almaden of Ms. Romero’s pressure injury, by June 16, 2020, it was noted that Ms. Romero’s “left heel shows a large eschar 8.2 X 5.4 With odor that is black and then above that is the exposed tendon at about 1.5 cm.” additionally, it was noted that the pressure injury likely extended all the way “to the bone.” On August 19, 2020, Ms. Romero’s vascular surgeon noted that the pressure injury grew out “ESBL, MRSA, Pseudomonas. . .” and that there were “two new pressure sores [present on her left foot], one. . .on the top 0f the foot the other. . .on the lateral aspect, [Which were caused by staff at Almaden] wrapping [M5, Romero’s foot] too tight.” By August 26, 2020, it was noted that the pressure injury on Ms. Romero’s left heel measured 7.5 cm X 6 cm X 0.5 cm and was a stage 3, the pressure injury on Ms. Romero’s left dorsal foot measured 7.5 cm X 6 cm and was staged as a deep tissue injury, and the injury 0n Ms. Romero’s left lateral foot measured 3.5 cm X 13 cm and was a stage 4. On September 30, 2020, it was opined by Ms. Romero’s vascular surgeon that her left foot was no longer functional, at Which point he recommended that her leg be amputated. Based on this recommendation, an above knee amputation was performed on Ms. Romero’s left leg 0n October 19, 2020. Ms. Romero was born 0n November 19, 1940, and is currently 81 years old. (See, EXHIBIT “A” at 001-Almaden-Romero-Medical Records.pdf - 00001 ; Attached to the accompanying Declaration of Harlan J. Zaback). Ms. Romero has several medical conditions that warrant the 3 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR TRIAL PREFERENCE; DECLARATION OF HARLAN J. ZABACK BERMAN & RIEDEL LLP 12264 EL CAMINO REAL, SUITE 300 SAN DIEGO, CALIFORNIA 92 13 0 PHONE: (858) 350-8855 FAX: (858) 350-9855 hMN \OmflQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 granting of preference. These medical conditions include, but are not limited t0: stroke, polyarthritis, chronic pain syndrome, obstructive and reflux uropathy, atherosclerotic heart disease, hyperlipidemia, spinal stenosis, depression, hypertension, insomnia, overactive bladder, flaccid hemiplegia affecting left nondominant side, cerebral infarction, dysphagia, hypertension, and status post above knee left leg amputation. (See, EXHIBIT “A” at 001-Almaden-Romero-Medical Records.pdf - 00010 and EXHIBIT “B” at 000632-000634; Collectively attached t0 the accompanying Declaration of Harlan J. Zaback). California law mandates that preference must be granted under the present circumstances. Accordingly, Ms. Romero requests that this Court grant her preference and set a trial date no later than 120 days from the date of this hearing. III. LEGAL AUTHORITY California Code ofCivil Procedure §36(a) provides in pertinent part: A party to a civil action Who is over 7O years of age may petition the court for a preference, Which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole. (2) The health 0f the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation. California Code 0f Civil Procedure §36(a). Courts have concluded that California Code 0f Civil Procedure §36(a) is absolute and mandatory in its application. Rice v. Superior Court (1982) 136 Cal.App.3d 81, 86. If a party meets the requirements set forth in the statute, the Court must grant trial preference. Miller v. Superior Court (1990) 221 Ca1.App.3d 1200, 1204-05. As Ms. Romero has a substantial interest in this case and her health is such that preference is necessary to prevent prejudicing her interests, preference should be granted. /// /// 4 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR TRIAL PREFERENCE; DECLARATION OF HARLAN J. ZABACK BERMAN & RIEDEL LLP 12264 EL CAMINO REAL, SUITE 300 SAN DIEGO, CALIFORNIA 92 13 0 PHONE: (858) 350-8855 FAX: (858) 350-9855 hMN \OmflQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. MS. ROMERO MEETS THE REQUIREMENTS OF CALIFORNIA CODE OF CIVIL PROCEDURE 836(3) A. Ms. Romero Has a Substantial Interest in the Case The clear intent of the Legislature in enacting California Code 0f Civil Procedure §36(a) was t0 “safeguard litigants who qualify under subdivision (a) of Section 36 against the acknowledged risk that death or incapacity might deprive them of the opportunity to have their case effectively tried and to obtain the appropriate recovery.” Miller, supra, 221 Ca1.App.3d at 1205. Courts have concluded that preference is necessary t0 assure a party’s peace ofmind that he/she Will live t0 see a particular dispute brought to resolution. Looney v. Superior Court (1993) 16 Cal.App.4th 521, 532. Additionally, courts have acknowledged that the nature 0f the ultimate recovery can be adversely affected by a plaintiff” s death prior t0 judgment. Id. In this case, Ms. Romero clearly has a substantial interest in the case. The gravamen of this lawsuit is the damages suffered by Ms. Romero due t0 abject failures of Almaden in keeping Ms. Romero safe from physical harm, health hazards, safety hazards, and skin integrity issues. See, California Welfare & Institutions Code §15610.07(a) (“[a]buse 0f an elder...means...(2) [t]he deprivation by a care custodian 0f goods 0r services that are necessary to avoid physical harm. . .”); see also, California Welfare & Institutions Code §15610.57(b) (“[n]eglect includes. . .(3) failure t0 protect from health and safety hazards”). Ms. Romero would like to be alive t0 know that a trier 0f fact ultimately held Almaden accountable for the harm its gross failures caused her. Moreover, Ms. Romero’s recovery Will be substantially affected if she dies before she can obtain a judgment. Specifically, as a living plaintiff, Ms. Romero’s pain and suffering damages for elder abuse/neglect are uncapped. However, if Ms. Romero passes away, her pain and suffering damages related t0 her negligence claim are n0 longer recoverable, and her pain and suffering damages for her elder abuse/neglect claim are capped at $250,000.00. California Code 0f Civil Procedure §377.34; California Welfare & Institutions Code §I5657. Thus, in Simple terms, as a living plaintiff, Ms. Romero’s pain and suffering damages are unlimited. If Ms. Romero dies, however, her pain and suffering would n0 longer be recoverable for negligence, and such damages 5 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR TRIAL PREFERENCE; DECLARATION OF HARLAN J. ZABACK BERMAN & RIEDEL, LLP 12264 EL CAMINO REAL, SUITE 300 SAN DIEGO, CALIFORNIA 92130 PHONE: (858) 350-8855 FAX: (858) 350-9855 hMN \OmflQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 under her elder abuse/neglect claim would be limited t0 just $250,000.00. Accordingly, Ms. Romero’s ultimate recovery would be significantly affected if she is not granted preference. Based on the foregoing, Ms. Romero has a substantial interest in this case. Ms. Romero would like to be alive for trial of this matter so she can know that a trier 0f fact held Almaden accountable for the harm its gross failures caused her. Furthermore, Ms. Romero’s damages would be adversely affected if she were to die before obtaining a judgment against Almaden. Therefore, Ms. Romero meets the first requirement set forth under California Code ofCivil Procedure §36(a). B. Ms. Romero’s Age and Health Support the Granting 0f Preference The second prong of California Code 0f Civil Procedure §36(a) states that preference is mandatory if the health of the party is such that preference is necessary t0 prevent prejudicing the party’s interest in the litigation. California Code 0f Civil Procedure §36(a). In determining if the health of a party is such that preference is necessary to prevent prejudicing the party’s interest in the litigation, courts merely consider Whether the party has “health problems.” See, Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 697 (stating that the Legislature has determined that litigants over the age 0f 70 with health problems should be ensured timely access to the courts). Importantly, this broad standard is much less stringent than the standard set forth in California Code 0f Civil Procedure §36(d), Which requires a party to submit clear and convincing medical documentation that concludes that a party has less than six months to live. This is not the standard for preference under California Code osz'vz'l Procedure §36(a). In contrast to that stringent requirement, California Code 0f Civil Procedure §36(a) only requires that plaintiff evidence he 0r she has health problems. Moreover, a party need only submit an attorney’s declaration t0 support the granting of preference under California Code 0f Civil Procedure §36(a). See, California Code ofCivil Procedure §36.5 (stating “an affidavitz submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party”). Thus, n0 medical documentation is required t0 support a 2 See, People v. Nagel (1970) 4 Ca1.App.3d 458, 461 (“Code of Civil Procedure section 2015.5 expressly provides for the use 0f [penalty 0f perjury] declarations in place 0f an affidavit and With the same force and effect as an affidavit”). 6 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR TRIAL PREFERENCE; DECLARATION OF HARLAN J. ZABACK BERMAN & RIEDEL LLP 12264 EL CAMINO REAL, SUITE 300 SAN DIEGO, CALIFORNIA 92 13 0 PHONE: (858) 350-8855 FAX: (858) 350-9855 hMN \OmflQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 motion for preference pursuant t0 California Code osz'vz'l Procedure §36(a). In allowing for a 10W standard t0 grant California Code ofCivil Procedure §36(a) motions, courts have emphasized that the purpose of the statute is to: [S]afeguard litigants beyond a specified age against the legislatively acknowledged risk that death 0r incapacity might deprive them of the opportunity t0 have their case effectively tried and the opportunity t0 recover their just measure of damages or appropriate redress. Rice, supra, 136 Cal.App.3d at 88-89 (emphasis added). Thus, if a health problem might deprive the party 0ftheir right to trial, preference should be granted. In this case, Ms. Romero was born 0n November 19, 1940, and is currently 81 years 01d. (See, EXHIBIT “A” at 001-Almaden-Romero-Medical Records.pdf - 00001; Attached to the accompanying Declaration of Harlan J. Zaback). Ms. Romero has several medical conditions that warrant the granting ofpreference. These medical conditions include, but are not limited t0: stroke, polyarthritis, chronic pain syndrome, obstructive and reflux uropathy, atherosclerotic heart disease, hyperlipidemia, spinal stenosis, depression, hypertension, insomnia, overactive bladder, flaccid hemiplegia affecting left nondominant side, cerebral infarction, dysphagia, hypertension, and status post above knee left leg amputation. (See, EXHIBIT “A” at 001-Almaden-Romero-Medical Records.pdf - 00010 and EXHIBIT “B” at 000632-000634; Collectively attached t0 the accompanying Declaration of Harlan J. Zaback). Ms. Romero’s health conditions warrant the granting 0f preference and if not granted preference, Ms. Romero would be unlikely to be alive for trial in this matter. Accordingly, Ms. Romero’s health is such that preference is necessary to ensure that she is alive for trial and to prevent prejudicing her interests in this case. V. THE GRANTING OF PREFERENCE IS MANDATORY REGARDLESS OF ANY PREJUDICE TO THE PARTIES In Miller, supra, the Court strongly emphasized that: [A] consistent line of precedent has arisen from writ proceedings involving the provision 0f section 36(a). These cases establish that the statute grants a mandatory and absolute right t0 trial preference over all other civil matters. 221 Cal.App.3d at 1204-05. 7 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR TRIAL PREFERENCE; DECLARATION OF HARLAN J. ZABACK BERMAN & RIEDEL LLP 12264 EL CAMINO REAL, SUITE 300 SAN DIEGO, CALIFORNIA 92 13 0 PHONE: (858) 350-8855 FAX: (858) 350-9855 hMN \OmflQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Court further noted that “the trial court ‘shall’ grant the preference and has n0 discretion t0 avoid the command 0f section 36(a) in the interest 0f efficient management of the court’s docket as a whole.” Id. (citing Rice, supra, 136 Cal.App.3d at 86-87). The Miller court went on t0 further state that there are no other interests Which the Court can balance in evaluating a motion for preference pursuant to California Code 0f Civil Procedure §36(a). Miller, supra, 221 Ca1.App.3d at 1204-05. As the Court stated: [I]f trial courts believe that certain exceptions t0 section 36 are necessary. . .their remedy lies in persuading the Legislature to amend the absolute language 0f section 36, subdivision (a) t0 provide appropriate exceptions. Id. (citing Koch-Ash v. Superior Court (1986) 180 Ca1.App.3d 689, 698-99). Thus, even When there are countervailing interests such as fairness and due process t0 other litigants, efficient trial court management, 0r divergent public policy reasons, California Code 0f Civil Procedure §36(a) is a “comprehensive and final legislative judgment on the issue, which must prevail When juxtaposed to another countervailing argument, based 0n whatever legitimate 0r seemingly compelling public interest.” Miller, supra, 221 Cal.App.3d at 1204-05. Mere inconvenience t0 other litigants is irrelevant. Id. (emphasis added); see also, Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085 (holding that the fact that section 36(a) may result in inconvenience to a court or other litigants or prevent the completion of discovery or other pretrial matters is irrelevant). Thus, while defendants may argue that granting trial preference would deny them “due process,” and/or cause them or their counsel scheduling conflicts, these are not legislatively recognized exceptions t0 the mandatory trial preference provided for by California Code 0f Civil Procedure §36(a). See, Fox v. Superior Court (2018) 21 Ca1.App.5th 529, 535 (“[W]here a party meets the requisite standard for calendar preference under subdivision (a), preference must be granted. No weighing 0f interests is involved”). Given that no other factors may be taken into consideration, it is respectfully requested that this Court grant Ms. Romero’s motion for trial preference and that trial be set n0 later than 120 days from the date of this hearing. /// /// 8 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR TRIAL PREFERENCE; DECLARATION OF HARLAN J. ZABACK \GmflQUthNH r-tb-tr-tr-tb-tr-t UIhUJNflc PHONE: (858) 350-8855 FAX: (858) 350-9855 HQBERMAN & RIEDEL, LLP 12264 EL CAMINO REAL, SUITE 300 SAN DIEGO, CALIFORNIA 92130 NNNNNNNNNHHH WQQUI-BUJN#G\DW\I VI. THE COURT MAY ALSO GRANT PREFERENCE PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE 836(e) In addition to the mandatory preference provided for by California Code ofCivil Procedure §36(a), this Court may also grant preference pursuant t0 California Code ofCivil Procedure §36(e), which provides: Notwithstanding any other provision 0f law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice Will be served by granting this preference. Thus, While Ms. Romero believe she meets the requirements of California Code 0f Civil Procedure §36(a), Which mandates that preference be granted, should this Court disagree, Ms. Romero respectfully requests that this Court exercise its discretion and grant preference pursuant to California Code ofCivil Procedure §36(e). VII. CONCLUSION Based on the foregoing, Ms. Romero respectfully requests that this Court grant her trial setting preference pursuant to the mandatory provision 0f California Code 0f Civil Procedure §36(a). Respectfully submitted. DATED: February 10, 2022 BE',U.“~ .‘v ", « E H f "W ' mBV: ‘ / V v V ' ' 1} ~ L .Berma squire Harlan J. Zabac , Esquire Attorneys for Plaintiff /// /// /// /// 9 PLAINTIFF ’ S NOTICE OF MOTION AND MOTION FOR TRIAL PREFERENCE; DECLARATION OF HARLAN J. ZABACK BERMAN & RIEDEL LLP 12264 EL CAMINO REAL, SUITE 300 SAN DIEGO, CALIFORNIA 92 13 0 PHONE: (858) 350-8855 FAX: (858) 350-9855 hMN \OmflQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF HARLAN J. ZABACK I, Harlan J. Zaback, declare as follows: 1. I am an attorney at law duly admitted to practice before all the courts of the State 0f California. I am a partner at the firm Berman & Riedel, LLP, which has been retained t0 represent the plaintiff in the above entitled action. I have personally been involved in all aspects 0f this litigation and I have personal knowledge 0f all facts and other matters set forth herein. In as much, I could, and would competently testify t0 the same if required t0 d0 so by this Honorable Court. 2. Attached hereto as EXHIBIT “A” is a true and correct copy 0f relevant portions 0f Marie Romero’s medical records from Almaden Operating Company LP dba Almaden Healthcare and Rehabilitation Center (Almaden). The records that comprise ofEXHIBIT “A” are admissible because, among other reasons, they serve as a party admission. 2. Attached hereto as EXHIBIT “B” is a true and correct copy of relevant portions of Ms. Romero’s medical records from Good Samaritan Hospital. See, People v. Reyes (1974) 12 Cal.3d 486, 503 (a written diagnosis of a patient’s ailment is a statement of a fact or condition that is admissible if it records what the person making the diagnosis has observed). 4. Ihave personally examined Ms. Romero’s medical records from Almaden and Good Samaritan Hospital. Upon information and belief, Ms. Romero was born on November 19, 1940, and is currently 81 years 01d. Upon information and belief, Ms. Romero has several medical conditions that warrant the granting of preference. Upon information and belief, these medical conditions include, but are not limited to: stroke, polyarthritis, chronic pain syndrome, obstructive and reflux uropathy, atherosclerotic heart disease, hyperlipidemia, spinal stenosis, depression, hypertension, insomnia, overactive bladder, flaccid hemiplegia affecting left nondominant side, cerebral infarction, dysphagia, hypertension, and status post above knee left leg amputation. /// /// /// /// /// 10 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR TRIAL PREFERENCE; DECLARATION OF HARLAN J. ZABACK BERMAN & RIEDEL LLP 12264 EL CAMINO REAL, SUITE 300 SAN DIEGO, CALIFORNIA 92 13 0 PHONE: (858) 350-8855 FAX: (858) 350-9855 \GmflQUthNH NNNNNNNNNHHHHHHHHHH WQQUIhMN#G\DQQG\UIhMN#G 5. Upon information and belief, Ms. Romero’s health conditions warrant the granting of preference and if not granted preference, Ms. Romero would unlikely be alive for trial in this matter. I declare under penalty ofperjury under the laws 0f the State of California that the foregoing is true and correct to the best ofmy knowledge and that this declaration was executed 0n February / . J ‘ E” 10 , 2022, in San Diego, California. By: 11 PLAINTIFF ’ S NOTICE OF MOTION AND MOTION FOR TRIAL PREFERENCE; DECLARATION OF HARLAN J. ZABACK Exhibit A Almaden Health and Rehabilitation Center Resident Face Sheet: MARIE ROMERO (DNR) Admitted From: Discharged: Primary Discharge Diagnosis: 12/28/2019 01:10 PM (current) Hospital Stay: Good Samaratin Hospital, 95124 - CA (latest Referral Source: return) Regional Medical Center, 95116 - CA (current) 10/26/2020 11:49 PM Discharged To: Discharge Reason: Condition on Discharge: Unit: Station 2 Preferred Name: R00m/Bed= Attending: Dr. Tinny Dohn - (408) 356-8672 Stat“: Discharged Email: Admit Date: 03/13/2020 12:40 AM (latest return) LastQuaIifying 12/17/2019 - 12/28/2019 Discharge Planner (current) Primary Payer: SSN: Medicare A #z Medicare B #: Medicaid #: MR#: Pharmacy: Race: MGD Medicaid Santa Clara 551-52-9868 2WV2PG2WP86 2WV2PGZWP86 9121 5550A 3031 54-01 White, not of Hispanic origin Birth Date: Age: Sex: Marital Status: Mother's Maiden Name: Religion: Prev Occupation: 11/19/1940 79 F Widowed None Preferred Language: English Address: 2151 OLD OAKLAND ROAD SPC 365 _ SAN JOSE, CA 95116 ls ResponSIble No for Se_|f: County: Santa Clara Smoking Status: Phone: (408) 577-1833 Service Connected M'mary svc: Disability & %: No 0.00% Veteran Elig (10-5588): No VA Claims Number: Last Branch of Service: Service Number: Last Branch of Service Dates: - Insurance Information: Insurance Group Name Group # Insured's ID # Payer Addrass Payer Phone Mgd Medicaid Coinsurance 91215550A MGD Medicaid Santa Clara 91215550A MGD Medicaid Valley HP 91215550A Medicaid 91215550A Additional Fields: Vfl'imary Care Physician (PCP): RICHARD CATHEY, M.D. Advanced Directives: MatrixCare Report Page 1 of 2 001-A|maden-Romero-Medical Records.pdf - 00001 Almaden Health and Rehabilitation Center Resident Face Sheet: MARIE ROMERO (DNR) Unit: RoomIBed: Status: Station 2 Discharged Preferred Name: Attending: Dr. Tinny Dohn - (408) 356-8672 Email: mm - mayo» rm Do Not Resuscitate (DNR) um Allergies: codeine sulfate Diagnoses: 163.511 Cerebral infarction due to unspecified occlusion or stenosis of right middle cerebral artery(Primary), M13.0 Polyarthritis, unspecified, G89.4 Chronic pain syndrome, N13.9 Obstructive and reflux uropathy, unspecified, 125.10 Atherosclerotic heart disease of native coronary artery without angina pectoris, E78.5 Hyperlipidemia, unspecified, N32.81 Overactive bladder, 681.04 Flaccid hemiplegia affecting left nondominant side, 163.9 Cerebral infarction, unspecified, 169.391 Dysphagia following cerebral infarction, L89.891 Pressure ulcer of other site, stage 1, L89.626 Pressure-induced deep tissue damage of left heel, 110 Essential (primary) hypertension, F32.89 Other specified depressive episodes, E55.9 Vitamin D deficiency, unspecified, F41.9 Anxiety disorder, unspecified Alerts: 10/14/2020--CURRENT INSURANCE: PAYOR CHANGE 2/1/20 TO MEDICARE. ALIGNMENT DIS-ENROLLED 1/31/20 PER ELIGIBILITY ALIGNMENT POLICY #0001529860 SCCIPA VERBAL AUTH BY MARY #11559550 MEDI-CAL REMAINING SOC/SPEND DOWN $ 810.00. Face Sheet Notes: Contacts Call ‘I Eelationship Mame Responsibilities 0mg; Phone/Email Address mum Daughter DARLENE Emergency Contact 1 Primary (408) 201-4319 1180F DAY RD DRACE Responsible Party GILROY, CA 95020 POA - Health Care Primary Financial Contact Resident MARIE ROMERO Receive A/R 2 Primary (408) 577-1833 2151 OLD OAKLAND Statement ROAD SPC 365 SAN JOSE, CA 951 16 Daughter SHERRY Emergency Contact 3 Primary (408) 218-1016 649 KIOWA CIRCLE FERGUSON SAN JOSE, CA Providers provider Name mam B:y Area Hyperbarics Clinic Physician Physician REGIONAL MEDICAL CENTER Hospital Dr. Tinny Dohn DO -Attending POOJA SHARMA MD -A|ternate ¥ Phone/Email inadms J Primary (408) 356-8672 Fax (408) 356-7004 Email tdohninc@gmai|.com Primary (669) 287-8971 Pager (669) 287-8971 Fax (712) 250-2781 Email psharmamd@ahcusa.com Primary (408) 422-8200 14589 Los Gatos Blvd, Los Gatos, CA 95032 1313 N. Milpitas Blvd. Unit 265, Milpitas, CA 95035 225 N JACKSON AVE, SAN JOSE, CA 95116 MatrixCare Report Page 2 of 2 001-A|maden-Romero-Medical Records.pdf - 00002 Almaden Health and Rehabilitation Center Continuity of Care Document Almaden Health and Rehabilitation Center ROMERO, MARIE MRN:303154 Patient MARIE ROMERO Date of birth November 19, 1940 Sex Female Race White Ethnicity Not Hispanic or Latino Contact info Primary Home: Patient IDs MRN:303154 2151 OLD OAKLAND ROAI SAN JOSE, CA 95116, US Tel: (408) 577-1833 Preferred English Language Document November 16, 2020 Created: Performer Dr. Tinny Dohn, DO (attending physician) Author MatrixCare - Version 2020 R4 Contact Info Emergency Contact DARLENE DRACE 1180F DAY RD GILROY, CA 95020, US Tel: (408) 201-4319; ext= Emergency Contact SHERRY FERGUSON 649 KIOWA CIRCLE SAN JOSE, CA , US Tel: (408) 218-1016; ext: Agent DARLENE DRACE 1180F DAY RD GILROY, CA 95020, US Tel: (408) 201-4319; ext= Next Of kin (Daughter) DARLENE DRACE 1180F DAY RD GILROY, CA 95020, US Tel: (408) 201-4319; ext= Next 0f kin MARIE ROMERO 2151 OLD OAKLAND ROAD SPC 365 SAN JOSE, CA 95116, US Tel: (408) 577-1833; ext: Next of kin (Daughter) SHERRY FERGUSON 649 KIOWA CIRCLE SAN JOSE, CA , US Tel: (408) 218-1016; ext= Document Almaden Health and Rehabilitation Center maintained by 2065 Los Gatos Almaden Road San Jose, CA 95124, US Tel: (408) 377-9275 Page 1 of 11 001-A|maden-Romero-Medical Records.pdf - 00003 Almaden Health and Rehabilitation Center ROMERO, MARIE MRN:303154 Medications Last Medication Frequency Instructions Diagnosis Start Date End Date AdministeI‘Ed acetaminophe Every 6 take 2 tabs 01/22/2020 10/26/2020 10/7/2020 8:15:30PM n [OTC] Hours - PRN (650mg) PO tablet; 325 Q6 PRN for mg; amt: 2 pain NTE 3 tabs; oral grams of Tylenol Q24 hrs acetaminophe Every 8 06/26/2020 10/26/2020 10/18/2020 9:42:30Pr n [OTC] Hours tablet; 500 mg; amt: 2 tablets; oral Afluria Qd OnceA Day 10/06/2020 10/26/2020 10/6/2020 8:57:40PM 2020-21(3yr up)(PF) (flu vac q52020-21 36mos up(pf)) syringe; 60 mcg (15 mcg X 4)/O.5 mL; amt: 1 close; intramuscular alprazolam - Every 12 For anxiety 01/03/2020 10/26/2020 Schedule IV Hours - PRN m/b inability tablet; 0.5 to relax. mg; amt: 1 tab; oral Ambien At Bedtime for insomnia 10/12/2020 10/26/2020 10/18/2020 9:42:30Pr (zolpidem) - mb inability to Schedule IV sleep x 14 tablet; 5 mg; days amt: 1 tab; oral amitriptyline At Bedtime For 12/28/2019 10/26/2020 10/18/2020 9:42:30Pr tablet; 50 Depression mg; amt: 1 m/b sad facial tab; oral expression. amlodipine Once A Day HTN. HOLD 12/28/2019 10/26/2020 10/19/2020 8:28:22AI tablet; 2.5 for SBP <100. mg; amt: 1 tab; oral Aplisol Once-One lst Step PPD: 12/28/2019 10/26/2020 12/28/2019 10:59:17P (tuberculin Time lst Administer ppd) Step PPD 0.1 ml Aplisol solution; 5 (Tuberculin tub. unit /0.1 PPD) mL; amt: 5 intradermally tuberculin X1. Read units/0.1 ml; result in 72 intradermal hours. Page 2 of 11 001-A|maden-Romero-Medical Records.pdf - 00004 Almaden Health and Rehabilitation Center ROMERO, MARIE MRN:303154 Last Medication Frequency Instructions Diagnosis Start Date End Date Administered Aplisol Once-One 2nd Step PPD; 01/04/2020 10/26/2020 1/4/2020 11:20:23PM (tuberculin Time 2nd Administer 5 ppd) Step PPD Tuberculin solution; 5 units/0.1 ml tub. unit /0.1 intradermally mL; amt: 5 X1. Read tuberculin result in 72 units/0.1 ml; hours. intradermal aspirin [OTC] Once A Day take 1 tab PO 01/22/2020 10/26/2020 1/22/2020 10:47:49AIV tablet; 325 Now x1 for mg; amt: 1 chest pain tab; oral atorvastatin At Bedtime HLD 12/28/2019 10/26/2020 10/18/2020 9:42:30Pr tablet; 4O mg; amt: 1 tab; oral Augmentin Every 12 x 10 days for 07/15/2020 10/26/2020 7/25/2020 8:04:57PM (amoxicillin-p Hours Wound ot infection. clavulanate) tablet; 500-125 mg; amt: 1 Tab; oral betamethason Twice A Day apply to 10/16/2020 10/26/2020 10/18/2020 5:34:14Pr e dipropionate affected areas ointment; BID x 7 days 0.05 °/o; amt: Dx: Pityriasis as needed; vs topical inflammatory dermatitis. carboxymethy Four Times Ato each eye 12/28/2019 10/26/2020 Icellulose Day - PRN PRN solution; dryness/burni 0.5%; amt: 1 ng. drop; ophthalmic ceftriaxone Once A Day Ceftriaxone 1 01/19/2020 10/26/2020 1/21/2020 7:53:57PM recon soln; 1 gram via PIV gram; amt: 1 QD x 3 clays gram; for UTI intravenous Cipro Twice A Day X 10 days for 07/15/2020 10/26/2020 7/25/2020 4:57:36PM (ciprofloxacin wound hcl) infection. tablet; 500 mg; amt: 1 Tab; oral Cipro Twice A Day 08/28/2020 10/26/2020 9/11/2020 10:37:12AIV (ciprofloxacin hcl) tablet; 500 mg; amt: 1 tablet; oral Page 3 of 11 001-A|maden-Romero-Medical Records.pdf - 00005 Almaden Health and Rehabilitation Center ROMERO, MARIE MRN:303154 Last Medication Frequency Instructions Diagnosis Start Date End Date Administered clopidogrel Once A Day stroke 12/28/2019 10/14/2020 10/14/2020 8:23:56AI tablet; 75 prophylaxis mg; amt: 1 tab; oral cyanocobalam Once A Day for 02/25/2020 10/26/2020 10/18/2020 1:27:51Pr in (vitamin supplement B-12) tablet; 1,000 mcg; amt: 1 tab; oral Dilaudid Every 6 PRN for 09/03/2020 10/26/2020 10/16/2020 6:23:30Pr (hydromorpho Hours - PRN breakthrough ne) - pain. Schedule II tablet; 2 mg; amt: 1 tab; oral docusate Twice A Day For bowel 12/28/2019 10/05/2020 10/5/2020 9:55:20AM sodium [OTC] regularity. tablet; 100 HOLD for mg; amt: 1 loose BM. tab; oral docusate Once A Day For bowel 10/05/2020 10/26/2020 10/18/2020 1:27:51Pr sodium [OTC] regularity. tablet; 100 HOLD for mg; amt: 2 loose BM. tabs; oral Dulcolax OnceA Day -For 12/28/2019 10/26/2020 1/26/2020 5:51:10PM (bisacodyl) PRN constipation. (bisacodyl) [OTC] tablet,delayed release (DR/EC); 5 mg; amt: 2 tabs (10mg); oral ferrous TwiceA Day for 02/24/2020 10/05/2020 10/5/2020 9:55:20AM gluconate supplement tablet; 324 mg (38 mg iron); amt: 1 tab; oral ferrous Once A Day for 10/05/2020 10/26/2020 10/18/2020 1:27:51Pr gluconate supplement tablet; 324 mg (38 mg iron); amt: 1 tab; oral Florastor Twice A Day for GI 07/15/2020 10/26/2020 7/25/2020 4:57:36PM (saccharomyc prophylaxis es boulardii) during ABT x capsule; 250 10 days. mg; amt: 1 cap; oral Page 4 of 11 001-A|maden-Romero-Medical Records.pdf - 00006 Almaden Health and Rehabilitation Center ROMERO, MARIE ed release(DR/EC ); 40 mg; amt: 1 cap; oral interchange for protonix MRN:303154 Last Medication Frequency Instructions Diagnosis Start Date End Date Administered Florastor Twice A Day for GI 08/31/2020 10/26/2020 9/28/2020 5:18:09PM (saccharomyc prophylaxis x es boulardii) 30 days capsule; 250 mg; amt: 1 cap; oral gabapentin Three Times for 06/26/2020 10/26/2020 10/19/2020 8:28:22AI capsule; 300 A Day neuropathy mg; amt: 1 pain cap; oral hydrochlorothi Once A Day HTN 12/28/2019 10/26/2020 10/19/2020 8:28:22AI azide capsule; 12.5 mg; amt: 1 tab; oral Lexapro Once A Day for depression 03/23/2020 10/26/2020 10/19/2020 8:28:22AI (escitalopram as mb post oxalate) stroke tablet; 5 mg; anhedonia/lac amt: 1 tab; k of pleasure. oral ico by clr. dohn linezolid Twice A Day X 10 clays for 07/15/2020 10/26/2020 7/25/2020 10:49:36AIV tablet; 600 wound mg; amt: 1 infection. Tab; oral Lyrica Twice A Day for pain 03/04/2020 10/26/2020 10/19/2020 8:28:22AI (pregabalin) - management Schedule V capsule; 100 mg; amt: 1 cap; oral MVI w/ Once A Day for 12/31/2019 10/26/2020 10/18/2020 8:43:29AI Minerals supplement. tablet; amt: 1 tab; oral nitroglycerin As Needed take 1 tab SL 01/22/2020 10/26/2020 1/22/2020 11:03:39AIV tablet, every 5 mins sublingual; PRN for chest 0.4 mg; amt: pain, 1 tab PO 0.4 mg; max 3 tabs if sublingual pain continues 5 mins after first close call 911 omeprazole Once A Day for GI 07/24/2020 10/26/2020 10/19/2020 8:28:22AI capsule,de|ay prophylaxis, Page 5 of 11 001-A|maden-Romero-Medical Records.pdf - 00007 Almaden Health and Rehabilitation Center ROMERO, MARIE MRN:303154 Last Medication Frequency Instructions Diagnosis Start Date End Date Administered pentoxifylline Once A Day for wound 09/01/2020 10/26/2020 10/19/2020 8:28:22AI tablet healing. extended release; 400 mg; amt: 1 tab; oral permethrin Once A Day apply thin 09/01/2020 10/26/2020 cream; 5 °/o; layer to body amt: 5%; avoiding face, topical shower after 12hrs of itchiness. prednisone Once A Day 40 mg po qd 08/27/2020 10/26/2020 8/29/2020 9:30:48AM tablet; 20 x 3days for mg; amt: 2 folicolitis at tabs; oral upper back (start when available) prednisone Once A Day for bullos 09/01/2020 10/26/2020 9/3/2020 9:22:09AM tablet; 20 pemphigoid x mg; amt: 1 3 days tab; oral pregabalin - Twice A Day for nerve pain 02/21/2020 10/26/2020 3/3/2020 5:43:02PM Schedule V until 3/3/2020 capsule; 200 mg; amt: 1 cap; oral Robitussin Every 4 prn for cough 02/07/2020 10/26/2020 2/9/2020 12:18:12PM suspension; Hours - PRN x 7 clays. amt: 10 ml; oral tramadol - Every 8 for pain 09/25/2020 10/26/2020 10/18/2020 9:42:30Pr Schedule IV Hours management. tablet; 50 Dx: Post mg; amt: 50 stroke mg; oral neuropathic pain/spasm. Ischemic PVD. Tylenol Once A Day take 2 tabs 01/22/2020 10/26/2020 (acetaminoph (650mg) PO en) [OTC] now for chest tablet; 325 pain NTE mg; amt: 2 3grams of tabs; oral Tylenol q24 hrs Vitamin C Once A Day Take 1 tab by 01/19/2020 10/26/2020 2/19/2020 9:40:30AM (ascorbic acid mouth daily (vitamin c)) for tablet; 500 supplement x mg; amt: 1 30 clays. tab; oral Vitamin C Once A Day for 02/22/2020 10/26/2020 3/22/2020 8:33:48AM (ascorbic acid supplement/ (vitamin c)) wound healing tablet; 500 x 3O clays mg; amt: 1 tab; oral Page 6 of 11 001-A|maden-Romero-Medical Records.pdf - 00008 ROMERO, MARIE tablet; 4 mg; amt: 1 tablet; oral Almaden Health and Rehabilitation Center MRN:303154 Last Medication Frequency Instructions Diagnosis Start Date End Date Administered Vitamin C Once A Day for wound 09/08/2020 10/26/2020 10/8/2020 11:08:05AIV (ascorbic acid healing x 3O (vitamin c)) clays tablet; 500 mg; amt: 1 tab; oral Vitamin D2 Once A Day for 06/01/2020 10/26/2020 8/21/2020 11:10:15AIV (ergocalciferol on Fri supplement. (vitamin d2)) take 1 cap PO capsule; Qweek x 12 1,250 mcg weeks (50,000 unit); amt: 1 cap (50,000 units); oral Vitamin D3 Once A Day for 02/21/2020 10/26/2020 10/18/2020 1:27:51Pr (cholecalcifero supplement | (vitamin d3)) capsule; 5,000 unit; amt: 1 cap; oral zinc sulfate Once A Day Take 1 tab by 01/19/2020 10/26/2020 2/2/2020 10:32:34AM tablet; 220 mouth daily x mg; amt: 1 14 days for tab; oral supplement. zinc sulfate Once A Day for 02/22/2020 10/26/2020 3/6/2020 10:42:18AM tablet; 220 supplement/w mg; amt: 1 ound healing tab; oral x 14 days Zofran Every 8 07/22/2020 10/26/2020 (ondansetron Hours - PRN hcl) Page 7 of 11 001-A|maden-Romero-Medical Records.pdf - 00009 Almaden Health and Rehabilitation Center ROMERO, MARIE MRN:303154 Code Type Problem ICD Code Effective Date Status ICD-lO Cerebral infarction due to unspecified occlusion or stenosis of right 163.511 12/28/2019 Active middle cerebral artery ICD-lO Polyarthritis, unspecified M13.0 12/28/2019 Active ICD-lO Chronic pain syndrome G89.4 12/28/2019 Active ICD-lO Obstructive ancl reflux uropathy, unspecified N13.9 12/28/2019 Active ICD-lO Atherosclerotic heart disease of native coronary artery without 125.10 12/28/2019 Active angina pectoris ICD-lO Hyperlipidemia, unspecified E78.5 12/28/2019 Active ICD-lO Overactive bladder N32.81 12/28/2019 Active ICD-lO Flaccid hemiplegia affecting left nondominant side G81.04 12/28/2019 Active ICD-lO Cerebral infarction, unspecified 163.9 12/28/2019 Active ICD-lO Dysphagia following cerebral infarction 169.391 12/28/2019 Active ICD-lO Pressure ulcer of other site, stage 1 L89.891 12/28/2019 Active ICD-lO Pressure-induced deep tissue damage of left heel L89.626 01/11/2020 Active ICD-lO Vitamin D deficiency, unspecified E55.9 12/28/2019 Active ICD-lO Essential (primary) hypertension IlO 12/28/2019 Active ICD-lO Anxiety disorder, unspecified F41.9 12/28/2019 Active ICD-lO Other specified depressive episodes F32.89 12/28/2019 Active CMLtAHergieJ Category Allergy Status Drug allergy codeine sulfate Activem Height: 70.0 in Pulse Systolic Diastolic 02 Date / Time Temperature (per Respirations BP BP Saturation Weight BMI minute) (per minute) (mmHg) (mmHg) (°/o) 10/19/2020 01:23PM 97.3 °F 69 16 132 77 10/19/2020 01:22PM 97 10/19/2020 08:27AM 132 77 10/19/2020 02:18AM 98 °F 87 17 134 72 96 10/19/2020 12:41AM 94 10/19/2020 12:40AM 130 93 10/19/2020 12:39AM 97 °F 71 18 10/19/2020 12:22AM 96 10/18/2020 05:44PM 94 10/18/2020 11:11AM 97.3 °F 72 16 96 10/18/2020 08:33AM 113 58 10/18/2020 03:53AM 17 121 68 94 10/18/2020 03:52AM 97.7 °F 73 10/17/2020 11:05PM 91 10/17/2020 11:04PM 97.7 °F 68 18 127 69 10/17/2020 11:03PM 91 10/17/2020 07:16PM 91 10/17/2020 11:36AM 97.3 °F 67 18 10/17/2020 08:26AM 129 65 10/17/2020 02:29AM 98 °F 72 17 124 66 10/16/2020 10:42PM 98.9 °F 77 18 118 59 10/16/2020 02:26PM 68 17 10/16/2020 02:25PM 97.3 °F 10/01/2020 02:35PM 172.3 lbs 24.72 08/02/2020 03:38PM 175 lbs 25.11 Page 8 of 11 001-A|maden-Romero-Medical Records.pdf - 00010 Almaden Health and Rehabilitation Center ROMERO, MARIE 001-A|maden-Romero-Medical Records.pdf - 00011 MRN:303154 Advance Directives Directive Note Do Not Resuscitate (DNR) Insurance Providers Group Group Payer Policy type Name Number Policy ID Address Phone Medicare A Medicare Part A 2wv2PGZWP86 Phone: Fax: Medicare B Medicare Part B 2wv2PGZWP86 Phone: Fax: . . Phone: Mgd Medicaid 91215550A Medicaid (State) Fax: Coinsurance MGD Medicaid 91215550A Phone: Medicaid (State) Fax: Santa Clara MGD Medicaid 91215550A Phone: Medicaid (State) Fax: Valley HP Medicaid Medicaid 91215550A Phone: (State) Fax: Private Private Phone: Portion FaX: Private Private Phone: Coinsurance Fax: Private Private Phone: Fax: Immunizations Vaccine Date Status Influenza Vaccine 10/06/2020 Completed Influenza Vaccine Date Unknown Completed Pneumococcal Vaccine Date Unknown Refused Procedures Not available for this record Results Name Date Time Positive/Negative Value Unit Range COVID-19 Test COVID-19 Test Viral 10/15/2020 Negative COVID-19 Test Viral 10/02/2020 Negative COVID-19 Test Viral 09/22/2020 Negative COVID-19 Test Viral 09/13/2020 Negative COVID-19 Test Viral 09/07/2020 Negative COVID-19 Test Viral 08/31/2020 Negative COVID-19 Test Viral 08/24/2020 Negative Goals Page 9 of 11 ROMERO, MARIE Almaden Health and Rehabilitation Center MRN:303154 Description Date Resident's skin integrity issue wi|| be resolved with interventions. 01/18/2020 Review in 21 days: Resident's risk for wound infection will be minimized by interventions. 01/18/2020 Resident's wound will show sign of healing as evidenced by: 1.Decrease in size. 2.Improved wound appearance. X 3 weeks Review date: 1/18/2020 Resident's risk for further development of pressure ulcer will be minimized with interventions. 02/01/2020 Pressure ulcer wi|| respond to wound management as evidenced by decrease in size ancl show signs of healing. Review Date(s):02/01/2020 Decrease risk of exposure to drug allergy. 03/28/2020 Resident's risk of bleeding and complications will be minimized with interventions. 03/28/2020 Early detection of signs and symptoms of bleeding. Regain/Maintain Bowel and Bladder function. 03/28/2020 Decrease risk of developing complications from incontinence such as: ( ) Skin breakdown ( ) Skin Rash ( ) UTI Others: 1.) Decrease resident's risk of fall ancl injury with interventions. 2.) Resident will relate the intent to 03/28/2020 use safety measures to decrease risk of fall. 3.) Safely enhance physical function to highest practicable level. Resident's risk for non-physician prescribed weight change will be minimized with interventions. 03/28/2020 Maintain weight acceptable to resident/responsible party and clinically appropriate. Resident's risk for development of pressure ulcer/skin breakdown will be minimized by interventions. 03/28/2020 Maintain skin integrity. Resident's emotional and psychological condition will be stabilized by interventions. 03/28/2020 Resident's quality of life will improve as evidenced by being calm and less or no manifestation of: Resident's risk of side effects from medication will be minimized. Resident will be able to cope with depression without negative impact on self and others. 03/28/2020 Resident will show gradual improvement from: Resident's risk of side effects from medication will be minimized. Resident will be pain free or relieved from pain. 03/28/2020 Resident's functional ability will be maintained/enhanced and quality of life will improve with interventions. Maintain clinical heart. Tolerate physical activities within limits. 03/28/2020 Decrease skin dryness and fragility. 03/28/2020 Resident's risk for impaired skin integrity and discomfort will be minimized with interventions. Resident's blood cholesterol level will be clinically managed. 03/28/2020 Resident will cooperate in dietary and physical management. Attain medically acceptable level with interventions. Resident will maintain clinically acceptable range of blood pressure. 03/28/2020 Page 10 of 11 001-A|maden-Romero-Medical Records.pdf - 00012 ROMERO, MARIE Almaden Health and Rehabilitation Center MRN:303154 Resident's risk of drug interaction will be minimized through drug regimen review by Pharmacist. 03/28/2020 Resident's risk for fracture and bone deformity due to osteoporosis/osteoartritis will be minimized 03/28/2020 with interventions. Maintain functional mobility. Resident's risk for adverse effects related to use of side rails/rails on the side of the bed, including 03/28/2020 but not limited to decline in status, will be minimized by interventions X 90 days. Resident's risk for constipation will be minimized with interventions. 03/28/2020 Will have bowel movement at least Q 3 days. Resident will benefit and participate in room/bedside activities: 2-3X/wk. 03/31/2020 (X) Resident will be discharged back to community safely. 03/31/2020 ( ) Resident will positively adjust to facility living. Resident will understand the risk associated with being non-compliant. 04/03/2020 Resident's risk for constipation wi|| be minimized with interventions. 04/07/2020 Will have bowel movement at least Q 3 clays. Resident's risk for functional decline will be minimized with interventions. 04/07/2020 Resident will maintain and continue participation in social activities. Promote adequate/effective respiration. 04/22/2020 Minimize resident's discomfort. Resident will be able to cope with depression without negative impact on self and others. 05/30/2020 Resident will show gradual improvement from: Resident's risk of side effects from medication will be minimized. Resident's ability to make ADL decision and recall information at highest practicable level will be 06/30/2020 promoted by use of interventions. Identify source of pain and create a plan to mitigate occurrence of discomfort. 07/25/2020 ControI/Relieve symptoms of Abdominal Discomfort. 07/25/2020 Skin rash will positively respond to treatment and interventions. 09/11/2020 Skin rash will gradually clear. Review date: Resident will have decreased risk of severe illness or complications with interventions X 14 days. 09/13/2020 Decreased risk of transmitting COVID-19 to other residents, and facility staff. Resident/responsible party will understand risk and benefit of vaccine. 10/09/2020 Minimize risk of adverse reaction from flu shot in 72 hours. Due date: Skin rash will positively respond to treatment and interventions. 10/22/2020 Skin rash will gradually clear. Review date: Social History Subject Status Smoking Status No Information for Social History Page 11 of 11 001-A|maden-Romero-Medical Records.pdf - 0001 3 Exhibit B A ATJORNEY OR PARTY WITHOUTATTORNEY (name,S&ate Harnumbsr, andaddrsw) 1 * ~ V ( BERMAH &’RIEDEL, Lil” 12264 EL CAMINO REAL SUITE 300 SAN DIEGO CA 92130 TELEPHONE No; 858-350-8855 FAx N0.: 858-350-9855 AnonNEv Fen (name).- NAME OF COURT: STREEI' ADDRESS: MAILING ADDRESS: CITY AND ZP CODE: BRANCH NAME: PLAINTIFF/ PETITIONER: IN RE DEFENDANT/ RESPONDENT: MARIE ROMEHO DECLARATION OF CUSTODIAN OF RECORDS l the Custodian of Records or other qualified witness for GOOD SAMARITAN HOSPITAL CASE NUMBER: The undersigned declares, as shown below in response to the Deposition Subpoena for Business Records and/or Authorization scheduled as follows: To (name of deposition officer): KNOX PHOTOCOPY SERVICE On (date): 11/1 2/20 At (time): 8:00 AM Location (address): 2251 SAN DIEGO AVE. #A-120, SAN DIEGO CA 921 10 Do not release the requested records to the deposition officer prior to the date and time stated above. The records are identified as: MARIE ROMERO D.O.B.: 11/1 9/40 FOR DATES 0F: 03/01/2020 TO THE PRESENT 1 . CERTIFICATION OF RECORDS COPIED (Please initial appropriate lines) I am a duly authorized Custodian of Records or other qualified witness for the above-named facility. I have the authority to certify these records. The photocopied records submitted herewith, under Evidence Code section 1560(9), are true copies of all the records described in the Deposition Subpoena for Business Records and/or Authorization. Pursuant to Evidence Code Section 1271: The records were prepared in the ordinary course of business, by personnel of said business for which l am the custodian of records, at or near the time of the acts, conditions, or events referenced. No documents have been withheld in order to avoid their being photocopied. If we have only part of the records described in the Deposition Subpoena for Business Records and/or Authorization, such records as are available are provided. S CERTIFICATION OF ELECTRONIC BILLING MRI’S, X-RAYS RECORDS COPIED RECORDS RECORDS CAT SCANS CERTIFICATION OF NO RECORDS (Please initial appropriate lines) After a thorough search has been made for the documents described in the Deposition Subpoena for Business Records and/or Authorization, no records were found. CERTIFICATION OF NO ELECTRONIC NO BILLING NO MRI'S, X-RAYS NO RECORDS RECORDS RECORDS CAT SCANS REASON(S) FOR NON-COMPLIANCE (Please initial appropriate lines) Records requested have been destroyed. Number of years facility keeps records: Records exist but cannot be located by this office. Other I declare under penalty of perjury that the foregoing is true and correct, and that this declaration was executed on 2 E ~ 5 - ’9-0 ’3~o at SAN JOSE CA 95124 Print Name \\\')Q‘{\N\ QJAC C CL\ Signature .MMCustodian o! Records AFFIDAVIT OF PROFESSIONAL PHOTOCOPIER (Pursuant to Section 22462 of Business and Professions Code) I declare that | am the attomey’s representative and that the attached records are complete and true copies of the records delivered to me by the Custodian of Records of thewithin named location and will be distributed to the authorized persons or entities. The methodWion was: Copied originals. Date W6 [a ‘ Signature I l Agent for KNOX PHOTOCOPY SERVICEVnlOX PHOTOCOPY SERVICE 2251 SAN DIEGO AVE. #A-120, SAN DIEGO CA 921 1o Ph: 619-233-9700 Fax2619-685-4290 SAN DIEGO Photocopy Registration #4 329006-00-01 v GOOD SAMARITAN HOSP¥TAL 2425 Samaritan pr1ve San Jose, Ca11forn1a 95124 REPORT NAME: CONSULTATION REPORT PATIENT'S NAME: ROMERO,MARIE ANN UNIT NO: M004066145 DOB: 11/19/40 AGE: 79 ACCOUNT N0: M00358134585 ATTENDING PHYS: Litt1epage,Meagan Marie MD PT TYPE: PRE IN ADMISSION DATE: LOCATION: M.IRF DISCHARGE DATE: DATE OF CONSULTATION: 10/23/2020 CONSULTING PROVIDER: Edward Huang, MD REASON FOR CONSULTATION: Abnorma1 LFTs. HISTORY OF PRESENT ILLNESS: The patient is a 79-year-o1d fema1e, who recent1y underwent 1eft AKA for osteomye1itis. This was performed on October 19, 2020, by Dr. Kap1an. The patient's LFTs were noted now to be e1evated. A1ka1ine phosphatase is 1103, AST is 110, ALT is 77. Her a1ka1ine phosphatase has been e1evated since at 1east 2017, but back then it was on1y 234. Her LFTs, ALT was norma] preop, AST was a1so norma1 preop. The patient denied any 1iver disease in the past. She was never heavy drinker, was a socia] drinker. She was never to1d she had cirrhosis or any other abnorma1 1iver enzymes in the past that she had known of. Current1y, she is comp1ete1y asymptomatic, does not have any pain, and no nausea, vomiting. She is eating without prob1ems. I have been asked by Dr. Dohn to eva1uate abnorma] 1iver enzymes. PAST MEDICAL HISTORY: Spina1 stenosis. CVA. Arthritis. Depression. Hyper1ipidemia. Hypertension. Insomnia. History of spine injury and nerve damage. 03‘403unb£urvb4 ALLERGIES Code1ne. MEDICATIONS: She is on: . Amitripty1ine. . Am1odipine. . Atorvastati n. . Bisacody1. . P1avix. uhhkwrvbA PATIENT NAME: ROMERO,MARIE ANN ACCOUNT #: M00358134585 PRINTED BYzGRD8288 DATE 12/2/2020 ROMERO, MARIE ANN M004066145 M00358134585 000632 a Docusate. . Cita1opram. Ferrous su1fate. . Gabapentin. 10. Morphine. 11. Nitrog1ycerin. 12. Oxycodone. l3. Protonix once dai1y. WWNO} FAMIEY HISTORY: No 11ver d1sease in the fami1y. SOCIAL HISTORY: . No smok1ng. Does not dr1nk. REVIEV 0F SYSTEM$l Negat1ve, otherw1se per HPI. PHYSICAL EXAMINATION: VITAL SIGNS: Temperature is 37.7, pu1se is 84, b1ood pressure is 160/64, respiratory rate is 16, 95% on room air. GENERAL: This is a we11-appearing 1ady, in no acute distress. A1ert, oriented 'x3. HEENT: Pink conjunctivae. Anicteric sc1erae. C1ear oropharynx. No sore throat. NECK: No appreciab1e thyromega1y. CHEST: C1ear to auscu1tation bi1atera11y. No wheeze or crack1e. CARDIOVASCULAR: Regu1ar rate and rhythm. No murmurs, rubs, or ga11ops. ABDOMEN: Positive bowe1 sounds. Soft, nontender, nondistended. EXTREMITIES: There is a 1eft AKA‘ No edema on the right. PSYCHIATRIC: No depression or anxiety. NEUROLOGIC: The patient can move her right extremities. She cannot move her 1eft side due to previous stroke. Norma] sensation. LABORATORY DATA: white count is 9, hemog1obin is 9.3, p1ate1ets 415. Sodium is 137, potassium 3.7, ch1oride is 108, bicarb is 24, BUN is 11, creatinine is 0.5. Bi1irubin is norma1. AST is 110, ALT is 77, a1ka1ine phosphatase is 1103, a1bumin is 3. IMPRESSION: This is a 79-year-o1d fema1e, who was hospita1ized after having 1eft above knee amputation, now has e1evated LFTs. In particu1ar, the a1ka1ine phosphatase has been steadi1y rising now, it is over a 1000. The patient is comp1ete1y asymptomatic. Does not have any symptoms. Does not have any prior 1iver disease. I suspect that this may be re1ated to bone source a1ka1ine phosphatase. I wi11 recommend fractionation of the a1ka1ine phosphatase with isoenzymes and a1so get an u1trasound to ru1e out any bi1iary obstruction. The u1trasound was ordered, pending. Her LFTs a1so risen, however, this is 1ess in comparison to the a1ka1ine phosphatase. Neverthe1ess, I wi11 go ahead and check hepatitis pane1 and AMA to conc1ude abnorma] 1iver workup. RECOMMENPATIONS: l. Fract1onat§ the a1ka1ine phosphatase. _ ‘ 2. Abnorma] 11ver enzyme workup. Labs have been ordered 1nc1ud1ng acute PATIENT NAME: ROMERO,MARIE ANN ACCOUNT #: M00358l34585 PRINTED BYzGRD8288 DATE 12/2/2020 ROMERO, MARIE ANN M004066145 M00358l34585 000633 n y hepatitis pane], AMA, and ce1iac disease. 3. We wi11 await u1trasound. CC: Richard Dohn, MD Dictated By: Edward Huang, MD EH:MODL D: 10/23/2020 19:09:52 / T: 10/23/2020 21:05:36 Voice ID: 278757 / Job ID: 897518096 Authenticated and Edited by Edward Huang MPH 0n 10/27/20 10:18:16 AM Report ID: 1023-0128 E1ectronica11y Signed by Edward Huang, MD on 10/27/20 at 0821 PATIENT NAME: ROMERO,MARIE ANN ACCOUNT #: M00358134585 PRINTED BY:GRD8288 DATE 12/2/2020 ROMERO, MARIE ANN M004066l45 M00358134585 000634 \OWQONUIhbJNH h-tr-tr-tr-tr-tr-t m-nmNp-xc BERMAN & RIEDEL, LLP 12264 EL CAMINO REAL, SUITE 300 SAN DIEGO, CALIFORNIA 92130 PHONE: (858) 350-8855 FAX: (858) 350-9855 NNNNNNNNNHHHH WQQMhMNchwqa PROOF OF SERVICE Romero v. Almaden Operating Company, LP, et al. State ofCalifomia, County ofSam‘a Clara: Case N0: 21CV381447 I am employed in the county of San Diego, State of California. 1am over the age of 18 and not a party t0 the within action; my business address is 12264 E1 Camino Real, Suite 300, San Diego, California 92130. On the date noted below, I caused t0 be served the following document(s) described as: o PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR TRIAL PREFERENCE; DECLARATION OF HARLAN J. ZABACK; 0 ORDER 0n the interested parties in this action addressed as follows: Darryl A. Ross, Esq. Attorneys for Defendants, ALMADEN Mariner Health Care OPERATING COMPANY LP dba 23052-H Alicia Parkway, #402 ALMADEN HEALTHCARE AND Mission Viejo, CA 92691 REHABILITATION CENTER; CHARO P: (949) 238-7775 °F: (949) 325-7833 LAGUNILLA daross@marinerhealthcare.com sxgreeno@marinerhealthcare.com [X] BY E-MAIL OR ELECTRONIC SUBMISSION: By e-mailing the document(s) to the persons at the e-mail address(es) listed based on agreement 0f the parties pursuant t0 CCP 1010.6. N0 electronic message 0r other indication that the transmission was unsuccessful was received Within a reasonable time after the transmission. hat the above isI declare under penalty 0f perjury under the laws of the St a true and correct on Februagy 10, 2022 at San Diego, California. Elizabeth R. Gonzales 1 Proof 0f Service