Preview
JOHN L. SUPPLE (SBN: 94582)
jsupple@jsupplelaw.com
ROBERT R. DEERING (SBN: 258043)
rdeering( jsupplelaw.com
BRIAN S. COHEN (SBN 316427) Electronically Filed
bcohen@jsupplelaw.com 3/12/2021 8:22 PM
J SUPPLE LAW Superior Court of California
A Professional Corporation County of Stanislaus
990 Fifth Avenue Clerk of the Court
San Rafael, CA 94901
By: Christine Zulim, Deputy
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
- 2 LARRY B. DIGNES (Decedent) by and through Case No. CV-20-004057
13 his Successors-In-Interest SHEILA M. LOWE, an
ait
ae ‘individual; LORI M. KIRCHERT, an individual DECLARATION OF DEANNA
14
oS
Du oe BRUMMELL IN SUPPORT OF
RS Plaintiff, MOTION TO COMPEL
Da
naan
15
ARBITRATION
16 vs.
Accompanying Documents:
17 COVENANT CARE CALIFORNIA, LLC dba (1) Notice and Motion;
18 TURLOCK NURSING AND (2) Memorandum of Points & Authorities;
REHABILITATION CENTER; COVENANT (3) Declaration of Brian S. Cohen:
19 CARE, LLC, a Delaware Corporation; and (4) [Proposed] Order; and
DOES 1 through 50, inclusive, (5S) Proof of Service
20
Defendants.
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22 Date: April 21, 2021
Time: 8:30 a.m.
23 Dept: 24
Judge: Sonny S. Sandhu
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Complaint Filed: September 18, 2020
27
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DECLARATION OF DEANNA BRUMMELL IN SUPPORT OF MOTION
TO COMPEL ARBITRATION
I, Deanna Brummell declare that:
1 I have been employed by Defendant COVENANT CARE CALIFORNIA, LLC
dba TURLOCK NURSING AND REHABILITATION CENTER (“Turlock”) since July 2017.
My job title is Admission Coordinator and I have been in that position since July 2017. If called
as a witness, I could and would competently testify to the following facts based on my own
personal knowledge.
2 As part of my job duties as Admission Coordinator at Turlock, I am responsible
for presenting, upon a resident’s admission to the nursing home, various nursing home admission
documents to residents and/or their legal representatives. These documents include, but are not
10 limited to, the California Standard Admission Agreement for skilled Nursing Facilities and
11 Intermediate Care Facilities (“Admission Agreement”) and the Resident-Facility Arbitration
12 Agreement (“Arbitration Agreement”). My job includes explaining the various admission
od
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aect
13 documents, including the Arbitration Agreement, to residents and/or their legal representatives.
wto
ne 14 Part of the procedure includes giving the resident and/or his/her legal representative an
we
ou Be
ee 15 opportunity to review and ask questions about the Admission Agreement and Arbitration
anes
16 Agreement.
17 3 In 2019, Turlock was using a Cloud computer system called “PCC” for the
18 Admission Agreement and Arbitration Agreement. The resident and/or his or her representative
19 would sit down next to me, with the computer screen in front of us, and we would review each
20 section of the Admission Agreement and Arbitration Agreement together.
21 4 Under Turlock’s procedure, my job requirement has at all times included
22 informing new residents, and/or their legal representatives, that signing the Arbitration
23 Agreement is optional and that the resident, or his or her legal representative, does not have to
24 sign the Arbitration Agreement as a condition for the resident’s admission to Turlock, as stated
25 in bold font at the top of page one of the Arbitration Agreement. After the resident or his or her
26 legal representative has had an opportunity to read and review the Arbitration Agreement, the
27 resident or his or her agent voluntarily either refuses or agrees to Arbitration.
28
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DECLARATION OF DEANNA BRUMMELL IN SUPPORT OF MOTION TO COMPEL ARBITRATION
5 I recall that on August 15, 2019, I went through the Admission packet and
Arbitration Agreement with Larry Dignes at the time he was admitted to the facility. Mr. Dignes
never gave any indication that he did not understand the terms of the Admission Agreement or
Arbitration Agreement or that he was not voluntarily signing the Arbitration Agreement.
6 A true and correct copy of the Arbitration Agreement between Larry Dignes and
Turlock, which bears the date August 15, 2019 and was retrieved from the “PCC” document
system is attached hereto as Exhibit A and incorporated herein by reference. I routinely access
electronic files from the “PCC” document system in the course of normal business at Turlock.
7 A true and correct copy of the Admission Agreement dated August 15, 2019.
10 retrieved from the “PCC” document system is attached hereto as Exhibit B.
ll 8 As Admission Coordinator, I am familiar with Turlock’s policies and practices
12 regarding sources of compensation for services provided to residents. Turlock has been a
oS
osao
tet
13 Medicare and Medi-Cal certified provider throughout 2019 until the present, including during
4t0
ase 14 Mr. Dignes’s residency at Turlock. As disclosed by Mr. Dignes’s admission records at Turlock,
w=
oe ee
se 1S Medicare was the primary payer to Turlock for services provided to him.
Ads
16 9. I am also familiar with some of the products purchased by Turlock and used in
17 providing services to residents, which includes food purchased from Sysco Corporation and
18 office supplies purchased from Office Depot
19 I declare under penalty of perjury under the laws of the State of California that the
20 foregoing is true and correct.
21 Executed hice” day of February atat \way lo ; California.
Care buunnr all
22
23
DEANNA BRUMMELL
24
FADIGNES v Turlock Nursing\Motions\Motion to Compel Arbitration\DIGNES ~ Dec of Deanna Brummell.docx.
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26
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3.
DECLARATION OF DEANNA BRUMMELL IN SUPPORT OF MOTION TO COMPEL ARBITRATION
EXHIBIT A
Residents shall not be required to sign this arbitration
agreement as a condition of admission to this facility.
Resident Name (“Resident”) Facility Name (“Facility”)
DIGNES, LARRY Turlock Nursing and Rehab Center - SNF
DISPUTE RESOLUTION AGREEMENT
(Read Carefully - Not Part of Admission Agreement)
By signing this Agreement, Resident and Facility (together, the “Parties,” and each as defined in
paragraph 5) choose to meet and confer in good faith discussions to try to resolve the dispute
and then mediate the dispute. If both discussions and mediation are unsuccessful, the Parties
agree to have any and all Disputes that would be adjudicated by a court absent this Agreement
resolved by arbitration, which involves a private third party determining the outcome of a
Dispute instead of a court (judge or jury). The Parties acknowledge that the process of
discussions, followed by mediation, followed by arbitration is ofien more efficient, less expensive
and less contentious for both Parties than presentation to a court.
1. The Parties agree to engage in good faith discussions with each other to try to
resolve any Dispute, described in paragraph 6. Resident or his/her Agent or Legal
Representative will notify the Administrator of Facility, and if Facility has the Dispute, Facility
will notify Resident or his/her Agent or Legal Representative, in writing, regarding the specific
nature of the Dispute. The written Notice should include details regarding the incident(s) or
circumstance(s) that is the subject of the Dispute. If possible, the details should include dates,
times, a description of the incident(s) or circumstance(s), and identification of the individuals
involved.
2. If, after 60 days after the Notice was sent to the other party, the Dispute cannot be
resolved by such good faith discussions, Resident and Facility agree to submit the Dispute to
mediation, which will be conducted in the county in which Facility is located. In mediation, the
Parties will choose a neutral third party, generally a lawyer or retired judge, to assist the Parties
in a negotiation of their Dispute. Mediation usually takes one day or less. Either Party may
nominate a mediator and the Parties will work in good faith to agree upon a mediator. Facility
will pay for the cost of the mediator, unless Resident expresses in writing that he/she would like
to equally share in the payment for the cost of the mediator, in which case, both Parties will split
equally the cost of the mediator.
3. If the Parties are unable to resolve their Dispute with the assistance of a mediator,
either Facility or Resident may initiate arbitration. The Parties agree to submit any Dispute,
described in paragraph 6, to a neutral third party, called an arbitrator, to decide the merits of the
Dispute. The arbitrator will decide how to resolve the Dispute instead of a judge or jury in a
court of law. In binding arbitration, the arbitrator’s decision is final. The arbitrator may only
adjudicate Disputes described in paragraph 11 and Disputes that would constitute a justiciable
cause of action or claim in a court of law absent this Agreement. The arbitrator may dispose of a
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Dignes-TNRC-01044
particular cause of action or claim at the request of any Party, provided the other Party or Parties
has reasonable notice to respond to the request. A court may only review or overturn an
arbitrator’s decision in very limited circumstances,
4. The Parties understand that arbitration is less formal than a courtroom hearing or
trial. Arbitration is often less expensive and a faster way to resolve disputes compared to going
to court. The Parties hereby acknowledge that arbitration is preferable to a judicial forum and
that the law of the United States favors the enforcement of valid arbitration provisions. Both
parties give up their constitutional right to have Disputes decided in a court of law before a jury.
5. By executing this Agreement, the Parties understand and agree that Facility’s
owners, affiliates, subsidiaries, officers, directors, managers, agents, employees, and independent
contractors shall receive the benefit of this Agreement and be bound by this Agreement. This
Agreement applies to any disputes with persons or entities that provide services to Facility that
relate to or affect the provision of care, treatment and services that Facility provides or has a duty
to provide to Resident. By executing this Agreement, the Parties understand and agree that
Resident’s heirs, representative, executors, administrators, successors, assigns, and any person
whose claim is derived through or on behalf of Resident or is predicated on conduct involving
Resident, including without limitation any parent, spouse, child, guardian, executor,
administrator, surrogates, or legal representative, shall receive the benefit of this Agreement and
be bound by this Agreement.
6 This Agreement covers any “Dispute,” which means any dispute, controversy,
demand or claim that relates or arises out of the provision of services or health care or any failure
to provide services or health care by Facility, the admission agreement and/or this Agreement,
the validity, interpretation, construction, performance and enforcement thereof, including,
without limitation, claims that allege: medical malpractice; breach of contract; unpaid nursing
home charges; fraud; deceptive trade practices; misrepresentation; negligence; gross negligence;
Health and Safety Code section 1430 claims; violations of the Elder Abuse and Dependent Adult
Civil Protection Act, the Unfair Competition Act, the Consumer Legal Remedies Act; and/or any
right granted to Resident by law or by the admission agreement. The type of award requested
(e.g., treble damages, punitive damages or attorneys’ fees) shall not affect whether a Dispute is
subject to arbitration by this Agreement. Notwithstanding anything in this paragraph, a Dispute
will not include any appeals made by Resident concerning his/her transfer or discharge, as
provided under state and federal law.
7. The arbitration shall be administered by Judicate West pursuant to its arbitration
tules, as applicable, which may be accessed at www.judicatewest.com. The arbitration shall be
conducted by one neutral arbitrator in the county in which Facility is located. If, for any reason,
the Judicate West arbitration service is not available to conduct the arbitration or the election to
use Judicate West is invalid, the arbitration will be conducted by ADR under the applicable ADR
rules by a single arbitrator in the county in which Facility is located. In reaching a decision, the
arbitrator(s) shall prepare findings of fact and conclusions of law.
8. The United States Congress adopted the Federal Arbitration Act (“FAA”) to
reflect a strong national policy to allow parties like Resident and Facility to agree to arbitrate
disputes. As this Agreement relates to Resident’s admission in Facility, and Facility, among
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Dignes-TNRC-01045
other things, participates in the Medicare and/or Medi-Cal programs and/or procures supplies
from out-of-state vendors, the Parties acknowledge and agree that Resident’s admission and
these other events evidence transactions affecting or involving interstate commerce governed by
the FAA.
9 Notwithstanding any other provision in this Agreement, this Agreement shall be
construed and enforced in accordance with and governed by the FAA and not California law. In
the event that either Resident or Facility refuses to go forward with arbitration, the party
compelling arbitration reserves the right to proceed with arbitration, regardless of any delay in
making a motion to the court to compel arbitration. The Parties specifically acknowledge the
applicability of the FAA and other applicable federal law to any petition for enforcement of the
arbitration provisions of this Agreement. Submission of any dispute under this Agreement to
arbitration may only be avoided as specifically allowed by the FAA.
10. In rendering a decision on the merits of any Dispute except with respect to
Disputes described in paragraph 9, the arbitrator shall apply the law that a federal court sitting in
diversity jurisdiction would apply.
il. The arbitrator, and not any federal, state, or local court or agency, shall have the
exclusive authority to resolve any Dispute relating to the interpretation, applicability,
enforceability, or formation of this Agreement, including, but not limited to, any claim that all or
any part of this Agreement is void or voidable.
12. Resident and Facility agree that they will arbitrate each claim on an individual
basis, and will not seek representative, consolidated, or class treatment of any claim. If it is
determined that either Resident or Facility cannot waive the right to seek representative,
consolidated, or class treatment of any claim, the Parties agree that such representative,
consolidated, or class action Dispute shall be subject to this Agreement.
13. All claims based in whole or in part on the same incident, transaction, or related
course of care or services provided by Facility to Resident shall be arbitrated in one proceeding.
A claim shall be waived and forever barred if it arose prior to the date upon which notice of
arbitration is received by Facility or received by Resident, and is not presented in the arbitration
proceeding.
14. The Facility will pay for the cost of the mediator’s fees and reasonable costs
associated with mediation. Facility will pay for the arbitrator’s fees and other reasonable costs
associated with arbitration, unless Resident expresses in writing that he/she would like up to
equally share in the payment for the cost maximum of three (3) days of hearing. If the
arbitration, in which case, both hearing exceeds three (3) days, the additional arbitrator’s fees
and costs shall be borne equally by the Parties will split equally the cost of the arbitration.
Except with respect to the cost of the arbitration and with respect to any costs and fees that may
be awarded by the arbitrator, each Party shall bear its own costs and attorney fees for the
arbitration.
15. The Parties shall maintain the confidential nature of the arbitration proceeding
and any award, including the hearing, except as may be necessary to prepare for or conduct the
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Dignes-TNRC-01046
arbitration hearing on the merits, or except as may be necessary in connection with a court
application for a preliminary remedy, a judicial challenge to an award or its enforcement, or
unless otherwise required by law or judicial decision.
16. This Agreement may be rescinded by written notice from either Party, including
Resident’s Legal Representative and/or Agent, if any, and as appropriate, to the other Party
within thirty (30) days of signature. This Agreement shall continue to govern any Disputes
arising before the rescission and any such rescission shall only apply to any Disputes arising
after the rescission. If not rescinded within thirty (30) days, this Agreement shall remain in effect
for all care and services subsequently rendered at Facility, even if such care and services are
rendered following Resident's discharge and readmission to Facility.
17. If any provision of this Agreement is found to be invalid or unenforceable for any
reason, such invalidity shall not be deemed to affect any other provision hereof or the validity of
the remainder of the Agreement, and such invalid provision shall be deemed deleted to the
minimum extent necessary to cure such violation.
18. Resident (or his/her legal representative and/or Agent) acknowledges that he/she
has voluntarily signed this Agreement and voluntarily agreed to utilize arbitration to resolve
disputes. Resident (or his/her legal representative and/or Agent) has had an opportunity to review
this Agreement, ask questions and/or seek advice of an attorney about this Agreement.
THE PARTIES UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS
ARBITRATION AGREEMENT, THEY ARE GIVING UP AND WAIVING EACH OF
THEIR CONSTITUTIONAL RIGHT TO HAVE ANY DISPUTES DECIDED IN A COURT
OF LAW BEFORE JUDGE AND/OR JURY.
Initial here to DECLINE the above Arbitration Agreement.
Date; August 15, 2019 GMT
Resident
sap '
Resident Name: LARRY DIGNES
Date:
Representative or Agent of Resident
Date: August 15, 2019 GMT Disberedd
Facility Representative
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Dignes-TNRC-01047
REQUIRED IF RESIDENT NOT SIGNING ON HIS/HER OWN BEHALF
This Agreement can only be signed by a Representative or Agent that has been duly
appointed by Resident or a court of law. A Representative or Agent that signs this Agreement must
sign the Acknowledgment below attesting to their authority to act on behalf of Resident
1,
am executing this Agreement on behalf of Resident as his/her legal representative and/or Agent. I
represent that I have been duly designated, authorized, or employed as Resident’s agent for
pul ses of enteri ito this A; greement, and intend that Resident be bound thereby, as follows
Resident has executed a durable power of attorney for health care and/or an advanced health
care directive appointing me his/her agent to execute this Agreement.
Resident has appointed me to act as his/her agent in writing to execute this Agreement for
him/her.
I have been appointed as the conservator of Resident by a court.
Resident has requested that I act as an agent for him/her. While Resident was still of sound
mind, he/she indicated that I am authorized to execute this Agreement for him/her by:
I further acknowledge that I am signing this Agreement on behalf of the resident as well as on my
own behalf. In addition to the Agreements above, Facility and I also agree to submit any Dispute
that Facility may have against me personally or that I may personally have against Facility to
arbitration as described above.
Initial here to DECLINE the above Arbitration Agreement.
Date:
Representative or Agent of the Resident
Print Name of Representative or Agent
Date; August15, 2019 GMT Duca banedl
Facility Representative
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Dignes-TNRC-01048
REQUIRED IF RESIDENT SIGNING BY MARK
WITNESS SIGNATURE
1 (Name of Witness), hereby state that on
(date), I wrote Resident’s name, LARRY DIGNES, on the Dispute
Resolution Agreement on the line identified by “Resident Name” on page 4 of this Agreement.
On this same date, I witnessed Resident making a mark indicating his signature on the line
identified by “Resident” near where I wrote Resident’s name on page 4 of this Agreement. I
hereby witness and certify that Resident’s mark on page 4 indicates Resident’s intent to provide
a valid and binding signature. I acknowledge that Facility is relying on this representation.
Date:
Signature of Witness to Resident’s Intent to Sign
Print Name of Witness
Admission Packet Prepared By:
D.B.
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Dignes-TNRC-01049
EXHIBIT B
State of California — Health and Human Services Agency California Department of Public Health
CALIFORNIA STANDARD ADMISSION AGREEMENT
FOR SKILLED NURSING FACILITIES AND INTERMEDIATE CARE
FACILITIES
Resident Name: DIGNES, LARRY
Resident Number: 10763
Admission Date: 8/7/2019
Facility Name: Turlock Nursing and Rehab Center - SNF
I Preamble
The California Standard Admission Agreement is an admission contract that this Facility is
required by state law and regulation to use. It is a legally binding agreement that defines the
rights and obligations of each person (or party) signing the contract. Please read this
Agreement carefully before you sign it. If you have any questions, please discuss them with
Facility staff before you sign the agreement. You are encouraged to have this contract
reviewed by your legal representative, or by any other advisor of your choice, before you sign
it.
You may also call the Office of the State Long Term Care Ombudsman at 1-800-231-4024, for
more information about this Facility. The report of the most recent state licensing visit to our
facility is posted in the lobby, and a copy of it or of reports of prior inspections may be obtained
from the local office of the California Department of Public Health (CDPH), Licensing and
Certification Division at (559) 437-1500.
If our facility participates in the Medi-Cal or Medicare programs, we will keep survey
certification and complaint investigation reports for the past three years and will make these
reports available for anyone to review upon request.
If you are able to do so, you are required to sign this Agreement in order to be admitted to this
Facility. If you are not able to sign this Agreement, your representative may sign it for you.
You shall not be required to sign any other document at the time of, or as a condition of,
admission to this Facility.
Il. Identification of Parties to this Agreement
DEFINITIONS
In order to make the Agreement more easily understood, references to “we,” ww, “our, m6 us,” “the
Facility,” or “our Facility’ are references to:
Turlock Nursing and Rehab Center - SNF
CDPH 327 (05/11) 1-
State of California — Health and Human Services Agency California Department of Public Health
Attachment A provides you with the name of the owner and licensee of this facility, and the
name and contact information of a single entity responsible for all aspects of patient care and
operation at this facility.
References to “you, ou, your,” “Patient,” or “Resident” are references to
LARRY DIGNES, the person
who will be receiving care in this Facility. For purposes of this Agreement, “Resident” has the
same meaning as “Patient.”
The parties to this agreement are the Resident, the Facility, and the Resident's
Representative. References to the “Resident's Representative” are references
to:LARRY DIGNES
the person who will sign on your behalf to admit you to this Facility, and/or who is authorized to
make decisions for you in the event that you are unable to. To the extent permitted by law,
you may designate a person as your Representative at any time.
Note: the person indicated as your “Resident’s Representative” may be a family member, or
by law, any of the following: a conservator, a person designated under the Resident's Advance
Health Care Directive or Power of Attorney for Health Care, the Resident’s next of kin, any
other person designated by the Resident consistent with State law, a person authorized by a
court, or, if the Resident is a minor, a person authorized by law to represent the minor.
Signing this Agreement as a Resident's Representative does not, in and of itself, make the
Resident's Representative liable for the Resident’s debts. However, a Resident's
Representative acting as the Resident's financial conservator or otherwise responsible for
distribution of the Resident's monies shall provide reimbursements from the Resident's assets
to the Facility in compliance with Section V. of the agreement.
IF OUR FACILITY PARTICIPATES IN THE MEDI-CAL OR MEDICARE PROGRAM, OUR
FACILITY DOES NOT REQUIRE THAT YOU HAVE ANYONE GUARENTEE PAYMENT FOR
YOUR CARE BY SIGNING OR COSIGNING THIS ADMISSION AGREEMENT AS A
CONDITION OF ADMISSION.
The Parties to this Agreement are:
Resident: LARRY DIGNES
Resident's
Representative:
Relationship: self
Facility: Turlock Nursing and Rehab Center - SNF
CDPH 327 (05/11) -2-
State of California — Health and Human Services Agency California Department of Public Health
I. Consent to Treatment
The Resident hereby consents to routine nursing care provided by the Facility, as well as
emergency care that may be required.
However, you have the right, to the extent permitted by law, to refuse any treatment and the
right to be informed of potential medical consequences should you refuse treatment. We will
keep you informed about the routine nursing and emergency care we provide to you, and we
will answer your questions about the care and services we provide you.
If you are, or become, incapable of making your own medical decisions, we will follow the
direction of a person with legal authority to make medical treatment decisions on your behalf,
such as a guardian, conservator, next of kin, or a person designated in an Advance Health
Care Directive or Power of Attorney for Health Care.
Following admission, we encourage you to provide us with an Advance Health Care Directive
specifying your wishes as to the care and services you want to receive in certain
circumstances. However, you are not required to prepare one, or to provide us a copy of one,
as a condition of admission to our Facility. If you already have an Advance Health Care
Directive, it is important that you provide us with a copy so that we may inform our staff.
If you do not know how to prepare an Advance Health Care Directive and wish to prepare one,
we will help you find someone to assist you in doing so.
IV. Your Rights as a Resident
Residents of this Facility keep all their basic rights and liberties as a citizen or resident of the
United States when, and after, they are admitted. Because these rights are so important, both
federal and state laws and regulations describe them in detail, and state law requires that a
comprehensive Resident Bill of Rights be attached to this Agreement.
Attachment F, entitled “Resident Bill of Rights,” lists your rights, as set forth in State and
Federal law. For your information, the attachment also provides the location of your rights in
statute.
Violations of state laws and regulations identified above may subject our Facility and our staff
to civil or criminal proceedings. You have the right to voice grievances to us without fear of
any reprisal, and you may submit complaints or any questions or concerns you may have
about our services or your rights to the local office of the California Department of Public
Health, Licensing and Certification District Office at (559) 437-1500, or the State Long-Term
Care Ombudsman (see page 1 for contact information).
You should review the attached “Resident Bill of Rights” very carefully. To acknowledge that
you have been informed of the “Resident Bill of Rights,” please sign here:
apr
CDPH 327 (05/11) -3-
Preview
JOHN L. SUPPLE (SBN: 94582) jsupple@jsupplelaw.com ROBERT R. DEERING (SBN: 258043) rdeering( jsupplelaw.com BRIAN S. COHEN (SBN 316427) Electronically Filed bcohen@jsupplelaw.com 3/12/2021 8:22 PM J SUPPLE LAW Superior Court of California A Professional Corporation County of Stanislaus 990 Fifth Avenue Clerk of the Court San Rafael, CA 94901 By: Christine Zulim, Deputy 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 - 2 LARRY B. DIGNES (Decedent) by and through Case No. CV-20-004057 13 his Successors-In-Interest SHEILA M. LOWE, an ait ae ‘individual; LORI M. KIRCHERT, an individual DECLARATION OF DEANNA 14 oS Du oe BRUMMELL IN SUPPORT OF RS Plaintiff, MOTION TO COMPEL Da naan 15 ARBITRATION 16 vs. Accompanying Documents: 17 COVENANT CARE CALIFORNIA, LLC dba (1) Notice and Motion; 18 TURLOCK NURSING AND (2) Memorandum of Points & Authorities; REHABILITATION CENTER; COVENANT (3) Declaration of Brian S. Cohen: 19 CARE, LLC, a Delaware Corporation; and (4) [Proposed] Order; and DOES 1 through 50, inclusive, (5S) Proof of Service 20 Defendants. 21 22 Date: April 21, 2021 Time: 8:30 a.m. 23 Dept: 24 Judge: Sonny S. Sandhu 24 25 26 Complaint Filed: September 18, 2020 27 28 -l- DECLARATION OF DEANNA BRUMMELL IN SUPPORT OF MOTION TO COMPEL ARBITRATION I, Deanna Brummell declare that: 1 I have been employed by Defendant COVENANT CARE CALIFORNIA, LLC dba TURLOCK NURSING AND REHABILITATION CENTER (“Turlock”) since July 2017. My job title is Admission Coordinator and I have been in that position since July 2017. If called as a witness, I could and would competently testify to the following facts based on my own personal knowledge. 2 As part of my job duties as Admission Coordinator at Turlock, I am responsible for presenting, upon a resident’s admission to the nursing home, various nursing home admission documents to residents and/or their legal representatives. These documents include, but are not 10 limited to, the California Standard Admission Agreement for skilled Nursing Facilities and 11 Intermediate Care Facilities (“Admission Agreement”) and the Resident-Facility Arbitration 12 Agreement (“Arbitration Agreement”). My job includes explaining the various admission od .32 aa aect 13 documents, including the Arbitration Agreement, to residents and/or their legal representatives. wto ne 14 Part of the procedure includes giving the resident and/or his/her legal representative an we ou Be ee 15 opportunity to review and ask questions about the Admission Agreement and Arbitration anes 16 Agreement. 17 3 In 2019, Turlock was using a Cloud computer system called “PCC” for the 18 Admission Agreement and Arbitration Agreement. The resident and/or his or her representative 19 would sit down next to me, with the computer screen in front of us, and we would review each 20 section of the Admission Agreement and Arbitration Agreement together. 21 4 Under Turlock’s procedure, my job requirement has at all times included 22 informing new residents, and/or their legal representatives, that signing the Arbitration 23 Agreement is optional and that the resident, or his or her legal representative, does not have to 24 sign the Arbitration Agreement as a condition for the resident’s admission to Turlock, as stated 25 in bold font at the top of page one of the Arbitration Agreement. After the resident or his or her 26 legal representative has had an opportunity to read and review the Arbitration Agreement, the 27 resident or his or her agent voluntarily either refuses or agrees to Arbitration. 28 -2- DECLARATION OF DEANNA BRUMMELL IN SUPPORT OF MOTION TO COMPEL ARBITRATION 5 I recall that on August 15, 2019, I went through the Admission packet and Arbitration Agreement with Larry Dignes at the time he was admitted to the facility. Mr. Dignes never gave any indication that he did not understand the terms of the Admission Agreement or Arbitration Agreement or that he was not voluntarily signing the Arbitration Agreement. 6 A true and correct copy of the Arbitration Agreement between Larry Dignes and Turlock, which bears the date August 15, 2019 and was retrieved from the “PCC” document system is attached hereto as Exhibit A and incorporated herein by reference. I routinely access electronic files from the “PCC” document system in the course of normal business at Turlock. 7 A true and correct copy of the Admission Agreement dated August 15, 2019. 10 retrieved from the “PCC” document system is attached hereto as Exhibit B. ll 8 As Admission Coordinator, I am familiar with Turlock’s policies and practices 12 regarding sources of compensation for services provided to residents. Turlock has been a oS osao tet 13 Medicare and Medi-Cal certified provider throughout 2019 until the present, including during 4t0 ase 14 Mr. Dignes’s residency at Turlock. As disclosed by Mr. Dignes’s admission records at Turlock, w= oe ee se 1S Medicare was the primary payer to Turlock for services provided to him. Ads 16 9. I am also familiar with some of the products purchased by Turlock and used in 17 providing services to residents, which includes food purchased from Sysco Corporation and 18 office supplies purchased from Office Depot 19 I declare under penalty of perjury under the laws of the State of California that the 20 foregoing is true and correct. 21 Executed hice” day of February atat \way lo ; California. Care buunnr all 22 23 DEANNA BRUMMELL 24 FADIGNES v Turlock Nursing\Motions\Motion to Compel Arbitration\DIGNES ~ Dec of Deanna Brummell.docx. 25 26 27 28 3. DECLARATION OF DEANNA BRUMMELL IN SUPPORT OF MOTION TO COMPEL ARBITRATION EXHIBIT A Residents shall not be required to sign this arbitration agreement as a condition of admission to this facility. Resident Name (“Resident”) Facility Name (“Facility”) DIGNES, LARRY Turlock Nursing and Rehab Center - SNF DISPUTE RESOLUTION AGREEMENT (Read Carefully - Not Part of Admission Agreement) By signing this Agreement, Resident and Facility (together, the “Parties,” and each as defined in paragraph 5) choose to meet and confer in good faith discussions to try to resolve the dispute and then mediate the dispute. If both discussions and mediation are unsuccessful, the Parties agree to have any and all Disputes that would be adjudicated by a court absent this Agreement resolved by arbitration, which involves a private third party determining the outcome of a Dispute instead of a court (judge or jury). The Parties acknowledge that the process of discussions, followed by mediation, followed by arbitration is ofien more efficient, less expensive and less contentious for both Parties than presentation to a court. 1. The Parties agree to engage in good faith discussions with each other to try to resolve any Dispute, described in paragraph 6. Resident or his/her Agent or Legal Representative will notify the Administrator of Facility, and if Facility has the Dispute, Facility will notify Resident or his/her Agent or Legal Representative, in writing, regarding the specific nature of the Dispute. The written Notice should include details regarding the incident(s) or circumstance(s) that is the subject of the Dispute. If possible, the details should include dates, times, a description of the incident(s) or circumstance(s), and identification of the individuals involved. 2. If, after 60 days after the Notice was sent to the other party, the Dispute cannot be resolved by such good faith discussions, Resident and Facility agree to submit the Dispute to mediation, which will be conducted in the county in which Facility is located. In mediation, the Parties will choose a neutral third party, generally a lawyer or retired judge, to assist the Parties in a negotiation of their Dispute. Mediation usually takes one day or less. Either Party may nominate a mediator and the Parties will work in good faith to agree upon a mediator. Facility will pay for the cost of the mediator, unless Resident expresses in writing that he/she would like to equally share in the payment for the cost of the mediator, in which case, both Parties will split equally the cost of the mediator. 3. If the Parties are unable to resolve their Dispute with the assistance of a mediator, either Facility or Resident may initiate arbitration. The Parties agree to submit any Dispute, described in paragraph 6, to a neutral third party, called an arbitrator, to decide the merits of the Dispute. The arbitrator will decide how to resolve the Dispute instead of a judge or jury in a court of law. In binding arbitration, the arbitrator’s decision is final. The arbitrator may only adjudicate Disputes described in paragraph 11 and Disputes that would constitute a justiciable cause of action or claim in a court of law absent this Agreement. The arbitrator may dispose of a Page 1 of 6 Page 897 of 903 Run on: 11/29/2020 Dignes-TNRC-01044 particular cause of action or claim at the request of any Party, provided the other Party or Parties has reasonable notice to respond to the request. A court may only review or overturn an arbitrator’s decision in very limited circumstances, 4. The Parties understand that arbitration is less formal than a courtroom hearing or trial. Arbitration is often less expensive and a faster way to resolve disputes compared to going to court. The Parties hereby acknowledge that arbitration is preferable to a judicial forum and that the law of the United States favors the enforcement of valid arbitration provisions. Both parties give up their constitutional right to have Disputes decided in a court of law before a jury. 5. By executing this Agreement, the Parties understand and agree that Facility’s owners, affiliates, subsidiaries, officers, directors, managers, agents, employees, and independent contractors shall receive the benefit of this Agreement and be bound by this Agreement. This Agreement applies to any disputes with persons or entities that provide services to Facility that relate to or affect the provision of care, treatment and services that Facility provides or has a duty to provide to Resident. By executing this Agreement, the Parties understand and agree that Resident’s heirs, representative, executors, administrators, successors, assigns, and any person whose claim is derived through or on behalf of Resident or is predicated on conduct involving Resident, including without limitation any parent, spouse, child, guardian, executor, administrator, surrogates, or legal representative, shall receive the benefit of this Agreement and be bound by this Agreement. 6 This Agreement covers any “Dispute,” which means any dispute, controversy, demand or claim that relates or arises out of the provision of services or health care or any failure to provide services or health care by Facility, the admission agreement and/or this Agreement, the validity, interpretation, construction, performance and enforcement thereof, including, without limitation, claims that allege: medical malpractice; breach of contract; unpaid nursing home charges; fraud; deceptive trade practices; misrepresentation; negligence; gross negligence; Health and Safety Code section 1430 claims; violations of the Elder Abuse and Dependent Adult Civil Protection Act, the Unfair Competition Act, the Consumer Legal Remedies Act; and/or any right granted to Resident by law or by the admission agreement. The type of award requested (e.g., treble damages, punitive damages or attorneys’ fees) shall not affect whether a Dispute is subject to arbitration by this Agreement. Notwithstanding anything in this paragraph, a Dispute will not include any appeals made by Resident concerning his/her transfer or discharge, as provided under state and federal law. 7. The arbitration shall be administered by Judicate West pursuant to its arbitration tules, as applicable, which may be accessed at www.judicatewest.com. The arbitration shall be conducted by one neutral arbitrator in the county in which Facility is located. If, for any reason, the Judicate West arbitration service is not available to conduct the arbitration or the election to use Judicate West is invalid, the arbitration will be conducted by ADR under the applicable ADR rules by a single arbitrator in the county in which Facility is located. In reaching a decision, the arbitrator(s) shall prepare findings of fact and conclusions of law. 8. The United States Congress adopted the Federal Arbitration Act (“FAA”) to reflect a strong national policy to allow parties like Resident and Facility to agree to arbitrate disputes. As this Agreement relates to Resident’s admission in Facility, and Facility, among Page 2 of 6 Page 898 of 903 Run on: 11/29/2020 Dignes-TNRC-01045 other things, participates in the Medicare and/or Medi-Cal programs and/or procures supplies from out-of-state vendors, the Parties acknowledge and agree that Resident’s admission and these other events evidence transactions affecting or involving interstate commerce governed by the FAA. 9 Notwithstanding any other provision in this Agreement, this Agreement shall be construed and enforced in accordance with and governed by the FAA and not California law. In the event that either Resident or Facility refuses to go forward with arbitration, the party compelling arbitration reserves the right to proceed with arbitration, regardless of any delay in making a motion to the court to compel arbitration. The Parties specifically acknowledge the applicability of the FAA and other applicable federal law to any petition for enforcement of the arbitration provisions of this Agreement. Submission of any dispute under this Agreement to arbitration may only be avoided as specifically allowed by the FAA. 10. In rendering a decision on the merits of any Dispute except with respect to Disputes described in paragraph 9, the arbitrator shall apply the law that a federal court sitting in diversity jurisdiction would apply. il. The arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any Dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. 12. Resident and Facility agree that they will arbitrate each claim on an individual basis, and will not seek representative, consolidated, or class treatment of any claim. If it is determined that either Resident or Facility cannot waive the right to seek representative, consolidated, or class treatment of any claim, the Parties agree that such representative, consolidated, or class action Dispute shall be subject to this Agreement. 13. All claims based in whole or in part on the same incident, transaction, or related course of care or services provided by Facility to Resident shall be arbitrated in one proceeding. A claim shall be waived and forever barred if it arose prior to the date upon which notice of arbitration is received by Facility or received by Resident, and is not presented in the arbitration proceeding. 14. The Facility will pay for the cost of the mediator’s fees and reasonable costs associated with mediation. Facility will pay for the arbitrator’s fees and other reasonable costs associated with arbitration, unless Resident expresses in writing that he/she would like up to equally share in the payment for the cost maximum of three (3) days of hearing. If the arbitration, in which case, both hearing exceeds three (3) days, the additional arbitrator’s fees and costs shall be borne equally by the Parties will split equally the cost of the arbitration. Except with respect to the cost of the arbitration and with respect to any costs and fees that may be awarded by the arbitrator, each Party shall bear its own costs and attorney fees for the arbitration. 15. The Parties shall maintain the confidential nature of the arbitration proceeding and any award, including the hearing, except as may be necessary to prepare for or conduct the Page 3 of 6 Page 899 of 903 Run on: 11/29/2020 Dignes-TNRC-01046 arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. 16. This Agreement may be rescinded by written notice from either Party, including Resident’s Legal Representative and/or Agent, if any, and as appropriate, to the other Party within thirty (30) days of signature. This Agreement shall continue to govern any Disputes arising before the rescission and any such rescission shall only apply to any Disputes arising after the rescission. If not rescinded within thirty (30) days, this Agreement shall remain in effect for all care and services subsequently rendered at Facility, even if such care and services are rendered following Resident's discharge and readmission to Facility. 17. If any provision of this Agreement is found to be invalid or unenforceable for any reason, such invalidity shall not be deemed to affect any other provision hereof or the validity of the remainder of the Agreement, and such invalid provision shall be deemed deleted to the minimum extent necessary to cure such violation. 18. Resident (or his/her legal representative and/or Agent) acknowledges that he/she has voluntarily signed this Agreement and voluntarily agreed to utilize arbitration to resolve disputes. Resident (or his/her legal representative and/or Agent) has had an opportunity to review this Agreement, ask questions and/or seek advice of an attorney about this Agreement. THE PARTIES UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS ARBITRATION AGREEMENT, THEY ARE GIVING UP AND WAIVING EACH OF THEIR CONSTITUTIONAL RIGHT TO HAVE ANY DISPUTES DECIDED IN A COURT OF LAW BEFORE JUDGE AND/OR JURY. Initial here to DECLINE the above Arbitration Agreement. Date; August 15, 2019 GMT Resident sap ' Resident Name: LARRY DIGNES Date: Representative or Agent of Resident Date: August 15, 2019 GMT Disberedd Facility Representative Page 4 of 6 Page 900 of 903 Run on: 11/29/2020 Dignes-TNRC-01047 REQUIRED IF RESIDENT NOT SIGNING ON HIS/HER OWN BEHALF This Agreement can only be signed by a Representative or Agent that has been duly appointed by Resident or a court of law. A Representative or Agent that signs this Agreement must sign the Acknowledgment below attesting to their authority to act on behalf of Resident 1, am executing this Agreement on behalf of Resident as his/her legal representative and/or Agent. I represent that I have been duly designated, authorized, or employed as Resident’s agent for pul ses of enteri ito this A; greement, and intend that Resident be bound thereby, as follows Resident has executed a durable power of attorney for health care and/or an advanced health care directive appointing me his/her agent to execute this Agreement. Resident has appointed me to act as his/her agent in writing to execute this Agreement for him/her. I have been appointed as the conservator of Resident by a court. Resident has requested that I act as an agent for him/her. While Resident was still of sound mind, he/she indicated that I am authorized to execute this Agreement for him/her by: I further acknowledge that I am signing this Agreement on behalf of the resident as well as on my own behalf. In addition to the Agreements above, Facility and I also agree to submit any Dispute that Facility may have against me personally or that I may personally have against Facility to arbitration as described above. Initial here to DECLINE the above Arbitration Agreement. Date: Representative or Agent of the Resident Print Name of Representative or Agent Date; August15, 2019 GMT Duca banedl Facility Representative Page 5 of 6 Page 901 of 903 Run on: 11/29/2020 Dignes-TNRC-01048 REQUIRED IF RESIDENT SIGNING BY MARK WITNESS SIGNATURE 1 (Name of Witness), hereby state that on (date), I wrote Resident’s name, LARRY DIGNES, on the Dispute Resolution Agreement on the line identified by “Resident Name” on page 4 of this Agreement. On this same date, I witnessed Resident making a mark indicating his signature on the line identified by “Resident” near where I wrote Resident’s name on page 4 of this Agreement. I hereby witness and certify that Resident’s mark on page 4 indicates Resident’s intent to provide a valid and binding signature. I acknowledge that Facility is relying on this representation. Date: Signature of Witness to Resident’s Intent to Sign Print Name of Witness Admission Packet Prepared By: D.B. Page 6 of 6 Page 902 of 903 Run on: 11/29/2020 Dignes-TNRC-01049 EXHIBIT B State of California — Health and Human Services Agency California Department of Public Health CALIFORNIA STANDARD ADMISSION AGREEMENT FOR SKILLED NURSING FACILITIES AND INTERMEDIATE CARE FACILITIES Resident Name: DIGNES, LARRY Resident Number: 10763 Admission Date: 8/7/2019 Facility Name: Turlock Nursing and Rehab Center - SNF I Preamble The California Standard Admission Agreement is an admission contract that this Facility is required by state law and regulation to use. It is a legally binding agreement that defines the rights and obligations of each person (or party) signing the contract. Please read this Agreement carefully before you sign it. If you have any questions, please discuss them with Facility staff before you sign the agreement. You are encouraged to have this contract reviewed by your legal representative, or by any other advisor of your choice, before you sign it. You may also call the Office of the State Long Term Care Ombudsman at 1-800-231-4024, for more information about this Facility. The report of the most recent state licensing visit to our facility is posted in the lobby, and a copy of it or of reports of prior inspections may be obtained from the local office of the California Department of Public Health (CDPH), Licensing and Certification Division at (559) 437-1500. If our facility participates in the Medi-Cal or Medicare programs, we will keep survey certification and complaint investigation reports for the past three years and will make these reports available for anyone to review upon request. If you are able to do so, you are required to sign this Agreement in order to be admitted to this Facility. If you are not able to sign this Agreement, your representative may sign it for you. You shall not be required to sign any other document at the time of, or as a condition of, admission to this Facility. Il. Identification of Parties to this Agreement DEFINITIONS In order to make the Agreement more easily understood, references to “we,” ww, “our, m6 us,” “the Facility,” or “our Facility’ are references to: Turlock Nursing and Rehab Center - SNF CDPH 327 (05/11) 1- State of California — Health and Human Services Agency California Department of Public Health Attachment A provides you with the name of the owner and licensee of this facility, and the name and contact information of a single entity responsible for all aspects of patient care and operation at this facility. References to “you, ou, your,” “Patient,” or “Resident” are references to LARRY DIGNES, the person who will be receiving care in this Facility. For purposes of this Agreement, “Resident” has the same meaning as “Patient.” The parties to this agreement are the Resident, the Facility, and the Resident's Representative. References to the “Resident's Representative” are references to:LARRY DIGNES the person who will sign on your behalf to admit you to this Facility, and/or who is authorized to make decisions for you in the event that you are unable to. To the extent permitted by law, you may designate a person as your Representative at any time. Note: the person indicated as your “Resident’s Representative” may be a family member, or by law, any of the following: a conservator, a person designated under the Resident's Advance Health Care Directive or Power of Attorney for Health Care, the Resident’s next of kin, any other person designated by the Resident consistent with State law, a person authorized by a court, or, if the Resident is a minor, a person authorized by law to represent the minor. Signing this Agreement as a Resident's Representative does not, in and of itself, make the Resident's Representative liable for the Resident’s debts. However, a Resident's Representative acting as the Resident's financial conservator or otherwise responsible for distribution of the Resident's monies shall provide reimbursements from the Resident's assets to the Facility in compliance with Section V. of the agreement. IF OUR FACILITY PARTICIPATES IN THE MEDI-CAL OR MEDICARE PROGRAM, OUR FACILITY DOES NOT REQUIRE THAT YOU HAVE ANYONE GUARENTEE PAYMENT FOR YOUR CARE BY SIGNING OR COSIGNING THIS ADMISSION AGREEMENT AS A CONDITION OF ADMISSION. The Parties to this Agreement are: Resident: LARRY DIGNES Resident's Representative: Relationship: self Facility: Turlock Nursing and Rehab Center - SNF CDPH 327 (05/11) -2- State of California — Health and Human Services Agency California Department of Public Health I. Consent to Treatment The Resident hereby consents to routine nursing care provided by the Facility, as well as emergency care that may be required. However, you have the right, to the extent permitted by law, to refuse any treatment and the right to be informed of potential medical consequences should you refuse treatment. We will keep you informed about the routine nursing and emergency care we provide to you, and we will answer your questions about the care and services we provide you. If you are, or become, incapable of making your own medical decisions, we will follow the direction of a person with legal authority to make medical treatment decisions on your behalf, such as a guardian, conservator, next of kin, or a person designated in an Advance Health Care Directive or Power of Attorney for Health Care. Following admission, we encourage you to provide us with an Advance Health Care Directive specifying your wishes as to the care and services you want to receive in certain circumstances. However, you are not required to prepare one, or to provide us a copy of one, as a condition of admission to our Facility. If you already have an Advance Health Care Directive, it is important that you provide us with a copy so that we may inform our staff. If you do not know how to prepare an Advance Health Care Directive and wish to prepare one, we will help you find someone to assist you in doing so. IV. Your Rights as a Resident Residents of this Facility keep all their basic rights and liberties as a citizen or resident of the United States when, and after, they are admitted. Because these rights are so important, both federal and state laws and regulations describe them in detail, and state law requires that a comprehensive Resident Bill of Rights be attached to this Agreement. Attachment F, entitled “Resident Bill of Rights,” lists your rights, as set forth in State and Federal law. For your information, the attachment also provides the location of your rights in statute. Violations of state laws and regulations identified above may subject our Facility and our staff to civil or criminal proceedings. You have the right to voice grievances to us without fear of any reprisal, and you may submit complaints or any questions or concerns you may have about our services or your rights to the local office of the California Department of Public Health, Licensing and Certification District Office at (559) 437-1500, or the State Long-Term Care Ombudsman (see page 1 for contact information). You should review the attached “Resident Bill of Rights” very carefully. To acknowledge that you have been informed of the “Resident Bill of Rights,” please sign here: apr CDPH 327 (05/11) -3-