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1 DAVID F. BEACH, ESQ. (SBN 127135)
OSCAR A. PARDO, ESQ (SBN 249955)
2 PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ, LLP
3 438 First Street, Fourth Floor E-FILED
Santa Rosa, CA 95401 11/18/2020 12:59 PM
4 Telephone: (707) 525-8800 Superior Court of California
Facsimile: (707) 545-8242
5 County of Fresno
Attorney for Defendants By: J. Nelson, Deputy
6 BEVERLY HEALTHCARE-CALIFORNIA, INC. dba
GOLDEN LIVINGCENTER – FRESNO; BEVERLY
7 HEALTHCARE – CALIFORNIA, INC. dba GOLDEN
LIVINGCENTER – CLOVIS
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF FRESNO
11 JOSIE MAE BROWN, individually, ) CASE No. 17CECG04065
)
PERRY, JOHNSON, ANDERSON,
12 Plaintiff, ) DEFENDANTS’ NOTICE OF MOTION
MILLER & MOSKOWITZ LLP
) FOR SUMMARY JUDGMENT, OR IN
13 vs. )
) THE ALTERNATIVE, SUMMARY
14 BEVERLY HEALTHCARE-CALIFORNIA, INC. ) ADJUDICATION
dba GOLDEN LIVINGCENTER – FRESNO; )
15 BEVERLY HEALTHCARE, INC. dba GOLDEN ) Complaint Filed: November 27, 2017
LIVINGCENTER – CLOVIS, and DOES 1 through ) Trial Date: Not Set
16 200, inclusive, )
) Date: March 24, 2021
17 Defendants. )
) Time: 3:30 p.m.
18 ) Dept.: 403
19 TO PLAINTIFF JOSIE MAE BROWN and HER ATTORNEY OF RECORD:
20 PLEASE TAKE NOTICE that on March 24, 2021 at 3:30 p.m., or as soon thereafter as the
21 matter may be heard in Department 403, at the above-referenced court located at 1130 O Street,
22 Fresno, California, Defendants BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN
23 LIVINGCENTER – FRESNO and BEVERLY HEALTHCARE – CALIFORNIA, INC. dba
24 GOLDEN LIVINGCENTER – CLOVIS, hereinafter “Golden Living Defendants”, will hereby
25 move the Court under Code of Civil Procedure section 473(c) for an Order of Summary Judgment
26 or in the alternative, Summary Adjudication.
27 This Motion for Summary Judgment, or alternatively Summary Adjudication, is made
28 pursuant to Code of Civil Procedure §437c(a) and §437(f) and is based on the grounds that:
29
1
30 DEFENDANTS’ NOTICE OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE,
SUMMARY ADJUDICATION
31
1 ADJUDICATION ISSUE NO. 1
2 Summary adjudication on the First Cause of Action for Elder Abuse should be granted,
3 because no triable issue of material fact exists as to the essential elements of abuse or neglect, and
4 the Golden Living Defendants are entitled to judgment as a matter of law.
5 ADJUDICATION ISSUE NO. 2
6 Summary adjudication on the First Cause of Action for Elder Abuse should be granted,
7 because no triable issue of material fact exists as to the essential elements of recklessness,
8 oppression, fraud or malice, and the Golden Living Defendants are entitled to judgment as a matter
9 of law.
10 ADJUDICATION ISSUE NO. 3
11 Summary adjudication on the First Cause of Action for Elder Abuse should be granted,
PERRY, JOHNSON, ANDERSON,
12 because no triable issue of material fact exists as to the essential element of causation, and the
MILLER & MOSKOWITZ LLP
13 Golden Living Defendants are entitled to judgment as a matter of law.
14 ADJUDICATION ISSUE NO. 4
15 Summary adjudication on the First Cause of Action for Elder Abuse should be granted,
16 because no triable issue of material fact exists as to the essential element of employer authorization
17 or ratification, and the Golden Living Defendants are entitled to judgment as a matter of law.
18 ADJUDICATION ISSUE NO. 5
19 Summary adjudication on the Second Cause of Action for Negligence should be granted,
20 because no triable issue of material fact exists as to the essential elements of duty and causation,
21 and the Golden Living Defendants are entitled to judgment as a matter of law.
22 ADJUDICATION ISSUE NO. 6
23 Summary adjudication on the Third Cause of Action for Violation of Patient Rights
24 pursuant to Health & Safety Code 1430(b) is without merit, because no triable issue of material
25 fact exists as to the essential elements of the claim.
26 ADJUDICATION ISSUE NO. 7
27 Plaintiff’s prayer for punitive damages has no merit, and there is no triable issue as to any
28 material fact against the Golding Living Defendants, because Plaintiff has no evidence: (1) that
29
2
30 DEFENDANTS’ NOTICE OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE,
SUMMARY ADJUDICATION
31
1 moving Defendants physically abused or neglected her; (2) of malice, oppression or fraud by
2 moving Defendants; and (3) that moving Defendants caused Plaintiff’s injuries. Absent the
3 necessary intent, the Golden Living Defendants are entitled to judgment as a matter of law, or at
4 the least, to summary adjudication on the issue of prayer for punitive damages.
5 ADJUDICATION ISSUE NO. 8
6 Plaintiff’s prayer for attorney’s fees pursuant to California’s Welfare & Institutions Code
7 §15657 also has no merit, as there is no triable issue as to any material fact against the Golden
8 Living Defendants, because Plaintiff has no evidence that: (1) the moving Defendants committed
9 elder abuse. Absent the necessary intent, the Golden Living Defendants are entitled to judgment as
10 a matter of law, or at the least, to summary adjudication on the issue of prayer for attorney’s fees
11 for this particular claim.
PERRY, JOHNSON, ANDERSON,
12 ADJUDICATION ISSUE NO. 9
MILLER & MOSKOWITZ LLP
13 Plaintiff’s prayer for attorney’s fees pursuant to California’s Health & Safety Code
14 §1430(b) has no merit, as there is no triable issue as to any material fact against the Golden Living
15 Defendants, because Plaintiff has no evidence that: (1) the moving Defendants committed
16 violations of the Plaintiff’s rights. Absent the necessary intent, the Golden Living Defendants are
17 entitled to judgment as a matter of law, or at the least, to summary adjudication on the issue of
18 prayer for attorney’s fees for this particular claim.
19 This motion will be based upon this Notice, the Memorandum of Points and Authorities, the
20 Separate Statement of Undisputed Material Facts, the Declarations of Oscar A. Pardo and Joshua
21 Rassen, M.D., and Exhibits attached thereto, the complete court file and records in this action, and
22 upon any oral and documentary evidence that may be presented at the hearing on this motion.
23 DATED: November 18, 2020 PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ, LLP
24
25 By:
DAVID F. BEACH
26 OSCAR A. PARDO
Attorneys for Defendants
27 BEVERLY HEALTHCARE-CALIFORNIA, INC.
dba GOLDEN LIVINGCENTER – FRESNO;
28 BEVERLY HEALTHCARE – CALIFORNIA, INC.
dba GOLDEN LIVINGCENTER – CLOVIS
29
3
30 DEFENDANTS’ NOTICE OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE,
SUMMARY ADJUDICATION
31
1 PROOF OF SERVICE
2 JOSIE MAE BROWN, individually v. BEVERLY HEALTHCARE – CALIFORNIA, INC. dba
GOLDEN LIVINGCENTER – FRESNO; BEVERLY HEALTHCARE – CALIFORNIA, INC. dba
3 GOLDEN LIVINGCENTER – CLOVIS, and DOES 1 through 200, inclusive
Fresno County Superior Court Case No. 17CECG04065
4
5 STATE OF CALIFORNIA, COUNTY OF SONOMA
6 I, the undersigned declare:
7 I am over the age of eighteen (18) years and not a party to the within action. I am an
8 employee of Perry, Johnson, Anderson, Miller, & Moskowitz, LLP’s and my address is 438 First
Street, 4th Floor, Santa Rosa, California 95401, which is located in the County of Sonoma.
9
On the date below indicated, I served on the interested parties in this action the within
10 documents described as:
11
• DEFENDANTS’ NOTICE OF MOTION FOR SUMMARY JUDGMENT, OR IN
PERRY, JOHNSON, ANDERSON,
12 THE ALTERNATIVE, SUMMARY ADJUDICATION
MILLER & MOSKOWITZ LLP
13 _ X_ (BY MAIL) On November 18, 2020 I caused each envelope, with postage thereon fully
prepaid, to be placed in the United States mail at Santa Rosa, California. I am readily
14 familiar with the business practice for collection and processing of mail in this office; that
in the ordinary course of business said document would be deposited with the US Postal
15 Service in Santa Rosa on that same day. I understand that service shall be presumed
invalid upon motion of a party served if the postal cancellation date or postage meter date
16 on the envelope is more than one day after the date of deposit for mailing contained on this
declaration.
17
Josie Mae Brown Josie Mae Brown
18
9720 Zelzah Ave, Apt. 207 17730 Lassen Street, Apt. 123
19 Northridge, CA 91325 Northridge, CA 91325
20 Josie Mae Brown Heather H. Kruthers
2715 Fresno Street Deputy County Counsel
21 Fresno, CA 93721 2220 Tulare Street, Suite 500
22 Fresno, CA 93721
23 James E. Yee
Lweis Brisbois Brisgaard & Smith LLP
24 650 E. Hospitality Lane, Suite 600
25 San Bernardino, CA 92408
26 I declare under penalty of perjury under the laws of the State of California that the above is
true and correct, and that this declaration was executed on November 18, 2020 at Santa Rosa,
27 California.
28 Vanessa Kinney ______________________________
29
4
30 DEFENDANTS’ NOTICE OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE,
SUMMARY ADJUDICATION
31
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1 DAVID F. BEACH, ESQ. (SBN 127135) OSCAR A. PARDO, ESQ (SBN 249955) 2 PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ, LLP 3 438 First Street, Fourth Floor E-FILED Santa Rosa, CA 95401 11/18/2020 12:59 PM 4 Telephone: (707) 525-8800 Superior Court of California Facsimile: (707) 545-8242 5 County of Fresno Attorney for Defendants By: J. Nelson, Deputy 6 BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER – FRESNO; BEVERLY 7 HEALTHCARE – CALIFORNIA, INC. dba GOLDEN LIVINGCENTER – CLOVIS 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF FRESNO 11 JOSIE MAE BROWN, individually, ) CASE No. 17CECG04065 ) PERRY, JOHNSON, ANDERSON, 12 Plaintiff, ) DEFENDANTS’ NOTICE OF MOTION MILLER & MOSKOWITZ LLP ) FOR SUMMARY JUDGMENT, OR IN 13 vs. ) ) THE ALTERNATIVE, SUMMARY 14 BEVERLY HEALTHCARE-CALIFORNIA, INC. ) ADJUDICATION dba GOLDEN LIVINGCENTER – FRESNO; ) 15 BEVERLY HEALTHCARE, INC. dba GOLDEN ) Complaint Filed: November 27, 2017 LIVINGCENTER – CLOVIS, and DOES 1 through ) Trial Date: Not Set 16 200, inclusive, ) ) Date: March 24, 2021 17 Defendants. ) ) Time: 3:30 p.m. 18 ) Dept.: 403 19 TO PLAINTIFF JOSIE MAE BROWN and HER ATTORNEY OF RECORD: 20 PLEASE TAKE NOTICE that on March 24, 2021 at 3:30 p.m., or as soon thereafter as the 21 matter may be heard in Department 403, at the above-referenced court located at 1130 O Street, 22 Fresno, California, Defendants BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN 23 LIVINGCENTER – FRESNO and BEVERLY HEALTHCARE – CALIFORNIA, INC. dba 24 GOLDEN LIVINGCENTER – CLOVIS, hereinafter “Golden Living Defendants”, will hereby 25 move the Court under Code of Civil Procedure section 473(c) for an Order of Summary Judgment 26 or in the alternative, Summary Adjudication. 27 This Motion for Summary Judgment, or alternatively Summary Adjudication, is made 28 pursuant to Code of Civil Procedure §437c(a) and §437(f) and is based on the grounds that: 29 1 30 DEFENDANTS’ NOTICE OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 31 1 ADJUDICATION ISSUE NO. 1 2 Summary adjudication on the First Cause of Action for Elder Abuse should be granted, 3 because no triable issue of material fact exists as to the essential elements of abuse or neglect, and 4 the Golden Living Defendants are entitled to judgment as a matter of law. 5 ADJUDICATION ISSUE NO. 2 6 Summary adjudication on the First Cause of Action for Elder Abuse should be granted, 7 because no triable issue of material fact exists as to the essential elements of recklessness, 8 oppression, fraud or malice, and the Golden Living Defendants are entitled to judgment as a matter 9 of law. 10 ADJUDICATION ISSUE NO. 3 11 Summary adjudication on the First Cause of Action for Elder Abuse should be granted, PERRY, JOHNSON, ANDERSON, 12 because no triable issue of material fact exists as to the essential element of causation, and the MILLER & MOSKOWITZ LLP 13 Golden Living Defendants are entitled to judgment as a matter of law. 14 ADJUDICATION ISSUE NO. 4 15 Summary adjudication on the First Cause of Action for Elder Abuse should be granted, 16 because no triable issue of material fact exists as to the essential element of employer authorization 17 or ratification, and the Golden Living Defendants are entitled to judgment as a matter of law. 18 ADJUDICATION ISSUE NO. 5 19 Summary adjudication on the Second Cause of Action for Negligence should be granted, 20 because no triable issue of material fact exists as to the essential elements of duty and causation, 21 and the Golden Living Defendants are entitled to judgment as a matter of law. 22 ADJUDICATION ISSUE NO. 6 23 Summary adjudication on the Third Cause of Action for Violation of Patient Rights 24 pursuant to Health & Safety Code 1430(b) is without merit, because no triable issue of material 25 fact exists as to the essential elements of the claim. 26 ADJUDICATION ISSUE NO. 7 27 Plaintiff’s prayer for punitive damages has no merit, and there is no triable issue as to any 28 material fact against the Golding Living Defendants, because Plaintiff has no evidence: (1) that 29 2 30 DEFENDANTS’ NOTICE OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 31 1 moving Defendants physically abused or neglected her; (2) of malice, oppression or fraud by 2 moving Defendants; and (3) that moving Defendants caused Plaintiff’s injuries. Absent the 3 necessary intent, the Golden Living Defendants are entitled to judgment as a matter of law, or at 4 the least, to summary adjudication on the issue of prayer for punitive damages. 5 ADJUDICATION ISSUE NO. 8 6 Plaintiff’s prayer for attorney’s fees pursuant to California’s Welfare & Institutions Code 7 §15657 also has no merit, as there is no triable issue as to any material fact against the Golden 8 Living Defendants, because Plaintiff has no evidence that: (1) the moving Defendants committed 9 elder abuse. Absent the necessary intent, the Golden Living Defendants are entitled to judgment as 10 a matter of law, or at the least, to summary adjudication on the issue of prayer for attorney’s fees 11 for this particular claim. PERRY, JOHNSON, ANDERSON, 12 ADJUDICATION ISSUE NO. 9 MILLER & MOSKOWITZ LLP 13 Plaintiff’s prayer for attorney’s fees pursuant to California’s Health & Safety Code 14 §1430(b) has no merit, as there is no triable issue as to any material fact against the Golden Living 15 Defendants, because Plaintiff has no evidence that: (1) the moving Defendants committed 16 violations of the Plaintiff’s rights. Absent the necessary intent, the Golden Living Defendants are 17 entitled to judgment as a matter of law, or at the least, to summary adjudication on the issue of 18 prayer for attorney’s fees for this particular claim. 19 This motion will be based upon this Notice, the Memorandum of Points and Authorities, the 20 Separate Statement of Undisputed Material Facts, the Declarations of Oscar A. Pardo and Joshua 21 Rassen, M.D., and Exhibits attached thereto, the complete court file and records in this action, and 22 upon any oral and documentary evidence that may be presented at the hearing on this motion. 23 DATED: November 18, 2020 PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ, LLP 24 25 By: DAVID F. BEACH 26 OSCAR A. PARDO Attorneys for Defendants 27 BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER – FRESNO; 28 BEVERLY HEALTHCARE – CALIFORNIA, INC. dba GOLDEN LIVINGCENTER – CLOVIS 29 3 30 DEFENDANTS’ NOTICE OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 31 1 PROOF OF SERVICE 2 JOSIE MAE BROWN, individually v. BEVERLY HEALTHCARE – CALIFORNIA, INC. dba GOLDEN LIVINGCENTER – FRESNO; BEVERLY HEALTHCARE – CALIFORNIA, INC. dba 3 GOLDEN LIVINGCENTER – CLOVIS, and DOES 1 through 200, inclusive Fresno County Superior Court Case No. 17CECG04065 4 5 STATE OF CALIFORNIA, COUNTY OF SONOMA 6 I, the undersigned declare: 7 I am over the age of eighteen (18) years and not a party to the within action. I am an 8 employee of Perry, Johnson, Anderson, Miller, & Moskowitz, LLP’s and my address is 438 First Street, 4th Floor, Santa Rosa, California 95401, which is located in the County of Sonoma. 9 On the date below indicated, I served on the interested parties in this action the within 10 documents described as: 11 • DEFENDANTS’ NOTICE OF MOTION FOR SUMMARY JUDGMENT, OR IN PERRY, JOHNSON, ANDERSON, 12 THE ALTERNATIVE, SUMMARY ADJUDICATION MILLER & MOSKOWITZ LLP 13 _ X_ (BY MAIL) On November 18, 2020 I caused each envelope, with postage thereon fully prepaid, to be placed in the United States mail at Santa Rosa, California. I am readily 14 familiar with the business practice for collection and processing of mail in this office; that in the ordinary course of business said document would be deposited with the US Postal 15 Service in Santa Rosa on that same day. I understand that service shall be presumed invalid upon motion of a party served if the postal cancellation date or postage meter date 16 on the envelope is more than one day after the date of deposit for mailing contained on this declaration. 17 Josie Mae Brown Josie Mae Brown 18 9720 Zelzah Ave, Apt. 207 17730 Lassen Street, Apt. 123 19 Northridge, CA 91325 Northridge, CA 91325 20 Josie Mae Brown Heather H. Kruthers 2715 Fresno Street Deputy County Counsel 21 Fresno, CA 93721 2220 Tulare Street, Suite 500 22 Fresno, CA 93721 23 James E. Yee Lweis Brisbois Brisgaard & Smith LLP 24 650 E. Hospitality Lane, Suite 600 25 San Bernardino, CA 92408 26 I declare under penalty of perjury under the laws of the State of California that the above is true and correct, and that this declaration was executed on November 18, 2020 at Santa Rosa, 27 California. 28 Vanessa Kinney ______________________________ 29 4 30 DEFENDANTS’ NOTICE OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 31