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FILED BY FAX
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LEWIS BRISBOIS BISGAARD & SMITH LLP cuperiore ourt i. Ee
of Py
ounty of prsaliforia
KIM M. WELLS, SB# 232279
E-Mail: Kim. Wells@lewisbrisbois.com
NH
CHRISTOPHER T. CHOI, SB#308507 FEB 19 2na9
E-Mail: Christopher.Choi@lewisbrisbois.com
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Jake Ggatters
2020 West E] Camino Avenue, Suite 700 Execut! Ofiey: & Clerk
Sacramento, California 95833 By: B. ,Deputy
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Telephone: 916.564.5400
Facsimile: 916.564.5444
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Attorneys for Defendants CAMERON PARK
SENIOR LIVING CENTER, LLC dba PONTE
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PALMERO, GREG KASNER
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
SC
COUNTY OF PLACER
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IDELLE DUNN, CASE NO. SCV0040924
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Plaintiff, DEFENDANTS’ MANDATORY
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SETTLEMENT CONFERENCE
vs. STATEMENT
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CAMERON PARK SENIOR LIVING Date: February 28, 2020
A
CENTER, LLC dba PONTE PALMERO, Time: 8:30 a.m.
GREG KASNER, and DOES 1 through 30,
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inclusive, Action Filed: March 20, 2018
Trial Date: March 16, 2020
ANY
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Defendants.
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19 I. SUBMITTING PARTY
20 This statement is submitted by Defendants Cameron Park Senior Living, LLC dba Ponte
21 Palmero and Greg Kasner who are represented by Kim M. Wells, Lewis Brisbois Bisgaard &
22 Smith, LLP, 2020 W. El Camino Avenue, Suite 700, Sacramento, California 95833. Telephone:
23 916.564.5400.
24 Il. OTHER PARTIES AND REPRESENTATION
25 Plaintiff Idelle Dunn isthe only other party and the plaintiff in this matter. Ms. Dunn is
26 represented by Janet S. Guy, Hanecak, P.C., 2399 American River Drive, Suite 2, Sacramento,
27 California 95825. Telephone: (916) 594-9442.
28 ///
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Il. BACKGROUND & STATEMENT OF FACTS
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A. Cameron Park Senior Living, LLC dba Ponte Palmero
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Cameron Park Senior Living, LLC dba Ponte Palmero is a senior living community
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comprised of various apartments and single home dwellings which provides various levels of
housing and services to elderly adults depending upon their desire and level of need. This
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arrangement includes independent living units, assisted living units and a memory care unit. The
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assisted living and memory care units are governed pursuant to Title 22, Division 6 of the
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California Code of Regulations pertaining to Licensing of Community Care Facilities. These are
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10 often referred to as “Residential Care Facility for the Elderly” (“RCFE”). The RCFE portions of
11 the community are subject to oversight by the State of California, Department of Social Services,
12 Community Care Licensing (CCL). The independent portions of the community are not licensed
13 or subject to such oversight. Cameron Park Senior Living, LLC is the licensee. Greg Kasner is
14 Administrator of Ponte Palmero and was in thisposition during the period at issue. As such, Mr.
15 Kasner has the responsibility and authority to carry out the policies of the Ponte Palmero.
16 The purpose of assisted living is to offer various amenities to allow the elderly adult to
17 have freedom, autonomy and privacy and to allow them to live as independently as possible. As
18 with allRCFE’s, Ponte Palmero is not, nor does it hold itself out to be, nor isit permitted pursuant
19 to its license to perform as a health care facility as that term is defined by Health and Safety Code
20 §1250, and does not provide one-to-one 24-hour care, including nursing care or medical services.
21 The staff are not “health care providers.” While they are subject to a criminal clearance and
22 receive various training, staff are not required to be licensed or to hold a specific certification,
23 such as a certified nursing assistant. In addition to housekeepers, activities, laundry, concierge,
24 maintenance, etc.,staff includes personal caregivers and medication technicians, who may provide
25 assistance with medications.
26 B. Idelle Dunn
27 Idelle Dunn originally moved into Ponte Palmero in or about April, 2012. She signed a
28 written independent living agreement (ILA) on March 26, 2012. She was living independently
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and using an electric scooter. It isunclear where Ms. Dunn was residing prior to Ponte Palmero,
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as is her prior medical history. While she was allegedly her own responsible party, Ms. Dunn had
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a third party fiduciary, (now deceased), who acted as her power of attorney. Daughter Deborah
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Buchtel (purported “DPOHealth”) was communicating with staff at Ponte Palmero regarding her
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mother’s pending move to the community. Ms. Dunn also has a son, Kevin Buchtel.
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Ms. Dunn had and has numerous underlying medical conditions, including obesity,
debilitating rheumatoid arthritis,edema, cellulitis,chronic obstructive pulmonary disease (COPD),
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hypertension, hernia, and recurrent infection. She was subsequently diagnosed with congestive
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heart failure (CHF). Ms. Dunn personally employed private caregivers and received intermittent
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home health services (nursing, physical and occupational therapy), which were paid for by her
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and/or her insurer. Ms. Buchtel also provided caregiving services, supervision and medication
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management and was interceding and interacting with plaintiff's health care providers on a regular
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basis.
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In 2012, sometime after she moved to Ponte Palmero, the independent building wherein
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plaintiff had moved became licensed as an RCFE. Plaintiff did not sign an updated contract,
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although such should have been obtained. (See below.) The Physician’s Report for RCFE (602A)
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was received, noting plaintiff was able to and was living independently.
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Between January 18, 2013, and December 12, 2014, plaintiff had several ED visits
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19 including for urinary tract infection, cellulitisand lower leg edema. She also had several acute
20 hospitalizations with subsequent skilled nursing admissions for rehabilitation including left knee
21 septic arthritis with surgical incision and drainage, correction of a ventral hernia, and hypoxia.
22 In April, 2014, plaintiff established care with her primary physician Wendy Dyer, MD. On
23 November 11, 2014, the Assisted Living Director, advised that plaintiff would be “going on
24 services” as of November 14.
25 On April 1,2015, Dr. Dyer completed an updated Physician’s Report (602A). According
26 to Dr. Dyer, plaintiff could determine and communicate her needs and was able to leave the
27 community independently. She needed mild assistance with trash and laundry and needed
LEWIS 28 assistance to sitin a wheelchair-type shower chair when showering.
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On April 6, 2015, daughter Deborah Buchtel completed a Resident Assessment Form
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reflecting a score of “0” for each category with the exception of housekeeping and laundry. Ms.
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Buchtel noted that “daughter will shower 2x’s week on special shower chair” and “we have extra
housekeeping but need dishes/bed laundry.” Ms. Buchtel indicated 31 points. No assistance was
needed with medication management. Ms. Buchtel included a note to the Assisted Living Director
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demanding daily help with laundry, dishwashing and trash pickup, including cups, wrappers, Coke
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cans, papers and set up of bed.
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On October 29, 2015, an updated Resident Assessment and an Individualized Service Plan
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10 included were completed by the Assisted Living Manager. The Assessment included nightly set-
11 up of bedside commode/urinal and removal/cleaning in the am for a total of 14 points. The Service
12 plan included this and that staff would provide weekly housekeeping and laundry services,
13 including laundering of linens. No points were assigned for housekeeping/laundry. The 14 points
14 totaled $168.00 per month. !
15 1. Pertinent Facts Immediately Prior to June 7, 2016
16 In February, 2016, plaintiff experienced cellulitis and an infection below her leftknee. She
17 had several hospitalizations and/or ED visits, and endured several rounds of antibiotic treatment.
18 Following a brief hospitalization, plaintiff began receiving skilled services from Interim Home
19 Health, including nursing services from Elizabeth “Betsy” Bernardine, RN. Nurse Bernardine
20 noted plaintiff was administering her own medications with the exception of antibiotics, which
21 were administered by Ponte Palmero staff. Staff reports that Deborah Buchtel would often
22 prevent access to her mother’s apartment by placing a “do not disturb” sign and mentioning that
23 she had dogs in the apartment (which frightened staff).
24 Nurse Bernardine typically saw plaintiff every 2 to 4 days. On March 4, 2016, in an office
25 visit wherein plaintiff was accompanied by Ms. Buchtel, Dr. Dyer noted borderline hypoxemia,
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27 Although not required,plaintiff was prorated feesfor these points when she was not at the community due
to admission elsewhere.
28
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and plaintiff was advised to call for any shortness of breath. Dr. Dyer also noted itwas important
to keep her legs elevated to reduce edema which was allowing for recurrent infection.
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As of March 22, 2016, Nurse Bernardine documented plaintiff had completed her
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antibiotics through Ponte Palmero staffand continued to take her other pills independently. Nurse
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Bernardine continued to treat plaintiff and to keep Ponte Palmero apprised of her condition
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through Outside Agency Notes and face to face meetings with the Assisted Living Director.
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On April 4, 2016, Nurse Bernardine noted plaintiff's 02 sats were 87-90% in her
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wheelchair. On April 6, 2016, her 02 sats were 92%. A recertification was done on April 14,
2016 due to ongoing antibiotic management. On April 18, 2016, the 02 sats were 87%, and on
10 April 26, 2016, such were 86-90%.
11 On May 2, 2016, plaintiff was again hospitalized for acute-on-chronic recurrent cellulitis.
12 Two weeks of IV antibiotic therapy were recommended, but plaintiff declined to go to any nursing
13 home (IVs are not permitted at Ponte Palmero). She discharged on May 6, 2016 back to Ponte
14 Palmero with oral antibiotics. Home health services resumed, including therapy. Plaintiff was
15 bedbound as her legs were too painful for her to get into her chair. Per Nurse Bernardine, Ms.
16 Buchtel was with her mother most of the time.
17 On May 10, 2016, Dr. Dyer, again recommended IV antibiotic therapy which would
18 require nursing home admission. Ms. Buchtel advised she was unwilling to consider placement in
19 a skilled nursing facility for IV antibiotics. Nurse Bernardine encouraged Ms. Buchtel to obtain
20 IV antibiotics for her mother. Nurse Bernardine also noted 02 sat of 79% which increased to 86%
21 when plaintiff took a deep breath. Ms. Buchtel was present and stated that she “did not want to
22 deal with ittoday.” Plaintiff stated that she was fine when she took deep breaths and did not want
23 oxygen or other treatment. Nurse Bernardine recommended that the hospital bed be fixed. The
24 same day, Dunn again presented to the ED for worsening acute-on-chronic lower extremity
25 edema. She was treated with IV antibiotics. A CT noted a large hiatal hernia. Her physician
26 wanted to place a PICC line, but Ms. Buchtel refused as she wanted Ms. Dunn to be able to return
at to Ponte Palmero. Plaintiff was ultimately discharged on May 14, 2016 to Eskaton Village, a
28 skilled nursing facility for antibiotic therapy.
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Upon discharge from the acute, the Physician’s Order for Admission to Skilled Nursing
Facility, the acute physician ordered that Ms. Dunn receive supplemental oxygen to be titrated to
keep her 02 sat levels at greater than 91. At Eskaton, Ms. Dunn was noted to have capacity for
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medical decisions. There, even though she was provided with supplemental oxygen, she refused
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to sleep ina vertical positon with the head of the bed raised, preferring to sleep with her trunk in a
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seated position with her torso/head at an angle in bed. Ms. Dunn was warned several times that
falling asleep on the edge of the bed made her at risk for falling off of the bed, but she insisted on
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sleeping at a precarious angle and refused to seek assistance when she became drowsy. She
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continued to be non-compliant with keeping her lower extremities raised. A care conference on
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10 May 19, 2016, with Ms. Dunn and family in attendance, noted that plaintiff had made progress,
11 but ambulation was not a goal. Ms. Dunn remained at Eskaton until May 30, 2016, and returned
12 to Ponte Palmero.
13 On June 3, 2016, Nurse Bernardine resumed home health services. Plaintiffs 02 sats were
14 83% supine and 93% sitting. Nurse Bernardine left amessage for Dr. Dyer regarding an order for
15 oxygen. Dr. Dyer’s staff reflects that “patient needed nocturnal oxygen — when supine, 02 sat
16 decreases to 83%, patient will need overnight pulse ox to eval response.” The note further reflects
17 that e NuBernardine would be faxing over achart note.
18 On June 6, 2016, Dr. Dyer’s office noted that the patient must have a face to face in order
19 to have nocturnal oxygen pursuant to Medicare regulations. An appointment was scheduled for
20 June 7, 2016, at 1:30 p.m., and Betsy was advised of the appointment who stated she would have
21 to call daughter to confirm appointment. An overnight oximetry order was faxed to Pacific
22 Pulmonary on June 6, 2016, who was to call the patient to arrange.
23 On June 6, 2016, Nurse Bernardine documented that plaintiff was again sitting on the edge
24 of the bed. Plaintiff had been instructed to wear compression stockings daily, but only wore them
25 occasionally. A phone call was received from Dr. Dyer’s office that plaintiff would need an
26 overnight pulse oximetry done and an appointment was to be scheduled. When thiswas explained
27 to Ms. Buchtel, she became very anxious and stated that her mother would not comply and that
28 she would get all the paperwork to Dr. Dyer that shows hypoxia. “Daughter does not listen to
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instructions and is not willing to schedule needed appointment with Dr. Dyer.” Nurse Bernardine
went to the concierge at Ponte Palmero to schedule an appointment with Dr. Dyer’s office. Ms.
Dunn and her daughter were instructed to use pillows at bedtime to prop the patient up so she did
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not fall asleep sittingup. The plaintiffs personal hospital bed had been broken for a while and not
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been repaired.
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2. Fall Incident at Issue
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On June 7, 2016, El Dorado County EMS noted a fall from bed to carpeted ground with no
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loss of consciousness or c-spine injury. Her 02 sats were 96%. The ED at Mercy Hospital noted
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an unwitnessed fall from bed, reported left hip and thigh pain with deformity to the leftthigh.
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10 Plaintiff reported “grazing” her right head but denied head pain, neck pain or loss of
11 consciousness. Her pain was moderate, exacerbated by movement, jarring and palpation. The
12 history and physical noted that “the patient secondary to hiatal hernia always intermittent in and
13 out sleeping, sitting up.” Today, while sitting on the edge of her bed, fellasleep and fell forward.
14 She started yelling to her daughter forhelp and finally got her to bring her to the hospital.
15 On June 8, 2016, Ms. Buchtel reported to Nurse Bernardine, via text, that plaintiff had a
16 fall from her bed while at home on June 8, 2016, at 12:30 a.m. In her text, Buchtel indicates that
17 she returned home around 11:20 p.m., made her mom a sandwich, helped her get into bed and put
18 her feet up. Around 12:30 a.m. she heard plaintiff calling her and stated that “thank God |was
19 there.” because plaintiff could not reach pendent or her phone and “who knows how long she
20 would have been there.” Ms. Buchtel noted that she was in the ICU at Mercy Folsom and that
21 plaintiff had suffered a fracture.
22 Plaintiff was diagnosed with a comminuted, displaced and angulated fracture within the
23 distal femur. She had been doing fine until she received morphine or pain which caused her BP to
24 drop. She was transferred to ICU for further care. She also had a UTI and possible sepsis of the
25 leftleg and had been placed on Vancomycin and Zosyn. She was eventually positive for MRSA.
26 In a consultation for evaluation of left lower extremity cellulitis,according to Ms. Dunn,
27 “she lay too comfortably in her chair and leaned forward too far.” X-ray showed transfers
28 comminuted supracondylar fracture of the distal leftfemur and severe osteoporosis secondary to
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chronic Prednisone use with severe knee joint arthritis. Orthopedics placed a cast on June 9, 2016.
Assisted Living Director Angela Levingston made several attempts to obtain information
from Mercy Hospital as to plaintiff's condition between June 10 and June 15, 2016, without
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success.
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Discharge planning was discussed on June 14, 2016. Daughter “POA” wanted discharge
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back to Ponte Palmero with Mercy Home Health. A new 602A form was to be completed so that
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Ponte Palmero could determine the level of care that will need to be provided. “POA” would
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make arrangements for additional private pay in home caregivers to assist in addition to the
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support of home health. Confirmed that daughter already had needed resources to hire private
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10 caregivers. The “CCRN had not had any contact with ALF per request for POA as of yet,”
11 however noted “it was the role of the care coordination team to confirm placement options to
12 ensure safe discharge planning and appropriate level of care.”
13 On June 15, 2016, attempted closed manipulation of the left distal femur fracture with
14 long-leg casting. The fracture was already solid, and unable to move fracture to medial lateral.
is There was a fairly straight alignment on the lateralx-ray. The leg was re-casted.
16 On June 15 and 16, 2016, Greg Kasner contacted Ms. Buchtel to discuss whether plaintiff
17 was appropriate to return directly to Ponte Palmero upon discharge. The first, Ms. Buchtel said
18 she was too busy and that she would call back, the second resulted in a voicemail. Mr. Kasner
19 followed up with a letter noting itwas imperative to determine if Idelle Dunn was in appropriate
20 physical condition to return to the community when released from the hospital for her health and
21 welfare.
22 On the same date, a partially completed Physician’s Report for RCFE was done by Dr. Toe
23 which noted plaintiff had a femoral fracture, but was weight-bearing toe touch on her leftlower
24 extremity (the leg wherein she had sustained the fracture). She also had MRSA. Dr. Toe noted he
25 had treated Ms. Dunn for just 3 days. It was noted Mrs. Dunn was unable to care for all of her
26 personal needs because she required assistance with bathing, toileting, and ambulating. However,
27 plaintiff was sufficiently independent that she could be dropped off and later picked up by the
28 community van for any appointments, errands, shopping visits, outings, etc.
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On June 17, 2016, Assisted Living Director Angela Levingston advised the hospital
discharge planner that the 602A form was incomplete, and Ponte Palmero required a completed
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form to determine whether plaintiff was appropriate for the assisted living community. Mr.
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Kasner also spoke with the discharge planner at Marshall Hospital and explained that Ms. Dunn
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was not appropriate to return to Ponte Palmero given her physical condition. The discharge
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planner reportedly agreed, but stated they “just need to get her out of the hospital” because Ms.
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Buchtel had “turned the entire hospital upside down,” by harassing and bullying staff. Ms.
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Buchtel reportedly told the discharge planner that she would not allow Ponte Palmero to assess
plaintiff,so that they would have no choice but to accept plaintiff back into the community.
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The Discharge Summary of June 17, 2016, notes that orthopedist Dr. Verch recommended
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transfer to a higher level of care because the patient needed mild incision of cellulitis and he was
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unable to do the surgery there. He discussed this with his colleagues at UC Davis and they
accepted the patient for transfer so that she may be reviewed by the infectious disease specialists;
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however, daughter refused.
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Unbeknownst to Ponte Palmero, Plaintiff returned to the community on June 17, 2016,
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prior to receipt of appropriate documentation of her condition and without the ability to physically
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assess her to determine her condition and care needs. Requests were made to Buchtdl for a
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meeting which was “imperative.” Ms. Buchtel responded that she would make time when her
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“high priorities” were resolved.
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On June 20, 2016, plaintiffwas admitted to Mercy Home Health. Mr. Kasner documented
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that he spoke with Ms. Buchtel regarding plaintiff's condition “and not being acceptable for
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RCFE, needs to rehab in skilled. She refuted, but will not allow us to assess, specifically accuses
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Angela Levingston of ‘hanging up on her.’”
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On June 21, 2016, Mr. Kasner emailed Ms. Buchtel to advise he needed plaintiff to sign
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the Admission Agreement for the licensed portion of the community. Mr. Kasner advised that the
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contents of the agreement were required by the Department of Social Services, but he revised itto
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include “financial elements that mirror your mom’s current agreement” (lower fees than typically
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charged). The second document that plaintiff needed to sign was “‘a care/service plan agreement
that reflects no care being provided.” Ms. Buchtel responded via email that she aware that
plaintiff did not sign an Assisted Living Agreement when she first came to Ponte Palmero, as
Building A was independent living. “I acknowledge too that I should have asked for the proper
agreement last April, 2015 when we first started assisted living care points.” Buchtel agreed to
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return the forms “ASAP.” However, on June 23, 2016, Mr. Kasner emailed Ms. Buchtel to
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confirm their conversation the day prior. Ms. Buchtel responded that she did “NOT” state she
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would sign the documents; she advised she would not sign the assisted living care point document
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because, “I would not place my mother in assisted living IF I wasn’t going to use and benefit from
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10 additional care points and care for which we have been paying for since April 2015.”
1 On June 25, 2016, Ponte Palmero contacted the County Ombudsman John Raslear for a
12 welfare check. Ombudsman Raslear attempted to visit Ms. Dunn on July 1, 2016 and July 9,
13 2016, but Ms. Buchtel would not permit him to see her.
14 On July 7, 2016, Mercy Home Health ceased providing services to plaintiff due to issues
15 with Ms. Buchtel and her interference with care and treatment.
16 On July 20, 2016, Mr. Kasner sent written 24-hour notice to plaintiff advising he would be
17 entering her unit for inspection the following day. Mr. Kasner visited the unit on July 21, 2016
18 with the Memory Care Director for the purpose of assessment and welfare check, but plaintiff was
19 not present.
20 On July 22, 2016, Mr. Kasner, along with the Business Office Manager, Jaqueline
21 Humenick, knocked on plaintiff's door and were granted entry by the private caregiver. Ms.
22 Buchtel was not present. Mr. Kasner provided Ms. Dunn with a 30-day notice to vacate providing
23 the specific reasons therefore.
24 Due to the fact that Ms. Dunn had an obvious prohibited condition pursuant to licensure
25 and as required by regulation, eviction proceedings were instituted in August, 2019. Ponte
26 Palmero responded to the Department of Social Services requests to provide information. On
27 September 9, 2015, the El Dorado County Sheriff was contacted to perform a wellness check as
28 Ms. Dunn had not been seen. After several minutes of knocking, the Deputies entered the
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apartment, greeted by Ms. Buchtel who had seen them on the outdoor camera and was filming
them via her phone. Ms. Dunn was not in the room, did not see them enter and did not hear them
knocking. Against the wishes of Buchtel and with her arguing and complaining the entire time,
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the Deputies did perform a wellness check, asking Ms. Dunn if she had food and water and
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instructing her that she had the right tocall for assistance.
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On October 3, 2016, plaintiff's orthopedist, Dr. Verch, indicated in writing that plaintiff
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was “very delicate at this point” and that “even simple transfers could cause the fracture to slip
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until the bone is healed.” He also reiterated that “the fracture right now is very delicate.” Thus,
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plaintiff was deemed “bedridden” (a prohibited health condition). Appropriate notification was
10 made by Ponte Palmero to the Fire Marshall.
il Ultimately, following an unlawful detainer trial,a jury found that Buchtel was living on
12 the property inappropriately and that Ms. Dunn had developed a condition which made it
13 inappropriate for her to reside at the community. The apartment was vacated as of April 4, 2017.
14 Upon restoration, the apartment required a complete overhaul, including replacement of cabinets,
15 carpets, etc.
16 IV. FACTUAL STIPULATIONS
17 There are no specific factual stipulations atthis time.
18 V. PLAINTIFF’S GENERAL CONTENTIONS
19 The First Amended Complaint is the operative complaint. Plaintiff asserts five causes of
20 action which are convoluted with overlapping facts which make her actual claims and causes of
21 action difficult to discern. However, the causes of action listed are: (1) Elder Abuse (Ponte
22 Palmero only); (2) Negligence (alldefendants); (3) Breach of Contract (Ponte Palmero Only); (4)
23 Intentional Infliction of Emotional Distress (all defendants); and (5) Invasion of Privacy (all
24 defendants).
25 Plaintiff's allegations for each cause of action stem from these common general
26 allegations. Specifically, Ms. Dunn alleges she was, at all times during her residence at Ponte
27 Palmero, dependent on Defendants “for protection from health and safety hazards, including falls.
28 for the prevention of malnutrition and dehydration, for the transportation to and from medical
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appointments, for answering pendant calls, for her physical health needs, for daily home cleaning
and care, and for her personal hygiene.” Further, defendants allegedly knew plaintiff was
handicapped and required transportation that could accommodate her wheelchair. Further, Ponte
Palmero was responsible for “ensuring that plaintiff was physically alive and not in distress each
morning at each night with a caregiver assuring that she was alive and well.” Ponte Palmero was
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also responsible for cleaning her apartment each week, changing her bed linens daily, and
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washing/drying/folding/putting away her clothes, linens, and towels, yet the caregivers were not
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properly trained and some did not know how tooperate a washing machine.
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In addition to the above, plaintiffcontends, and defendants deny that Ponte Palmero was to
10 provide her with 24-hour supervision and assistance with her ADLs. Plaintiff contends defendants
11 billed and received money for providing the above services, yet failed to do so. Plaintiff contends
12 Ponte Palmero knowingly and/or recklessly disregarded the consequences of understaffing and
13 knew they caused staffing levels to be insufficient to reasonably tend to the needs of residents.
14 This intentional understaffing caused plaintiff to suffer neglect, including missed medical
15 appointments which in turn resulted in her not obtaining her “prescribed” oxygen. This in turn
16 prevented her from sleeping in the supine position and caused her to fall, resulting in a fractured
17 femur.
18 VI. CONTESTED ISSUES OF LAW & ARGUMENT
19 A. Elder Abuse
20 Plaintiff seeks to establish the right to enhanced remedies beyond those customarily
21 available in an ordinary negligence lawsuit. To do so, plaintiff attempts to invoke the Elder Abuse
22 and Dependent Adult Civil Protection Act (EADACPA) set forth at Welfare & Institutions Code
23 §15657. For the remedies under EADACPA to be applicable, however, plaintiff must demonstrate
24 by clear and convincing evidence that defendants are guilty of something more than mere
25 negligence — something akin to criminal behavior. Delaney v. Baker (1999) 20 Cal.4th 23, 31-32.
26 “The statutory definition of [Welfare & Institutions Code §15610.57] gives us an example of
27 neglect and not negligence.” Delaney, supra, at p. 35. “Neglect” is defined at Welfare &
LEWIS 28 Institutions Code §15610.57(a)(1) as the “negligent failure of any person having the care or
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custody of an elder . . .to exercise that degree of care that a reasonable person in a like position
would exercise.” Jt includes, but is not limited to: (1) failure to assist in personal hygiene, or in
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the provision of food, clothing, or shelter; (2)
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FILED BY FAX —_ LEWIS BRISBOIS BISGAARD & SMITH LLP cuperiore ourt i. Ee of Py ounty of prsaliforia KIM M. WELLS, SB# 232279 E-Mail: Kim. Wells@lewisbrisbois.com NH CHRISTOPHER T. CHOI, SB#308507 FEB 19 2na9 E-Mail: Christopher.Choi@lewisbrisbois.com eRe Jake Ggatters 2020 West E] Camino Avenue, Suite 700 Execut! Ofiey: & Clerk Sacramento, California 95833 By: B. ,Deputy eke Telephone: 916.564.5400 Facsimile: 916.564.5444 DHMH Attorneys for Defendants CAMERON PARK SENIOR LIVING CENTER, LLC dba PONTE NIN PALMERO, GREG KASNER Fe SUPERIOR COURT OF THE STATE OF CALIFORNIA SC COUNTY OF PLACER OC F& IDELLE DUNN, CASE NO. SCV0040924 NYO Plaintiff, DEFENDANTS’ MANDATORY WH SETTLEMENT CONFERENCE vs. STATEMENT > CAMERON PARK SENIOR LIVING Date: February 28, 2020 A CENTER, LLC dba PONTE PALMERO, Time: 8:30 a.m. GREG KASNER, and DOES 1 through 30, HDB ne inclusive, Action Filed: March 20, 2018 Trial Date: March 16, 2020 ANY a Defendants. eo a 19 I. SUBMITTING PARTY 20 This statement is submitted by Defendants Cameron Park Senior Living, LLC dba Ponte 21 Palmero and Greg Kasner who are represented by Kim M. Wells, Lewis Brisbois Bisgaard & 22 Smith, LLP, 2020 W. El Camino Avenue, Suite 700, Sacramento, California 95833. Telephone: 23 916.564.5400. 24 Il. OTHER PARTIES AND REPRESENTATION 25 Plaintiff Idelle Dunn isthe only other party and the plaintiff in this matter. Ms. Dunn is 26 represented by Janet S. Guy, Hanecak, P.C., 2399 American River Drive, Suite 2, Sacramento, 27 California 95825. Telephone: (916) 594-9442. 28 /// LEWIS BRISBOIS BSG AARD 4811-9495-7237.1 & SVIILP ATPORNEYSATLAW DEFENDANTS’ MANDATORY SETTLEMENT CONFERENCE BRIEF Il. BACKGROUND & STATEMENT OF FACTS Ww A. Cameron Park Senior Living, LLC dba Ponte Palmero we Cameron Park Senior Living, LLC dba Ponte Palmero is a senior living community > comprised of various apartments and single home dwellings which provides various levels of housing and services to elderly adults depending upon their desire and level of need. This nN arrangement includes independent living units, assisted living units and a memory care unit. The NN assisted living and memory care units are governed pursuant to Title 22, Division 6 of the CO California Code of Regulations pertaining to Licensing of Community Care Facilities. These are Co 10 often referred to as “Residential Care Facility for the Elderly” (“RCFE”). The RCFE portions of 11 the community are subject to oversight by the State of California, Department of Social Services, 12 Community Care Licensing (CCL). The independent portions of the community are not licensed 13 or subject to such oversight. Cameron Park Senior Living, LLC is the licensee. Greg Kasner is 14 Administrator of Ponte Palmero and was in thisposition during the period at issue. As such, Mr. 15 Kasner has the responsibility and authority to carry out the policies of the Ponte Palmero. 16 The purpose of assisted living is to offer various amenities to allow the elderly adult to 17 have freedom, autonomy and privacy and to allow them to live as independently as possible. As 18 with allRCFE’s, Ponte Palmero is not, nor does it hold itself out to be, nor isit permitted pursuant 19 to its license to perform as a health care facility as that term is defined by Health and Safety Code 20 §1250, and does not provide one-to-one 24-hour care, including nursing care or medical services. 21 The staff are not “health care providers.” While they are subject to a criminal clearance and 22 receive various training, staff are not required to be licensed or to hold a specific certification, 23 such as a certified nursing assistant. In addition to housekeepers, activities, laundry, concierge, 24 maintenance, etc.,staff includes personal caregivers and medication technicians, who may provide 25 assistance with medications. 26 B. Idelle Dunn 27 Idelle Dunn originally moved into Ponte Palmero in or about April, 2012. She signed a 28 written independent living agreement (ILA) on March 26, 2012. She was living independently LEVIS ERISBOIS BISGAARD 4811-9495-7237.1 2 & SVMHLLP DEFENDANTS’ MANDATORY SETTLEMEMNT CONFERENCE BRIEF ATORNEYSATLAW and using an electric scooter. It isunclear where Ms. Dunn was residing prior to Ponte Palmero, — as is her prior medical history. While she was allegedly her own responsible party, Ms. Dunn had NO a third party fiduciary, (now deceased), who acted as her power of attorney. Daughter Deborah —} Buchtel (purported “DPOHealth”) was communicating with staff at Ponte Palmero regarding her ee mother’s pending move to the community. Ms. Dunn also has a son, Kevin Buchtel. Hn Ms. Dunn had and has numerous underlying medical conditions, including obesity, debilitating rheumatoid arthritis,edema, cellulitis,chronic obstructive pulmonary disease (COPD), TD hypertension, hernia, and recurrent infection. She was subsequently diagnosed with congestive F&F heart failure (CHF). Ms. Dunn personally employed private caregivers and received intermittent So home health services (nursing, physical and occupational therapy), which were paid for by her amt S&S and/or her insurer. Ms. Buchtel also provided caregiving services, supervision and medication —-& mk management and was interceding and interacting with plaintiff's health care providers on a regular KH basis. He pm In 2012, sometime after she moved to Ponte Palmero, the independent building wherein &_ am plaintiff had moved became licensed as an RCFE. Plaintiff did not sign an updated contract, Aa pm although such should have been obtained. (See below.) The Physician’s Report for RCFE (602A) DB pm was received, noting plaintiff was able to and was living independently. NY Pm Between January 18, 2013, and December 12, 2014, plaintiff had several ED visits So 19 including for urinary tract infection, cellulitisand lower leg edema. She also had several acute 20 hospitalizations with subsequent skilled nursing admissions for rehabilitation including left knee 21 septic arthritis with surgical incision and drainage, correction of a ventral hernia, and hypoxia. 22 In April, 2014, plaintiff established care with her primary physician Wendy Dyer, MD. On 23 November 11, 2014, the Assisted Living Director, advised that plaintiff would be “going on 24 services” as of November 14. 25 On April 1,2015, Dr. Dyer completed an updated Physician’s Report (602A). According 26 to Dr. Dyer, plaintiff could determine and communicate her needs and was able to leave the 27 community independently. She needed mild assistance with trash and laundry and needed LEWIS 28 assistance to sitin a wheelchair-type shower chair when showering. BRISBOIS BSG AARD 4811-9495-7237.1 3 & SMIHULP ATIORNEYSATLAW DEFENDANTS’ MANDATORY SETTLEMEMNT CONFERENCE BRIEF /// On April 6, 2015, daughter Deborah Buchtel completed a Resident Assessment Form Nr reflecting a score of “0” for each category with the exception of housekeeping and laundry. Ms. wo Buchtel noted that “daughter will shower 2x’s week on special shower chair” and “we have extra housekeeping but need dishes/bed laundry.” Ms. Buchtel indicated 31 points. No assistance was needed with medication management. Ms. Buchtel included a note to the Assisted Living Director DH demanding daily help with laundry, dishwashing and trash pickup, including cups, wrappers, Coke SY cans, papers and set up of bed. CO On October 29, 2015, an updated Resident Assessment and an Individualized Service Plan CS 10 included were completed by the Assisted Living Manager. The Assessment included nightly set- 11 up of bedside commode/urinal and removal/cleaning in the am for a total of 14 points. The Service 12 plan included this and that staff would provide weekly housekeeping and laundry services, 13 including laundering of linens. No points were assigned for housekeeping/laundry. The 14 points 14 totaled $168.00 per month. ! 15 1. Pertinent Facts Immediately Prior to June 7, 2016 16 In February, 2016, plaintiff experienced cellulitis and an infection below her leftknee. She 17 had several hospitalizations and/or ED visits, and endured several rounds of antibiotic treatment. 18 Following a brief hospitalization, plaintiff began receiving skilled services from Interim Home 19 Health, including nursing services from Elizabeth “Betsy” Bernardine, RN. Nurse Bernardine 20 noted plaintiff was administering her own medications with the exception of antibiotics, which 21 were administered by Ponte Palmero staff. Staff reports that Deborah Buchtel would often 22 prevent access to her mother’s apartment by placing a “do not disturb” sign and mentioning that 23 she had dogs in the apartment (which frightened staff). 24 Nurse Bernardine typically saw plaintiff every 2 to 4 days. On March 4, 2016, in an office 25 visit wherein plaintiff was accompanied by Ms. Buchtel, Dr. Dyer noted borderline hypoxemia, 26 27 Although not required,plaintiff was prorated feesfor these points when she was not at the community due to admission elsewhere. 28 LEWIS BRISBOIS BSG AARD 4811-9495-7237.1 4 & SVMHLUP DEFENDANTS’ MANDATORY SETTLEMEMNT CONFERENCE BRIEF ATIORNENSATLAW and plaintiff was advised to call for any shortness of breath. Dr. Dyer also noted itwas important to keep her legs elevated to reduce edema which was allowing for recurrent infection. WY As of March 22, 2016, Nurse Bernardine documented plaintiff had completed her ~ antibiotics through Ponte Palmero staffand continued to take her other pills independently. Nurse > Bernardine continued to treat plaintiff and to keep Ponte Palmero apprised of her condition oO through Outside Agency Notes and face to face meetings with the Assisted Living Director. NH On April 4, 2016, Nurse Bernardine noted plaintiff's 02 sats were 87-90% in her sl wheelchair. On April 6, 2016, her 02 sats were 92%. A recertification was done on April 14, 2016 due to ongoing antibiotic management. On April 18, 2016, the 02 sats were 87%, and on 10 April 26, 2016, such were 86-90%. 11 On May 2, 2016, plaintiff was again hospitalized for acute-on-chronic recurrent cellulitis. 12 Two weeks of IV antibiotic therapy were recommended, but plaintiff declined to go to any nursing 13 home (IVs are not permitted at Ponte Palmero). She discharged on May 6, 2016 back to Ponte 14 Palmero with oral antibiotics. Home health services resumed, including therapy. Plaintiff was 15 bedbound as her legs were too painful for her to get into her chair. Per Nurse Bernardine, Ms. 16 Buchtel was with her mother most of the time. 17 On May 10, 2016, Dr. Dyer, again recommended IV antibiotic therapy which would 18 require nursing home admission. Ms. Buchtel advised she was unwilling to consider placement in 19 a skilled nursing facility for IV antibiotics. Nurse Bernardine encouraged Ms. Buchtel to obtain 20 IV antibiotics for her mother. Nurse Bernardine also noted 02 sat of 79% which increased to 86% 21 when plaintiff took a deep breath. Ms. Buchtel was present and stated that she “did not want to 22 deal with ittoday.” Plaintiff stated that she was fine when she took deep breaths and did not want 23 oxygen or other treatment. Nurse Bernardine recommended that the hospital bed be fixed. The 24 same day, Dunn again presented to the ED for worsening acute-on-chronic lower extremity 25 edema. She was treated with IV antibiotics. A CT noted a large hiatal hernia. Her physician 26 wanted to place a PICC line, but Ms. Buchtel refused as she wanted Ms. Dunn to be able to return at to Ponte Palmero. Plaintiff was ultimately discharged on May 14, 2016 to Eskaton Village, a 28 skilled nursing facility for antibiotic therapy. LEVIS BRISBOIS FSG AARD 4811-9495-7237.1 5 & SWTHILP ATIORNEYSATLAW DEFENDANTS’ MANDATORY SETTLEMEMNT CONFERENCE BRIEF Upon discharge from the acute, the Physician’s Order for Admission to Skilled Nursing Facility, the acute physician ordered that Ms. Dunn receive supplemental oxygen to be titrated to keep her 02 sat levels at greater than 91. At Eskaton, Ms. Dunn was noted to have capacity for W medical decisions. There, even though she was provided with supplemental oxygen, she refused ee to sleep ina vertical positon with the head of the bed raised, preferring to sleep with her trunk in a Dern seated position with her torso/head at an angle in bed. Ms. Dunn was warned several times that falling asleep on the edge of the bed made her at risk for falling off of the bed, but she insisted on NX sleeping at a precarious angle and refused to seek assistance when she became drowsy. She Fe continued to be non-compliant with keeping her lower extremities raised. A care conference on So 10 May 19, 2016, with Ms. Dunn and family in attendance, noted that plaintiff had made progress, 11 but ambulation was not a goal. Ms. Dunn remained at Eskaton until May 30, 2016, and returned 12 to Ponte Palmero. 13 On June 3, 2016, Nurse Bernardine resumed home health services. Plaintiffs 02 sats were 14 83% supine and 93% sitting. Nurse Bernardine left amessage for Dr. Dyer regarding an order for 15 oxygen. Dr. Dyer’s staff reflects that “patient needed nocturnal oxygen — when supine, 02 sat 16 decreases to 83%, patient will need overnight pulse ox to eval response.” The note further reflects 17 that e NuBernardine would be faxing over achart note. 18 On June 6, 2016, Dr. Dyer’s office noted that the patient must have a face to face in order 19 to have nocturnal oxygen pursuant to Medicare regulations. An appointment was scheduled for 20 June 7, 2016, at 1:30 p.m., and Betsy was advised of the appointment who stated she would have 21 to call daughter to confirm appointment. An overnight oximetry order was faxed to Pacific 22 Pulmonary on June 6, 2016, who was to call the patient to arrange. 23 On June 6, 2016, Nurse Bernardine documented that plaintiff was again sitting on the edge 24 of the bed. Plaintiff had been instructed to wear compression stockings daily, but only wore them 25 occasionally. A phone call was received from Dr. Dyer’s office that plaintiff would need an 26 overnight pulse oximetry done and an appointment was to be scheduled. When thiswas explained 27 to Ms. Buchtel, she became very anxious and stated that her mother would not comply and that 28 she would get all the paperwork to Dr. Dyer that shows hypoxia. “Daughter does not listen to LEVIS BRISBOIS BISGAARD 4811-9495-7237.1 6 & SVMHLIP DEFENDANTS’ MANDATORY SETTLEMEMNT CONFERENCE BRIEF ATIORNEYSATLAW instructions and is not willing to schedule needed appointment with Dr. Dyer.” Nurse Bernardine went to the concierge at Ponte Palmero to schedule an appointment with Dr. Dyer’s office. Ms. Dunn and her daughter were instructed to use pillows at bedtime to prop the patient up so she did WwW not fall asleep sittingup. The plaintiffs personal hospital bed had been broken for a while and not ee been repaired. OT 2. Fall Incident at Issue Hn On June 7, 2016, El Dorado County EMS noted a fall from bed to carpeted ground with no NX loss of consciousness or c-spine injury. Her 02 sats were 96%. The ED at Mercy Hospital noted Oe an unwitnessed fall from bed, reported left hip and thigh pain with deformity to the leftthigh. So 10 Plaintiff reported “grazing” her right head but denied head pain, neck pain or loss of 11 consciousness. Her pain was moderate, exacerbated by movement, jarring and palpation. The 12 history and physical noted that “the patient secondary to hiatal hernia always intermittent in and 13 out sleeping, sitting up.” Today, while sitting on the edge of her bed, fellasleep and fell forward. 14 She started yelling to her daughter forhelp and finally got her to bring her to the hospital. 15 On June 8, 2016, Ms. Buchtel reported to Nurse Bernardine, via text, that plaintiff had a 16 fall from her bed while at home on June 8, 2016, at 12:30 a.m. In her text, Buchtel indicates that 17 she returned home around 11:20 p.m., made her mom a sandwich, helped her get into bed and put 18 her feet up. Around 12:30 a.m. she heard plaintiff calling her and stated that “thank God |was 19 there.” because plaintiff could not reach pendent or her phone and “who knows how long she 20 would have been there.” Ms. Buchtel noted that she was in the ICU at Mercy Folsom and that 21 plaintiff had suffered a fracture. 22 Plaintiff was diagnosed with a comminuted, displaced and angulated fracture within the 23 distal femur. She had been doing fine until she received morphine or pain which caused her BP to 24 drop. She was transferred to ICU for further care. She also had a UTI and possible sepsis of the 25 leftleg and had been placed on Vancomycin and Zosyn. She was eventually positive for MRSA. 26 In a consultation for evaluation of left lower extremity cellulitis,according to Ms. Dunn, 27 “she lay too comfortably in her chair and leaned forward too far.” X-ray showed transfers 28 comminuted supracondylar fracture of the distal leftfemur and severe osteoporosis secondary to LEWIS BRISEOIS BISGAARD 4811-9495-7237.1 7 & SVIMH LLP MANDATORY SETTLEMEMNT CONFERENCE BRIEF ATIORNEYSATLAW DEFENDANTS’ chronic Prednisone use with severe knee joint arthritis. Orthopedics placed a cast on June 9, 2016. Assisted Living Director Angela Levingston made several attempts to obtain information from Mercy Hospital as to plaintiff's condition between June 10 and June 15, 2016, without WwW success. ~~ Discharge planning was discussed on June 14, 2016. Daughter “POA” wanted discharge Nr back to Ponte Palmero with Mercy Home Health. A new 602A form was to be completed so that DBTFT Ponte Palmero could determine the level of care that will need to be provided. “POA” would ~~ make arrangements for additional private pay in home caregivers to assist in addition to the CO support of home health. Confirmed that daughter already had needed resources to hire private So 10 caregivers. The “CCRN had not had any contact with ALF per request for POA as of yet,” 11 however noted “it was the role of the care coordination team to confirm placement options to 12 ensure safe discharge planning and appropriate level of care.” 13 On June 15, 2016, attempted closed manipulation of the left distal femur fracture with 14 long-leg casting. The fracture was already solid, and unable to move fracture to medial lateral. is There was a fairly straight alignment on the lateralx-ray. The leg was re-casted. 16 On June 15 and 16, 2016, Greg Kasner contacted Ms. Buchtel to discuss whether plaintiff 17 was appropriate to return directly to Ponte Palmero upon discharge. The first, Ms. Buchtel said 18 she was too busy and that she would call back, the second resulted in a voicemail. Mr. Kasner 19 followed up with a letter noting itwas imperative to determine if Idelle Dunn was in appropriate 20 physical condition to return to the community when released from the hospital for her health and 21 welfare. 22 On the same date, a partially completed Physician’s Report for RCFE was done by Dr. Toe 23 which noted plaintiff had a femoral fracture, but was weight-bearing toe touch on her leftlower 24 extremity (the leg wherein she had sustained the fracture). She also had MRSA. Dr. Toe noted he 25 had treated Ms. Dunn for just 3 days. It was noted Mrs. Dunn was unable to care for all of her 26 personal needs because she required assistance with bathing, toileting, and ambulating. However, 27 plaintiff was sufficiently independent that she could be dropped off and later picked up by the 28 community van for any appointments, errands, shopping visits, outings, etc. LEWIS BRISBOIS FSG AARD 4811-9495-7237.1 8 & SMTP ATIORNEYSATLAW DEFENDANTS’ MANDATORY SETTLEMEMNT CONFERENCE BRIEF On June 17, 2016, Assisted Living Director Angela Levingston advised the hospital discharge planner that the 602A form was incomplete, and Ponte Palmero required a completed NH form to determine whether plaintiff was appropriate for the assisted living community. Mr. WD Kasner also spoke with the discharge planner at Marshall Hospital and explained that Ms. Dunn ee was not appropriate to return to Ponte Palmero given her physical condition. The discharge Wm planner reportedly agreed, but stated they “just need to get her out of the hospital” because Ms. Dn Buchtel had “turned the entire hospital upside down,” by harassing and bullying staff. Ms. ANH FeO Buchtel reportedly told the discharge planner that she would not allow Ponte Palmero to assess plaintiff,so that they would have no choice but to accept plaintiff back into the community. Se The Discharge Summary of June 17, 2016, notes that orthopedist Dr. Verch recommended Ss transfer to a higher level of care because the patient needed mild incision of cellulitis and he was Pe unable to do the surgery there. He discussed this with his colleagues at UC Davis and they accepted the patient for transfer so that she may be reviewed by the infectious disease specialists; a however, daughter refused. se Se Subsequent Events aan Unbeknownst to Ponte Palmero, Plaintiff returned to the community on June 17, 2016, FOO prior to receipt of appropriate documentation of her condition and without the ability to physically QU assess her to determine her condition and care needs. Requests were made to Buchtdl for a Be Fe meeting which was “imperative.” Ms. Buchtel responded that she would make time when her GC Fe “high priorities” were resolved. S&F NH On June 20, 2016, plaintiffwas admitted to Mercy Home Health. Mr. Kasner documented KS NNR that he spoke with Ms. Buchtel regarding plaintiff's condition “and not being acceptable for OR RCFE, needs to rehab in skilled. She refuted, but will not allow us to assess, specifically accuses NY Angela Levingston of ‘hanging up on her.’” kB NY On June 21, 2016, Mr. Kasner emailed Ms. Buchtel to advise he needed plaintiff to sign NY Am the Admission Agreement for the licensed portion of the community. Mr. Kasner advised that the VY contents of the agreement were required by the Department of Social Services, but he revised itto NY ota include “financial elements that mirror your mom’s current agreement” (lower fees than typically LEWIS rn BRISBOIS BISGAARD 4811-9495-7237.1 9 & SVIMH LLP DEFENDANTS’ MANDATORY SETTLEMEMNT CONFERENCE BRIEF ATORNEYSATLAW charged). The second document that plaintiff needed to sign was “‘a care/service plan agreement that reflects no care being provided.” Ms. Buchtel responded via email that she aware that plaintiff did not sign an Assisted Living Agreement when she first came to Ponte Palmero, as Building A was independent living. “I acknowledge too that I should have asked for the proper agreement last April, 2015 when we first started assisted living care points.” Buchtel agreed to mn return the forms “ASAP.” However, on June 23, 2016, Mr. Kasner emailed Ms. Buchtel to NH confirm their conversation the day prior. Ms. Buchtel responded that she did “NOT” state she IN would sign the documents; she advised she would not sign the assisted living care point document Oo because, “I would not place my mother in assisted living IF I wasn’t going to use and benefit from So 10 additional care points and care for which we have been paying for since April 2015.” 1 On June 25, 2016, Ponte Palmero contacted the County Ombudsman John Raslear for a 12 welfare check. Ombudsman Raslear attempted to visit Ms. Dunn on July 1, 2016 and July 9, 13 2016, but Ms. Buchtel would not permit him to see her. 14 On July 7, 2016, Mercy Home Health ceased providing services to plaintiff due to issues 15 with Ms. Buchtel and her interference with care and treatment. 16 On July 20, 2016, Mr. Kasner sent written 24-hour notice to plaintiff advising he would be 17 entering her unit for inspection the following day. Mr. Kasner visited the unit on July 21, 2016 18 with the Memory Care Director for the purpose of assessment and welfare check, but plaintiff was 19 not present. 20 On July 22, 2016, Mr. Kasner, along with the Business Office Manager, Jaqueline 21 Humenick, knocked on plaintiff's door and were granted entry by the private caregiver. Ms. 22 Buchtel was not present. Mr. Kasner provided Ms. Dunn with a 30-day notice to vacate providing 23 the specific reasons therefore. 24 Due to the fact that Ms. Dunn had an obvious prohibited condition pursuant to licensure 25 and as required by regulation, eviction proceedings were instituted in August, 2019. Ponte 26 Palmero responded to the Department of Social Services requests to provide information. On 27 September 9, 2015, the El Dorado County Sheriff was contacted to perform a wellness check as 28 Ms. Dunn had not been seen. After several minutes of knocking, the Deputies entered the 4811-9495-7237.1 10 DEFENDANTS’ MANDATORY SETTLEMEMNT CONFERENCE BRIEF apartment, greeted by Ms. Buchtel who had seen them on the outdoor camera and was filming them via her phone. Ms. Dunn was not in the room, did not see them enter and did not hear them knocking. Against the wishes of Buchtel and with her arguing and complaining the entire time, W the Deputies did perform a wellness check, asking Ms. Dunn if she had food and water and ee instructing her that she had the right tocall for assistance. mr On October 3, 2016, plaintiff's orthopedist, Dr. Verch, indicated in writing that plaintiff Dn was “very delicate at this point” and that “even simple transfers could cause the fracture to slip AI until the bone is healed.” He also reiterated that “the fracture right now is very delicate.” Thus, Co plaintiff was deemed “bedridden” (a prohibited health condition). Appropriate notification was 10 made by Ponte Palmero to the Fire Marshall. il Ultimately, following an unlawful detainer trial,a jury found that Buchtel was living on 12 the property inappropriately and that Ms. Dunn had developed a condition which made it 13 inappropriate for her to reside at the community. The apartment was vacated as of April 4, 2017. 14 Upon restoration, the apartment required a complete overhaul, including replacement of cabinets, 15 carpets, etc. 16 IV. FACTUAL STIPULATIONS 17 There are no specific factual stipulations atthis time. 18 V. PLAINTIFF’S GENERAL CONTENTIONS 19 The First Amended Complaint is the operative complaint. Plaintiff asserts five causes of 20 action which are convoluted with overlapping facts which make her actual claims and causes of 21 action difficult to discern. However, the causes of action listed are: (1) Elder Abuse (Ponte 22 Palmero only); (2) Negligence (alldefendants); (3) Breach of Contract (Ponte Palmero Only); (4) 23 Intentional Infliction of Emotional Distress (all defendants); and (5) Invasion of Privacy (all 24 defendants). 25 Plaintiff's allegations for each cause of action stem from these common general 26 allegations. Specifically, Ms. Dunn alleges she was, at all times during her residence at Ponte 27 Palmero, dependent on Defendants “for protection from health and safety hazards, including falls. 28 for the prevention of malnutrition and dehydration, for the transportation to and from medical BRISBOIS EISGAARD 4811-9495-7237.1 11 & SVMHUP DEFENDANTS’ MANDATORY SETTLEMEMNT CONFERENCE BRIEF ATIORNEYSATLAW appointments, for answering pendant calls, for her physical health needs, for daily home cleaning and care, and for her personal hygiene.” Further, defendants allegedly knew plaintiff was handicapped and required transportation that could accommodate her wheelchair. Further, Ponte Palmero was responsible for “ensuring that plaintiff was physically alive and not in distress each morning at each night with a caregiver assuring that she was alive and well.” Ponte Palmero was nn also responsible for cleaning her apartment each week, changing her bed linens daily, and nN washing/drying/folding/putting away her clothes, linens, and towels, yet the caregivers were not | a properly trained and some did not know how tooperate a washing machine. oo In addition to the above, plaintiffcontends, and defendants deny that Ponte Palmero was to 10 provide her with 24-hour supervision and assistance with her ADLs. Plaintiff contends defendants 11 billed and received money for providing the above services, yet failed to do so. Plaintiff contends 12 Ponte Palmero knowingly and/or recklessly disregarded the consequences of understaffing and 13 knew they caused staffing levels to be insufficient to reasonably tend to the needs of residents. 14 This intentional understaffing caused plaintiff to suffer neglect, including missed medical 15 appointments which in turn resulted in her not obtaining her “prescribed” oxygen. This in turn 16 prevented her from sleeping in the supine position and caused her to fall, resulting in a fractured 17 femur. 18 VI. CONTESTED ISSUES OF LAW & ARGUMENT 19 A. Elder Abuse 20 Plaintiff seeks to establish the right to enhanced remedies beyond those customarily 21 available in an ordinary negligence lawsuit. To do so, plaintiff attempts to invoke the Elder Abuse 22 and Dependent Adult Civil Protection Act (EADACPA) set forth at Welfare & Institutions Code 23 §15657. For the remedies under EADACPA to be applicable, however, plaintiff must demonstrate 24 by clear and convincing evidence that defendants are guilty of something more than mere 25 negligence — something akin to criminal behavior. Delaney v. Baker (1999) 20 Cal.4th 23, 31-32. 26 “The statutory definition of [Welfare & Institutions Code §15610.57] gives us an example of 27 neglect and not negligence.” Delaney, supra, at p. 35. “Neglect” is defined at Welfare & LEWIS 28 Institutions Code §15610.57(a)(1) as the “negligent failure of any person having the care or BRISBOIS BISGAARD 4811-9495-7237.1 12 & SVMHUP ATIORNEYSATLAW DEFENDANTS’ MANDATORY SETTLEMEMNT CONFERENCE BRIEF custody of an elder . . .to exercise that degree of care that a reasonable person in a like position would exercise.” Jt includes, but is not limited to: (1) failure to assist in personal hygiene, or in WN the provision of food, clothing, or shelter; (2)