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  • UFCW & EMPLOYERS BENEFIT TRUST ON BEHALF OF VS. SUTTER HEALTH et al ANTITRUST/UNFAIR COMPETITION document preview
  • UFCW & EMPLOYERS BENEFIT TRUST ON BEHALF OF VS. SUTTER HEALTH et al ANTITRUST/UNFAIR COMPETITION document preview
  • UFCW & EMPLOYERS BENEFIT TRUST ON BEHALF OF VS. SUTTER HEALTH et al ANTITRUST/UNFAIR COMPETITION document preview
  • UFCW & EMPLOYERS BENEFIT TRUST ON BEHALF OF VS. SUTTER HEALTH et al ANTITRUST/UNFAIR COMPETITION document preview
  • UFCW & EMPLOYERS BENEFIT TRUST ON BEHALF OF VS. SUTTER HEALTH et al ANTITRUST/UNFAIR COMPETITION document preview
  • UFCW & EMPLOYERS BENEFIT TRUST ON BEHALF OF VS. SUTTER HEALTH et al ANTITRUST/UNFAIR COMPETITION document preview
  • UFCW & EMPLOYERS BENEFIT TRUST ON BEHALF OF VS. SUTTER HEALTH et al ANTITRUST/UNFAIR COMPETITION document preview
  • UFCW & EMPLOYERS BENEFIT TRUST ON BEHALF OF VS. SUTTER HEALTH et al ANTITRUST/UNFAIR COMPETITION document preview
						
                                

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1 Xavier Becerra Attorney General of California 2 Kathleen Foote Senior Assistant Attorney General ELECTRONICALLY 3 Michael Jorgenson Supervising Deputy Attorney General F I L E D Superior Court of California, 4 Cheryl Lee Johnson (SBN 66321) County of San Francisco Esther La (SBN 160706) 07/07/2020 5 Emilio Varanini (SBN 163952) Clerk of the Court Deputy Attorneys General BY: RONNIE OTERO Deputy Clerk 6 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 7 Tel 415.510.3541 / Fax 415.703.5480 E-mail: Emilio.Varanini@doj.ca.gov 8 Attorneys for Plaintiff, People of the State of California 9 Richard L. Grossman (SBN 112841) 10 Philip L. Pillsbury Jr. (SBN 072261) Pillsbury & Coleman, LLP 11 100 Green Street San Francisco, CA 94111 12 Tel 415.433.8000 / Fax 415.433.4816 Email: UEBT@pillsburycoleman.com 13 Lead Counsel for Plaintiff UFCW & Employers Benefit Trust and the Class (Additional Counsel not 14 listed) 15 SUPERIOR COURT OF THE STATE OF CALIFORNIA 16 COUNTY OF SAN FRANCISCO 17 UFCW & Employers Benefit Trust, on behalf Case No. CGC 14-538451 of itself and all others similarly situated Consolidated with 18 Case No. CGC-18-565398 Plaintiffs, 19 PLAINTIFFS’ OBJECTIONS TO THE vs. REPLY DECLARATIONS OF CONFORTI 20 AND KIERNAN OR, IN THE Sutter Health, et al., ALTERNATIVE, REQUEST THAT THE 21 COURT CONSIDER THE ATTORNEY Defendants. GENERAL’S SUPPLEMENTAL PUBLIC 22 INTEREST DETERMINATION 23 People of the State of California, ex. rel. Date: July 9, 2020 Xavier Becerra, Time: 9:15 am 24 Dept: 304 Plaintiff, Judge: Hon. Anne-Christine Massullo 25 vs. Action Filed: April 7, 2014 26 Sutter Health, 27 Defendant. 28 Objection to Reply Decls./Request to Consider Suppl. Determination of the Attorney General (Case Nos. CGC-14-568451 and CGC-18-565398) 1 INTRODUCTION 2 “The general rule of motion practice … is that new evidence is not permitted with reply 3 papers …. [T]he inclusion of additional evidentiary matter with the reply should only be allowed 4 in the exceptional case … and if permitted, the other party should be given the opportunity to 5 respond.” Carbajal v. CWPSC, Inc., 245 Cal. App. 4th 227, 241 (2016) (citations and internal 6 quotation marks omitted). 7 Plaintiffs object to the new evidence in the Reply Declarations of David Kiernan and 8 James Conforti. They are not only improper, they are irrelevant. See, e.g., Sutter Reply Brief at 9 4:20-24 and 5:5-15 and Objections to Declarations, set forth in the table below. Sutter’s reply 10 declarations purport to offer facts about the impact of COVID-19 on Sutter and on California, but 11 reports on percentage increases in COVID-19 patients in Sutter’s hospitals, and on any surge of 12 COVID-19 more generally in California, are irrelevant to the inquiry before the Court. In the 13 alternative, should the Court wish to consider Sutter’s new factual assertions, Plaintiffs request 14 that the Court also consider the Attorney General’s supplemental public interest determination 15 herein that Sutter’s new facts and statistics are misleading because Sutter relies on percentages of 16 low base numbers without disclosing the base numbers and because Sutter omits additional 17 material information bearing on its assertions. 18 LEGAL STANDARD 19 It is well-established that courts may sustain an objection to facts first presented in a reply 20 or in the alternative may allow a response. See, e.g., Jav v. Mahaffey, 218 Cal. App. 4th 1522, 21 1537-38 (2013) (noting that “[t]he general rule of motion practice, which applies here, is that new 22 evidence is not permitted with reply papers” but that if it permitted the other party should be 23 given the opportunity to respond); Plenger v. Alza Corp., 11 Cal. App. 4th 349, 362 n.8 (1992) 24 (party opposing motion is entitled to “notice and an opportunity to respond” to new material on 25 reply); see also, e.g., Jacobs v. Coldwell Banker Residential Brokerage Co., 14 Cal. App. 5th 438, 26 449 (2017) (evidence first presented in a reply may be considered, without raising due process 27 issues, if plaintiffs can object and/or present new evidence in response). 28 2 Objection to Reply Decls./Request to Consider Suppl. Determination of the Attorney General (Case Nos. CGC-14-568451 and CGC-18-565398) 1 PLAINTIFFS OBJECT TO SUTTER’S NEW EVIDENCE SET OUT IN THE KIERNAN AND CONFORTI DECLARATIONS AND AT PAGES 4:20-24 AND 5:5-15 OF THE 2 REPLY AS IRRELEVANT 3 Plaintiffs object to the new evidence in the Kiernan and Conforti Reply Declarations 4 because it is not relevant to whether the motion should be granted. The new facts raised by Sutter 5 have no bearing on whether a continuance or stay is needed when the Court’s focus here is on the 6 protection of absent class members and whether the injunctive relief would disserve the public 7 interest. See Opp. at 6-7. Sutter’s presentation of new data concerning recent COVID-19 8 hospitalizations is also irrelevant because, contrary to Sutter’s straw man argument, the Attorney 9 General’s determination never rested on any conclusion that “COVID-19 is under control” (Reply 10 at 4 (citing nothing in Plaintiffs’ Opposition)) or that “the COVID-19 crisis has peaked” (id. 11 (citing nothing)). The statements of Dr. Mark Ghaly, the Secretary of the California Health and 12 Human Services Agency, show how the state has been addressing the ebbs and flows of COVID- 13 19. These government actions were cited as support for the point that COVID-19 is not an 14 appropriate basis for this Court to delay approval of the settlement for multiple reasons, including 15 the fact that the impact of COVID-19 has been, and continues to be, addressed by state and 16 federal policy makers. Opp. at 12-13, 15. 17 Sutter’s new facts set out news reports of an increase in COVID-19 cases in various areas 18 of the state as support for delay to consider possible modifications to the PFJ to address these new 19 cases. But the current increase in hospitalizations, and the magnitude of the current increase, 20 whether elsewhere or in counties in which Sutter operates, are irrelevant as they say nothing 21 about the number of hospitalizations months from now, when, upon a grant of final approval, 22 Sutter can ask for modifications to the injunctive relief if appropriate. See Opp. at 9-10. The 23 Court cannot otherwise order modifications to negotiated injunctive relief requested by one party, 24 but opposed by the other, prior to approval. See People’s Ditch Co. v. Fresno Canal & Irrigation 25 Co., 152 Cal. 87, 89 (1907); see also, e.g., Harris v. Spinall Auto Sales, Inc., 202 Cal. App. 2d 26 215, 219-20 (1962). 27 28 3 Objection to Reply Decls./Request to Consider Suppl. Determination of the Attorney General (Case Nos. CGC-14-568451 and CGC-18-565398) 1 THE ATTORNEY GENERAL’S SUPPLEMENTAL DETERMINATION IS THAT SUTTER’S NEW EVIDENCE DOES NOT ALTER HIS CONCLUSIONS 2 3 In the alternative, should the Court wish to consider the facts offered by Sutter for the first 4 time on reply, Plaintiffs respectfully offer the Attorney General’s supplemental determination that 5 a review of Sutter’s new facts and statistics do not affect his conclusion that further delay is not in 6 the public interest. 7 That supplemental determination is based on a supplemental analysis by Professor Glenn 8 Melnick that Sutter’s new evidence about the current COVID-19 surge is misleading. Sutter fails, 9 for instance, to inform the Court as follows: (1) recent increases in COVID-19 hospitalizations 10 have not even come close to overwhelming hospital capacity across California or in the specific 11 counties where Sutter operates because COVID-19 hospitalizations utilize only a small percent- 12 age of available hospital bed capacity; (2) the number of hospitalizations of COVID-19 patients in 13 California is lower in counties with Sutter hospitals than in counties without Sutter hospitals; and 14 (3) the use of percentage changes by Sutter without referencing the base numbers results in a 15 distorted depiction of increased hospitalizations for Sutter. Supplemental Analysis of Professor 16 Glenn Melnick, attached to Supplemental Declaration of Emilio E. Varanini as Attachment 1. 17 CONCLUSION 18 Plaintiffs request that their objections to Sutter’s new evidence in its reply be sustained, or 19 in the alternative, that this Court consider the supplemental determination of the Attorney 20 General. 21 DATED: July 7, 2020 CALIFORNIA ATTORNEY GENERAL 22 By: /s/ Emilio Varanini 23 Emilio Varanini 24 Attorneys for the People of the State of California 25 PILLSBURY & COLEMAN, LLP 26 By: /s/ Richard Grossman 27 Richard Grossman 28 Lead Counsel for Plaintiff Class 4 Objection to Reply Decls./Request to Consider Suppl. Determination of the Attorney General (Case Nos. CGC-14-568451 and CGC-18-565398) 1 Objections to Conforti’s Supplemental Declaration 2 3 Material Objected To Grounds for Objection Court’s Ruling 4 1. Conforti Decl. New Evidence Offered in Reply Sustained Overruled 5 “The general rule of motion practice 6 … is that new evidence is not permitted with reply papers …. [T]he 7 inclusion of additional evidentiary matter with the reply should only be 8 allowed in the exceptional case … and if permitted, the other party should be 9 given the opportunity to respond.” 10 Carbajal v. CWPSC, Inc., 245 Cal. App. 4th 227, 241 (2016). 11 2. Conforti Decl. ¶ 2, lines 8-9 Irrelevant (Evid. Code §§ 210, 350 Sustained 352). Overruled 12 “The number of COVID-19 hospitalizations at Sutter has The declarant’s assertion regarding the 13 increased significantly since June significant increase in COVID-19 12, 2020.” 14 hospitalizations at Sutter since June 12, 2020, is not relevant to the inquiry 15 before the Court. That issue has no bearing on whether a continuance or 16 stay is needed when the Court’s focus 17 here is on the protection of absent class members and whether the 18 injunctive relief would disserve the public interest. (Kullar v. Foot Locker 19 Retail, Inc., 168 Cal. App. 4th 116, 133 (2008); 7-Eleven Owners for Fair 20 Franchising v. Southland Corp., 85 21 Cal. App. 4th 1135, 1146 (2000).) The issue is also irrelevant because, 22 contrary to Sutter’s strawman argument, the Attorney General’s 23 determination never rested on any conclusion that COVID-19 was 24 abating. 25 26 27 28 5 Objection to Reply Decls./Request to Consider Suppl. Determination of the Attorney General (Case Nos. CGC-14-568451 and CGC-18-565398) 1 3. Conforti Decl. ¶ 2, lines 9-11 Irrelevant (Evid. Code §§ 210, 350 Sustained 352). Overruled 2 “Overall, between June 12 to June 30, hospital beds used for active The declarant’s cited statistics 3 COVID-19 patients increased by regarding the increase in hospital beds over 200% (with a 92.3% increase in used for active COVID-19 patients are 4 critical care beds and a 79.2% not relevant to the inquiry before the increase in ICU beds).” Court. The statistics have no bearing 5 on whether a continuance or stay is needed when the Court’s focus here is 6 on the protection of absent class members and whether the injunctive 7 relief would disserve the public interest. (Kullar v. Foot Locker Retail, 8 Inc., 168 Cal. App. 4th 116, 133 (2008); 7-Eleven Owners for Fair 9 Franchising v. Southland Corp., 85 Cal. App. 4th 1135, 1146 (2000).) 10 The statistics are also irrelevant because, contrary to Sutter’s strawman 11 argument, the Attorney General’s determination never rested on any 12 conclusion that COVID-19 was abating. 13 4. Conforti Decl. ¶ 2, lines 11-12 Irrelevant (Evid. Code §§ 210, 350 Sustained 14 352). Overruled “Over just one day between June 28 15 and 29, the number of critical care The declarant’s cited statistics beds with COVID-19 patients regarding the increase in the number 16 increased by 13.1% and ICU of critical care and ICU beds with increased by 14.3%.” COVID-19 patients are not relevant to 17 the inquiry before the Court. The statistics have no bearing on whether a 18 continuance or stay is needed when the Court’s focus here is on the protection 19 of absent class members and whether the injunctive relief would disserve the 20 public interest. (Kullar v. Foot Locker Retail, Inc., 168 Cal. App. 4th 116, 21 133 (2008); 7-Eleven Owners for Fair Franchising v. Southland Corp., 85 22 Cal. App. 4th 1135, 1146 (2000).) The statistics are also irrelevant 23 because, contrary to Sutter’s strawman argument, the Attorney General’s 24 determination never rested on any conclusion that COVID-19 was 25 abating. 26 27 28 6 Objection to Reply Decls./Request to Consider Suppl. Determination of the Attorney General (Case Nos. CGC-14-568451 and CGC-18-565398) 1 5. Conforti Decl. ¶ 2, lines 12-15 Irrelevant (Evid. Code §§ 210, 350 Sustained 352). Overruled 2 “Due to this surge of COVID-19 patients in critical care beds over the The declarant’s assertion that Sutter 3 last three weeks, Sutter moved from moved from Critical Care Level 1 to Critical Care Level 1 to Critical Care Critical Care Level 4 due to the surge 4 Level 4 under the surge plan of COVID-19 patients is not relevant described in my first Declaration.” to the inquiry before the Court. The 5 issue has no bearing on whether a continuance or stay is needed when the 6 Court’s focus here is on the protection of absent class members and whether 7 the injunctive relief would disserve the public interest. (Kullar v. Foot Locker 8 Retail, Inc., 168 Cal. App. 4th 116, 133 (2008); 7-Eleven Owners for Fair 9 Franchising v. Southland Corp., 85 Cal. App. 4th 1135, 1146 (2000).) 10 The issue is also irrelevant because, contrary to Sutter’s strawman 11 argument, the Attorney General’s determination never rested on any 12 conclusion that COVID-19 was abating. 13 6. Conforti Decl. ¶ 2, lines 15-16 Irrelevant (Evid. Code §§ 210, 350 Sustained 14 352). Overruled “Under Critical Care Level 4, Sutter 15 designated additional hospitals as The declarant’s assertion that Sutter COVID-19 centers and expanded designated additional hospitals as 16 surge capacity to 600 critical care COVID-19 centers and expanded beds.” surge capacity to 600 critical care beds 17 is not relevant to the inquiry before the court. The issue has no bearing on 18 whether a continuance or stay is needed when the Court’s focus here is 19 on the protection of absent class members and whether the injunctive 20 relief would disserve the public interest. (Kullar v. Foot Locker Retail, 21 Inc., 168 Cal. App. 4th 116, 133 (2008); 7-Eleven Owners for Fair 22 Franchising v. Southland Corp., 85 Cal. App. 4th 1135, 1146 (2000).) 23 The issue is also irrelevant because, contrary to Sutter’s strawman 24 argument, the Attorney General’s determination never rested on any 25 conclusion that COVID-19 was abating. 26 27 28 7 Objection to Reply Decls./Request to Consider Suppl. Determination of the Attorney General (Case Nos. CGC-14-568451 and CGC-18-565398) 1 7. Conforti Decl. ¶ 2, lines 16-19 Irrelevant (Evid. Code §§ 210, 350 Sustained 352). Overruled 2 “With Sutter entering Critical Care Level 4 of its four-stage surge plan, The declarant’s assertion that Sutter is 3 Sutter is redirecting COVID-19 redirecting COVID-19 patients from patients from hospitals at capacity to hospitals at capacity to hospitals such 4 hospitals such as Alta Bates Summit as Alta Bates Summit Medical Center, Medical Center, which is a a designated Group A Provider under 5 designated Group A Provider under the proposed injunction, is not relevant the proposed injunction.” to the inquiry before the court. The 6 issue has no bearing on whether a continuance or stay is needed when the 7 Court’s focus here is on the protection of absent class members and whether 8 the injunctive relief would disserve the public interest. (Kullar v. Foot Locker 9 Retail, Inc., 168 Cal. App. 4th 116, 133 (2008); 7-Eleven Owners for Fair 10 Franchising v. Southland Corp., 85 Cal. App. 4th 1135, 1146 (2000).) 11 The issue is also irrelevant because, contrary to Sutter’s strawman 12 argument, the Attorney General’s determination never rested on any 13 conclusion that COVID-19 was abating. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 Objection to Reply Decls./Request to Consider Suppl. Determination of the Attorney General (Case Nos. CGC-14-568451 and CGC-18-565398) 1 8. Conforti Decl. ¶ 2, lines 19-22 Irrelevant (Evid. Code §§ 210, 350 Sustained 352). Overruled 2 “This experience has demonstrated that for the surge plan to function The declarant’s assertion that Sutter 3 properly, Sutter needs the freedom needs the “freedom and flexibility” to and flexibility to redirect or transfer redirect or transfer patients to different 4 patients to different hospitals and facilities, including hospitals hospitals and facilities, including 5 designated as “Group A” hospitals “Group A” hospitals under the under the Proposed Final Judgment. Proposed Final Judgment in order for 6 Sutter’s surge plan to function properly is not relevant to the inquiry 7 before the court. The issue has no bearing on whether a continuance or 8 stay is needed when the Court’s focus 9 here is on the protection of absent class members and whether the 10 injunctive relief would disserve the public interest. (Kullar v. Foot Locker 11 Retail, Inc., 168 Cal. App. 4th 116, 12 133 (2008); 7-Eleven Owners for Fair Franchising v. Southland Corp., 85 13 Cal. App. 4th 1135, 1146 (2000).) The issue is also irrelevant because, 14 contrary to Sutter’s strawman argument, the Attorney General’s 15 determination never rested on any 16 conclusion that COVID-19 was abating. And the issue is irrelevant 17 because modifications cannot be made before final approval. 18 19 20 Objections to Kiernan’s Supplemental Declaration 21 22 Material Objected To Grounds for Objection Court’s Ruling 23 24 25 26 27 28 9 Objection to Reply Decls./Request to Consider Suppl. Determination of the Attorney General (Case Nos. CGC-14-568451 and CGC-18-565398) 1 9. Kiernan Decl. and Exs. New Evidence Offered in Reply Sustained Overruled 2 “The general rule of motion practice … is that new evidence is not 3 permitted with reply papers …. [T]he inclusion of additional evidentiary 4 matter with the reply should only be allowed in the exceptional case … and 5 if permitted, the other party should be given the opportunity to respond.” 6 Carbajal v. CWPSC, Inc., 245 Cal. App. 4th 227, 241 (2016). 7 10. Kiernan’s Decl. ¶ 2, lines 6-10; Irrelevant (Evid. Code §§ 210, 350 Sustained 8 Exh. 26. 352). Overruled 9 “Attached as Exhibit 26 is a true and The facts in the material to which the correct copy of the State of declarant cites are not relevant to the 10 California’s COVID-19 Case inquiry before the court, and has no Statistics and Marin County’s bearing on whether a continuance or 11 COVID-19 Case Statistics reflecting stay is needed when the Court’s focus data as of June 29, 2020, the most here is on the protection of absent 12 recent date available, located at class members and whether the https://public.tableau.com/views/CO injunctive relief would disserve the 13 VID- public interest. (Kullar v. Foot Locker 19CasesDashboard_1593102042501 Retail, Inc., 168 Cal. App. 4th 116, 14 0/Cases?:embed=y&:showVizHome 133 (2008); 7-Eleven Owners for Fair =no.” Franchising v. Southland Corp., 85 15 Cal. App. 4th 1135, 1146 (2000).) The current increase in 16 hospitalizations, and the magnitude of the current surge, whether in counties 17 in which Sutter operates or elsewhere, is irrelevant as it says nothing about 18 the number of hospitalizations months from now, or upon a grant of final 19 approval. 20 See Objection No. 10. Sustained 11. Kiernan’s Decl. ¶ 3, lines 11-13; Exh. 27. Overruled 21 22 “Attached as Exhibit 27 is a true and correct copy of the article titled 23 “Coronavirus infection rate spiking in California, a troubling sign of 24 community spread,” published by the Los Angeles Times on June 27, 25 2020.” 26 27 28 10 Objection to Reply Decls./Request to Consider Suppl. Determination of the Attorney General (Case Nos. CGC-14-568451 and CGC-18-565398) 1 12. Kiernan’s Decl. ¶ 4, lines 14-16; See Objection No. 10. Sustained Exh. 28 Overruled 2 “Attached as Exhibit 28 is a true and 3 correct copy of the article titled “After recording new rise in cases, 4 SF suspends next phase of reopening,” published by SF Gate on 5 June 26, 2020.” 6 See Objection No. 10. Sustained 13. Kiernan’s Decl. ¶ 5, lines 17-19; Exh. 29 Overruled 7 8 “Attached as Exhibit 29 is a true and correct copy of the article titled 9 “With coronavirus cases surging across California, where can the Bay 10 Area look for answers,” published by the San Francisco Chronicle on June 11 29, 2020.” 12 14. Kiernan’s Decl. ¶ 6, lines 20-22; See Objection No. 10. Sustained Exh. 30 Overruled 13 “Attached as Exhibit 30 is a true and 14 correct copy of the article titled “U.S. Coronavirus Cases Surge 15 Amid Strains on Hospitals,” published by the Wall Street Journal 16 on June 29, 2020.” 17 15. Kiernan’s Decl. ¶ 7, lines 23-25; See Objection No. 10. Sustained Exh. 31 Overruled 18 19 “Attached as Exhibit 31 is a true and correct copy of the article titled 20 “SF’s 49% surge in hospitalizations puts city on high alert,” published by 21 the San Francisco Chronicle on July 1, 2020.” 22 16. Kiernan’s Decl. ¶ 8, lines 26-28; See Objection No. 10. Sustained 23 Exh. 32 Overruled 24 “Attached as Exhibit 32 is a true and correct copy of the article titled 25 “Contra Costa County evaluating current reopening timeline after 26 spike in cases,” published by ABC7 News on June 27, 2020.” 27 28 11 Objection to Reply Decls./Request to Consider Suppl. Determination of the Attorney General (Case Nos. CGC-14-568451 and CGC-18-565398) 1 17. Kiernan’s Decl. ¶ 9, lines 1-3; See Objection No. 10. Sustained Exh. 33 Overruled 2 “Attached as Exhibit 33 is a true and 3 correct copy of the article titled “California Counties Backtrack on 4 Reopening as Virus Surges,” published by NBC Los Angeles on 5 June 26, 2020.” 6 18. Kiernan’s Decl. ¶ 10, lines 4-6; See Objection No. 10. Sustained Exh. 3[4] Overruled 7 “Attached as Exhibit 3[4] is a true 8 and correct copy of the article titled “Coronavirus: Bay Area 9 hospitalizations outpacing rest of California, which is also rising 10 rapidly,” published by The Mercury News on June 29, 2020.” 11 19. Kiernan’s Decl. ¶ 11, lines 7-9; See Objection No. 10. Sustained 12 Exh. 35