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1 William C. Wilson, SBN: 149683
John T. Tsumura, SBN: 224119
2 WILSON GETTY LLP
12555 High Bluff Drive, Suite 270
3 San Diego, California 92130
Telephone: 858.847.3237
4 Facsimile: 858.847.3365
5 Attorneys for Defendants THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE VILLAGE AT
SEVEN OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK ASSISTED LIVING
6 AND MEMORY CARE LLC (erroneously sued and served as SEVEN OAKS AL & MC); FRONTIER
MANAGEMENT LLC, FRONTIER SENIOR LIVING, LLC and SAMANTHA DAVIDSON
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF KERN
10 BILLY CATES, Individually and as Successor- Case No. BCV-22-102864
In-Interest to the Estate of LOIS CATES;
11 BARBARA NEWTON, Individually; and ANSWER OF DEFENDANTS THE VILLAGE
PAUL CATES, Individually, AT SEVEN OAKS AL MC, LLC dba THE
12 VILLAGE AT SEVEN OAKS ASSISTED
Plaintiffs, LIVING AND MEMORY CARE; SEVEN
13 OAK ASSISTED LIVING AND MEMORY
vs. CARE LLC (erroneously sued and served as
14 SEVEN OAKS AL & MC); FRONTIER
THE VILLAGE AT SEVEN OAKS AL MC, MANAGEMENT LLC, FRONTIER SENIOR
15 LLC dba THE VILLAGE AT SEVEN OAKS LIVING, LLC and SAMANTHA DAVIDSON
ASSISTED LIVING AND MEMORY CARE; TO PLAINTIFFS’ FIRST AMENDED
16 SEVEN OAKS AL & MC; OAKMONT COMPLAINT
MANAGEMENT GROUP, LLC; OAKMONT
17 SENIOR LIVING, LLC; SAMANTHA Action Filed: October 26, 2022
DAVIDSON; KELLAND LANCASTER; and
18 DOES 1-50, Inclusive, Judge: Hon. Thomas S. Clark
Dept.: 17
19 Defendants. Trial Date: Not Set
20
21 Defendants THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE VILLAGE AT
22 SEVEN OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK ASSISTED LIVING
23 AND MEMORY CARE LLC (erroneously sued and served as SEVEN OAKS AL & MC); FRONTIER
24 MANAGEMENT LLC, FRONTIER SENIOR LIVING, LLC and SAMANTHA DAVIDSON
25 (hereinafter “defendants”) hereby answer plaintiffs’ unverified First Amended Complaint as follows:
26 Pursuant to Code of Civil Procedure section 431.30, these answering defendants deny generally
27 and specifically each and every allegation in the First Amended Complaint. These answering
28
ANSWER OF DEFENDANTS THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE VILLAGE AT SEVEN
OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK ASSISTED LIVING AND MEMORY CARE
LLC (erroneously sued and served as SEVEN OAKS AL & MC); FRONTIER MANAGEMENT LLC, FRONTIER
SENIOR LIVING, LLC and SAMANTHA DAVIDSON TO PLAINTIFFS’ FIRST AMENDED COMPLIANT
1 defendants further deny that plaintiffs have been damaged in the sum alleged in the Frist Amended
2 Complaint, or any other sum, or at all.
3 FIRST AFFIRMATIVE DEFENSE
4 (No Standing)
5 1. Plaintiffs lack standing to assert the causes of action contained in the first amended
6 complaint.
7 SECOND AFFIRMATIVE DEFENSE
8 (Lack of Capacity)
9 2. Plaintiffs lack capacity to maintain their claims in this action against defendants.
10 THIRD AFFIRMATIVE DEFENSE
11 (Lack of Jurisdiction)
12 3. Plaintiffs’ claims against defendants are barred as this court has no jurisdiction over
13 defendants.
14 FOURTH AFFIRMATIVE DEFENSE
15 (Comparative Negligence)
16 4. At the time and place of the occurrence alleged in the First Amended Complaint,
17 Plaintiffs failed to exercise ordinary care on her own behalf for her own safety. That negligence caused
18 the injury and damages alleged in plaintiffs’ First Amended Complaint. Consequently, plaintiffs’ right
19 to recover should be diminished by plaintiffs’ proportional share of fault.
20 FIFTH AFFIRMATIVE DEFENSE
21 (Apportionment)
22 5. That the liability of the persons ultimately determined to be responsible for the injuries
23 and losses to plaintiffs shall be compared, and the damages, if any, awarded to plaintiffs, shall be
24 apportioned accordingly.
25 ///
26 ///
27
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28 ANSWER OF DEFENDANTS THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE VILLAGE AT SEVEN
OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK ASSISTED LIVING AND MEMORY CARE
LLC (erroneously sued and served as SEVEN OAKS AL & MC); FRONTIER MANAGEMENT LLC, FRONTIER
SENIOR LIVING, LLC and SAMANTHA DAVIDSON TO PLAINTIFFS’ FIRST AMENDED COMPLIANT
1 SIXTH AFFIRMATIVE DEFENSE
2 (Following Physician’s Orders)
3 6. That all care, treatment and procedures rendered to and performed upon plaintiff were
4 given pursuant to the medical instructions of plaintiff’s physicians and were given with the express and
5 implied consent of plaintiff.
6 SEVENTH AFFIRMATIVE DEFENSE
7 (Assumption of Risk)
8 7. That any injury, loss or damage purportedly sustained, if at all, by plaintiff was directly
9 and legally caused and contributed to by risks which were fully and actually known to plaintiff who
10 fully and actually appreciated the nature and scope of the hazards created, and voluntarily assumed
11 these risks and their potential consequences.
12 EIGHTH AFFIRMATIVE DEFENSE
13 (Negligence of Third Parties)
14 8. The damages sustained by plaintiffs were proximately caused by the acts, omissions,
15 negligence, fraud and/or breach of obligations by persons other than these answering defendants and
16 said persons were beyond these answering defendants’ supervision and control.
17 NINTH AFFIRMATIVE DEFENSE
18 (Intervening/Superseding Causes)
19 9. The incident described in plaintiffs’ First Amended Complaint, as well as the injuries,
20 losses and damages allegedly sustained by plaintiffs, were proximately caused by intervening and
21 superseding forces which were beyond the control of these answering defendants and which, in the
22 exercise of reasonable prudence, were not and could not be anticipated by these answering defendants.
23 TENTH AFFIRMATIVE DEFENSE
24 (Civil Code §1431.2)
25 10. The liability of these answering defendants for non-economic damages, if any, is limited
26 to that percentage of those damages which are in direct proportion of these answering defendants’
27
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28 ANSWER OF DEFENDANTS THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE VILLAGE AT SEVEN
OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK ASSISTED LIVING AND MEMORY CARE
LLC (erroneously sued and served as SEVEN OAKS AL & MC); FRONTIER MANAGEMENT LLC, FRONTIER
SENIOR LIVING, LLC and SAMANTHA DAVIDSON TO PLAINTIFFS’ FIRST AMENDED COMPLIANT
1 percentage of fault in accordance with Civil Code section 1431.2.
2 ELEVENTH AFFIRMATIVE DEFENSE
3 (Fails to State Cause of Action)
4 11. The First Amended Complaint, and each cause of action it contains, fails to state facts
5 sufficient to constitute a cause of action against these answering defendants.
6 TWELFTH AFFIRMATIVE DEFENSE
7 (Appropriate Treatment)
8 12. The care and treatment given to plaintiff by defendants was proper, appropriate and
9 reasonable.
10 THIRTEENTH AFFIRMATIVE DEFENSE
11 (Unavoidable Condition)
12 13. The damages sustained by plaintiff were the result of an unavoidable condition, insofar
13 as these answering defendants are concerned, and occurred without any negligence, want of care, fault,
14 or other breach of duty to plaintiffs on the part of these answering defendants.
15 FOURTEENTH AFFIRMATIVE DEFENSE
16 (No Facts for Recovery of Attorney’s Fees)
17 14. Plaintiffs’ First Amended Complaint fails to state facts sufficient to warrant the
18 imposition of attorney’s fees and costs as damages against these answering defendants.
19 FIFTEENTH AFFIRMATIVE DEFENSE
20 (No Facts for Welfare & Institutions Code §15657 Remedies)
21 15. Plaintiffs’ First Amended Complaint fails to state sufficient facts to warrant the recovery
22 of any damages, fees or costs provided by Welfare & Institutions Code section 15657.
23 SIXTEENTH AFFIRMATIVE DEFENSE
24 (Binding Arbitration)
25 16. The plaintiffs’ First Amended Complaint is subject to binding arbitration as set forth in
26 the applicable arbitration agreement.
27
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28 ANSWER OF DEFENDANTS THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE VILLAGE AT SEVEN
OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK ASSISTED LIVING AND MEMORY CARE
LLC (erroneously sued and served as SEVEN OAKS AL & MC); FRONTIER MANAGEMENT LLC, FRONTIER
SENIOR LIVING, LLC and SAMANTHA DAVIDSON TO PLAINTIFFS’ FIRST AMENDED COMPLIANT
1 SEVENTEENTH AFFIRMATIVE DEFENSE
2 (Failure to Mitigate Damages)
3 17. Plaintiffs failed to exercise reasonable care and diligence to avoid loss and to minimize
4 damages and, therefore, plaintiffs may not recover for losses which could have been prevented by
5 reasonable efforts on her part, or by expenditures that might reasonably have been made. Therefore,
6 plaintiffs’ recovery, if any, should be reduced by the failure of the plaintiffs to mitigate their damages.
7 EIGHTEENTH AFFIRMATIVE DEFENSE
8 (Conduct Assumed Risk)
9 18. Prior to the event in which plaintiff was allegedly injured as a result of defendants’
10 negligence, plaintiff, by her conduct impliedly assumed the risk of a known and appreciated danger,
11 and thus plaintiffs may not recover damages from the defendants for that injury.
12 NINETEENTH AFFIRMATIVE DEFENSE
13 (Civil Code §1714.8)
14 19. The plaintiffs’ First Amended Complaint is barred by the provisions of California Civil
15 Code section 1714.8 in that the injuries and damages complained of by plaintiffs herein, if any, were
16 solely as the result of the natural course of a disease or condition.
17 TWENTIETH AFFIRMATIVE DEFENSE
18 (Failure to Follow Healthcare Provider Advice)
19 20. That the injury, damage or loss suffered by the plaintiffs herein was legally caused by
20 the negligent or willful failure of the plaintiffs to follow the advice and instructions of the attending
21 health care providers, including these answering defendants, and in otherwise failing to exercise
22 ordinary care on her own behalf.
23 TWENTY-FIRST AFFIRMATIVE DEFENSE
24 (Consent)
25 21. The actions of defendants were consented to by plaintiffs.
26 ///
27
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28 ANSWER OF DEFENDANTS THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE VILLAGE AT SEVEN
OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK ASSISTED LIVING AND MEMORY CARE
LLC (erroneously sued and served as SEVEN OAKS AL & MC); FRONTIER MANAGEMENT LLC, FRONTIER
SENIOR LIVING, LLC and SAMANTHA DAVIDSON TO PLAINTIFFS’ FIRST AMENDED COMPLIANT
1 TWENTY-SECOND AFFIRMATIVE DEFENSE
2 (Informed Consent)
3 22. Plaintiffs’ causes of action are barred as plaintiffs would have consented even if
4 properly informed, as such defendants’ alleged failure to inform plaintiffs was not a substantial factor
5 in causing plaintiffs’ harm.
6 TWENTY-THIRD AFFIRMATIVE DEFENSE
7 (Informed Consent)
8 23. Defendants contend that even if a reasonable person in plaintiffs’ position might not
9 have consented to the treatment performed by defendants if she had been given enough information
10 about its risks, plaintiffs would still would have consented to the treatment. (CACI 550.).
11 TWENTY-FOURTH AFFIRMATIVE DEFENSE
12 (Failure to State a Cause of Action for Elder Neglect Against Frontier Management LLC)
13 24. Neglect as a form of abuse under the Elder Abuse Act refers “to the failure of those
14 responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of
15 their professional standing, to carry out their custodial obligations.” (Delaney v. Baker (1999) 20
16 Cal.4th 23, 34.) Thus, when the medical care of an elder or dependent adult is at issue, “the statutory
17 definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide
18 medical care.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783; see also Id. at p. 786
19 “statutory elder abuse may include the egregious withholding of medical care for physical and mental
20 health needs.”) Frontier Management LLC is neither a healthcare provider, nor a care custodian as
21 defined by Welfare and Institutions Code § 15610.17.
22 TWENTY-FIFTH AFFIRMATIVE DEFENSE
23 (Failure to Exercise Control)
24 25. Plaintiffs’ First Amended Complaint failed to state facts sufficient to maintain any cause
25 of action against Frontier Management LLC. Frontier Management LLC did not operate and/or manage
26 THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE VILLAGE AT SEVEN OAKS
27
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28 ANSWER OF DEFENDANTS THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE VILLAGE AT SEVEN
OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK ASSISTED LIVING AND MEMORY CARE
LLC (erroneously sued and served as SEVEN OAKS AL & MC); FRONTIER MANAGEMENT LLC, FRONTIER
SENIOR LIVING, LLC and SAMANTHA DAVIDSON TO PLAINTIFFS’ FIRST AMENDED COMPLIANT
1 ASSISTED LIVING AND MEMORY CARE at any relevant time period with regard to plaintiff and
2 her alleged injuries, nor did it ever have custody and control of plaintiff.
3 TWENTY-SIXTH AFFIRMATIVE DEFENSE
4 (No Punitive Damages)
5 26. Plaintiffs are not entitled to the recovery of punitive damages under Civil Code section
6 3294 or any other provision of law; the facts alleged do not support such a recovery; and plaintiffs did
7 not comply with the requirements of Code of Civil Procedure section 425.13.
8 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
9 (Statute of Limitations)
10 27. The causes of action alleged in the First Amended Complaint are barred by the
11 applicable statues of limitations, including, but not limited to, the provisions of section 335.1 of the
12 Code of Civil Procedure.
13 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
14 (Immunity During State of Emergency)
15 28. Pursuant to Government Code § 8659(a), defendants have no liability for the plaintiffs’
16 alleged injuries because those injuries were allegedly caused by the defendants’ rendering of services
17 during a state of emergency at the express or implied request of a responsible state or local official or
18 agency.
19 TWENTY-NINTH AFFIRMATIVE DEFENSE
20 (Additional Affirmative Defenses)
21 29. These answering defendants presently have insufficient knowledge or information upon
22 which to form a belief as to whether it may have additional, as yet unstated, affirmative defenses
23 available. Accordingly, these answering defendants reserve the right to assert additional affirmative
24 defenses in the event discovery indicates that they would be appropriate.
25 ///
26 ///
27
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28 ANSWER OF DEFENDANTS THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE VILLAGE AT SEVEN
OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK ASSISTED LIVING AND MEMORY CARE
LLC (erroneously sued and served as SEVEN OAKS AL & MC); FRONTIER MANAGEMENT LLC, FRONTIER
SENIOR LIVING, LLC and SAMANTHA DAVIDSON TO PLAINTIFFS’ FIRST AMENDED COMPLIANT
1 WHEREFORE, defendants respectfully pray for judgment against plaintiffs as follows:
2 1. Dismissal of these answering defendants from this action;
3 2. That these answering defendants be awarded costs;
4 3. That plaintiffs takes nothing by the First Amended Complaint;
5 4. For reasonable attorney’s fees; and
6 5. For all other relief that this Court deems just and proper.
7
8 March 23, 2023
Dated: ________________ WILSON GETTY LLP
9
10 By: ___________________________________
William C. Wilson
11 John T. Tsumura
12 Attorneys for Defendants THE VILLAGE AT SEVEN
OAKS AL MC, LLC dba THE VILLAGE AT SEVEN
13 OAKS ASSISTED LIVING AND MEMORY CARE;
SEVEN OAK ASSISTED LIVING AND MEMORY
14 CARE LLC (erroneously sued and served as SEVEN
OAKS AL & MC); FRONTIER MANAGEMENT LLC,
15 FRONTIER SENIOR LIVING, LLC and SAMANTHA
DAVIDSON
16
17
18
19
20
21
22
23
24
25
26
27
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28 ANSWER OF DEFENDANTS THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE VILLAGE AT SEVEN
OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK ASSISTED LIVING AND MEMORY CARE
LLC (erroneously sued and served as SEVEN OAKS AL & MC); FRONTIER MANAGEMENT LLC, FRONTIER
SENIOR LIVING, LLC and SAMANTHA DAVIDSON TO PLAINTIFFS’ FIRST AMENDED COMPLIANT
1 Billy Cates, Individually and as SII to the Estate of Lois Cates, et al. v. The Village at Seven Oaks AL
MC, LLC dba The Village at Seven Oaks Assisted Living and Memory Care, et al.
2 Superior Court of the State of California, County of Kern
Case No. BCV-22-102864
3 ***
PROOF OF SERVICE
4
I am employed in San Diego County. I am over the age of 18 and not a party to this action. My
5 business address is 12555 High Bluff Drive, Suite 270, San Diego, California 92130.
6
On March 23, 2023, I served the foregoing documents, described in this action as:
7
• ANSWER OF DEFENDANTS THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE
8 VILLAGE AT SEVEN OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK
ASSISTED LIVING AND MEMORY CARE LLC (erroneously sued and served as
9 SEVEN OAKS AL & MC); FRONTIER MANAGEMENT LLC, FRONTIER SENIOR
LIVING, LLC and SAMANTHA DAVIDSON TO PLAINTIFFS’ FIRST AMENDED
10
COMPLAINT
11
[X] by emailing [ ] the original [X] a true copy thereof addressed as follows:
12
Kathryn A. Stebner, Esq. Kirsten Fish, Esq.
13 Karman Guadagni, Esq. Needham Kepner & Fish LLP
Deena Zacharin, Esq. 1960 The Alameda, Suite 210
14
Kelsey Craven, Esq. San Jose, CA 95126
15 Stebner Gertler Guadagni & Kawamoto, APLC T: 408.244.2166
870 Market Street, Suite 1285 F: 408.244.7815
16 San Francisco, CA 94102 Email: kfish@nkf-law.com
T: 415.362.9800 Counsel for Plaintiffs
17 F: 415.362.9801
Email: kathryn@sggklaw.com
18
Email: karman@sggklaw.com
19 Email: deena@sggklaw.com
Email: kelsey@sggklaw.com
20 Counsel for Plaintiffs
21
22 [X] BY E-MAIL or ELECTRONIC TRANSMISSION I caused based on a court order or an
agreement of the parties to accept service by e-mail or electronic transmission, the documents to be sent
23 to the persons at the e-mail addresses. I did not receive, within a reasonable time after the transmission,
any electronic message or other indication that the transmission was unsuccessful.
24
[X] STATE: I declare under penalty of perjury under the laws of the State of California that the
25 above is true and correct.
26 Executed on March 23, 2023 at San Diego, California.
27
_____________________________
28 Felicia Villalpando
PROOF OF SERVICE
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1 William C. Wilson, SBN: 149683 John T. Tsumura, SBN: 224119 2 WILSON GETTY LLP 12555 High Bluff Drive, Suite 270 3 San Diego, California 92130 Telephone: 858.847.3237 4 Facsimile: 858.847.3365 5 Attorneys for Defendants THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE VILLAGE AT SEVEN OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK ASSISTED LIVING 6 AND MEMORY CARE LLC (erroneously sued and served as SEVEN OAKS AL & MC); FRONTIER MANAGEMENT LLC, FRONTIER SENIOR LIVING, LLC and SAMANTHA DAVIDSON 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF KERN 10 BILLY CATES, Individually and as Successor- Case No. BCV-22-102864 In-Interest to the Estate of LOIS CATES; 11 BARBARA NEWTON, Individually; and ANSWER OF DEFENDANTS THE VILLAGE PAUL CATES, Individually, AT SEVEN OAKS AL MC, LLC dba THE 12 VILLAGE AT SEVEN OAKS ASSISTED Plaintiffs, LIVING AND MEMORY CARE; SEVEN 13 OAK ASSISTED LIVING AND MEMORY vs. CARE LLC (erroneously sued and served as 14 SEVEN OAKS AL & MC); FRONTIER THE VILLAGE AT SEVEN OAKS AL MC, MANAGEMENT LLC, FRONTIER SENIOR 15 LLC dba THE VILLAGE AT SEVEN OAKS LIVING, LLC and SAMANTHA DAVIDSON ASSISTED LIVING AND MEMORY CARE; TO PLAINTIFFS’ FIRST AMENDED 16 SEVEN OAKS AL & MC; OAKMONT COMPLAINT MANAGEMENT GROUP, LLC; OAKMONT 17 SENIOR LIVING, LLC; SAMANTHA Action Filed: October 26, 2022 DAVIDSON; KELLAND LANCASTER; and 18 DOES 1-50, Inclusive, Judge: Hon. Thomas S. Clark Dept.: 17 19 Defendants. Trial Date: Not Set 20 21 Defendants THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE VILLAGE AT 22 SEVEN OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK ASSISTED LIVING 23 AND MEMORY CARE LLC (erroneously sued and served as SEVEN OAKS AL & MC); FRONTIER 24 MANAGEMENT LLC, FRONTIER SENIOR LIVING, LLC and SAMANTHA DAVIDSON 25 (hereinafter “defendants”) hereby answer plaintiffs’ unverified First Amended Complaint as follows: 26 Pursuant to Code of Civil Procedure section 431.30, these answering defendants deny generally 27 and specifically each and every allegation in the First Amended Complaint. These answering 28 ANSWER OF DEFENDANTS THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE VILLAGE AT SEVEN OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK ASSISTED LIVING AND MEMORY CARE LLC (erroneously sued and served as SEVEN OAKS AL & MC); FRONTIER MANAGEMENT LLC, FRONTIER SENIOR LIVING, LLC and SAMANTHA DAVIDSON TO PLAINTIFFS’ FIRST AMENDED COMPLIANT 1 defendants further deny that plaintiffs have been damaged in the sum alleged in the Frist Amended 2 Complaint, or any other sum, or at all. 3 FIRST AFFIRMATIVE DEFENSE 4 (No Standing) 5 1. Plaintiffs lack standing to assert the causes of action contained in the first amended 6 complaint. 7 SECOND AFFIRMATIVE DEFENSE 8 (Lack of Capacity) 9 2. Plaintiffs lack capacity to maintain their claims in this action against defendants. 10 THIRD AFFIRMATIVE DEFENSE 11 (Lack of Jurisdiction) 12 3. Plaintiffs’ claims against defendants are barred as this court has no jurisdiction over 13 defendants. 14 FOURTH AFFIRMATIVE DEFENSE 15 (Comparative Negligence) 16 4. At the time and place of the occurrence alleged in the First Amended Complaint, 17 Plaintiffs failed to exercise ordinary care on her own behalf for her own safety. That negligence caused 18 the injury and damages alleged in plaintiffs’ First Amended Complaint. Consequently, plaintiffs’ right 19 to recover should be diminished by plaintiffs’ proportional share of fault. 20 FIFTH AFFIRMATIVE DEFENSE 21 (Apportionment) 22 5. That the liability of the persons ultimately determined to be responsible for the injuries 23 and losses to plaintiffs shall be compared, and the damages, if any, awarded to plaintiffs, shall be 24 apportioned accordingly. 25 /// 26 /// 27 -2- 28 ANSWER OF DEFENDANTS THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE VILLAGE AT SEVEN OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK ASSISTED LIVING AND MEMORY CARE LLC (erroneously sued and served as SEVEN OAKS AL & MC); FRONTIER MANAGEMENT LLC, FRONTIER SENIOR LIVING, LLC and SAMANTHA DAVIDSON TO PLAINTIFFS’ FIRST AMENDED COMPLIANT 1 SIXTH AFFIRMATIVE DEFENSE 2 (Following Physician’s Orders) 3 6. That all care, treatment and procedures rendered to and performed upon plaintiff were 4 given pursuant to the medical instructions of plaintiff’s physicians and were given with the express and 5 implied consent of plaintiff. 6 SEVENTH AFFIRMATIVE DEFENSE 7 (Assumption of Risk) 8 7. That any injury, loss or damage purportedly sustained, if at all, by plaintiff was directly 9 and legally caused and contributed to by risks which were fully and actually known to plaintiff who 10 fully and actually appreciated the nature and scope of the hazards created, and voluntarily assumed 11 these risks and their potential consequences. 12 EIGHTH AFFIRMATIVE DEFENSE 13 (Negligence of Third Parties) 14 8. The damages sustained by plaintiffs were proximately caused by the acts, omissions, 15 negligence, fraud and/or breach of obligations by persons other than these answering defendants and 16 said persons were beyond these answering defendants’ supervision and control. 17 NINTH AFFIRMATIVE DEFENSE 18 (Intervening/Superseding Causes) 19 9. The incident described in plaintiffs’ First Amended Complaint, as well as the injuries, 20 losses and damages allegedly sustained by plaintiffs, were proximately caused by intervening and 21 superseding forces which were beyond the control of these answering defendants and which, in the 22 exercise of reasonable prudence, were not and could not be anticipated by these answering defendants. 23 TENTH AFFIRMATIVE DEFENSE 24 (Civil Code §1431.2) 25 10. The liability of these answering defendants for non-economic damages, if any, is limited 26 to that percentage of those damages which are in direct proportion of these answering defendants’ 27 -3- 28 ANSWER OF DEFENDANTS THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE VILLAGE AT SEVEN OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK ASSISTED LIVING AND MEMORY CARE LLC (erroneously sued and served as SEVEN OAKS AL & MC); FRONTIER MANAGEMENT LLC, FRONTIER SENIOR LIVING, LLC and SAMANTHA DAVIDSON TO PLAINTIFFS’ FIRST AMENDED COMPLIANT 1 percentage of fault in accordance with Civil Code section 1431.2. 2 ELEVENTH AFFIRMATIVE DEFENSE 3 (Fails to State Cause of Action) 4 11. The First Amended Complaint, and each cause of action it contains, fails to state facts 5 sufficient to constitute a cause of action against these answering defendants. 6 TWELFTH AFFIRMATIVE DEFENSE 7 (Appropriate Treatment) 8 12. The care and treatment given to plaintiff by defendants was proper, appropriate and 9 reasonable. 10 THIRTEENTH AFFIRMATIVE DEFENSE 11 (Unavoidable Condition) 12 13. The damages sustained by plaintiff were the result of an unavoidable condition, insofar 13 as these answering defendants are concerned, and occurred without any negligence, want of care, fault, 14 or other breach of duty to plaintiffs on the part of these answering defendants. 15 FOURTEENTH AFFIRMATIVE DEFENSE 16 (No Facts for Recovery of Attorney’s Fees) 17 14. Plaintiffs’ First Amended Complaint fails to state facts sufficient to warrant the 18 imposition of attorney’s fees and costs as damages against these answering defendants. 19 FIFTEENTH AFFIRMATIVE DEFENSE 20 (No Facts for Welfare & Institutions Code §15657 Remedies) 21 15. Plaintiffs’ First Amended Complaint fails to state sufficient facts to warrant the recovery 22 of any damages, fees or costs provided by Welfare & Institutions Code section 15657. 23 SIXTEENTH AFFIRMATIVE DEFENSE 24 (Binding Arbitration) 25 16. The plaintiffs’ First Amended Complaint is subject to binding arbitration as set forth in 26 the applicable arbitration agreement. 27 -4- 28 ANSWER OF DEFENDANTS THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE VILLAGE AT SEVEN OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK ASSISTED LIVING AND MEMORY CARE LLC (erroneously sued and served as SEVEN OAKS AL & MC); FRONTIER MANAGEMENT LLC, FRONTIER SENIOR LIVING, LLC and SAMANTHA DAVIDSON TO PLAINTIFFS’ FIRST AMENDED COMPLIANT 1 SEVENTEENTH AFFIRMATIVE DEFENSE 2 (Failure to Mitigate Damages) 3 17. Plaintiffs failed to exercise reasonable care and diligence to avoid loss and to minimize 4 damages and, therefore, plaintiffs may not recover for losses which could have been prevented by 5 reasonable efforts on her part, or by expenditures that might reasonably have been made. Therefore, 6 plaintiffs’ recovery, if any, should be reduced by the failure of the plaintiffs to mitigate their damages. 7 EIGHTEENTH AFFIRMATIVE DEFENSE 8 (Conduct Assumed Risk) 9 18. Prior to the event in which plaintiff was allegedly injured as a result of defendants’ 10 negligence, plaintiff, by her conduct impliedly assumed the risk of a known and appreciated danger, 11 and thus plaintiffs may not recover damages from the defendants for that injury. 12 NINETEENTH AFFIRMATIVE DEFENSE 13 (Civil Code §1714.8) 14 19. The plaintiffs’ First Amended Complaint is barred by the provisions of California Civil 15 Code section 1714.8 in that the injuries and damages complained of by plaintiffs herein, if any, were 16 solely as the result of the natural course of a disease or condition. 17 TWENTIETH AFFIRMATIVE DEFENSE 18 (Failure to Follow Healthcare Provider Advice) 19 20. That the injury, damage or loss suffered by the plaintiffs herein was legally caused by 20 the negligent or willful failure of the plaintiffs to follow the advice and instructions of the attending 21 health care providers, including these answering defendants, and in otherwise failing to exercise 22 ordinary care on her own behalf. 23 TWENTY-FIRST AFFIRMATIVE DEFENSE 24 (Consent) 25 21. The actions of defendants were consented to by plaintiffs. 26 /// 27 -5- 28 ANSWER OF DEFENDANTS THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE VILLAGE AT SEVEN OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK ASSISTED LIVING AND MEMORY CARE LLC (erroneously sued and served as SEVEN OAKS AL & MC); FRONTIER MANAGEMENT LLC, FRONTIER SENIOR LIVING, LLC and SAMANTHA DAVIDSON TO PLAINTIFFS’ FIRST AMENDED COMPLIANT 1 TWENTY-SECOND AFFIRMATIVE DEFENSE 2 (Informed Consent) 3 22. Plaintiffs’ causes of action are barred as plaintiffs would have consented even if 4 properly informed, as such defendants’ alleged failure to inform plaintiffs was not a substantial factor 5 in causing plaintiffs’ harm. 6 TWENTY-THIRD AFFIRMATIVE DEFENSE 7 (Informed Consent) 8 23. Defendants contend that even if a reasonable person in plaintiffs’ position might not 9 have consented to the treatment performed by defendants if she had been given enough information 10 about its risks, plaintiffs would still would have consented to the treatment. (CACI 550.). 11 TWENTY-FOURTH AFFIRMATIVE DEFENSE 12 (Failure to State a Cause of Action for Elder Neglect Against Frontier Management LLC) 13 24. Neglect as a form of abuse under the Elder Abuse Act refers “to the failure of those 14 responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of 15 their professional standing, to carry out their custodial obligations.” (Delaney v. Baker (1999) 20 16 Cal.4th 23, 34.) Thus, when the medical care of an elder or dependent adult is at issue, “the statutory 17 definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide 18 medical care.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783; see also Id. at p. 786 19 “statutory elder abuse may include the egregious withholding of medical care for physical and mental 20 health needs.”) Frontier Management LLC is neither a healthcare provider, nor a care custodian as 21 defined by Welfare and Institutions Code § 15610.17. 22 TWENTY-FIFTH AFFIRMATIVE DEFENSE 23 (Failure to Exercise Control) 24 25. Plaintiffs’ First Amended Complaint failed to state facts sufficient to maintain any cause 25 of action against Frontier Management LLC. Frontier Management LLC did not operate and/or manage 26 THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE VILLAGE AT SEVEN OAKS 27 -6- 28 ANSWER OF DEFENDANTS THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE VILLAGE AT SEVEN OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK ASSISTED LIVING AND MEMORY CARE LLC (erroneously sued and served as SEVEN OAKS AL & MC); FRONTIER MANAGEMENT LLC, FRONTIER SENIOR LIVING, LLC and SAMANTHA DAVIDSON TO PLAINTIFFS’ FIRST AMENDED COMPLIANT 1 ASSISTED LIVING AND MEMORY CARE at any relevant time period with regard to plaintiff and 2 her alleged injuries, nor did it ever have custody and control of plaintiff. 3 TWENTY-SIXTH AFFIRMATIVE DEFENSE 4 (No Punitive Damages) 5 26. Plaintiffs are not entitled to the recovery of punitive damages under Civil Code section 6 3294 or any other provision of law; the facts alleged do not support such a recovery; and plaintiffs did 7 not comply with the requirements of Code of Civil Procedure section 425.13. 8 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 9 (Statute of Limitations) 10 27. The causes of action alleged in the First Amended Complaint are barred by the 11 applicable statues of limitations, including, but not limited to, the provisions of section 335.1 of the 12 Code of Civil Procedure. 13 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 14 (Immunity During State of Emergency) 15 28. Pursuant to Government Code § 8659(a), defendants have no liability for the plaintiffs’ 16 alleged injuries because those injuries were allegedly caused by the defendants’ rendering of services 17 during a state of emergency at the express or implied request of a responsible state or local official or 18 agency. 19 TWENTY-NINTH AFFIRMATIVE DEFENSE 20 (Additional Affirmative Defenses) 21 29. These answering defendants presently have insufficient knowledge or information upon 22 which to form a belief as to whether it may have additional, as yet unstated, affirmative defenses 23 available. Accordingly, these answering defendants reserve the right to assert additional affirmative 24 defenses in the event discovery indicates that they would be appropriate. 25 /// 26 /// 27 -7- 28 ANSWER OF DEFENDANTS THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE VILLAGE AT SEVEN OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK ASSISTED LIVING AND MEMORY CARE LLC (erroneously sued and served as SEVEN OAKS AL & MC); FRONTIER MANAGEMENT LLC, FRONTIER SENIOR LIVING, LLC and SAMANTHA DAVIDSON TO PLAINTIFFS’ FIRST AMENDED COMPLIANT 1 WHEREFORE, defendants respectfully pray for judgment against plaintiffs as follows: 2 1. Dismissal of these answering defendants from this action; 3 2. That these answering defendants be awarded costs; 4 3. That plaintiffs takes nothing by the First Amended Complaint; 5 4. For reasonable attorney’s fees; and 6 5. For all other relief that this Court deems just and proper. 7 8 March 23, 2023 Dated: ________________ WILSON GETTY LLP 9 10 By: ___________________________________ William C. Wilson 11 John T. Tsumura 12 Attorneys for Defendants THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE VILLAGE AT SEVEN 13 OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK ASSISTED LIVING AND MEMORY 14 CARE LLC (erroneously sued and served as SEVEN OAKS AL & MC); FRONTIER MANAGEMENT LLC, 15 FRONTIER SENIOR LIVING, LLC and SAMANTHA DAVIDSON 16 17 18 19 20 21 22 23 24 25 26 27 -8- 28 ANSWER OF DEFENDANTS THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE VILLAGE AT SEVEN OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK ASSISTED LIVING AND MEMORY CARE LLC (erroneously sued and served as SEVEN OAKS AL & MC); FRONTIER MANAGEMENT LLC, FRONTIER SENIOR LIVING, LLC and SAMANTHA DAVIDSON TO PLAINTIFFS’ FIRST AMENDED COMPLIANT 1 Billy Cates, Individually and as SII to the Estate of Lois Cates, et al. v. The Village at Seven Oaks AL MC, LLC dba The Village at Seven Oaks Assisted Living and Memory Care, et al. 2 Superior Court of the State of California, County of Kern Case No. BCV-22-102864 3 *** PROOF OF SERVICE 4 I am employed in San Diego County. I am over the age of 18 and not a party to this action. My 5 business address is 12555 High Bluff Drive, Suite 270, San Diego, California 92130. 6 On March 23, 2023, I served the foregoing documents, described in this action as: 7 • ANSWER OF DEFENDANTS THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE 8 VILLAGE AT SEVEN OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK ASSISTED LIVING AND MEMORY CARE LLC (erroneously sued and served as 9 SEVEN OAKS AL & MC); FRONTIER MANAGEMENT LLC, FRONTIER SENIOR LIVING, LLC and SAMANTHA DAVIDSON TO PLAINTIFFS’ FIRST AMENDED 10 COMPLAINT 11 [X] by emailing [ ] the original [X] a true copy thereof addressed as follows: 12 Kathryn A. Stebner, Esq. Kirsten Fish, Esq. 13 Karman Guadagni, Esq. Needham Kepner & Fish LLP Deena Zacharin, Esq. 1960 The Alameda, Suite 210 14 Kelsey Craven, Esq. San Jose, CA 95126 15 Stebner Gertler Guadagni & Kawamoto, APLC T: 408.244.2166 870 Market Street, Suite 1285 F: 408.244.7815 16 San Francisco, CA 94102 Email: kfish@nkf-law.com T: 415.362.9800 Counsel for Plaintiffs 17 F: 415.362.9801 Email: kathryn@sggklaw.com 18 Email: karman@sggklaw.com 19 Email: deena@sggklaw.com Email: kelsey@sggklaw.com 20 Counsel for Plaintiffs 21 22 [X] BY E-MAIL or ELECTRONIC TRANSMISSION I caused based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, the documents to be sent 23 to the persons at the e-mail addresses. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 24 [X] STATE: I declare under penalty of perjury under the laws of the State of California that the 25 above is true and correct. 26 Executed on March 23, 2023 at San Diego, California. 27 _____________________________ 28 Felicia Villalpando PROOF OF SERVICE