Preview
JOHN L. SUPPLE (SBN 94582) Electronically Filed
Jsupple@jsupplelaw.com 9/28/2021 3:15 PM
ROBERT R. DEERING (SBN 258043) Superior Court of California
rdeering@jsupplelaw.com County of Stanislaus
MATTHEW SCHROEDER (SBN 273361)
mschroeder@jsupplelaw.com Clerk of the Court
J SUPPLE LAW By: Sonia Krohn, Deputy
A Professional Corporation
990 Fifth Avenue
San Rafael, CA 94901
Telephone: (415) 366-5533
Facsimile: (415) 480-6301
Attorneys for Defendants
COVENANT CARE CALIFORNIA, LLC dba TURLOCK NURSING
AND REHABILITATION CENTER; COVENANT CARE, LLC
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
IN AND FOR THE COUNTY OF STANISLAUS
12
2s
~ 3Ba LARRY B. DIGNES (Decedent) by and through his Case No. CV-20-004057
a 13 Successors-In-Interest SHEILA M. LOWE, an
atU
ase 14 individual; LORI M. KIRCHERT, an individual DECLARATION OF MATTHEW
aes SCHROEDER IN SUPPORT OF
Bos
2s
an 15 Plaintiff, MOTION TO COMPEL
ARBITRATION
16 vs.
Accompanying Documents:
17 COVENANT CARE CALIFORNIA, LLC dba 1) Supplemental Brief
18 TURLOCK NURSING AND REHABILITATION 2) Declaration of Cristina Lewis
CENTER; COVENANT CARE, LLC, a Delaware 3) Proof of Service
19 Corporation; and DOES | through 50, inclusive,
Date: October 22, 2021
20 Defendants. Time: 8:30 a.m.
21 Dept.: 24
Judge: Sonny S. Sandhu
22
23 Complaint Filed: September 18, 2020
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DECLARATION OF MATTHEW SCHROEDER IN SUPPORT OF MOTION TO COMPEL ARBITRATION
I, Matthew Schroeder declare that:
1 I am an attorney at law duly admitted and licensed to practice law before all
courts in the State of California and am an associate with the law firm ofJ Supple Law, P.C.,
attorneys of record for Defendants COVENANT CARE CALIFORNIA, LLC dba TURLOCK
NURSING AND REHABILITATION CENTER and COVENANT CARE, LLC (collectively,
“Defendants”). I am personally familiar with the facts set forth herein, which are stated upon my
personal knowledge. If called upon to do so, I would competently testify as to the following.
2 On July 7, 2021, the Court issued a Tentative Ruling in advance of the July 8, 2021
hearing of Defendants’ Motion to Compel Arbitration. The Court’s Tentative Ruling, which was
10 accessed via the Court’s website by my office at approximately 1:37 p.m. on July 7, 2021, read
11 verbatim as follows:
12
2s
~ 3Ba CV-20-004057 — DIGNES, LARRY B vs COVENANT CARE CALIFORNIA
a 13 LLC - Defendants’ Motion to Compel Arbitration — DENIED, objections overruled
atU as irrelevant to the court’s ruling.
14
The court finds defendant has failed to show that decedent chose arbitration when
15 he completed the forms in the admission packet and executed the arbitration
agreement. While Ms. Brummel has provided evidence that she solicited an
16 electronic signature from decedent on the arbitration agreement, she does not
clearly indicate whether decedent elected to agree to arbitration or declined to agree
17 to arbitration. For that information, Ms. Brummel appears to need to consult the
actual arbitration agreement that is in decedent’s file. However, Ms. Brummel was
18 not able to provide enough information about the computer system that stores the
resident’s electronic records to allow the court to infer that the option indicated in
19 the form that is located in decedent’s file was the option decedent himself chose.
(See, e.g., Fabian v. Renovate America, Inc. (2019) 42 Cal.App.Sth 1062, Ruiz v.
20 Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836.)
21 3 Attached hereto as Exhibit A is a true and correct copy of the Court’s July 15, 2021
22 Minute Order requesting further briefing and/or presentation of evidence in support of Defendants”
23 Motion to Compel Arbitration to “authenticate decedent’s signature on the arbitration clause that
24 is subject of the petition.”
25 4. Attached hereto as Exhibit B are true and correct copies of highlighted excerpts of]
26 the Deposition Transcript of Deanna Brummell.
27 Mil
28 Mil
-2-
DECLARATION OF MATTHEW SCHROEDER IN SUPPORT OF MOTION TO COMPEL ARBITRATION
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed this 28" day of September 2021 at San Rafael, California.
MATTHEW SCHROEDER
10
11
12
2s
~ 3Ba
a 13
atU
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-3-
DECLARATION OF MATTHEW SCHROEDER IN SUPPORT OF MOTION TO COMPEL ARBITRATION
EXHIBITA
SUPERIOR COURT OF CALIFORNIA, COUNTY OF STANISLAUS
COVENANT CARE CALIFORNIA LLC,
LARRY DIGNES, et al. et al.
vs
Plaintiff
(s) Defendant
(s)
CASE NO.: CV-20-004057
JUDGE: SONNY S. SANDHU Date: 07/15/2021
Clerk: A. Segundo Modesto, California
Ruling on
Defendants’ Motion to Compel Arbitration
This matter came on calendar for
law & motion on July 8, 2021. After
consideration of oral arguments, the Court took the matter under
submission and hereby rules as follows:
Having taken
under submission Defendant’s petition to compel
arbitration, and having had representations at that hearing that
additional evidence could be produced to authenticate decedent's
signature on the arbitration clause that is the subject of the
petition, the court continues this matter for further briefing and/or
presentation of evidence. The next hearing will occur on October 22,
2021 at 8:30 a.m. in Department 24. Defendant may file a new brief,
which may present previously undisclosed evidence, no later than 15
court days before the continued hearing. Plaintiff may respond to
that brief no later than 5 court days before the continued hearing.
Plaintiff may also introduce new evidence if necessary. No reply to
plaintiff's brief will be considered.
MINUTE ORDER Page 1
PROOF OF SERVICE BY MAIL
(1013a(3) C.C.P.]
STATE OF CALIFORNIA )
) ss
COUNTY OF STANISLAUS)
I am over the age of 18 years and employed by the Superior Court of the State of
California, County of Stanislaus, and not a party to the within action. I
certify that I served a copy of the attached RULING DATED 07/15/2021 by placing
said copy in an envelope addressed to the following:
Virginia Martucci, Esq.
YORK LAW CORPORATION
1111 Exposition Blvd., Bldg. 500
Sacramento, CA 95815
Matthew Schroeder, Esq.
J SUPPLE LAW
990 Fifth Avenue
San Rafael, CA 94901
Paid envelope was then sealed and postage thereon fully prepaid, and thereafter
was on July 15, 2021 deposited in the United States mail at Modesto, California.
That there is delivery service by United States mail at the place so addressed,
or regular communication by United States mail between the place of mailing and
the place so addressed.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on July 15, 2021 at Modesto, California
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF STANISLAUS
By
Angela Segundo, Deputy Clerk
EXHIBITB
Deanna Brummell
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF STANISLAUS
---000---
LARRY B. DIGNES (Decedent) by
and through his
Successors-In-Interest SHEILA M.
LOWE, an individual; LORI M.
KIRCHERT, an individual, Case No.
CV-20-004057
Plaintiffs,
vs.
COVENANT CARE CALIFORNIA, LLC
dba TURLOCK NURSING AND
REHABILITATION CENTER; COVENANT
CARE, LLC, a Delaware
Corporation; and DOES 1 through
50, inclusive,
Defendants.
Videotaped Videoconference Deposition of
DEANNA BRUMMELL
PMK Re: Arbitration Agreements
May 27, 2021
Reported By: ALICIA FORBERG, C.S.R. 12558
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10 57 41 Q Okay. And then what would you do with the comments or
10 57 46 notes that residents would give you?
10 57 48 A I would go directly to our administrator, our ED.
10 57 54 Q Do you think there's copies of any notes that you might
10 57 58 have transcribed with residents' concerns or questions in the
10 58 04 particular resident's file?
10 58 07 A Anything that I had written down would be shredded.
10 58 13 Q Okay. So those notes don't necessarily make their way
10 58 18 into the patient's health record?
10 58 20 10 A They do not.
10 58 22 11 Q Is there any other way to determine whether or not a
10 58 29 12 resident had a question or concern about the admissions
10 58 33 13 paperwork or Dispute Resolution Agreement?
10 58 42 14 A Not on my end, no.
0 5 . . .
10 58 43 15 Q
signature is captured, which you explained to them, and then
what happens?
A I would go over the other parts of the packet.
Q Okay. And then when a resident signs something in PCC,
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10:59:26 1 does PCC save
it?
(10:59:28
2 A Yes.
0 5 . .
(10:59:29
3 Q
(10:59:36 4 scrolling through the documents, and do you explain each
(10:59:40 5 document as you scroll through it?
(10:59:42
6 A Yes,
I do.
10 59:47 7 Q Do you have an estimate in terms of the admissions
10 59 49 8 paperwork, not including the Dispute Resolution Agreement, how
10 59 55 9 many times the resident has to individually sign?
11 00 01 10 A They sign once. There is one part, it's a resident's
11 00 08 11 fund. But I explain to them, if they want to decline that,
11 00 13 12 which the majority of the time, because they are short term
11 00 17 13 patients, they will initial.
11 00 18 14 Q I see. And I'm sorry, my question was bad.
11 00 24 15 So after they sign once and you go through the
11 00 29 16 admissions paperwork, are there places where the resident needs
11 00 33 17 to click to acknowledge that they have -- they've read it,
11 00 38 18 understand it, and put their signature on it?
11 00 41 19 A No.
11 00 42 20 Q So for the entire admissions packet that is somewhere
11 00 48 21 between 75 and 100 pages, the resident only puts their
11 00 54 22 signature in the PCC system once?
11 01 00 23 A Correct.
11 01 01 24 Q So are there any boxes on this electronic record where
11 01 07 25 the resident has to click in order to put their signature
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11:01:12 that's already saved?
11:01:14
‘11:01:223
‘Al:01:24
4 family, and I show them. But I definitely -- when I get to the
(11:01:28
5
(11:01:32
6
11 01 37 Q Okay. I guess what I'm getting at is, I've seen the
11 01 43 admissions packet, or portions of the admissions packet. And
11 01 46 within the admissions packet there is a signature from my
11 01 52 10 client, Mr. Dignes, but it's the same signature, right?
11 01 56 11 Because I think that's how you explained it, one signature is
11 01 59 12 captured at the beginning; right?
11 02 01 13 A Correct.
11 02 01 14 Q And then for the admissions packet only, in every other
11 02 07 15 place where there might be a signature, which there is a
11 02 10 16 handful, maybe five to ten other places, there's a signature,
11 02 13 17 that same signature, does that just autopopulate from the first
11 02 17 18 signature that he input?
11 02 18 19 A Correct.
11 02 20 20 Q And when a patient signs that first signature, does the
11 02 27 21 date also autopopulate for whatever date and time it is that he
11 02 33 22 or she is signing?
11 02 34 23 A Correct.
11 02 35 24 Q So for the admissions packet, every other place where
11 02 39 25 the date, time, and signature appears, that's just
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11:04:40 1 Q Is there anything else you tell them about what
(11:04:44
2 arbitration is?
(11:04:44 30° A If they decided to decline the arbitration -- you just
(11:04:52 4 asked
me about that. Sorry.
(11:04:535 ‘If they would like to arbitrate or go straight to court
(11:04:56 6 and do judge and jury.
(11:04:59
7 Q So you ask the resident what they would want to do?
A I 1 lai . .
(11:05:01
8 A
11 05 06 9 Q Okay. When you go over this Dispute Resolution
11 05 19 10 Agreement, you call it an Arbitration Agreement?
11 05 22 11 A Correct.
11 05 22 12 Q And do you go -- so this Arbitration Agreement,
11 05 28 13 entitled Dispute Resolution Agreement, has six pages total.
11 05 32 14 The last two pages are signature pages. But so really, there's
11 05 39 15 about four pages with paragraphs within the agreement.
11 05 43 16 Do you go through this agreement, paragraph by
11 05 46 17 paragraph, with the resident?
11 05 48 18 A I ask them if they want to. There has been families
11 05 53 19 and patients that do want to read the whole thing.
11 06 04 20 Q But if a resident asks you to go through it paragraph
11 06 06 21 by paragraph, could you explain, paragraph by paragraph, what
11 06 09 22 this agreement means?
11 06 10 23 A Could I explain it? I explain the bottom part when we
11 06 18 24 go over the arbitration.
11 06 19 25 Q Right. But could you explain, for example -- I will
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11 06 25 share my screen so that you can see this. For example, do you
11 06 36 explain what the first paragraph means?
11 06 38 A Can you zoom in a little more?
11 06 43 Q Oh, yeah. Of course. This one that's not numbered.
11 06 54 A The one that's not numbered. This is where I pretty
11 07 07 much explain to them, I ask them what they want to do, I let
11 07 11 them know whatever decision made is final, and I go over judge
11 07 22 and jury with them. I ask them that as well.
11 07 31 Q Okay. So that first paragraph kind of summarizes
11 07 36 10 what -- the totality of what you tell clients, or excuse me,
11 07 41 11 residents; is that right?
11 07 42 12 A Yes.
11 07 42 13 Q Okay. And then if a resident asks you to explain the
11 07 51 14 other paragraphs, and I will represent they are numbered
11 07 55 15 paragraphs 1 through 18, do you explain paragraph by paragraph
11 08 01 16 to a resident if they ask?
11 08 03 17 A I have not had any patients or family ask. If they
11 08 13 18 have read it, they just go over their answer. They have asked
11 08 21 19 if someone in the facility is the mediator. I have been asked
11 08 28 20 that.
11 08 28 21 Q Okay. So you have never been asked by a resident or
11 08 32 22 their family for you to explain each paragraph individually?
11 08 36 23 A I have not.
11 08 37 24 Q Have you ever had a resident or their family decline to
11 08 43 25 sign the Dispute Resolution Agreement?
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11:08:45
(11:08:46
(11:08:52
(11:08:54 A
Q
A
Q
11 09 23 11 Q When you go over the Dispute Resolution Agreement, do
11 09 32 12 you explain to residents that they have to go through the
11 09 36 13 process of mediation before arbitration?
11 09 38 14 A No.
11 09 40 15 Q Do you explain to the residents that arbitration is
11 09 53 16 less expensive than regular court?
11 09 55 17 A Yes.
11 09 57 18 Q Do you know how much arbitration costs?
11 10 03 19 A I do not.
11 10 05 20 Q Do you know under the Dispute Resolution Agreement
11 10 12 21 where arbitration will take place?
11 10 15 22 A I do not.
11 10 16 23 Q Do you know under the Dispute Resolution Agreement
11 10 25 24 which party pays for arbitration? Is it the facility or the
11 10 29 25 resident?
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11 10 30 A It does say in there that the facility will pay partial
11 10 35 fees.
11 10 36 Q Do you know what happens in a situation where a
11 10 43 resident couldn't afford to pay their share of the arbitration
11 10 48 fees?
11 10 48 A No.
11 10 49 Q So you do explain to a resident that they have a right
‘to decline the Arbitration
Agreement; right?
A Correct.
Q Do you tell the resident that they have a right to
rescind or cancel the agreement after signing it?
‘Al:11:16
12 A Yes,
11 11:16 13 Q And what do you tell them in regards to rescinding or
11 11 20 14 canceling?
11 11 20 15 A If they ask, I tell them that they do have 30 days to
11 11 25 16 change their mind. And when they let me know, I would have to
11 11 31 17 write up a letter, and then have it signed by myself and the
11 11 36 18 resident.
11 11 36 19 Q You have to write up a letter if they tell you later,
11 11 43 20 after signing it, that they want to rescind it?
11 11 46 21 A Yes.
11 11 46 22 Q Okay. And just to clarify, you said that you only tell
11 11 51 23 a resident that he or she has a right to rescind it if they
11 11 55 24 ask?
11 11 55 25 A Yes.
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11 17 25 A I have had family of residents ask, and I say yes, you
11 17 32 can.
11 17 32 Q But it's not something that you include within your
11 17 37 initial, kind of speech about here's the Arbitration Agreement.
11 17 42 You don't volunteer that information?
11 17 44 A I do not.
11 17 45 Q So separating out the Dispute Resolution Agreement,
11 17 59 approximately how long did it take you to go over that
11 18 03 agreement?
11 18 03 10 A Depending on questions.
11 18 07 11 Q What's the range, do you think?
11 18 11 12 A Maybe about five minutes.
11 18 23 13 Q So without questions, do you think it would take less
11 18 26 14 than five minutes?
11 18 26 15 A Yes.
11 18 29 16 Q Do you have an estimate as to when you present the
11 18 32 17 Dispute Resolution Agreement to a resident and they don't have
11 18 35 18 any questions, how long would it take to go over that?
11 18 37 19 A Just over the arbitration?
11 18 42 20 Q Uh-huh.
11 18 43 21 A About three minutes or so.
11 18 47 22
where they can initial to decline; is that right?
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11:19:12 A Correct.
(1l:19:13
(11:19:20
(1:19:24
Okay. Yeah. So walk me through how that happens. For
documents. When you're going through the documents, does that
No. I have to click on there for them to populate the
Okay. So you then click on -- is there a box you
MR.
SCHROEDER:
Is that yes?
‘THE WITNESS: It's not -- let me verify. It's not a
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11:20:34 1 box, it's like a line.
(11:20:392 MS. MARTUCCI: Thank
you, Matthew.
(11:20:41
3° BY MS. MARTUCCI:
(11:20:41
4 Q
(11:20:42
5
(11:20:46 6 signature populates on that line?
(11:20:47
7 A Correct.
11 20 53 8 Q And when you're going through the documents, I see a
11 20 59 9 signature often for a resident, and then your signature. Do
11 21 01 10 you also have to click on the line for your signature to
11 21 04 11 autopopulate?
11 21 05 12 A When I'm done with the packet -- I have to do the
11 21 11 13 resident's first, and when they are done signing, I go and do
11 21 15 14 my part afterwards.
11 21 20 15 Q Okay. So do you do that when you thank the resident,
11 21 23 16 you know, thanks for your time, you go to your office, and you
11 21 26 17 do that, or do you do that bedside with the resident?
11 21 29 18 A I tell them thank you for your time, do you have any
11 21 33 19 more concerns, questions, and then I go back to the office and
11 21 37 20 finish it.
11 21 39 21 Q Okay. And there is a -- on the dispute resolution
11 21 47 22 document that is attached to your declaration where your
11 21 50 23 signature is, and Mr. Dignes's signature is, there is a date,
11 21 55 24 and on the date for both lines it says August 15th, 2019, G as
11 22 03 25 in girl, Mas in Mary, T as in Tom. GMT.
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11 50 19 A Yes. We have to be trained on that to be able to know
11 50 26 what you're doing.
11 50 26 Q Right. Yeah. So was that training -- did that
11 50 32 training occur when you first started working for Turlock
11 50 36 Nursing in July of 2017, or did you get trained on that at a
11 50 39 later point?
11 50 40 A You froze.
11 50 44 I got trained when I started working there, yes.
0 A f ae .
11 50 46 Q
discuss the security features of the PCC system?
MR. SCHROEDER: Vague.
THE WITNESS: We all have our own access, and passwords
to the system.
BY
MARTUCCI:
MS.
Q Okay. So as part of the security features, each
(11:51:13
16 employee has their own credentials to access the system; right?
(11:51:16
17 A Correct.
11 51:17 18 Q Did anyone ever train you on the procedures or systems
11 51 24 19 in place to ensure that signatures are kept secure? Meaning,
11 51 32 20 did anyone ever train you on whether or not signatures can be
11 51 35 21 changed?
11 51 39 22 A No.
11 51 40 23 Q And that was kind of a bad question as well.
11 51 45 24 So what I'm getting at is, no one at Turlock Nursing
11 51 49 25 ever trained you or informed you on the process by which the
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11 51 55 PCC system, including documents within that system, are kept
11 51 59 secure?
11 52 00 A They went over saying, yes, it is a secure system.
11 52 10 Q But you weren't ever specifically trained on the
11 52 15 security features related to document retention or signatures
11 52 20 within documents; correct?
11 52 24 A I don't think I quite understand your question, as far
11 52 27 as, like, training.
11 52 29 Q So when you did your PCC training, when someone told
11 52 38 10 you this is how you use PCC, and it probably took place over a
11 52 41 11 period of time, within that training, did anyone ever discuss
11 52 45 12 that there are features that keep documents secure within PCC?
11 52 54 13 A No.
11 52 54 14 Q Did anyone ever discuss during the PCC training that
11 53 01 15 there are specific security features related to signatures,
11 53 05 16 electronic signatures within documents, that are utilized to
11 53 08 17 keep -- to ensure the security of signatures?
11 53 14 18 A No.
11 53:19 19 Q ‘So you don't have independent knowledge of the security
(11:53:30
20 ‘systems or procedures in place that ensure that a signature
(11:53:37
21 from a resident is, in fact, that resident's signature?
(11:53:42
22 A When I sign with a patient, I see it right there with
my eyes that they signed, and it documents it and saves it.
24 Q Got it.
A So it cannot
be changed.
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11:57:17 agreements either signed by you or signed by my client,
11:57:20 Mr. Dignes, they are not in your possession; right?
11:57:22 A They are not. Everything is at the facility in the
11:57:28 system.
0 i 10 f . u . il
11:57:28 Q
(11:57:33
(11:57:35 Do you know what an audit trail log is?
(11:57:40
if there was any mistakes, what have you. So that would be
Okay. So one -- okay. So there might be an audit
A Correct.
11 58:14 17 Q So what No. 10 is getting at, though, is -- and if you
11 58 20 18 don't know the answer to this, that's perfectly fine. Do you
11 58 23 19 know whether there is a document that shows whoever -- that
11 58 27 20 shows anyone who has either accessed or edited documents in the
11 58 33 21 PCC system regarding my client?
11 58 35 22 A Can you rephrase the question again?
11 58 39 23 Q Definitely.
11 58 40 24 So do you know whether a document exists -- and it
11 58 46 25 might be called an audit trail log, and it would be from the
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11 58 50 PCC system, and it would show anyone who has accessed or viewed
11 58 56 any Arbitration Agreement or admissions paperwork for my
11 59 00 client. Do you know whether that exists?
11 59 02 A I do not.
11 59 07 Q No. 11 asks for a job description for your job in 2019.
11 59 12 But you don't have that in your possession; right?
11 59 14 A I do not have any paperwork with me at all.
11 59 17 Q That's okay. So No. 12, a copy of your most recent
11 59 22 resumé, you didn't produce that today; right?
11 59 24 10 A I did not. No.
11 59 26 11 Q Just give me one second here.
11 59 37 12 Okay. So let's go back to Mr. Dignes more
11 59 40 13 specifically.
11 59 41 14 So your declaration indicated that on August 15th you
11 59 48 15 went to -- strike that.
11 59 51 16 Exhibit A of your declaration is the Arbitration
11 59 57 17 Agreement. And it shows that it was signed on August 15th of
12 00 00 18 2019 by Mr. Dignes and you.
12 00 03 19 So you recall going to Mr. Dignes's bedside on
August 15th of 2019; right?
A Right.
Q Do you remember presenting the Admissions Agreement and
Arbitration Agreement to him?
A Ido.
Q Do you remember what you said to him in regards to the
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12:00:27
(12:00:32
(12:00:33 Word to word, I do not remember.
Preview
JOHN L. SUPPLE (SBN 94582) Electronically Filed Jsupple@jsupplelaw.com 9/28/2021 3:15 PM ROBERT R. DEERING (SBN 258043) Superior Court of California rdeering@jsupplelaw.com County of Stanislaus MATTHEW SCHROEDER (SBN 273361) mschroeder@jsupplelaw.com Clerk of the Court J SUPPLE LAW By: Sonia Krohn, Deputy A Professional Corporation 990 Fifth Avenue San Rafael, CA 94901 Telephone: (415) 366-5533 Facsimile: (415) 480-6301 Attorneys for Defendants COVENANT CARE CALIFORNIA, LLC dba TURLOCK NURSING AND REHABILITATION CENTER; COVENANT CARE, LLC 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 IN AND FOR THE COUNTY OF STANISLAUS 12 2s ~ 3Ba LARRY B. DIGNES (Decedent) by and through his Case No. CV-20-004057 a 13 Successors-In-Interest SHEILA M. LOWE, an atU ase 14 individual; LORI M. KIRCHERT, an individual DECLARATION OF MATTHEW aes SCHROEDER IN SUPPORT OF Bos 2s an 15 Plaintiff, MOTION TO COMPEL ARBITRATION 16 vs. Accompanying Documents: 17 COVENANT CARE CALIFORNIA, LLC dba 1) Supplemental Brief 18 TURLOCK NURSING AND REHABILITATION 2) Declaration of Cristina Lewis CENTER; COVENANT CARE, LLC, a Delaware 3) Proof of Service 19 Corporation; and DOES | through 50, inclusive, Date: October 22, 2021 20 Defendants. Time: 8:30 a.m. 21 Dept.: 24 Judge: Sonny S. Sandhu 22 23 Complaint Filed: September 18, 2020 24 25 26 27 28 1 DECLARATION OF MATTHEW SCHROEDER IN SUPPORT OF MOTION TO COMPEL ARBITRATION I, Matthew Schroeder declare that: 1 I am an attorney at law duly admitted and licensed to practice law before all courts in the State of California and am an associate with the law firm ofJ Supple Law, P.C., attorneys of record for Defendants COVENANT CARE CALIFORNIA, LLC dba TURLOCK NURSING AND REHABILITATION CENTER and COVENANT CARE, LLC (collectively, “Defendants”). I am personally familiar with the facts set forth herein, which are stated upon my personal knowledge. If called upon to do so, I would competently testify as to the following. 2 On July 7, 2021, the Court issued a Tentative Ruling in advance of the July 8, 2021 hearing of Defendants’ Motion to Compel Arbitration. The Court’s Tentative Ruling, which was 10 accessed via the Court’s website by my office at approximately 1:37 p.m. on July 7, 2021, read 11 verbatim as follows: 12 2s ~ 3Ba CV-20-004057 — DIGNES, LARRY B vs COVENANT CARE CALIFORNIA a 13 LLC - Defendants’ Motion to Compel Arbitration — DENIED, objections overruled atU as irrelevant to the court’s ruling. 14 The court finds defendant has failed to show that decedent chose arbitration when 15 he completed the forms in the admission packet and executed the arbitration agreement. While Ms. Brummel has provided evidence that she solicited an 16 electronic signature from decedent on the arbitration agreement, she does not clearly indicate whether decedent elected to agree to arbitration or declined to agree 17 to arbitration. For that information, Ms. Brummel appears to need to consult the actual arbitration agreement that is in decedent’s file. However, Ms. Brummel was 18 not able to provide enough information about the computer system that stores the resident’s electronic records to allow the court to infer that the option indicated in 19 the form that is located in decedent’s file was the option decedent himself chose. (See, e.g., Fabian v. Renovate America, Inc. (2019) 42 Cal.App.Sth 1062, Ruiz v. 20 Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836.) 21 3 Attached hereto as Exhibit A is a true and correct copy of the Court’s July 15, 2021 22 Minute Order requesting further briefing and/or presentation of evidence in support of Defendants” 23 Motion to Compel Arbitration to “authenticate decedent’s signature on the arbitration clause that 24 is subject of the petition.” 25 4. Attached hereto as Exhibit B are true and correct copies of highlighted excerpts of] 26 the Deposition Transcript of Deanna Brummell. 27 Mil 28 Mil -2- DECLARATION OF MATTHEW SCHROEDER IN SUPPORT OF MOTION TO COMPEL ARBITRATION I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 28" day of September 2021 at San Rafael, California. MATTHEW SCHROEDER 10 11 12 2s ~ 3Ba a 13 atU 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- DECLARATION OF MATTHEW SCHROEDER IN SUPPORT OF MOTION TO COMPEL ARBITRATION EXHIBITA SUPERIOR COURT OF CALIFORNIA, COUNTY OF STANISLAUS COVENANT CARE CALIFORNIA LLC, LARRY DIGNES, et al. et al. vs Plaintiff (s) Defendant (s) CASE NO.: CV-20-004057 JUDGE: SONNY S. SANDHU Date: 07/15/2021 Clerk: A. Segundo Modesto, California Ruling on Defendants’ Motion to Compel Arbitration This matter came on calendar for law & motion on July 8, 2021. After consideration of oral arguments, the Court took the matter under submission and hereby rules as follows: Having taken under submission Defendant’s petition to compel arbitration, and having had representations at that hearing that additional evidence could be produced to authenticate decedent's signature on the arbitration clause that is the subject of the petition, the court continues this matter for further briefing and/or presentation of evidence. The next hearing will occur on October 22, 2021 at 8:30 a.m. in Department 24. Defendant may file a new brief, which may present previously undisclosed evidence, no later than 15 court days before the continued hearing. Plaintiff may respond to that brief no later than 5 court days before the continued hearing. Plaintiff may also introduce new evidence if necessary. No reply to plaintiff's brief will be considered. MINUTE ORDER Page 1 PROOF OF SERVICE BY MAIL (1013a(3) C.C.P.] STATE OF CALIFORNIA ) ) ss COUNTY OF STANISLAUS) I am over the age of 18 years and employed by the Superior Court of the State of California, County of Stanislaus, and not a party to the within action. I certify that I served a copy of the attached RULING DATED 07/15/2021 by placing said copy in an envelope addressed to the following: Virginia Martucci, Esq. YORK LAW CORPORATION 1111 Exposition Blvd., Bldg. 500 Sacramento, CA 95815 Matthew Schroeder, Esq. J SUPPLE LAW 990 Fifth Avenue San Rafael, CA 94901 Paid envelope was then sealed and postage thereon fully prepaid, and thereafter was on July 15, 2021 deposited in the United States mail at Modesto, California. That there is delivery service by United States mail at the place so addressed, or regular communication by United States mail between the place of mailing and the place so addressed. I declare under penalty of perjury that the foregoing is true and correct. Executed on July 15, 2021 at Modesto, California SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF STANISLAUS By Angela Segundo, Deputy Clerk EXHIBITB Deanna Brummell SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF STANISLAUS ---000--- LARRY B. DIGNES (Decedent) by and through his Successors-In-Interest SHEILA M. LOWE, an individual; LORI M. KIRCHERT, an individual, Case No. CV-20-004057 Plaintiffs, vs. COVENANT CARE CALIFORNIA, LLC dba TURLOCK NURSING AND REHABILITATION CENTER; COVENANT CARE, LLC, a Delaware Corporation; and DOES 1 through 50, inclusive, Defendants. Videotaped Videoconference Deposition of DEANNA BRUMMELL PMK Re: Arbitration Agreements May 27, 2021 Reported By: ALICIA FORBERG, C.S.R. 12558 Page1 University Reporters 916-567-1550 Deanna Brummell 10 57 41 Q Okay. And then what would you do with the comments or 10 57 46 notes that residents would give you? 10 57 48 A I would go directly to our administrator, our ED. 10 57 54 Q Do you think there's copies of any notes that you might 10 57 58 have transcribed with residents' concerns or questions in the 10 58 04 particular resident's file? 10 58 07 A Anything that I had written down would be shredded. 10 58 13 Q Okay. So those notes don't necessarily make their way 10 58 18 into the patient's health record? 10 58 20 10 A They do not. 10 58 22 11 Q Is there any other way to determine whether or not a 10 58 29 12 resident had a question or concern about the admissions 10 58 33 13 paperwork or Dispute Resolution Agreement? 10 58 42 14 A Not on my end, no. 0 5 . . . 10 58 43 15 Q signature is captured, which you explained to them, and then what happens? A I would go over the other parts of the packet. Q Okay. And then when a resident signs something in PCC, Page 35 University Reporters 916-567-1550 Deanna Brummell 10:59:26 1 does PCC save it? (10:59:28 2 A Yes. 0 5 . . (10:59:29 3 Q (10:59:36 4 scrolling through the documents, and do you explain each (10:59:40 5 document as you scroll through it? (10:59:42 6 A Yes, I do. 10 59:47 7 Q Do you have an estimate in terms of the admissions 10 59 49 8 paperwork, not including the Dispute Resolution Agreement, how 10 59 55 9 many times the resident has to individually sign? 11 00 01 10 A They sign once. There is one part, it's a resident's 11 00 08 11 fund. But I explain to them, if they want to decline that, 11 00 13 12 which the majority of the time, because they are short term 11 00 17 13 patients, they will initial. 11 00 18 14 Q I see. And I'm sorry, my question was bad. 11 00 24 15 So after they sign once and you go through the 11 00 29 16 admissions paperwork, are there places where the resident needs 11 00 33 17 to click to acknowledge that they have -- they've read it, 11 00 38 18 understand it, and put their signature on it? 11 00 41 19 A No. 11 00 42 20 Q So for the entire admissions packet that is somewhere 11 00 48 21 between 75 and 100 pages, the resident only puts their 11 00 54 22 signature in the PCC system once? 11 01 00 23 A Correct. 11 01 01 24 Q So are there any boxes on this electronic record where 11 01 07 25 the resident has to click in order to put their signature Page 36 University Reporters 916-567-1550 Deanna Brummell 11:01:12 that's already saved? 11:01:14 ‘11:01:223 ‘Al:01:24 4 family, and I show them. But I definitely -- when I get to the (11:01:28 5 (11:01:32 6 11 01 37 Q Okay. I guess what I'm getting at is, I've seen the 11 01 43 admissions packet, or portions of the admissions packet. And 11 01 46 within the admissions packet there is a signature from my 11 01 52 10 client, Mr. Dignes, but it's the same signature, right? 11 01 56 11 Because I think that's how you explained it, one signature is 11 01 59 12 captured at the beginning; right? 11 02 01 13 A Correct. 11 02 01 14 Q And then for the admissions packet only, in every other 11 02 07 15 place where there might be a signature, which there is a 11 02 10 16 handful, maybe five to ten other places, there's a signature, 11 02 13 17 that same signature, does that just autopopulate from the first 11 02 17 18 signature that he input? 11 02 18 19 A Correct. 11 02 20 20 Q And when a patient signs that first signature, does the 11 02 27 21 date also autopopulate for whatever date and time it is that he 11 02 33 22 or she is signing? 11 02 34 23 A Correct. 11 02 35 24 Q So for the admissions packet, every other place where 11 02 39 25 the date, time, and signature appears, that's just Page 37 University Reporters 916-567-1550 Deanna Brummell 11:04:40 1 Q Is there anything else you tell them about what (11:04:44 2 arbitration is? (11:04:44 30° A If they decided to decline the arbitration -- you just (11:04:52 4 asked me about that. Sorry. (11:04:535 ‘If they would like to arbitrate or go straight to court (11:04:56 6 and do judge and jury. (11:04:59 7 Q So you ask the resident what they would want to do? A I 1 lai . . (11:05:01 8 A 11 05 06 9 Q Okay. When you go over this Dispute Resolution 11 05 19 10 Agreement, you call it an Arbitration Agreement? 11 05 22 11 A Correct. 11 05 22 12 Q And do you go -- so this Arbitration Agreement, 11 05 28 13 entitled Dispute Resolution Agreement, has six pages total. 11 05 32 14 The last two pages are signature pages. But so really, there's 11 05 39 15 about four pages with paragraphs within the agreement. 11 05 43 16 Do you go through this agreement, paragraph by 11 05 46 17 paragraph, with the resident? 11 05 48 18 A I ask them if they want to. There has been families 11 05 53 19 and patients that do want to read the whole thing. 11 06 04 20 Q But if a resident asks you to go through it paragraph 11 06 06 21 by paragraph, could you explain, paragraph by paragraph, what 11 06 09 22 this agreement means? 11 06 10 23 A Could I explain it? I explain the bottom part when we 11 06 18 24 go over the arbitration. 11 06 19 25 Q Right. But could you explain, for example -- I will Page 39 University Reporters 916-567-1550 Deanna Brummell 11 06 25 share my screen so that you can see this. For example, do you 11 06 36 explain what the first paragraph means? 11 06 38 A Can you zoom in a little more? 11 06 43 Q Oh, yeah. Of course. This one that's not numbered. 11 06 54 A The one that's not numbered. This is where I pretty 11 07 07 much explain to them, I ask them what they want to do, I let 11 07 11 them know whatever decision made is final, and I go over judge 11 07 22 and jury with them. I ask them that as well. 11 07 31 Q Okay. So that first paragraph kind of summarizes 11 07 36 10 what -- the totality of what you tell clients, or excuse me, 11 07 41 11 residents; is that right? 11 07 42 12 A Yes. 11 07 42 13 Q Okay. And then if a resident asks you to explain the 11 07 51 14 other paragraphs, and I will represent they are numbered 11 07 55 15 paragraphs 1 through 18, do you explain paragraph by paragraph 11 08 01 16 to a resident if they ask? 11 08 03 17 A I have not had any patients or family ask. If they 11 08 13 18 have read it, they just go over their answer. They have asked 11 08 21 19 if someone in the facility is the mediator. I have been asked 11 08 28 20 that. 11 08 28 21 Q Okay. So you have never been asked by a resident or 11 08 32 22 their family for you to explain each paragraph individually? 11 08 36 23 A I have not. 11 08 37 24 Q Have you ever had a resident or their family decline to 11 08 43 25 sign the Dispute Resolution Agreement? Page 40 University Reporters 916-567-1550 Deanna Brummell 11:08:45 (11:08:46 (11:08:52 (11:08:54 A Q A Q 11 09 23 11 Q When you go over the Dispute Resolution Agreement, do 11 09 32 12 you explain to residents that they have to go through the 11 09 36 13 process of mediation before arbitration? 11 09 38 14 A No. 11 09 40 15 Q Do you explain to the residents that arbitration is 11 09 53 16 less expensive than regular court? 11 09 55 17 A Yes. 11 09 57 18 Q Do you know how much arbitration costs? 11 10 03 19 A I do not. 11 10 05 20 Q Do you know under the Dispute Resolution Agreement 11 10 12 21 where arbitration will take place? 11 10 15 22 A I do not. 11 10 16 23 Q Do you know under the Dispute Resolution Agreement 11 10 25 24 which party pays for arbitration? Is it the facility or the 11 10 29 25 resident? Page 41 University Reporters 916-567-1550 Deanna Brummell 11 10 30 A It does say in there that the facility will pay partial 11 10 35 fees. 11 10 36 Q Do you know what happens in a situation where a 11 10 43 resident couldn't afford to pay their share of the arbitration 11 10 48 fees? 11 10 48 A No. 11 10 49 Q So you do explain to a resident that they have a right ‘to decline the Arbitration Agreement; right? A Correct. Q Do you tell the resident that they have a right to rescind or cancel the agreement after signing it? ‘Al:11:16 12 A Yes, 11 11:16 13 Q And what do you tell them in regards to rescinding or 11 11 20 14 canceling? 11 11 20 15 A If they ask, I tell them that they do have 30 days to 11 11 25 16 change their mind. And when they let me know, I would have to 11 11 31 17 write up a letter, and then have it signed by myself and the 11 11 36 18 resident. 11 11 36 19 Q You have to write up a letter if they tell you later, 11 11 43 20 after signing it, that they want to rescind it? 11 11 46 21 A Yes. 11 11 46 22 Q Okay. And just to clarify, you said that you only tell 11 11 51 23 a resident that he or she has a right to rescind it if they 11 11 55 24 ask? 11 11 55 25 A Yes. Page 42 University Reporters 916-567-1550 Deanna Brummell 11 17 25 A I have had family of residents ask, and I say yes, you 11 17 32 can. 11 17 32 Q But it's not something that you include within your 11 17 37 initial, kind of speech about here's the Arbitration Agreement. 11 17 42 You don't volunteer that information? 11 17 44 A I do not. 11 17 45 Q So separating out the Dispute Resolution Agreement, 11 17 59 approximately how long did it take you to go over that 11 18 03 agreement? 11 18 03 10 A Depending on questions. 11 18 07 11 Q What's the range, do you think? 11 18 11 12 A Maybe about five minutes. 11 18 23 13 Q So without questions, do you think it would take less 11 18 26 14 than five minutes? 11 18 26 15 A Yes. 11 18 29 16 Q Do you have an estimate as to when you present the 11 18 32 17 Dispute Resolution Agreement to a resident and they don't have 11 18 35 18 any questions, how long would it take to go over that? 11 18 37 19 A Just over the arbitration? 11 18 42 20 Q Uh-huh. 11 18 43 21 A About three minutes or so. 11 18 47 22 where they can initial to decline; is that right? Page 46 University Reporters 916-567-1550 Deanna Brummell 11:19:12 A Correct. (1l:19:13 (11:19:20 (1:19:24 Okay. Yeah. So walk me through how that happens. For documents. When you're going through the documents, does that No. I have to click on there for them to populate the Okay. So you then click on -- is there a box you MR. SCHROEDER: Is that yes? ‘THE WITNESS: It's not -- let me verify. It's not a Page 47 University Reporters 916-567-1550 Deanna Brummell 11:20:34 1 box, it's like a line. (11:20:392 MS. MARTUCCI: Thank you, Matthew. (11:20:41 3° BY MS. MARTUCCI: (11:20:41 4 Q (11:20:42 5 (11:20:46 6 signature populates on that line? (11:20:47 7 A Correct. 11 20 53 8 Q And when you're going through the documents, I see a 11 20 59 9 signature often for a resident, and then your signature. Do 11 21 01 10 you also have to click on the line for your signature to 11 21 04 11 autopopulate? 11 21 05 12 A When I'm done with the packet -- I have to do the 11 21 11 13 resident's first, and when they are done signing, I go and do 11 21 15 14 my part afterwards. 11 21 20 15 Q Okay. So do you do that when you thank the resident, 11 21 23 16 you know, thanks for your time, you go to your office, and you 11 21 26 17 do that, or do you do that bedside with the resident? 11 21 29 18 A I tell them thank you for your time, do you have any 11 21 33 19 more concerns, questions, and then I go back to the office and 11 21 37 20 finish it. 11 21 39 21 Q Okay. And there is a -- on the dispute resolution 11 21 47 22 document that is attached to your declaration where your 11 21 50 23 signature is, and Mr. Dignes's signature is, there is a date, 11 21 55 24 and on the date for both lines it says August 15th, 2019, G as 11 22 03 25 in girl, Mas in Mary, T as in Tom. GMT. Page 48 University Reporters 916-567-1550 Deanna Brummell 11 50 19 A Yes. We have to be trained on that to be able to know 11 50 26 what you're doing. 11 50 26 Q Right. Yeah. So was that training -- did that 11 50 32 training occur when you first started working for Turlock 11 50 36 Nursing in July of 2017, or did you get trained on that at a 11 50 39 later point? 11 50 40 A You froze. 11 50 44 I got trained when I started working there, yes. 0 A f ae . 11 50 46 Q discuss the security features of the PCC system? MR. SCHROEDER: Vague. THE WITNESS: We all have our own access, and passwords to the system. BY MARTUCCI: MS. Q Okay. So as part of the security features, each (11:51:13 16 employee has their own credentials to access the system; right? (11:51:16 17 A Correct. 11 51:17 18 Q Did anyone ever train you on the procedures or systems 11 51 24 19 in place to ensure that signatures are kept secure? Meaning, 11 51 32 20 did anyone ever train you on whether or not signatures can be 11 51 35 21 changed? 11 51 39 22 A No. 11 51 40 23 Q And that was kind of a bad question as well. 11 51 45 24 So what I'm getting at is, no one at Turlock Nursing 11 51 49 25 ever trained you or informed you on the process by which the Page 61 University Reporters 916-567-1550 Deanna Brummell 11 51 55 PCC system, including documents within that system, are kept 11 51 59 secure? 11 52 00 A They went over saying, yes, it is a secure system. 11 52 10 Q But you weren't ever specifically trained on the 11 52 15 security features related to document retention or signatures 11 52 20 within documents; correct? 11 52 24 A I don't think I quite understand your question, as far 11 52 27 as, like, training. 11 52 29 Q So when you did your PCC training, when someone told 11 52 38 10 you this is how you use PCC, and it probably took place over a 11 52 41 11 period of time, within that training, did anyone ever discuss 11 52 45 12 that there are features that keep documents secure within PCC? 11 52 54 13 A No. 11 52 54 14 Q Did anyone ever discuss during the PCC training that 11 53 01 15 there are specific security features related to signatures, 11 53 05 16 electronic signatures within documents, that are utilized to 11 53 08 17 keep -- to ensure the security of signatures? 11 53 14 18 A No. 11 53:19 19 Q ‘So you don't have independent knowledge of the security (11:53:30 20 ‘systems or procedures in place that ensure that a signature (11:53:37 21 from a resident is, in fact, that resident's signature? (11:53:42 22 A When I sign with a patient, I see it right there with my eyes that they signed, and it documents it and saves it. 24 Q Got it. A So it cannot be changed. Page 62 University Reporters 916-567-1550 Deanna Brummell 11:57:17 agreements either signed by you or signed by my client, 11:57:20 Mr. Dignes, they are not in your possession; right? 11:57:22 A They are not. Everything is at the facility in the 11:57:28 system. 0 i 10 f . u . il 11:57:28 Q (11:57:33 (11:57:35 Do you know what an audit trail log is? (11:57:40 if there was any mistakes, what have you. So that would be Okay. So one -- okay. So there might be an audit A Correct. 11 58:14 17 Q So what No. 10 is getting at, though, is -- and if you 11 58 20 18 don't know the answer to this, that's perfectly fine. Do you 11 58 23 19 know whether there is a document that shows whoever -- that 11 58 27 20 shows anyone who has either accessed or edited documents in the 11 58 33 21 PCC system regarding my client? 11 58 35 22 A Can you rephrase the question again? 11 58 39 23 Q Definitely. 11 58 40 24 So do you know whether a document exists -- and it 11 58 46 25 might be called an audit trail log, and it would be from the Page 65 University Reporters 916-567-1550 Deanna Brummell 11 58 50 PCC system, and it would show anyone who has accessed or viewed 11 58 56 any Arbitration Agreement or admissions paperwork for my 11 59 00 client. Do you know whether that exists? 11 59 02 A I do not. 11 59 07 Q No. 11 asks for a job description for your job in 2019. 11 59 12 But you don't have that in your possession; right? 11 59 14 A I do not have any paperwork with me at all. 11 59 17 Q That's okay. So No. 12, a copy of your most recent 11 59 22 resumé, you didn't produce that today; right? 11 59 24 10 A I did not. No. 11 59 26 11 Q Just give me one second here. 11 59 37 12 Okay. So let's go back to Mr. Dignes more 11 59 40 13 specifically. 11 59 41 14 So your declaration indicated that on August 15th you 11 59 48 15 went to -- strike that. 11 59 51 16 Exhibit A of your declaration is the Arbitration 11 59 57 17 Agreement. And it shows that it was signed on August 15th of 12 00 00 18 2019 by Mr. Dignes and you. 12 00 03 19 So you recall going to Mr. Dignes's bedside on August 15th of 2019; right? A Right. Q Do you remember presenting the Admissions Agreement and Arbitration Agreement to him? A Ido. Q Do you remember what you said to him in regards to the Page 66 University Reporters 916-567-1550 Deanna Brummell 12:00:27 (12:00:32 (12:00:33 Word to word, I do not remember.