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.)
Further, as we had previously noted, EF makes no allegations of any negative impact on any specific resident caused by the alleged under staffing and, thereby, fails to show a causal link between an individual resident’s specific needs and the services received, regardless of the nursing hours supplied at that time. This is clearly inconsistent with DHS’s enforcement policies as stated in their policy guidelines for enforcing the staffing level requirements.
Equally significant is the fact that, by merely asserting a lump sum amount that Defendants allegedly should have … spent on staffing, and suggesting that amount should be distributed to residents without linking inadequate staffing to any allegations of specific incidents of fewer than 3.2 hours of service for a patient on a particular day, or allegations of harm suffered by individual residents, EF is in fact seeking disgorgement – a remedy clearly not allowed under Section 17200. In contrast to restitution, the remedy of disgorgement is available only in certified class actions and not in a representative action brought by a private party under the UCL. Kraus, supra, at 126-127; see, also, Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1148-50.
Based on the above, Defendants respectfully disagree with this Court’s ruling in the Covenant Care and Ember Care matters, and maintain that Plaintiff’s claim for restitution under Section 17200 should be stricken in its entirety. (See Part 4 of 6.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.