Elder Care Facilities Sued By Sacramento Families, Part 6 of 6

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.)

The Notice was submitted on February 8, 2001, and was incorporated into the Plan approved by the Bankruptcy Court. The Supplement attached to the Notice lists the specific steps the various entities took during the reorganization process. With regard to the California properties, the following reorganization took place, which can be traced in Item l3 as follows:

B. 3: AMS Properties, Inc., which operated three of the defendant dbas, merged with and into GCI-Wisconsin Properties, Inc., a subsidiary of SunCare, Inc., with GCIWisconsin Properties, Inc. being the survivor after the merger.

D. 1: SunCare, Inc. converted from a C corporation to a Delaware limited liability company and changed its name to SunCare, LLC.

These additional documents clearly establish the relationship between the Ocean Group and SunCare, LLC, and its various dba’s, the named defendants in the present law suit.

The reorganization process, as outlined in the Plan Documentary Supplement, is further authenticated by the Declaration of Daniel Smith, a Senior Vice President and Associate Counsel for Ocean Healthcare Management Company, a wholly owned subsidiary of Ocean Health Care, Inc., previously known as Ocean Post-Acute Network, Inc.

In the event that Plaintiff will take the position, as it has with regard to the Declaration of Mike Black in Support of Motion to Strike, that a declaration cannot be used for evidentiary support, Defendants respectfully disagree.

The general rule that grounds for motion to strike must appear on the face of a pleading is subject to certain exceptions. As consistently recognized by California courts, in cases where a motion is supported by facts outside the pleadings, the court may treat the motion as a speaking motion and, therefore, take such evidence into consideration. For instance, in City and County of San Francisco v. Strahlendorf (1992) 7 Cal.App.4th 1911, 1913-14, the First District Court of Appeal held:

When faced with situations similar to this, other courts have interpreted procedurally deficient motions as speaking motion[s] to dismiss or strike. (See Vesely v. Sager (1971) 5 Cal.3d 153, 167-169 …;Christian v. County of Los Angeles (1986) 176 Cal.App.3d 466, 468…) Essentially, a speaking motion is one which is supported by facts outside the pleadings, such as a declaration. (Ibid.) Modernly, a speaking motion is treated as a motion for summary judgment. (Ibid.)

Thus interpreted, the issue in this case is whether the evidence before the trial court was sufficient to compel summary judgment in favor of respondent.

Similarly, in Mediterranean Exports, Inc. v. Superior Court of San Mateo County (1981) 119 Cal.App.3d 605, the court acknowledged that extensive evidentiary showing on a motion to strike made the motion a speaking motion which had to be treated and tested as if it were a motion for summary judgment.

The documentary evidence, i.e., documents filed with the bankruptcy court and further authenticated by the declaration of Mr. Smith, is more than sufficient to support Defendants’ argument that the named Defendants in this action are debtor affiliates subject to the bankruptcy reorganization and protected by the release of all claims arising from conduct prior to the Confirmation Date of April 8, 2001. Hence, all pre-Confirmation Date restitution claims must be stricken from the Complaint.


For the foregoing reasons, Defendants respectfully request that the Court strike Plaintiff’s claims for restitution consistent with the grounds set forth above.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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