Preview
Electronically Filed
9/6/2023 7:08 PM
Superior Court of California
County of Stanislaus
Clerk of the Court
By: Angela Mesa, Deputy
1 JOHN L. SUPPLE (SBN 94582)
jsupple@jsupplelaw.com
2 ROBERT R. DEERING (SBN 258043)
rdeering@jsupplelaw.com
3 MATTHEW SCHROEDER (SBN 273361)
mschroeder@jsupplelaw.com
4 J SUPPLE LAW
A Professional Corporation
5 990 Fifth Avenue
San Rafael, CA 94901
6
Telephone: (415) 366-5533
7 Facsimile: (415) 480-6301
8 Attorneys for Defendants
COVENANT CARE CALIFORNIA, LLC dba TURLOCK NURSING
9 AND REHABILITATION CENTER; COVENANT CARE, LLC
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
IN AND FOR THE COUNTY OF STANISLAUS
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San Rafael, CA 94901
J SUPPLE LAW, PC
LARRY B. DIGNES (Decedent) by and through Case No. CV-20-004057
990 Fifth Avenue
13 his Successors-In-Interest SHEILA M. LOWE,
14 an individual; LORI M. KIRCHERT, an DEFENDANTS’ SUPPLEMENTAL
individual REPLY TO PLAINTIFFS’
15 SUPPLEMENTAL BRIEF IN SUPPORT
Plaintiff, OF RENEWED MOTION TO LIFT
16 STAY AND ORDER ALLOCATING
vs. ARBITRATION COSTS AND FEES TO
17 DEFENDANTS OR REMAND THE
18 COVENANT CARE CALIFORNIA, LLC dba CASE TO SUPERIOR COURT
TURLOCK NURSING AND
19 REHABILITATION CENTER; COVENANT Date: September 14, 2023
CARE, LLC, a Delaware Corporation; and Time: 8:30 a.m.
20 DOES 1 through 50, inclusive, Dept.: 24
Judge: Hon. Sonny S. Sandhu
21
Defendants.
22 Complaint Filed: September 18, 2020
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DEFENDANTS’ SUPPLEMENTAL REPLY BRIEF TO PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF RENEWED MOTION
TO LIFT STAY
1 I. INTRODUCTION AND LEGAL ARGUMENT
2 As expected, Plaintiffs’ supplemental brief relies exclusively on case law that completely
3 undermines their request to lift the stay of this matter based on claims of indigency. The undisputed
4 evidence demonstrates that Mr. Dignes’ Estate possessed assets worth at least $45,000 at the time
5 of his death, and it was only after those assets were distributed to Plaintiffs Kirchert and Lowe
6 (following Mr. Dignes’ death) that the Estate was left with just several thousand dollars in a
7 remaining checking account. Nothing in Plaintiffs’ supplemental brief, or elsewhere, demonstrates
8 why these funds should not be used to assist the Estate in participating in arbitration in good faith.
9 Roldan orders, also known as arbitration cost-shifting orders, have become open to
10 exploitation to litigants and their counsel hoping to avoid the effect of otherwise valid and
11 enforceable arbitration agreements that were entered into voluntarily. A check on such tactics is
12 required here, where Mr. Dignes’ Estate has sufficient funds to participate in arbitration in good
San Rafael, CA 94901
J SUPPLE LAW, PC
990 Fifth Avenue
13 faith as ordered by the Court. (See Court’s December 12, 2022 Ruling, attached as Exhibit C to
14 Plaintiff’s Renewed Motion, at p. 2) [denying Plaintiffs’ original motion for failure to participate
15 in mediation “and for failure to demonstrate good faith participation in the arbitration
16 ordered by the Court in its minute order of January 3, 2022. (Weiler v. Marcus & Millichap
17 Real Estate Investment Services, Inc (2018) 22 Cal. App. 5th 970, 981.)”, emphasis added]; see
18 also MKJA, Inc. v. 123 Fit Franchising, LLC (2011) 191 Cal. App. 4th 643, 652 [trial court
19 required plaintiffs to exhaust all reasonable options for attempting to proceed with arbitration
20 despite their alleged financial distress, including applying for fee waivers with the arbitrator]).
21 Despite Plaintiffs’ assertion to the contrary, Defendants have in fact provided evidence of
22 what the reasonable costs of arbitration are anticipated to be, namely 50 hours at an hourly
23 arbitrator rate of $495. (See Supple Decl., ¶¶ 2-7). 1 Defendants have also established that,
24 ultimately, it is Plaintiffs’ counsel who will fund the cost of Plaintiffs’ pro rata share of arbitration
25 costs, not Plaintiffs; information that is highly relevant to whether Plaintiffs can afford to
26 1
Defendants have not only submitted sworn evidence contradicting Plaintiff’s counsel’s declaration in support of the
27 Renewed Motion to Lift the Stay, but also dispute the veracity and probative value of the exhibits attached thereto.
(See Estate of El Wardini (2022) 82 Cal.App.5th 870, 885-886 [“[U]nder substantial evidence review, appellate courts
28 defer to a trial court's credibility determinations ‘whether the trial court's ruling is based on oral testimony or
declarations.’ [Citations.]”]).
-1-
DEFENDANTS’ SUPPLEMENTAL REPLY BRIEF TO PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF RENEWED MOTION
TO LIFT STAY
1 participate in arbitration in good faith. (See Government Code § 68633(g) [“Counsel representing
2 an applicant who is filing in a general jurisdiction civil case pursuant to an agreement that counsel
3 will advance litigation costs shall indicate that agreement on the [in forma pauperis/fee waiver]
4 application form.”]).
5 In sum, there exists substantial evidence that, at the time of his death, Mr. Dignes was not
6 indigent and possessed sufficient assets to satisfy his pro rata share of anticipated arbitration costs,
7 which Defendants estimate to be no more than $12,375 (i.e., the arbitrator’s hourly fee of $495
8 multiplied by 50 hours and divided evenly between the parties). For these and the foregoing
9 reasons, Defendants respectfully request that the Court deny Plaintiff’s Renewed Motion in its
10 entirety.
11 Dated: September 6, 2023 J SUPPLE LAW
A Professional Corporation
12
San Rafael, CA 94901
J SUPPLE LAW, PC
990 Fifth Avenue
13
14
15 By:
JOHN L. SUPPLE
16
ROBERT R. DEERING
17 MATTHEW SCHROEDER
18 Attorneys for Defendants
COVENANT CARE CALIFORNIA, LLC
19 dba TURLOCK NURSING AND
REHABILITATION CENTER; COVENANT
20 CARE, LLC
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DEFENDANTS’ SUPPLEMENTAL REPLY BRIEF TO PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF RENEWED MOTION
TO LIFT STAY
1 Re: Dignes v. Covenant Care California, LLC, et al.
Stanislaus County Superior Court Case No. CV-20-004057
2
PROOF OF SERVICE
3
4 I am a resident of the State of California, over the age of eighteen years, and not a party
to the within action. My business address is J SUPPLE LAW, PC, 990 Fifth Avenue, San
5 Rafael, CA 94901. On the date indicated below, I served the within document(s):
6 DEFENDANTS’ SUPPLEMENTAL REPLY TO PLAINTIFFS’ SUPPLEMENTAL
BRIEF IN SUPPORT OF RENEWED MOTION TO LIFT STAY AND ORDER
7
ALLOCATING ARBITRATION COSTS AND FEES TO DEFENDANTS OR REMAND
8 THE CASE TO SUPERIOR COURT
9 by placing a true copy thereof enclosed in a sealed envelope, at a station designated
for collection and processing of envelopes and packages for overnight delivery by
10 FedEx as part of the ordinary business practices of J SUPPLE LAW, PC described
below, addressed as follows:
11 by placing a true copy thereof enclosed in a sealed envelope, at a station designated
for collection and processing of envelopes and packages for overnight delivery by
12
San Rafael, CA 94901
J SUPPLE LAW, PC
Golden State Overnight as part of the ordinary business practices of J SUPPLE
990 Fifth Avenue
13 LAW, PC described below, addressed as follows:
by transmitting via facsimile the document listed above to the fax numbers set forth
14 below on this date.
by causing personally delivering the document(s) listed above to the person(s) at the
15
address(es) set forth below.
16 BY TRANSMITTING VIA EMAIL from email address
mschroeder@jsupplelaw.com, the document(s) listed above to email address(es) set
17
forth below on this date, in accordance with California Code of Civil Procedure
18 section 1010.6(e).
19 by placing the document(s) listed above in a sealed envelope with postage thereon
fully prepaid, in United States Mail in the State of California at San Rafael,
20 addressed as set forth below.
21
Attorneys for Plaintiff
22 Wendy C. York, Esq.
Virginia L. Martucci, Esq.
23 Daniel Jay, Esq.
YORK LAW CORPORATION
24 1111 Exposition Boulevard, Bldg. 500
Sacramento, CA 95815
25 Ph: (916) 643-2200
Fax: (916) 643-4680
26 Emails:
wyork@yorklawfirm.net
27 djay@yorklawfirm.net
kmcfadden@yorklawfirm.net
28 vmartucci@yorklawfirm.net
-1-
PROOF OF SERVICE
1 I am readily familiar with the firm’s practice of collection and processing correspondence
for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same
2 day with postage thereon fully prepaid in the ordinary course of business. I am aware that on
motion of the party served, service is presumed invalid if postal cancellation date or postage
3 meter date is more than one day after the date of deposit for mailing in affidavit.
4 I declare under penalty of perjury under the laws of the State of California that the above
is true and correct.
5
6 Executed this 6th day of September, 2021, at San Rafael, California.
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10 MATTHEW SCHROEDER
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San Rafael, CA 94901
J SUPPLE LAW, PC
990 Fifth Avenue
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PROOF OF SERVICE
Preview
Electronically Filed 9/6/2023 7:08 PM Superior Court of California County of Stanislaus Clerk of the Court By: Angela Mesa, Deputy 1 JOHN L. SUPPLE (SBN 94582) jsupple@jsupplelaw.com 2 ROBERT R. DEERING (SBN 258043) rdeering@jsupplelaw.com 3 MATTHEW SCHROEDER (SBN 273361) mschroeder@jsupplelaw.com 4 J SUPPLE LAW A Professional Corporation 5 990 Fifth Avenue San Rafael, CA 94901 6 Telephone: (415) 366-5533 7 Facsimile: (415) 480-6301 8 Attorneys for Defendants COVENANT CARE CALIFORNIA, LLC dba TURLOCK NURSING 9 AND REHABILITATION CENTER; COVENANT CARE, LLC 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 IN AND FOR THE COUNTY OF STANISLAUS 12 San Rafael, CA 94901 J SUPPLE LAW, PC LARRY B. DIGNES (Decedent) by and through Case No. CV-20-004057 990 Fifth Avenue 13 his Successors-In-Interest SHEILA M. LOWE, 14 an individual; LORI M. KIRCHERT, an DEFENDANTS’ SUPPLEMENTAL individual REPLY TO PLAINTIFFS’ 15 SUPPLEMENTAL BRIEF IN SUPPORT Plaintiff, OF RENEWED MOTION TO LIFT 16 STAY AND ORDER ALLOCATING vs. ARBITRATION COSTS AND FEES TO 17 DEFENDANTS OR REMAND THE 18 COVENANT CARE CALIFORNIA, LLC dba CASE TO SUPERIOR COURT TURLOCK NURSING AND 19 REHABILITATION CENTER; COVENANT Date: September 14, 2023 CARE, LLC, a Delaware Corporation; and Time: 8:30 a.m. 20 DOES 1 through 50, inclusive, Dept.: 24 Judge: Hon. Sonny S. Sandhu 21 Defendants. 22 Complaint Filed: September 18, 2020 23 24 25 26 27 28 DEFENDANTS’ SUPPLEMENTAL REPLY BRIEF TO PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF RENEWED MOTION TO LIFT STAY 1 I. INTRODUCTION AND LEGAL ARGUMENT 2 As expected, Plaintiffs’ supplemental brief relies exclusively on case law that completely 3 undermines their request to lift the stay of this matter based on claims of indigency. The undisputed 4 evidence demonstrates that Mr. Dignes’ Estate possessed assets worth at least $45,000 at the time 5 of his death, and it was only after those assets were distributed to Plaintiffs Kirchert and Lowe 6 (following Mr. Dignes’ death) that the Estate was left with just several thousand dollars in a 7 remaining checking account. Nothing in Plaintiffs’ supplemental brief, or elsewhere, demonstrates 8 why these funds should not be used to assist the Estate in participating in arbitration in good faith. 9 Roldan orders, also known as arbitration cost-shifting orders, have become open to 10 exploitation to litigants and their counsel hoping to avoid the effect of otherwise valid and 11 enforceable arbitration agreements that were entered into voluntarily. A check on such tactics is 12 required here, where Mr. Dignes’ Estate has sufficient funds to participate in arbitration in good San Rafael, CA 94901 J SUPPLE LAW, PC 990 Fifth Avenue 13 faith as ordered by the Court. (See Court’s December 12, 2022 Ruling, attached as Exhibit C to 14 Plaintiff’s Renewed Motion, at p. 2) [denying Plaintiffs’ original motion for failure to participate 15 in mediation “and for failure to demonstrate good faith participation in the arbitration 16 ordered by the Court in its minute order of January 3, 2022. (Weiler v. Marcus & Millichap 17 Real Estate Investment Services, Inc (2018) 22 Cal. App. 5th 970, 981.)”, emphasis added]; see 18 also MKJA, Inc. v. 123 Fit Franchising, LLC (2011) 191 Cal. App. 4th 643, 652 [trial court 19 required plaintiffs to exhaust all reasonable options for attempting to proceed with arbitration 20 despite their alleged financial distress, including applying for fee waivers with the arbitrator]). 21 Despite Plaintiffs’ assertion to the contrary, Defendants have in fact provided evidence of 22 what the reasonable costs of arbitration are anticipated to be, namely 50 hours at an hourly 23 arbitrator rate of $495. (See Supple Decl., ¶¶ 2-7). 1 Defendants have also established that, 24 ultimately, it is Plaintiffs’ counsel who will fund the cost of Plaintiffs’ pro rata share of arbitration 25 costs, not Plaintiffs; information that is highly relevant to whether Plaintiffs can afford to 26 1 Defendants have not only submitted sworn evidence contradicting Plaintiff’s counsel’s declaration in support of the 27 Renewed Motion to Lift the Stay, but also dispute the veracity and probative value of the exhibits attached thereto. (See Estate of El Wardini (2022) 82 Cal.App.5th 870, 885-886 [“[U]nder substantial evidence review, appellate courts 28 defer to a trial court's credibility determinations ‘whether the trial court's ruling is based on oral testimony or declarations.’ [Citations.]”]). -1- DEFENDANTS’ SUPPLEMENTAL REPLY BRIEF TO PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF RENEWED MOTION TO LIFT STAY 1 participate in arbitration in good faith. (See Government Code § 68633(g) [“Counsel representing 2 an applicant who is filing in a general jurisdiction civil case pursuant to an agreement that counsel 3 will advance litigation costs shall indicate that agreement on the [in forma pauperis/fee waiver] 4 application form.”]). 5 In sum, there exists substantial evidence that, at the time of his death, Mr. Dignes was not 6 indigent and possessed sufficient assets to satisfy his pro rata share of anticipated arbitration costs, 7 which Defendants estimate to be no more than $12,375 (i.e., the arbitrator’s hourly fee of $495 8 multiplied by 50 hours and divided evenly between the parties). For these and the foregoing 9 reasons, Defendants respectfully request that the Court deny Plaintiff’s Renewed Motion in its 10 entirety. 11 Dated: September 6, 2023 J SUPPLE LAW A Professional Corporation 12 San Rafael, CA 94901 J SUPPLE LAW, PC 990 Fifth Avenue 13 14 15 By: JOHN L. SUPPLE 16 ROBERT R. DEERING 17 MATTHEW SCHROEDER 18 Attorneys for Defendants COVENANT CARE CALIFORNIA, LLC 19 dba TURLOCK NURSING AND REHABILITATION CENTER; COVENANT 20 CARE, LLC 21 22 23 24 25 26 27 28 -2- DEFENDANTS’ SUPPLEMENTAL REPLY BRIEF TO PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF RENEWED MOTION TO LIFT STAY 1 Re: Dignes v. Covenant Care California, LLC, et al. Stanislaus County Superior Court Case No. CV-20-004057 2 PROOF OF SERVICE 3 4 I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is J SUPPLE LAW, PC, 990 Fifth Avenue, San 5 Rafael, CA 94901. On the date indicated below, I served the within document(s): 6 DEFENDANTS’ SUPPLEMENTAL REPLY TO PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF RENEWED MOTION TO LIFT STAY AND ORDER 7 ALLOCATING ARBITRATION COSTS AND FEES TO DEFENDANTS OR REMAND 8 THE CASE TO SUPERIOR COURT 9 by placing a true copy thereof enclosed in a sealed envelope, at a station designated for collection and processing of envelopes and packages for overnight delivery by 10 FedEx as part of the ordinary business practices of J SUPPLE LAW, PC described below, addressed as follows: 11 by placing a true copy thereof enclosed in a sealed envelope, at a station designated for collection and processing of envelopes and packages for overnight delivery by 12 San Rafael, CA 94901 J SUPPLE LAW, PC Golden State Overnight as part of the ordinary business practices of J SUPPLE 990 Fifth Avenue 13 LAW, PC described below, addressed as follows: by transmitting via facsimile the document listed above to the fax numbers set forth 14 below on this date. by causing personally delivering the document(s) listed above to the person(s) at the 15 address(es) set forth below. 16 BY TRANSMITTING VIA EMAIL from email address mschroeder@jsupplelaw.com, the document(s) listed above to email address(es) set 17 forth below on this date, in accordance with California Code of Civil Procedure 18 section 1010.6(e). 19 by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in United States Mail in the State of California at San Rafael, 20 addressed as set forth below. 21 Attorneys for Plaintiff 22 Wendy C. York, Esq. Virginia L. Martucci, Esq. 23 Daniel Jay, Esq. YORK LAW CORPORATION 24 1111 Exposition Boulevard, Bldg. 500 Sacramento, CA 95815 25 Ph: (916) 643-2200 Fax: (916) 643-4680 26 Emails: wyork@yorklawfirm.net 27 djay@yorklawfirm.net kmcfadden@yorklawfirm.net 28 vmartucci@yorklawfirm.net -1- PROOF OF SERVICE 1 I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same 2 day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage 3 meter date is more than one day after the date of deposit for mailing in affidavit. 4 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 5 6 Executed this 6th day of September, 2021, at San Rafael, California. 7 8 9 10 MATTHEW SCHROEDER 11 12 San Rafael, CA 94901 J SUPPLE LAW, PC 990 Fifth Avenue 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- PROOF OF SERVICE