The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in an elder abuse case present such issues to the court.
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)
LEGAL ARGUMENT
(A) Restitution Is Not An Appropriate Remedy in This Case
When EF set out to attack the nursing home industry under the guise of consumer protection, it initially attempted to link its broad and unsupported allegations of understaffing with potential negative patient outcomes based on certain studies. However, EF has never alleged that any resident received fewer than 3.2 hours of nursing care on any particular day or that the residents in Petitioner’s long-term care facilities have suffered any adverse care outcomes as a result of the alleged failure to comply with the staffing requirements stated in Health & Safety §1276.5. Instead, EF acknowledged that it “planned to develop” the information to support more specific allegations of adverse patient outcome through discovery. That is, EF has pursued an intentional course of action to make broad, conclusory allegations first and attempt to develop the facts to support such allegations through discovery fishing expeditions later.
EF’s complaint against the SunCare defendants (“Complaint”) presents the request for restitution without identifying the interests of a single resident. The Complaint is entirely devoid of any allegations that any particular resident received fewer than 3.2 nursing hours of services on any given day. Nowhere does EF explain “the nature of the vested interest” that such individuals might have in monies to be restored under Business and Professions Code Section 17203.
EF simply asserts that it is entitled to seek restitution on behalf of every resident of Defendants’ nursing homes, regardless of whether these individuals paid monies themselves or had such money paid on their behalf… in order to reside at Defendants’ nursing homes. These blanket allegations of misconduct are simply insufficient to support the restitution claim.
Further, Defendants maintain that EF failed to identify how the amount to be restored to residents might be calculated and distributed. In order to enter a restitution order in this case, a court would have to conduct mini-trials for every resident at Defendants’ facilities during the pertinent time period. Such an inquiry is simply not appropriate in any Section 17200 action and certainly not appropriate in this action. See, e.g., Bronco Wine Co. v. Frank A. Logoluso Farms (1989) 214 Cal.App.3d 699. Although a defendant can be ordered to use reasonable means to identify, locate and repay individuals who would qualify for restitution (Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 138), the court’s task in the present case would involve far more than reasonable means. Moreover, it is Defendants’ position that such calculations cannot be made, given the nature of nursing care where care is provided to patients with different care needs at different times. (See Part 3 of 6.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.