Case Number: 19STCV07493 Hearing Date: November 06, 2019 Dept: J

HEARING DATE: Wednesday, November 6, 2019

NOTICE: OK[1]

RE: Johnson v. Langendoen, et al. (19STCV07493)

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Plaintiff Verna Lynn Johnson’s APPLICATION FOR ISSUANCE OF RIGHT TO ATTACH ORDER

Respondent: None (unopposed, as of 10/25/19, 10:56 a.m.)

Tentative Ruling

Plaintiff Verna Lynn Johnson’s unopposed Application for Issuance of Right to Attach Order and Temporary Protective Order is DENIED.

Background

Plaintiff Verna Lynn Johnson (“Plaintiff”) is a former dementia resident at Defendant Oak Park Manor (“Oak Park”). Plaintiff alleges that on December 28, 2018, she slipped trying to transfer to her bed independently, unassisted and unsupervised, and fractured her left leg. Plaintiff alleges that defendants failed to properly assess her for injury immediately following her fall.

On May 8, 2019, this action was transferred from the personal injury hub (Department 3) to this department. On June 24, 2019, Plaintiff filed a First Amended Complaint (“FAC”), asserting causes of action against Defendants Oak Park Manor, GT Madison Realty, LLC, Madison Realty Equities, LLC, Gary Langendoen, Luke V. McCarthy (“McCarthy”) and Does 1-350 for:

Elder Abuse/Neglect

Negligence

Elder Abuse/Financial

Records Rights Violations

On September 23, 2019, McCarthy’s default was entered.

A Case Management Conference and Order to Show Cause Re: Sanctions for Counsel for Defendant’s Failure to Appear are set for October 3, 2019.

The Final Status Conference is set for November 22, 2019. Trial is set for December 3, 2019 [preference].

Discussion

Plaintiff applies for a right to attach order against Oak Park Manor pursuant to Welfare & Institutions Code § 15657.01. The amount to be secured by the attachment is $4,000,000.00, which includes estimated costs of $300,000.00 and estimated allowable attorney fees of $750,000.00.

Legal Standard

“Attachment is a prejudgment remedy which requires a court to make a preliminary determination of the merits of a dispute. It allows a creditor who has applied for an attachment following the statutory guidelines and established a prima facie claim to have a debtor’s assets seized and held until final adjudication at trial.” (Lorber Industries, Inc. v. Turbulence, Inc. (1985) 175 Cal.App.3d 532, 535.)

Attachment is governed by Attachment Law, Title 6.5 of the Code of Civil Procedure, CCP §§ 481.010-493.060. “[A]ttachment procedures are solely creatures of statute and. . . such statutes must be strictly construed.” (Arcata Publications Group v. Beverly Hills Publishing Co. (1984) 154 Cal.App.3d 276, 279.)

Any party seeking prejudgment attachment must demonstrate that: “(1) The claim upon which the attachment is based is one upon which an attachment may be issued. (2) The plaintiff has established the probable validity of the claim upon which the attachment is based. (3) The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based. (4) The amount to be secured by the attachment is greater than zero.” (CCP § 484.090(a).)

“The court’s determinations shall be made upon the basis of the pleadings and other papers in the record; but, upon good cause shown, the court may receive and consider at the hearing additional evidence, oral or documentary, and additional points and authorities, or it may continue the hearing for the production of the additional evidence or points and authorities.” (CCP § 484.090(d).)

Claim

Welfare & Institutions Code § 15657.01 provides that “[n]otwithstanding Section 483.010 of the Code of Civil Procedure, an attachment may be issued in any action for damages pursuant to Section 15657.5 for financial abuse of an elder or dependent adult, as defined in Section 15610.30. The other provisions of the Code of Civil Procedure not inconsistent with this article shall govern the issuance of an attachment pursuant to this section. . . An attachment may be issued pursuant to this section whether or not other forms of relief are demanded.” [2]

Plaintiff’s complaint asserts causes of action for Elder Abuse/Neglect, Negligence, Elder Abuse/Financial and Records Rights Violations. Accordingly, the claim is proper.

Probable Validity

The probable validity requirement is satisfied “where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” (CCP § 481.190.) The “probable validity” requirement is evaluated under the preponderance of the evidence standard. (Blastrac, N.A. v. Concrete Solutions & Supply (C.D. Cal.2010) 678 F.Supp.2d 1001, 1005.)

Financial abuse of an elder or defendant adult occurs when a person or entity does any of the following: “(1) Takes, secretes, appropriates, obtains or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. (2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. (3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property or an elder or dependent adult by undue influence, as defined in Section 15610.70.” (Welfare & Institutions Code §15610.30(a).)

Damages for financial elder abuse includes not only compensatory damages, but also attorney’s fees and costs, as well as punitive damages. (See Welfare & Institutions Code § 15657.5(a),(b)&(d).)

To prove financial elder abuse pursuant to Welfare & Institutions Code § 15610.30, Plaintiff must show: (1) the defendant—either a person or an entity—(a) took, hid, appropriated, obtained, or retained Plaintiff’s property or (b) assisted in taking, hiding, appropriating, obtaining, or retaining Plaintiff’s property; (2) Plaintiff was 65 years or age or older at the time of the conduct; (3) the defendant took, hid, appropriated, obtained, or retained Plaintiff’s property or assisted in taking, hiding, appropriating, obtaining or retaining Plaintiff’s property (a) for wrongful use, (b) with the intent to defraud, or (c) by undue influence; (4) Plaintiff was harmed; and (d) the defendant was a substantial factor in causing Plaintiff’s harm. (CACI No. 3100.)

Here, Plaintiff has submitted the Declarations of Greg Tillotson (“Tillotson”) and attorney Tom Allen (“Allen”) to establish the probable validity of Plaintiff’s financial elder abuse claim (i.e., the claim upon which the attachment is based).

Allen explains that during the time frame of Plaintiff’s residency in 2018, Oak Park Manor was licensed as an RCFE; its licensees were Grandtag Madison Realty and Madison Realty Equities. (Allen Decl., ¶8(c).) As a licensed RCFE, Oak Park Manor was required to maintain liability insurance. (Id.; see Health & Safety Code § 1569.605 [“On and after July 1, 2015, all residential care facilities for the elderly. . . shall maintain liability insurance covering injury to residents and guests in the amount of at least one million dollars ($1,000,000) per occurrence and three million dollars ($3,000,000) in the total annual aggregate, caused by the negligent acts or omissions to act of, or neglect by, the licensee or its employees”].) Allen spoke with defendants’ counsel Todd Haddock (“Haddock”) telephonically earlier this month, during which time Haddock admitted that there was no insurance for the time period of the injury. (Id., ¶8(a).) Allen also states that Oak Park Manor admitted not obtaining a medical assessment required by Title 22 California Code of Regulations § 87458(a) [“Prior to a person’s acceptance as a resident, the licensee shall obtain and keep on file, documentation of a medical assessment, signed by a physician, made within the last year”] and that the only “medical assessment” provided was prepared by a nurse practitioner, not a physician. (Id., ¶9(b)-(c).) Allen, however, has failed to attach Oak Park Manor’s purported response to Request for Admission No. 47 in this regard or attached Exhibit B referenced in ¶9 of his declaration. Allen also references certain advertised statements in ¶10 of his declaration, but has failed to attach same. Allen advises that records produced by defendants in discovery responses reflects that from the time of Plaintiff’s injury until an LVN came to work the following morning, Oak Park Manor had only two caregivers on site to meet the needs of 43 residents (Id., ¶11); he has, however, failed to attach these records.

Tillotson is Plaintiff’s nephew and attorney in fact based on a written power of attorney for healthcare. (Tillotson Decl., ¶1.) Tillotson made the decision, as Plaintiff’s attorney-in-fact. to place Plaintiff in Oak Park Manor for her future care. (Id., ¶2.) The funds necessary to pay for Plaintiff’s placement in Oak Park Manor came from Plaintiff’s assets, including her social security benefits. (Id., ¶4.) Tillotson agreed to allow some of Plaintiff’s money to be paid to Oak Park Manor only because he believed the promises they made to him. (Id.) Tillotson also allowed Plaintiff’s money to be paid to Oak Park Manor because he had no idea, and they did not tell him, that they were not complying with the law that Oak Park Manor was required to follow. (Id.) Had Tillotson known that Oak Park Manor was not complying with the legal requirements for admitting new residents, he would not have allowed Plaintiff to be admitted. (Id.) No one at Oak Park Manor told Tillotson that it did not carry liability insurance; if he had been made aware of this, he would not have placed Plaintiff there. (Id., ¶7.) Tillotson was also not aware that Plaintiff required clearance by a doctor before placement in a facility such as Oak Park Manor; had he known this, he not have allowed Plaintiff to be placed their without the required doctor’s evaluation and approval. (Id., ¶8.) Had Tillotson known that nurse practitioner doing the admission evaluation was not legally authorized to do it, he would not have allowed Plaintiff to be place at Oak Park Manor. (Id.) Tillotson was told by Oak Park Manor representatives that Plaintiff would be closely supervised day and night, and that he understood that Plaintiff would receive almost one-on-one supervision. (Id., ¶10.) Tillotson has been advised by his counsel that during the night, Oak Park Manor had only two or three caregivers to meet the needs of more than 40 residents, which was not the level of care he was promised; had he known the truth, he would not have allowed Plaintiff’s funds to be used to place her there. (Id.)

The court, in its tentative ruling adopted as the court’s order on October 3, 2019, advised Plaintiff that the court wished to review Oak Park Manor’s purported response to Request for Admission No. 47, Exhibit B referenced in ¶9 of Allen’s declaration, the advertised statements referenced in ¶10 of Allen’s declaration and the staffing levels referenced in ¶11 of Allen’s declaration. The court, in fact, continued the October 3, 2019 hearing to November 6, 2019 and instructed Plaintiff to submit further briefing by October 17, 2019. Plaintiff, however, has failed to submit any such further briefing, as of October 25, 2019, 10:40 a.m. The court, then, determines that Plaintiff has not established the probable validity of the claim upon which the request for attachment is based.

Readily Ascertainable Amount

The court, in its tentative ruling adopted as the court’s order on October 3, 2019, advised that while Welfare & Institutions Code § 15557.01 appeared to relieve Plaintiff of proving that her claim is founded on contract, the remainder of the attachment law’s requirements still applied. The court stated that it did not appear that Plaintiff had produced any information relative to how the $4,000.000.00 proposed amount to be secured by the attachment was calculated. Again, the court at that time continued the hearing to November 6, 2019 and instructed Plaintiff to submit further briefing by October 17, 2019. Plaintiff has failed to submit any such further briefing, as of October 25, 2019, 10:40 a.m. The court determines that Plaintiff has not established a readily ascertainable amount upon which the request for attachment is based.

The application, then, is DENIED.

[1] The moving papers were filed on September 3, 2019 and originally set for hearing on December 20, 2019. On September 4, 2019, the court granted Plaintiff’s Ex Parte Application for Order Shortening Time re Application for Attachment and TPO, advanced the December 20, 2019 hearing to that date and continued the hearing to October 3, 2019. Notice was waived.

On October 3, 2019, the court adopted its tentative ruling, which read as follows: “The hearing on Plaintiff Verna Lynn Johnson’s unopposed Application for Issuance of Right to Attach Order and Temporary Protective Order is CONTINUED to November 6, 2019. Plaintiff is to submit further briefing regarding as to the “readily ascertainable amount” in dispute and to produce Oak Park Manor’s response to Request for Admission No. 47, Exhibit B referenced in Allen’s declaration, the advertised statements referenced in ¶10 of Allen’s declaration and the staffing levels referenced in ¶11 of Allen’s declaration.” The court continued the October 3, 2019 hearing, on its own motion, to November 6, 2019 and set the following briefing schedule: “Plaintiff to submit further briefing by October 17, 2019, Defendant to submit opposition by October 24, 2019 and Plaintiff to submit reply by October 28, 2019.” Notice was waived.

[2] CCP § 483.010(a) states that “an attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney’s fees.”

Welfare & Institutions Code § 15657.01, then, “would appear to relieve Plaintiffs of proving their claim is founded on contract. . . [h]owever, the remainder of the attachment law’s requirements still apply. . .” (Novus Optimum Labs v. Tamayo (N.D. Cal., July 2, 2013) 2013 WL 3354566, at *10.)