F' LED -... '.-' ".- -.'--'"'''r Gourt

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1 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO CENTRAL MINUTE ORDER F' LED -... '.-' ".- -.'--'"'''r Gourt Date: 05/05/2009 Time: 09:00:00 AM MAY Judicial Officer Presiding: JUdge Jeffrey B. Barton Clerk: Deborah Jellison By: D. JELLISON, Deputy Bailiff/Court Attendant: ERM: Reporter: not reported Case Init. Date: 02/11/2008 Case No: CU-MC-CTL Case Title: Dagradi vs. Classic Residence Managment Case Category: Civil - Unlimited Case Type: Misc Complaints - Other Event Type: Summary Judgment / Summary Adjudicati,on (Civil) Moving Party: Classic Residence Managment, CCW LA JOLLA LLC, CC-LA Jolla, Inc Causal Document & Date Filed:Motion for Summary Judgment and/or Adjudication, 02/13/2009 Appearances: The Court, having taken the above-entitled matter under submission on 05/04/2009 and having fully considered the arguments of all parties, both written and oral, as well as the evidence presented, now rules as follows: Date: 05/05/2009 MINUTE ORDER Page: 1 Calendar No.' 2

2 when its license allows the person to be nonambulatory supports a finding of good cause for transfer. It states: Classic Residence by Hyatt, in consultation with the Care Team and You, Your physician, Your family members or legal representative, an appropriate specialist or licensing official, may transfer You to an appropriate care setting in the Community or to another care setting upon a finding of good cause, as determined by Classic Residence by Hyatt: Good cause includes, but it not limited to the following: (a) You require a level of care that may be provided more safely, promptly or effectively at a location other than in Your current Home; (b) You require care that may not lawfully be provided in Your current Home...(e) You should be transferred to protect Your safety...; or (f) You are "nonambulatory" as defined in California Health and Safety Code, Section (DNOL, Ex. A, VI, A.) Health and Safety Code section defines "nonambulatory persons" as "persons unable to leave a building unassisted under emergency conditions. It includes any person who is unable, or likely to be unable, to physically and mentalfy respond to a sensory signal approved by the State Fire Marshal, or an oral instruction relating to fire danger, and persons who depend upon mechanical aids such as crutches, walkers, and wheelchairs... Plaintiff has raised triable issues of material fact by showing the independent living apartments had the same licensure as assisted living, where residents can be non-ambulatory. (PNOL, Ex. 5.) Plaintiff have raised triable issues of material fact whether defendants breached their agreement by making a decision to transfer j:)laintiff without following section VI(A). Plaintiff has also raisecl triable issues of material fact whether defendants breach the implied covenant of good faith and fair dealing and quiet enjoyment by subjecting plaintiff to repeated and harassing demands for medical assessments, and whether defendanls' actions amounted to a constructive eviction. Plaintiff has also raised triable issues of material fact whether defendants' conduct was outrageous and in violation of the elder abuse statutes. There are triable issues of material fact whether plaintiff is entitled a refund of her entrance fee and the amount, if any, of the refund. Defendants rely on Health and Safety Code section that it cannot retain a resident who requires 24 hours, skilled nursing or intermeaiate care. Defendants have not shown that the 24 hour care that plaintiff received was skilled nursing or intermediate care and that statute appears to require the determination of bedridden status to De made by the Director of Social Services. (H&S (b){2).) Plaintiff has raised triable issue of fact whether she required 24 hour skilled or intermediate care. Plamtiff has indicated that her condition has not changed since moving into LJVT in 2000, that she is not bedridden, nor does she stay in her bed most of Ihe time. She receives help from private duty aids, none of which are nurses. (Dagradi dec!.,,-r14.) Dr. Bulow stated that plaintiffs health, mental and physical condition have not deteriorated to any significant degree in his six years of care. (BUlow decl.,,-r2.) He did not believe she needed skilled nursing care. (Id. at,-r5.) That her condition had not significantly changed is supported by the annual assessment that was completed on June 8, 2007, where there was not a recommendation at that time for a transfer. Yet, one month later, in August 2007, defendants initiated the review and notification process. Plaintiff has raised material issues of fact that defendants may have breached its contract by the numerous actions suggesting more than mere "assessment" was the goal, and not to remove plaintiff from her apartment. She had asked that her daughter be involved, and though she signed a slip that she did not want her doctor present at the assessment scheduled for October 2007, this is not a desire to not have her doctor's input. Her doctor's opinion consistently reflected she did not need skilled care and that her physical condition had not deteriorated to any significant degree in 6 years. (Decl. of Bulow, ~2.) Dr. Bulow had forwarded his assessment and his review of the nursing file did not note any changed in her condition. (ld. at,-r6.) While she may have needed assistance to evacuate, she paid for 24 hour nursing care so there was no increased dependency on defendant's staff in the event of an evacuation. Plaintiff has raised material issues of fact that she was complying with the request for assessment, and that her daughter had 'flown down for the assessment, which was cancelled by defendants due to the fires in October NotWithstanding that plaintiff had asked that her daughter be given the letters, defendants interrupted her 86th birthday to assert their own plans, serving her with multiple documents, which raises an issues of material fact whether defendants unnecessarily Iiarassed plaintiff. Date: MINUTE ORDER Page: 2

3 Plaintiff has also provided evidence of the financial benefits defendant would receive if her CCRA was terminated, and has shown other residents felt harassed by similar conduct by defendant. (Dec!. of Kahn, Masotti and Gleason.) Judicial notice is granted as requested, except to John Rodriguez's memo. Defendant's objections to the declaration of plaintiff Rosalind Dagradi 1. Overruled. 2. Overruled. 3. Overruled. 4. Overruled. 5. Sustained. 6. Overruled. 7. Overruled. 8. Overruled. 9. Overruled. 10. Sustained. 11. Overruled. 12. Overruled. 13. Overruled. Defendants' objections to the declaration of Rosalind A. Dagradi 14. Overruled 15. Overruled. 16. Sustained as to "which they did." 17. Sustained. 18. Sustained. Defendants' objections to the declaration of Susan Blankenship Sustained. Defendants' objections to the declaration of James F. Gleason 31. Overruled. 32. Sustained. 33. Sustained. 34. Sustained. Defendants' objections to the declaration of Eugene Kahn 35. Overruled. 36. Overruled Overruled. Defendants' objections to the declaration of Iris Masotti 44. Overruled. 45. Overruled. 46. Sustained Sustained. Defendants' objections to the declaration of Rolieta Porter 52. Overruled. Defendants' objections to the deposition of Susan Compton: 53. Overruled. 54. Sustained. 55. Sustained. 56. Overruled. 57. Overruled. 58. Overruled. 59. Overruled. Date: 05/05/2009 MINUTE ORDER Page: 3

4 60. Overruled. 61. Overruled Overruled. Although plaintiff's arguments are novel, the court is unwilling to find as a matter of law that there is a fiduciary duty between a residential care facility and plaintiff, especially in light of the extensive statutory scheme regarding residential care facilities and the elder abuse statutes. Tnese statutes do not set forth a fiduciary duty which suggests that there is no fiduciary duty. These issues of fact upon which plaintiff relies do not rise to the level of submitting them to a JUry to determine whether there is a breach of fiduciary duty arising de jure or de facto. Tliere are no cases which expands the relationships such as a doctor/patient or attorney/client to a health care facility. IT IS SO ORDERED. JEFFREy B.BARrON Judge of the Superior Court Date: 05/05/2009 MINUTE ORDER Page: 4

5 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO o COUNTY COURTHOUSE, 220 W. BROADWAY, SAN DIEGO, CA 9210~3814 [gi HALL OF JUSTICE, 330 W. BROADWAY, SAN DIEGO, CA 9210~3827 FAMILYCOURT,15ffi6THAVE, SAN DIEGO, CA MADGE BRADLEY BLDG., TH AVE., SAN DIEGO, CA 9210.f3105 KEARNY MESA BRANCH, 8950 CLAIREMONT MESA BLVD., SAN DIEGO, CA NORTH COUNTY DIVISICN, 325 S. MELROSE DR., VISTA, CA EAST COUNTY DIVISION, 250 E. MAIN ST., EL CAJON, CA 9202'l3941 RAMONA BRANCH MONTECITO RD., RAMONA, CA SOUTH COUNTY DIVISION,!DO 3RD AVE., CHULA VISTA, CA JUVENILE COURT, 2851 MEADOW LARK DR., SAN DIEGO, CA o JUVENILE COURT, 325 S. MELROSE DR., VISTA, CA 9208~634 PLAINTIFF(S)/PETITIONER(S) ROSALIND M. DAGRADI DEFENDANT(S)/RESPONDENT(S) CLASSIS MANAGEMENT PARTNERSHIP, et al. CLERK'S CERTIFICATE OF SERVICE BY MAIL (CCP 1013a(4» JUDGE: DEPT: 69 CASE NUMBER FOR COURT USE ONLY F I l -- ~ E D "':,"'- l""~,lrt MAY lj b LlJu.::J By: D. Jl::.w..I;:)UI'l, ul::lju~y JEFFREY B. BARTON I, certify that: I am not a party to the above-entitled case; that on the date shown below, I served the following document(s): FINAL RULING FOR HEARING ON MAY 4,2009 on the parties shown below by placing a true copy in a separate envelope, addressed as shown below; each envelope was then sealed and, with postage thereon fully prepaid, deposited in the United States Postal Service at: [gi San Diego 0 Vista 0 EI Cajon o Chula Vista 0 Ramona, California. NAME & ADDRESS MICHAEL CONGER LAW OFFICES OF MICHAEL CONGER P.O. BOX 9374 RANCHO SANTA FE, CA COUNSEL FOR PLAINTIFF NAME & ADDRESS BRIAN GONZALEZ LAW OFFICES OF BRIAN GONZALEZ 2533 S. COAST HIGHWAY 101, SUITE 250 CARDIFF BY THE SEA, CA COUNSEL FOR DEFENDANT S. ANNE JOHNSON HANSON BRIDGED, LLP 425 MARKET STREET, 26 TH FLOOR SAN FRANCISCO, CA CO-COUNSEL FOR DEFENDANT CLERK OF THE Sl\PERIOR COURT Date: May 8, 2009 by DEBORAH JELUSON DEBORAH JELLISON, Deputy SDSC CIV-286{Rev ) CLERK'S CERTIFICATE OF SERVICE BY MAIL