Arline Mohr vs. Westminster Terrace assisted Living Community

Reply to Opposition

Cal. Super. - 4th Dist.October 28, 2016

Ka ze ro un i La w Gr ou p, AP C 24 5 Fi sc he r Av e, Un it D1 Co st a Me sa , C A 92 62 6 ~N o n o s s Ww N B wo 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KAZEROUNI LAW GROUP, APC Abbas Kazerounian, Esq. (SBN 249203) Mohammad Kazerouni, Esq. (SBN 252835) Ryan L. McBride, Esq. (SBN 297557) 245 Fischer Avenue, Suite D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 HYDE & SWIGART Joshua B. Swigart, Esq. (SBN 225557) 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 Attorneys for Plaintiff ARLINE MOHR ELECTRONICALLY FILED Superior Court of California, County of Orange 08/03/2017 at 02:30:00 Awl Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE - UNLIMITED ARLINE MOHR, by and through her attorney-in-fact, LORI CORRIGAN, an Individual, Plaintiff, v. WESTMINSTER TERRACE ASSISTED LIVING COMMUNITY; SENIOR SERVICES OF AMERICA, LLC; and DOES 1-40, Inclusive, Defendants. Case No.: 30-2016-00883766-CU-PO-CJC PLAINTIFF REPLY RE PLAINTIFF'S MOTION FOR LEAVE TO FILE PLAINTIFF’S FIRST AMENDED COMPLAINT Date: August 10,2017 Time: 2:00pm Department: C15 Action Filed: October 28, 2016 Trial Date: February 26, 2018 [Assigned for all purposes to the Hon. Judge Peter Wilson] PLAINTIFF'S REPLY RE PLAINTIFF'S MOTION FOR LEAVE TO FILE PLAINTIFF'S FIRST AMENDED COMPLAINT PAGE 1 OF 2 Ka ze ro un i La w Gr ou p, A P C 24 5 Fi sc he r Av e, Un it D1 Co st a Me sa , C A 92 62 6 10 Lil 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE COURT, ALL PARTIES HEREIN AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Plaintiff ARLINE MOHR, by and through her attorney- in-fact, LORI CORRIGAN (“Plaintiff”) submits this reply in response to Defendants WESTMINSTER TERRACE ASSISTED LIVING COMMUNITY (“Westminster”) and SENIOR SERVICES OF AMERICA, LLC’s (“SSA”) (or jointly as “Defendants™) opposition to Plaintiffs Motion for Leave to File the First Amended Complaint. As explained in Plaintiff's Motion and the present Reply, the furtherance of justice requires that Plaintiff be granted leave to amend Plaintiff's Complaint to add the additional claims requested so that the resolution of all disputed matters may be resolved in this single action. Dated: August 3, 2017 KAZEROUNI LAW GROUP, APC BY: GE RYAN L. MCBRIDE, ESQ. ATTORNEY FOR PLAINTIFF PLAINTIFF’S REPLY RE PLAINTIFF'S MOTION FOR LEAVE TO FILE PLAINTIFE’S FIRST AMENDED COMPLAINT PAGE 2 OF 2 Ka ze ro un i La w Gr ou p, AP C 24 5 Fi sc he r Av e, Un it D1 Co st a Me sa , C A 92 62 6 N o y dx W N Oo © 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION Defendants’ opposition misstates facts, mischaracterizes law, and fails to apply the law properly. Plaintiff's Statutory Elder Abuse/Neglect cause of action is valid because it is clear that Plaintiff has pled sufficient facts in her proposed First Amended Complaint (“FAC”) showing recklessness, and potentially willful acts, under this statute by Defendants. In fact, Plaintiff has pled in her proposed First Amended Complaint a total of 11 instances of hospital visits; all resulting from similar acts of misconduct by Defendants. The sheer volume of instances of misconduct indicates reckless and/or willful behavior by Defendants. Plaintiff’s Statutory Elder Abuse/Neglect cause of action is valid against SSA because SSA is liable through Westminster’s actions under agency principles. Plaintiff's gross negligence claim is valid because gross negligence involves a different standard than regular negligence. Defendants’ misconduct in this case alleged by Plaintiff aligns with the standard for gross negligence. Plaintiff’s claim for Intentional Infliction of Emotional Distress is viable because Defendants’ conduct was reckless. Additionally, Defendants state the incorrect standard by which Plaintiff must conform at this stage of the pleading. Finally, Plaintiff's allegations are not time-barred because the allegations that Defendants are referring to, support the fact that Defendants’ pattern of behavior amounts to reckless and/or willful misconduct on the part of Defendants. Furthermore, Defendants statement of facts in their opposition is not only misleading, but is also completely irrelevant as to whether this court should grant Plaintiff leave to amend. Defendants’ repeated demands to remove causes of action, though harassing and unreasonable, do not have relevance as to this motion. Defendants made these demands in an effort to get Plaintiff to plead the way Defendants wants. Defendants opposition acknowledges the broad discretion the Court has to grant the requested relief. The relief sought by Plaintiff is in accordance with the spirit of the law as it will allow Plaintiff to seek relief for viable causes of action that were discovered based on the information Defendants provided in their discovery responses. In consideration of these facts and the argument below, Plaintiff requests the court PLAINTIFFS MEMORANDUM OF POINTES AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO FILE PLAINTIFF'S FIRST AMENDED COMPLAINT PAGE10F 10 Ka ze ro un i La w Gr ou p, AP C 24 5 Fi sc he r Av e, Un it D1 Co st a Me sa , C A 92 62 6 ~N o y 0 0 s W N oo o© 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 allow Plaintiff leave to file a First Amended Complaint. IL. ARGUMENT A. Plaintiffs Proposed Amendments to the Complaint Are Supported by Law. As stated in Plaintiff’s motion, Leave to amend may be granted liberally in all stages of litigation, even “before or after the commencement of trial.” Code of Civil Procedure § 576; Berman v. Bromberg (1997) 56 Cal. App.4™ 936, 945; Honig v. Financial Group of America (1992) 6 Cal. App.4™ 960, 965. It is therefore a rare case in which denial of leave to amend can be justified. Morgan, 172 Cal.App.2d at 530; Mabie v. Hyatt (1998) 61 Cal. App.4™ 581, 596. Thus, failure to grant leave to amend a pleading is a denial of justice and is directly opposed to the policy of liberal pleading and that cases should be tried on the merits. Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-65. The Taliaferro case cited by Defendants is misplaced. Taliaferro v. Industrial Indem. Co. (1955, Cal. App. 1* Dist.) 131 Cal. App.2d 120,123. In Taliaferro, a demurrer to plaintiff's motion for leave to amend was upheld because the court found the “complaint could not be amended to state a cause of action. Id This is clearly not the case in the present action. Plaintiff has sufficiently pled multiple causes of action that are supported by a multitude of facts, medical records, and an official California Department of Social Services Report. Furthermore, the Taliaferro case cites to the Cyre case, which found that it would not grant leave to amend because the plaintiff wanted to add a cause of action that was “quite different from the theory” originally claimed. Cyre v. White, 83 Cal.App.3d, 22, 33. Here, Plaintiff intends on adding only one additional cause of action, gross negligence. This cause of action naturally arises from the facts that have already been pleaded and which are being proposed by Plaintiff in the proposed first amended complaint. Gross negligence is similar to other claims already pled, and should be allowed. Finally, in Hillman, a 1947 case, the court actually reversed the lower court’s decision and allowed plaintiff to amend the complaint, which would appear to contradict the argument that Defendants are attempting to make. Hillman v. Hillman Land Co. (1947, Cal. App. 2" Dist.) PLAINTIFF'S MEMORANDUM OF POINTES AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO FILE PLAINTIFF’S FIRST AMENDED COMPLAINT PAGE2 OF 10 Ka ze ro un i La w Gr ou p, AP C 24 5 Fi sc he r Av e, Un it D1 Co st a Me sa , C A 92 62 6 B w N = 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 81 Cal.App.2d 174, 181. The Hillman court found “Plaintiff should not be deprived by technical but curable defects of the privilege of presenting his case on its merits. He is entitled to the opportunity of making definite such allegations in his pleading as are indefinite, if there be any.” Id. Thus, Defendants fail to make any argument of merit as to why Plaintiff should not be able to add a new cause of action. B. Plaintiff’s Statutory Elder Abuse/Neglect Cause of Action is Valid. The California Welfare and Institutions Code § 15657 states: Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law... Plaintiff's proposed First Amended Complaint is clearly supported by specific facts, medical records, and substantiated by a California Department of Social Services Report on the misconduct by Defendants. Defendants’ argument that Plaintiff must “plead sufficient facts to establish clear and convincing proof that Defendants committed physical abuse or neglect against Ms. Mohr, and that Defendants are guilty of recklessness, oppression, fraud or malice as defined in Civil Code section 3294” is completely frivolous. See Defendants’ Opposition P. 41. 25, P. 5, I. 1-3. Plaintiff does not have to prove anything by clear and convincing evidence at this stage in the pleading. Defendants are attempting to hold Plaintiff to a higher standard than is required at this point in the action. The standard Defendants are citing is what is necessary for Plaintiff to recover under this cause of action, not for Plaintiff to plead a cause of action. Plaintiff's complaint simply needs to plead sufficient fact in support of the causes of action, which Plaintiff has clearly done in this case. i. Plaintiffs has pled facts with sufficient particularity to sustain a cause of action under the statutory elder abuse/neglect claim Defendants cite the Carter case that states “the facts constituting the neglect and establishing the causal link between the neglect and the injury “must be pleaded with PLAINTIFF'S MEMORANDUM OF POINTES AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO FILE PLAINTIFF'S FIRST AMENDED COMPLAINT PAGE 3 OF 10 Ka ze ro un i La w Gr ou p, AP C 24 5 Fi sc he r Av e, Un it D1 Co st a Me sa , C A 92 62 6 OO © J oo » bd» WwW N D = 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 particularity.” Carter v. Prime Healthcare Paradise Valley, LLC, 198 Cal. App.4™ 396, 129 Cal.Rptr.3d 895, 11 Cal. Daily Op. Serv. 10395, 2011 Daily Journal D.A.R. 12295 (Cal. App., 2011). Defendants’ assertion that Plaintiff’s proposed First Amended Complaint fails to state a viable cause of action for dependent adult abuse or neglect is simply inaccurate. Plaintiff has included in her complaint 11 separate instances of hospital visits regarding similar circumstances and similar misconduct by Defendants. These circumstances include failure to provide a proper diet in light of Plaintiff’s diabetes, failure to change Plaintiff’s adult diapers regularly, failure to administer proper medication dosages to Plaintiff, failure to administer medication at all to Plaintiff, and an overall failure to provide proper care and supervision of Plaintiff. Defendants argue that Plaintiff has not pled with particularity, but this is simply not the case. Plaintiff has pled very specific facts regarding particular incidents that transpired over the course of Plaintiff’s residency at Defendants’ facility." Furthermore, Plaintiff included in her complaint facts regarding a California Department of Social Services Report that substantiates the allegations being made by Plaintiff. Through the course of discovery, Plaintiff has also provided Defendants with over 1000 pages of medical records delineating the multiple hospital and rehabilitation center visits that Plaintiff made due to Defendants alleged misconduct. ii. Plaintiff has pled facts that align with the Carter elements cited by Defendants. In their opposition, Defendants again attempt to hold Plaintiff to an incorrect standard of pleading at this stage of the litigation. Defendants incorrectly assert that Plaintiff should be held to a “clear and convincing” standard of pleading. See Defendants’ Opposition P. 5 I. 27-28, P. 6, I. 1-8. Setting aside the fact that Defendants cut and pasted piecemeal sections from the actual Carter case and also added in their own narration within parentheses throughout the citation, Plaintiffs still have sufficiently met the pleading standard set by Carter. See Carter 198 Cal. App.4™ 396. ! For example, see paragraphs 84-98 of Plaintiff's proposed FAC, which contain the facts from just one hospital visit with many details regarding the causal link between Defendants’ oonduet add Plaintiff's damages. There were PLAINT IFF’ s MEMORANDUM OF POINTES AND AUTHORITIES IN SUPPORT: OF MOTION FOR LEAVE TO FILE PLAINTIFF’S FIRST AMENDED COMPLAINT PAGE4 OF 10 Ka ze ro un i L a w Gr ou p, A P C 24 5 Fi sc he r Av e, Un it D1 Co st a Me sa , C A 92 62 6 ~N o y o o d Ww ND Ow oo 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants assert that Plaintiff must allege facts establishing the defendant had a responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene. See Defendants’ Opposition P. 5 1. 27-28, P. 6, I. 1. Plaintiff has pled many facts showing that Defendants were responsible for meeting the needs of Plaintiff including providing her with a proper diet, assisting her with her incontinence, providing her transportation to and from medical and dental appointments, and aiding in administering Plaintiff's insulin medication properly and timely.’ Defendants next state that Plaintiff must allege facts establishing the defendant knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs. See Defendants’ Opposition P. 6, I. 1-2. Not only did Plaintiff plead facts that showed Defendants knew of Plaintiff’s conditions when she first moved in to Defendants’ facility, but Plaintiff also pled many facts that showed Defendants were made aware of Defendants’ conditions on multiple occasions during her residency.’ Defendants further state that Plaintiff must allege facts establishing the defendant denied or withheld goods or services necessary to meet the elder or dependent adult’s basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult... or with conscious disregard of the high probability of such injury. See Defendants’ Opposition P. 6, I. 2-5. Plaintiff has pled facts indicating that Defendants failed to provide a proper diet to Plaintiff, failed to properly administer medication to Plaintiff, failed to properly monitor Plaintiff, and failed to transport Plaintiff to and from medical and dental appointments.* These facts all go to the conscious disregard by Defendants to properly care for Plaintiff. Defendants withheld these services from Plaintiff on so many instances, that it is likely Defendants’ conduct raises to the level of intentional conduct.’ Defendants finally state that Plaintiff must allege that the neglect by Defendants caused ? See proposed FAC Paragraphs 10, 14, 15, 16, 116, 123, 129, 131, 141, 142, 154. * See proposed FAC Paragraphs 13, 15, 29, 30, 32-34, 36-38, 39, 46-52, 56, 58, 60, 63, 64, 71, 78-79, 85, 90-94, 102, 105-106, 119. ! See Plaintiff’s proposed FAC paragraphs 17, 18, 25, 27, 31-33, 37-38, 40-44, 45-46, 54-56, 60-62, 66-70, 72-77, 81-83, 95-98, 104, 107-115, 118-119, 124, 129-131, 134, 141-142, 144-147, 154-155. 51d PLAINTIFF'S MEMORANDUM OF POINTES AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO FILE PLAINTIFF'S FIRST AMENDED COMPLAINT PAGES OF 10 Ka ze ro un i La w Gr ou p, AP C 24 5 Fi sc he r Av e, Un it D1 Co st a Me sa , CA 92 62 6 S o w N R ~N o y O n I i Plaintiff to suffer physical harm, pain, or mental suffering. See Defendants’ Opposition P. 6, |. 5-6. Plaintiff has alleged that Plaintiff suffered significant harm in the form of physical, emotional, and mental injury due to Defendants’ actions.’ One of the last times Plaintiff was admitted to the hospital, she nearly died. The harm that Plaintiff has suffered in this case is severe and very apparent from the pleadings. ili. Defendants’ conduct is in line with the list of cases Defendants presented in their opposition. Defendants cite six different situations in their opposition from the Carter case where plaintiffs were successful in proving damages under the statutory elder abuse/neglect law. See Defendants’ Opposition P. 6, 1. 12-28, P. 7, I. 1-6. It’s ironic that Defendants include these factual situations because they directly apply to the facts that Plaintiff has pled herein. Defendants go as far as to say that “[nJone of the indicia of abuse or neglect identified in the aforementioned cases are present in the subject case.” This statement is completely frivolous. Specifically, Plaintiff has alleged that Defendants failed to provide Plaintiff, a woman suffering from dementia, a proper diet including failure to keep her hydrated, which fits into examples 1, 5, and 6 provided in Defendants’ motion. Plaintiff has alleged Defendants left Plaintiff in her own urine for such an extended period of time that Plaintiff developed multiple UTIs and skin infections, which fits into examples 1, 2, and 6. Plaintiff has further alleged Defendants improperly administered and failed to administer proper medication for Plaintiff's diabetes, which fits into examples 1, 3, and 4. Defendants’ citation to the Delaney case again improperly attempts to hold Plaintiff to a higher standard than is required at this point in the action. In an effort to achieve judicial efficiency, Plaintiff directs the Court to the argument above regarding Defendants’ improper assertion that Plaintiff needs to prove facts by clear and convincing evidence at this stage in litigation. ¢ See Plaintiffs proposed FAC paragraphs 10, 11, 17, 19, 20-24, 31, 40-41, 43-44, 53, 55, 60, 66-67, 69-70, 76-77 . 80. 84-89. 97. 99-100, 108-115, 120-121, 126. 136, 143, 148, PLAINTIFF'S MEMORANDUM OF POINTES AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO FILE PLAINTIFFS FIRST AMENDED COMPLAINT PAGE 6 OF 10 Ka ze ro un i La w Gr ou p, AP C 24 5 Fi sc he r Av e, Un it D1 Co st a Me sa , C A 92 62 6 = a y U 1 Ow 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 28 C. Plaintiffs Elder Abuse/Neglect Cause of Action is Viable as to Senior Services of America, LLC Plaintiff’s statutory elder abuse/neglect cause of action is viable as to SSA because SSA is liable through Westminster's actions and inactions under agency liability theory. Under this doctrine, a defendant corporation may be liable for the actions of its subsidiary if the subsidiary was under common ownership and control by the parent corporation. Sonora Diamond Corp. v. Superior Ct. of Tuolumne, 99 Cal.Rptr.2d 824, 83 Cal.App.4th 523 (Cal. App. 5 Dist., 2000). Here, Plaintiff has alleged that SSA is involved in everything from big picture issues to day-to- day activities at Westminster. See Plaintiff's proposed FAC q 5. Many of Plaintiff’s allegations are referring to both “Defendants” because Plaintiff is informed and believes SSA was involved in the misconduct that resulted in Plaintiff being injured. Furthermore, Ms. Corrigan, Plaintiff’s attorney-in-fact, had multiple communications with a representative from SSA regarding conduct by its subsidiary, Westminster. In these conversations, the representative from SSA made representations that SSA was responsible for incidents that happened at Westminster. Westminster was clearly an agent of SSA. Plaintiff has pled sufficient facts to sustain this cause of action as to SSA. D. Plaintiff’s Gross Negligence Claim is Valid. Plaintiff’s claim of gross negligence should be allowed because it requires a different standard than negligence. Negligence is an unintentional tort, a failure to exercise the degree of care in a given situation that a reasonable man under similar circumstances would exercise to protect others from harm. (Rest. Torts, secs. 282, 283, 284; Prosser, Torts, secs. 30 et seq.) A negligent person has no desire to cause the harm that results from his carelessness, (Rest. Torts, sec. 282 (c)), and he must be distinguished from a person guilty of willful misconduct, such as assault and battery, who intends to cause harm. (Prosser, Torts, p. 261.) Willfulness and negligence are contradictory terms. Kellyv. Malott, 135 Fed. 74 [67 C. C. A. 548]; Neary v. Northern Pac. R. Co., 41 Mont. 480 [110 Pac. 226]; Michels v. Boruta, (Tex. Civ. App.) 122 S. W. (2d) 216.) If conduct is negligent, it is not willful; if it is willful, it is not negligent. Id. It is frequently difficult, however, to characterize conduct as willful or negligent. PLAINTIFF'S MEMORANDUM OF POINTES AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO FILE PLAINTIFF’S FIRST AMENDED COMPLAINT PAGE 70F 10 Ka ze ro un i La w Gr ou p, AP C 24 5 Fi sc he r Av e, Un it D1 Co st a Me sa , C A 92 62 6 s o w N E a On wo © 10 11 12 13 14 1.9 16 17 18 19 20 21 22 23 24 25 26 27 28 Id. A tort having some of the characteristics of both negligence and willfulness occurs when a person with no intent to cause harm intentionally performs an act so unreasonable and dangerous that he knows, or should know, it is highly probable that harm will result. Rest. Torts, sec. 500 et seq.; Prosser, Torts, pp. 260, 261.) Such a tort has been labeled "willful negligence," "wanton and willful negligence,” "wanton and willful misconduct,” and even "gross negligence." Id. It is most accurately designated as wanton and reckless misconduct. 7d. It involves no intention, as does willful misconduct, to do harm, and it differs from negligence in that it does involve an intention to perform an act that the actor knows, or should know, will very probably cause harm. See Kastel v. Stieber, 215 Cal. 37, 46 [8 Pac. (2d) 474); Albers v. Shell Co. of Calif., 104 Cal. App. 733 [286 Pac. 752]; Tognazzini v. Freeman, 18 Cal. App. 468 [123 Pac. 540]; 45 C. J. 674.) Wanton and reckless misconduct is more closely akin to willful misconduct than to negligence, and it has most of the legal consequences of willful misconduct. See Cases in Prosser, Torts, p. 261. Here, Defendants’ conduct alleged by Plaintiff rises to the level of willful conduct, if not at least reckless conduct. Plaintiff was admitted at least 11 times to different hospitals due to Defendants’ conduct. Furthermore, Defendants were given warnings and notifications on many occasions that Defendants were not properly caring for Plaintiff. Defendants’ continued misconduct and failure to take care of Plaintiff as alleged by Plaintiff is severe and likely raises to the level of willful misconduct. Even if the Court decides the allegations do not rise to the level of willful misconduct, the failure to properly care for Plaintiff repeatedly at least rises to reckless misconduct by Defendants. Therefore, Defendants’ conduct as alleged by Plaintiff constitutes gross negligence and the Court should allow for this cause of action. E. Plaintiffs Intentional Infliction of Emotional Distress is a Valid Claim Defendants claim that Plaintiff has failed to plead sufficient, particularized facts to establish that Ms. Mohr suffered severe emotional distress and that Defendants’ alleged conduct caused Ms. Mohr emotional distress. Plaintiff alleged facts including that Ms. Mohr was hospitalized at least 11 times, which would cause an average person severe emotional distress, let alone an elderly person with dementia. Additionally, Defendants’ repeated failure to PLAINTIFF'S MEMORANDUM OF POINTES AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO FILE PLAINTIFF'S FIRST AMENDED COMPLAINT PAGE 8 OF 10 Ka ze ro un i La w Gr ou p, A P C 24 5 Fi sc he r Av e, Un it D1 Co st a Me sa , CA 92 62 6 ~N o y O x Ww N D Oo © 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 properly care for Plaintiff as alleged by Plaintiff amounts to outrageous misconduct committed by Defendants. Defendants’ failure to properly take care of Plaintiff on multiple occasions resulted in outrageous misconduct that falls far outside the bounds of reasonable care by the average assisted living facility. Thus, Plaintiff has sufficiently pled this cause of action. Defendants again improperly state that Plaintiff must prove these facts by clear and convincing evidence at this stage of litigation, which is an incorrect statement of law. Plaintiff directs the court to the previous discussion above in regards to this improper assertion by Defendants. F. Plaintiffs Allegations are Not Time-Barred Because They Support a Pattern of Reckless Behavior Plaintiff has not alleged that misconduct by Defendants in 2012 or earlier is actionable. However, Plaintiff has provided facts from previous years during Plaintiff’s residency at Defendants’ facility in order to show a pattern of reckless and/or willful misconduct by Defendants. Any one incidence of misconduct by Defendants taken by itself may not amount to reckless behavior, but all of the incidents taken together that were outlined in Plaintiff’s proposed First Amended Complaint constitute reckless and potentially willful behavior. Defendants have failed to cite any authority that does not allow Plaintiff to include facts from before any statute of limitations deadlines and Plaintiff is confident the Court will find these facts very relevant to causes of action that are not time-barred. III. CONCLUSION Defendants attempt to hold Plaintiff to a higher “clear and convincing” standard at this stage in litigation is transparent and should be disregarded. Plaintiff has sufficiently pled facts with particularity as to the statutory dependent adult abuse/reckless neglect, gross negligence, and intentional infliction of emotional distress causes of actions. Finally, Plaintiffs inclusion of facts before any statute of limitations deadlines are proper because they support a finding of a pattern of reckless behavior by Defendants. Based on the forgoing, Plaintiff respectfully requests that the Court grant Plaintiff leave to amend Plaintiff’s Complaint so as to allow Plaintiff to add additional factual allegations supporting Plaintiff’s claims and to change the PLAINTIFF'S MEMORANDUM OF POINTES AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO FILE PLAINTIFF’S FIRST AMENDED COMPLAINT PAGE9 OF 10 Ka ze ro un i La w Gr ou p, A P C 24 5 Fi sc he r Av e, Un it D1 Co st a Me sa , C A 92 62 6 10 11 12 13 14 19 16 17 18 19 20 21 ZZ 23 24 23 26 27 28 second cause of action from “Willful Misconduct” to “Gross Negligence”. Dated: August 3, 2017 KAZEROUNI LAW GrOUP, APC BY: 2 TF RYAN L. MCBRIDE, ESQ. ATTORNEY FOR PLAINTIFF PLAINTIFF'S MEMORANDUM OF POINTES AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO FILE PLAINTIFF’S FIRST AMENDED COMPLAINT PAGE 10 OF 10 Ka ze ro un i La w Gr ou p, A P C 24 5 Fi sc he r Av e, Su it e D1 Co st a Me sa , C A 92 62 6 Oo 0 NN a wn BRA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am a resident of the State of Arizona, over the age of eighteen years, and not a party to the within action. My business address is Kazerouni Law Group, 2633 E. Indian School Road, Suite 460, Phoenix, Arizona. August 3, 2017, I served the herein described document(s): PLAINTIFF ARLINE MOHR’S REPLY RE PLAINTIFF’S MOTION FOR LEAVE TO FILE PLAINTIFF’S FIRST AMENDED COMPLAINT Ol FACSIMILE - by transmitting via facsimile the document(s) listed above to the fax number(s) set forth on the attached Telecommunications Cover Page(s) on this date before 5:00 p.m. OJ MAIL - by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Phoenix, Arizona addressed as set forth below. Ol PERSONAL SERVICE - by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below. ™ OVERNIGHT COURIER - by placing the document(s) listed above in a sealed envelope with shipping prepaid, and depositing in a collection box for next day delivery to the person(s) at the address(es) set forth below. Rima M. Badawiya Matthew K. Izu LEWIS BRISBOIS BISGAARD & SMITH LLP 650 E. Hospitality Lane, Suite 600 San Bernardino, CA 92408 Attorneys for Defendants I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on August 3, 2017 at Phoenix, Arizona. pe p RyAN L. MCBRIDE PROOF OF SERVICE