UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION

!aaassseee :::- - -cccvvv- - -000000000- - -LLLJJJOOO- - -BBBAAAMMM DDDooocccuuummmeeennnttt FFFiiillleeeddd 000///000/// PPPaaagggeee ooofff HOOPER, LUNDY & BOOKMAN, INC. 0 MONTGOMERY STREET, SUITE 000 SAN FRANCISCO, CALIFORNIA 0 TEL: () -00 FAX: () -. 0 MARK E. REAGAN (State Bar No. ) SCOTT J. KIEPEN (State Bar No. 0 FELICIA Y SZE (State Bar No. ) KATHERINE R. MILLER (State Bar No. 0) Market Street, Suite 00 San Francisco, California 0 Telephone: () -00 Facsimile: () - E-Mail: mreagan@health-law.com skiepen@health-law.com fsze@health-law.com kmiller@health-law.com JOSEPH R. LAMAGNA (State Bar No. 0) 0 W. Broadway, Suite 0 San Diego, California 0-0 Telephone: () -00 Facsimile: () 0-0 E-Mail: jlamagna@health-law.com Attorneys for PLAINTIFFS UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION VALLEY VIEW HEALTH CARE INC. DBA RIVERBANK NURSING CENTER, et al., vs. Plaintiffs, RONALD CHAPMAN, M.D., DIRECTOR OF THE CALIFORNIA DEPARTMENT OF PUBLIC HEALTH, and THE CALIFORNIA DEPARTMENT OF PUBLIC HEALTH, Defendants. CASE NO. :-cv-000-ljo-bam PLAINTIFFS OPPOSITION TO PROPOSED INTERVENORS MOTION FOR LEAVE TO INTERVENE Date: August, Time: :0 a.m. Dept.: Crtrm, Seventh Floor Judge: Hon. Lawrence J. O Neill Complaint Filed: January,

!aaassseee :::- - -cccvvv- - -000000000- - -LLLJJJOOO- - -BBBAAAMMM DDDooocccuuummmeeennnttt FFFiiillleeeddd 000///000/// PPPaaagggeee ooofff TABLE OF CONTENTS Page HOOPER, LUNDY & BOOKMAN, INC. 0 MONTGOMERY STREET, SUITE 000 SAN FRANCISCO, CALIFORNIA 0 TEL: () -00 FAX: () - 0 I. INTRODUCTION... II. III. LEGAL STANDARDS... PROPOSED INTERVENORS MOTION TO INTERVENE SHOULD BE DENIED... A. Proposed Intervenors Motion For Leave To Intervene Should Be Denied For Failure To Comply With FRCP (c)... B. Proposed Intervenors Cannot Show That They Are Entitled To Intervene As A Matter of Right.... Proposed Intervenors Motion is untimely.... Proposed Intervenor Patrick has not shown a significant protectable interest.... Proposed Intervenors cannot overcome the presumption that the Government Defendants adequately represent their interests... C. The Court Should Exercise Its Discretion To Deny Intervention Under FRCP (b)...0 IV. CONCLUSION.... i

!aaassseee :::- - -cccvvv- - -000000000- - -LLLJJJOOO- - -BBBAAAMMM DDDooocccuuummmeeennnttt FFFiiillleeeddd 000///000/// PPPaaagggeee ooofff HOOPER, LUNDY & BOOKMAN, INC. 0 MONTGOMERY STREET, SUITE 000 SAN FRANCISCO, CALIFORNIA 0 TEL: () -00 FAX: () - 0 CASES TABLE OF AUTHORITIES Page(s) Alisal Water Corp. 0 F.d (th Cir. 0)... Arakaki v. Cayetano F.d 0 (th Cir. 0)... Associated Students of Univ. of Cal. at Riverside v. Kleindienst 0 F.R.D. (C.D. Cal. )... AT&T Mobility, LLC v. Concepcion S. Ct. 0 ()... Citizens for Balanced Use v. Montana Wilderness Association F.d (th Cir. )... Clearly v. Waldman F.Supp. (D.N.J. )... 0 County of Fresno v. Andrus F.d (th Cir. 0)... 0 Donnelly v. Glickman F.d 0 (th Cir. )..., 0 Idaho Farm Bureau Federal v. Babbit F.d (th Cir. )... KPMG, LLP v. Cocchi S. Ct. () (per curiam)... ManaSota-, Inc. v. Tidwell F.d (th Cir. 0)... Marmet Health Care Ctr., Inc. v. Brown S. Ct. () (per curiam)... Perry v Proposition Official Proponents F.d (th Cir. 0)...,,, Prete v. Bradbury F.d (th Cir. 0)..., Silver v. Babbitt F.R.D. (D. Ariz. ).... ii

!aaassseee :::- - -cccvvv- - -000000000- - -LLLJJJOOO- - -BBBAAAMMM DDDooocccuuummmeeennnttt FFFiiillleeeddd 000///000/// PPPaaagggeee ooofff MARKET STREET, SUITE 00 SAN FRANCISCO, CALIFORNIA 0 TEL: () -00 FAX: () - 0 Plaintiffs Valley View Health Care Inc. dba Riverbank Nursing Center ( Riverbank ); The Stonebrook Convalescent Center, Inc. dba Stonebrook Healthcare Center ( Stonebrook ); Lifehouse Parkview Operations, LLC dba Parkview Healthcare Center ( Parkview ); Beverly Healthcare - California, Inc. dba Golden Living Center-Fresno ( Golden Living ); CF Modesto, LLC dba Country Villa Modesto Nursing & Rehabilitation Center ( Country Villa ); Avalon Care Center Merced Franciscan, L.L.C. dba Franciscan Convalescent Hospital ( Franciscan ); and The California Association of Health Facilities ( CAHF ) (collectively, Plaintiffs ), hereby submit their opposition to the Motion for Leave to Intervene ( Motion ) filed by Proposed Intervenor Defendants California Advocates for Nursing Home Reform and Glenn Patrick, by and through his Conservators, Nell Sulborski and Jeanne Patrick (collectively, Proposed Intervenors ). I. INTRODUCTION Proposed Intervenors Motion is a vague, procedurally defective attempt to expand this litigation by injecting irrelevant factual contentions into a purely legal dispute about whether the Federal Arbitration Act (FAA) preempts California state law restricting the scope of Skilled Nursing Facilities (SNFs) voluntary, predispute arbitration agreements with residents. This case is, and should remain, a narrowly focused legal dispute concerning unlawful restrictions on nursing home residents ability to agree to resolve certain claims against facilities through arbitration. California law provides that any agreement by a skilled nursing facility resident to submit claims to binding arbitration that allege violations of California s Patient s Bill of Rights (Cal. Code Regs. tit., ), shall be void as contrary to public policy. Cal. Health & Safety Code 0(b); see also.(d). Defendants, Ronald Chapman, M.D., the Director of the California Department of Public Health, and the California Department of Public Health (collectively Government Defendants ) license nursing facilities and enforce facility compliance with state law. In the furtherance of this mission, the Government Defendants promulgated California Code of Regulations, title, (d), which, among other things, requires skilled.

!aaassseee :::- - -cccvvv- - -000000000- - -LLLJJJOOO- - -BBBAAAMMM DDDooocccuuummmeeennnttt FFFiiillleeeddd 000///000/// PPPaaagggeee ooofff MARKET STREET, SUITE 00 SAN FRANCISCO, CALIFORNIA 0 TEL: () -00 FAX: () - 0 nursing facilities to advise residents that they may not waive their ability to bring an action in court for violations of the California Patient s Bill of Rights. The Government Defendants issued this regulation, effective March,, as part of a regulatory package to implement a standardized admission agreement for nursing homes (known as the Standard Admission Agreement or SAA ) pursuant to California Health and Safety Code.. The challenged restrictions are directly at odds with and preempted by the Federal Arbitration Act s ( FAA ) mandate that a written arbitration clause shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. U.S.C.. This is particularly the case in light of recent U.S. Supreme Court decisions that preclude states from exempting various types of claims from arbitration. See, e.g., Marmet Health Care Ctr., Inc. v. Brown, S. Ct., () (per curiam); KPMG, LLP v. Cocchi, S. Ct., () (per curiam); AT&T Mobility, LLC v. Concepcion, S. Ct. 0, (). Accordingly, Plaintiffs seek a determination that the FAA preempts California Code of Regulations, Title, (d) ( Section (d) ) and the statutes upon which it is based, California Health and Safety Code sections 0(b) ( Section 0(b) ) and.(d) ( Section.(d) ), to the extent that these Sections purport to prohibit skilled nursing facilities ( SNF ) arbitration agreements from covering claims that arise out of the California Patient s Bill of Rights. Plaintiffs seek declaratory and injunctive relief to prevent Sections (d), 0(b) and.(d) from being enforced against SNFs. Proposed Intervenors assert that they seek leave to intervene to insure that the positions for which CANHR has advocated so vigorously in the past are not subverted, including insuring that there is clarity in admission agreements so that patients are adequately apprised of their rights and to insure that there is voluntary and informed consent. Motion at :-. This case does not, however, put at issue any state law concerning the inclusion of the Bill of Rights in the admission agreement (see Cal. Health & Safety Code.) or concerning voluntary and These California legal provisions are collectively referred to herein as the Sections..

!aaassseee :::- - -cccvvv- - -000000000- - -LLLJJJOOO- - -BBBAAAMMM DDDooocccuuummmeeennnttt FFFiiillleeeddd 000///000/// PPPaaagggeee ooofff MARKET STREET, SUITE 00 SAN FRANCISCO, CALIFORNIA 0 TEL: () -00 FAX: () - 0 informed consent. Plaintiffs only seek a determination that California state law cannot prohibit claims for violations of the Patient s Bill of Rights from being resolved in accordance with voluntary, predispute agreements to arbitrate. Proposed Intervenors participation in this case is unnecessary, and will only serve to distract from the narrow legal issue that Plaintiffs seek to have adjudicated. Proposed Intervenors have not complied with the requirement that a motion to intervene be accompanied by a pleading that sets out the claim or defense for which intervention is sought. Fed. R. Civ. P. (c). Proposed Intervenors failure to satisfy the procedural requirements of a motion to intervene is an independent basis for this Court to deny the Motion. Moreover, Proposed Intervenors cannot satisfy the requirements for intervention as of right under Federal Rule of Civil Procedure (a) for three reasons. First, Proposed Intervenors decision to delay filing for intervention until seven months after they learned of the case and set their Motion for hearing only one month before the close of discovery renders the Motion untimely. Second, Proposed Intervenor Patrick has not shown that he has a protectable interest in this litigation because Proposed Intervenors have not provided any evidence that Mr. Patrick has entered into a binding arbitration agreement subject to regulation under the challenged Sections. Third, any interests that Proposed Intervenors may have in this dispute are adequately represented by the existing Government Defendants. Proposed Intervenors have failed to make the very compelling showing required to overcome the presumption of adequacy accorded to a governmental unit that has appeared to defend the legality of its own statutes. Furthermore, the Court should exercise its broad discretion to deny Proposed Intervenors request for permissive intervention under Federal Rule of Civil Procedure (b). The Government Defendants are adequately representing the Proposed Intervenors purported interests in this lawsuit, thus allowing intervention by Proposed Intervenors would not benefit the Court or the parties. Permitting Proposed Intervenors to derail this lawsuit by likely forcing the parties to submit to unnecessary discovery and motions involving irrelevant factual issues would prejudice the adjudication of the Plaintiffs rights and squander this Court s already constrained resources..

!aaassseee :::- - -cccvvv- - -000000000- - -LLLJJJOOO- - -BBBAAAMMM DDDooocccuuummmeeennnttt FFFiiillleeeddd 000///000/// PPPaaagggeee ooofff For these reasons and those set forth more fully below, Plaintiffs respectfully request that the Court deny Proposed Intervenors Motion in its entirety. II. LEGAL STANDARDS Proposed Intervenors seek to intervene as a matter of right pursuant to Federal Rule of MARKET STREET, SUITE 00 SAN FRANCISCO, CALIFORNIA 0 TEL: () -00 FAX: () - 0 Civil Procedure (a), or, in the alternative, seek permissive intervention pursuant to Federal Rule of Civil Procedure (b). To intervene as a matter of right, an applicant for intervention must demonstrate that: () the intervention application is timely; () the applicant has a significant protectable interest relating to the property or transaction that is the subject of the action; () the disposition of the action may, as a practical matter, impair or impede the applicant s ability to protect its interest; and () the existing parties may not adequately represent the applicant s interest. Prete v. Bradbury, F.d, (th Cir. 0) (internal quotations omitted). Proposed Intervenors bear the burden of showing that all the requirements for intervention have been met. U.S. v. Alisal Water Corp., 0 F.d, (th Cir. 0) (affirming denial of motion to intervene as a matter of right). Failure to satisfy any one of the requirements defeats the application to intervene, and the court need not reach the remaining elements if one of the elements is not satisfied. Perry v Proposition Official Proponents, F.d, 0 (th Cir. 0) (affirming denial of intervention as a matter of right where existing parties would adequately represent the interests of ballot measure s proponents). Permissive intervention may be granted where the applicant demonstrates that: () it shares a common question of law or fact with the main action; () its motion is timely; and () the court has an independent basis for jurisdiction over the applicant s claims. Donnelly v. Glickman, F.d 0, (th Cir. ). Even where the threshold conditions for permissive intervention are met, the trial court has broad discretion to consider other factors in deciding whether intervention is appropriate. Id. ////.

!aaassseee :::- - -cccvvv- - -000000000- - -LLLJJJOOO- - -BBBAAAMMM DDDooocccuuummmeeennnttt FFFiiillleeeddd 000///000/// PPPaaagggeee ooofff III. PROPOSED INTERVENORS MOTION TO INTERVENE SHOULD BE DENIED A. Proposed Intervenors Motion For Leave To Intervene Should Be Denied For Failure To Comply With FRCP (c) Federal Rule of Civil Procedure (c) provides that a motion to intervene must state the MARKET STREET, SUITE 00 SAN FRANCISCO, CALIFORNIA 0 TEL: () -00 FAX: () - 0 grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought. Fed. R. Civ. Proc. (c). Proposed Intervenors have not filed a proposed answer in intervention, thus they have failed to comply with the requirements of Rule (c). Proposed Intervenors Motion does not suffice as it is impermissibly vague as to precisely what claims or defenses they would raise. The Motion states only that [t]he arguments and defenses that the Proposed Intervenors will raise to Plaintiffs efforts to broadly enjoin the statutes at issue are common to the defenses raised by the State of California. Motion at 0:-. Proposed Intevenors failure to comply with Rule (c) provides a sufficient basis for this Court to deny the Motion. Associated Students of Univ. of Cal. at Riverside v. Kleindienst, 0 F.R.D., (C.D. Cal. ). B. Proposed Intervenors Cannot Show That They Are Entitled To Intervene As A Matter of Right. Proposed Intervenors Motion is untimely Proposed Intervenors cannot satisfy the timeliness requirement of Rule. The Ninth Circuit employs the following factors to guide courts determinations of timeliness: () the stage of the proceedings at the time the applicant seeks to intervene; () prejudice to the existing parties from applicant s delay in seeking leave to intervene; and () any reason for and the length of the delay in seeking intervention. United States v. State of Washington, F.d, 0 (th Cir. ) (affirming denial of untimely motions to intervene). Proposed Intevenors argument that the Motion is timely because this case remains at an early stage is unavailing. Despite admitting that they have been aware of this lawsuit since it was filed in January, Proposed Intervenors have inexplicably waited for more than seven months to file their Motion and set it for hearing only one month before fact discovery is scheduled to.

!aaassseee :::- - -cccvvv- - -000000000- - -LLLJJJOOO- - -BBBAAAMMM DDDooocccuuummmeeennnttt FFFiiillleeeddd 000///000/// PPPaaagggeee 000 ooofff MARKET STREET, SUITE 00 SAN FRANCISCO, CALIFORNIA 0 TEL: () -00 FAX: () - 0 close on September 0,. As Proposed Intervenors primary goal in seeking intervention appears to be the desire to litigate factual issues that are not relevant to the legal issues at the core of this case, there is not enough time to accommodate discovery of Proposed Intervenors additional factual issues within the current schedule. Moreover, Plaintiffs would be greatly prejudiced if Proposed Intervenors Motion is granted. Plaintiffs would be required to expend significant time and resources on irrelevant factual issues and duplicative legal briefing. See Alisal Water Corp., 0 F.d at (affirming district court s finding that injecting new issues into the litigation would prejudice parties). Proposed Intervenors Motion strongly suggests that Proposed Intervenors intend to expand this case far beyond the legal issues framed by the existing pleadings. See Motion at :0-:. Proposed Intervenors intend to develop various arguments concerning the purported benefits of litigating versus arbitrating Patient s Bill of Rights claims. Id. However, all of pro-litigation policy arguments that Proposed Intervenors seek to inject into this case are irrelevant to the Court s ultimate determination of whether the FAA preempts California s restrictions on nursing home resident s ability to enter into voluntary, predispute arbitration agreements that would include claims for violations of the Patient s Bill of Rights. Accordingly, Proposed Intervenors intervention poses significant risk of prejudice to Plaintiffs. Finally, Proposed Intervenors have not provided good reason for their delay in seeking intervention. Proposed Intervenors became aware of this litigation in or around the middle of January, yet waited at least seven months to file the Motion. Motion at :-. Proposed Intervenors unsupported assertion that they filed the Motion as soon as practicable following the denial of the motion to dismiss, which occurred on April,, is not a legitimate basis to excuse the delay. Proposed Intervenors have known about this case since its inception and inexplicably waited to seek intervention until only a month before the close of fact discovery. This unexcused delay militates in favor of finding Proposed Intervenors attempt to intervene is untimely at this stage. ////.

!aaassseee :::- - -cccvvv- - -000000000- - -LLLJJJOOO- - -BBBAAAMMM DDDooocccuuummmeeennnttt FFFiiillleeeddd 000///000/// PPPaaagggeee ooofff MARKET STREET, SUITE 00 SAN FRANCISCO, CALIFORNIA 0 TEL: () -00 FAX: () - 0. Proposed Intervenor Patrick has not shown a significant protectable interest Proposed Intervenors assertion that the statutes at issue apply directly to Mr. Patrick, a nursing home resident and his conservators is unsupported by any evidence that Mr. Patrick executed a SNF arbitration agreement governed by the challenged Sections. Contrary to Proposed Intervenors contention that individual nursing home residents like Mr. Patrick otherwise have standing in their own right, Motion at :-0, the challenged Sections prohibition of predispute agreements to arbitrate claims for violations of the Patient s Bill of Rights only affects residents who have signed voluntary, predispute arbitration agreements in connection with their SNF residency. Proposed Intervenors may have undisclosed reasons for not wanting to admit that Mr. Patrick has executed a valid arbitration agreement, but unless they provide evidence of such an agreement they have failed to demonstrate that he has a significant protectable interest at issue in this lawsuit.. Proposed Intervenors cannot overcome the presumption that the Government Defendants adequately represent their interests Proposed Intervenors correctly acknowledge that the most important factor in determining the adequacy of representation is how the interest of the proposed intervenor compares with the interests of existing parties. Motion at :- (citing Arakaki v. Cayetano, F.d 0, 0 (th Cir. 0)); see also Perry, F.d at 0-. However, Proposed Intervenors omit any reference to the fact that there is assumption of adequacy when the government is acting on behalf of a constituency that it represents. In the absence of a very compelling showing to the contrary, it will be presumed that a state adequately represents its citizens when the applicant shares the same interest. Arakaki, F.d at 0 (emphasis added). Notwithstanding Proposed Intervenors assertions to the contrary, the Government Plaintiffs assume that Proposed Intervenors intended to reference Mr. Patrick where the phrase [insert name of individual defendant/intervenor] appears in the Motion. Motion at :-0..

!aaassseee :::- - -cccvvv- - -000000000- - -LLLJJJOOO- - -BBBAAAMMM DDDooocccuuummmeeennnttt FFFiiillleeeddd 000///000/// PPPaaagggeee ooofff MARKET STREET, SUITE 00 SAN FRANCISCO, CALIFORNIA 0 TEL: () -00 FAX: () - 0 Defendants and Proposed Intervenors objectives are identical: defending the challenged Sections from being found to be preempted by the FAA. Proposed Intervenors have not identified any legal theories that they intend to raise beyond those advanced by the Government Defendants. Here, Proposed Intervenors assertion that the arguments and defenses that they intend to raise are common to the defenses raised by the State of California fatally undermines their contention that the Government Defendants do not adequately represent their interests. Motion at 0:-. Proposed Intervenors vague claim that their ultimate objective is not the same as the Government Defendants because Proposed Intervenors seek to secure the broadest possible interpretation of the statutes at issue, Motion at :-, is the type of argument that the Ninth Circuit rejected in Prete v. Bradbury, F.d, (th Cir. 0) (finding measure sponsors who sought to intervene in defense of an Oregon constitutional provision prohibiting payment of electoral petition signature gatherers on a per-signature basis and defendant Secretary of State of Oregon possibly could make different arguments, they were both ultimately united in their objective to defend the constitutional provision); see also Perry, F.d at. Thus, Proposed Interventors unity of objective with the Government Defendants triggers the requirement that Proposed Intervenors make a very compelling showing of the government s inadequacy of representation. Proposed Intervenors have not made and cannot make a very compelling showing that the Government Defendants will not adequately represent their interests. First, Proposed Intervenors have made no showing that the Government Defendants are unwilling or incapable of making all of Proposed Intervenors legal arguments. Proposed Intervenors admit that their undisclosed arguments and defenses are common to the defenses raised by the State of California, thus there is no basis for the Court to find that Proposed Intervenors have made a very compelling showing that the Government Defendants cannot or will not make all of Proposed Intervenor s unspecified legal arguments. Nor is there any basis for the Court to find that it is likely that the Government Defendants will change their position such that Proposed Intervenors are left out in the cold. Motion at :-..

!aaassseee :::- - -cccvvv- - -000000000- - -LLLJJJOOO- - -BBBAAAMMM DDDooocccuuummmeeennnttt FFFiiillleeeddd 000///000/// PPPaaagggeee ooofff MARKET STREET, SUITE 00 SAN FRANCISCO, CALIFORNIA 0 TEL: () -00 FAX: () - 0 Second, the Proposed Intervenors have not shown that they would offer any necessary elements to the proceeding that other parties would neglect. Proposed Intervenors state that they intend to offer evidence that allowing arbitration of Patient s Bill of Rights claims would effectively prevent residents from bringing those claim at all due to the alleged economic reality of the limited potential for recovery, the time delays, and the cost requirements of arbitration. Motion at :0-. None of the purported evidence that Proposed Intervenors describe in their Motion is relevant to the determination of the purely legal issue at the heart of this case: whether the FAA preempts California s restrictions on resident s ability to execute voluntary, predispute arbitration agreements that include claims for violations of the Patient s Bill of Rights. Proposed Intervenors Motion is nothing more than a thinly disguised attempt to hijack this litigation and inject an irrelevant policy debate about the merits of arbitration into what is solely a legal dispute about the preemptive reach of the FAA. To the extent that Proposed Intervenors believe they have factual information that is important to the defense of the challenged Sections, there is nothing that prevents them from sharing that information with the Government Defendants or seeking leave to file an amicus brief in the future. Finally, Proposed Intervenors authority is easily distinguished on the grounds that the cited cases involve instances where the government is not vigorously defending a challenged state law and/or the out-of-circuit decision does not apply the Ninth Circuit s presumption of adequacy. In Citizens for Balanced Use v. Montana Wilderness Association, F.d (th Cir. ), the court found that intervenors and the Forest Service did not share the same ultimate objective of defending the validity of an interim order because the Forest Service only adopted the interim order as a result of a district court decision, which the Forest Service sought to overturn on appeal. Id. at -; see also Idaho Farm Bureau Federal v. Babbit, F.d, (th Cir. ) Proposed Intervenor CANHR s participation was limited to filing an amicus brief in the other state litigation involving similar issues referenced in the Motion at page 0, lines -. The denial of the Proposed Intervenors motion here does not preclude them from requesting leave to participate as amici curiae in this case..

!aaassseee :::- - -cccvvv- - -000000000- - -LLLJJJOOO- - -BBBAAAMMM DDDooocccuuummmeeennnttt FFFiiillleeeddd 000///000/// PPPaaagggeee ooofff MARKET STREET, SUITE 00 SAN FRANCISCO, CALIFORNIA 0 TEL: () -00 FAX: () - 0 (finding representation inadequate in defense of endangered species listing where Fish and Wildlife Service had delayed decision on listing for years and ultimately took action primarily to fulfill a settlement agreement in a separate lawsuit filed by intervenors to compel a filing ruling on the listing); County of Fresno v. Andrus, F.d (th Cir. 0) (finding representation inadequate where Department of Interior did not pursue appeal of preliminary injunction and where there was reason to doubt that the Department will fully protect [intervenor s] interest in the expeditious promulgation of the regulations, in light of the fact that the Department began its rulemaking only reluctantly after [intervenor] brought a law suit against it ); Clearly v. Waldman, F.Supp., (D.N.J. ) (finding representation inadequate where state defendants were immune from suits for money damages and had no incentive to consider the retroactive effect of a judgment but intervenors would likely be sued for reimbursement if state policy was invalidated). Here, the Government Defendants are vigorously defending the validity of the challenged Sections. In WildEarth Guardian v. U.S. Forest Service, F.d, (0th Cir. 0), in which a mine operator sought to intervene in defense of the Forest Service s approval of the mine s plans to vent methane gas, the Tenth Circuit did not apply the same legal test for adequacy of representation that the Ninth Circuit employs in cases where the proposed intervenor seeks to defend the validity of a challenged state law alongside the government. The Tenth Circuit only required the intervenor in WildEarth to make a minimal showing of inadequacy, and acknowledged other Tenth Circuit authority holding that a presumption of adequacy should apply where the government is pursuing a single objective. Id. at. Proposed Intervenors have not cited any authority to support intervention as of right that both applies the correct test for adequacy of representation and involves a government body vigorously defending the validity of state law. C. The Court Should Exercise Its Discretion To Deny Intervention Under FRCP (b) Permissive intervention may be granted where the applicant shows that it satisfies the threshold requirements that: () it shares a common question of law or fact with the main action; () its motion is timely; and () the court has an independent basis for jurisdiction over the. 0

!aaassseee :::- - -cccvvv- - -000000000- - -LLLJJJOOO- - -BBBAAAMMM DDDooocccuuummmeeennnttt FFFiiillleeeddd 000///000/// PPPaaagggeee ooofff MARKET STREET, SUITE 00 SAN FRANCISCO, CALIFORNIA 0 TEL: () -00 FAX: () - 0 applicant s claims. Donnelly, F.d at. Here, Proposed Intervenors Motion fails to meet the timeliness requirement for the reasons discussed above, supra at III.B.. Even if the Proposed Intervenors were able to meet the threshold requirements, the Court should exercise its broad discretion to deny permissive intervention. In exercising this discretion, Federal Rule of Civil Procedure (b)() requires the court to consider whether the intervention will unduly delay or prejudice the adjudication of the original parties rights. Fed. R. Civ. P. (b)(). Among the other factors the court may consider are whether the intervenors interest are adequately represented by other parties and judicial economy. See Perry, F.d at ; Silver v. Babbitt, F.R.D., (D. Ariz. ). As discussed above, supra, III.B., Plaintiffs would be prejudiced if Proposed Intervenors Motion is granted. Plaintiffs would be required to expend significant time and resources on irrelevant factual issues and duplicative legal briefing, and Proposed Intervenors late entry into fact discovery would likely delay the timely resolution of this case. See ManaSota-, Inc. v. Tidwell, F.d, (th Cir. 0) (denying intervention because intervenors would inject numerous new issues into the case and delay resolution). The clear risk of prejudice to Plaintiffs militates in favor of denying Proposed Intervenors request for permissive intervention. Proposed Intervenors interests are being adequately represented by the Government Defendants. Plaintiffs have shown that the Proposed Intervenors have not pointed to any concrete or meaningful difference between their interests and the Government Defendants with respect to defending the validity of the challenged Sections. Proposed Intervenors have not demonstrated that the Government Defendants cannot or will not defend the challenged Sections, thus Proposed Intervenors intervention in this matter would only be duplicative at best. Finally, the Court s order denying the Government Defendants motion to dismiss made clear that judges in the Eastern District carry one of the heaviest caseloads in the nation, and this Court is unable to devote inordinate time and resources to individual cases and matters. Dkt No.. Given the already severe strain on judicial resources and very real prospect that Proposed Intervenors inclusion as a party in this case would only serve to multiply the volume of briefing.

!aaassseee :::- - -cccvvv- - -000000000- - -LLLJJJOOO- - -BBBAAAMMM DDDooocccuuummmeeennnttt FFFiiillleeeddd 000///000/// PPPaaagggeee ooofff and submissions without adding to any necessary element of the lawsuit, this Court should exercise its discretion to prevent Proposed Intervenors from creating an unnecessary drain on the parties and the Court s resources. IV. CONCLUSION For the reasons set forth above, the Plaintiffs respectfully request that this Court deny the Proposed Intervenors Motion in its entirety. DATED: August, MARKET STREET, SUITE 00 SAN FRANCISCO, CALIFORNIA 0 TEL: () -00 FAX: () - 0 By: /s/ KATHERINE R. MILLER Attorneys for Plaintiffs Valley View Health Care Inc. dba Riverbank Nursing Center; The Stonebrook Convalescent Center, Inc. dba Stonebrook Healthcare Center; Lifehouse Parkview Operations, LLC dba Parkview Healthcare Center; Beverly Healthcare - California, Inc. dba Golden Living Center-Fresno; Cf. Modesto, LLC dba Country Villa Modesto Nursing & Rehabilitation Center; Avalon Care Center - Merced Franciscan, L.L.C. dba Franciscan Convalescent Hospital; and the California Association Of Health Facilities.