Judge: David J. Cowan, Case: 20STCV19545, Date: 2022-09-29 Tentative Ruling

Case Number: 20STCV19545    Hearing Date: September 29, 2022    Dept: 1

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Emma Martin, et al. v. Benjamin Landa, et al. (20STCV19545); Jamie Ann Ivey, et al. v. Serrano Post Acute, LLC (20STCV24087)

On May 12, 2022, Emma Martin, Elizabeth Gagliano, and Kathryn Sessinghaus (the “Martin plaintiffs”) filed a Notice of Related Case in case 20STCV19545 indicating civil cases 20STCV19545 and 20STCV24087 are related. The same day, Jamie Ann Ivey, Sandra Dee Ivey, and James Edward Ivey, Jr. (the “Ivey plaintiffs”) filed a Notice of Related Case in case 20STCV24087 indicating civil cases 20STCV19545 and 20STCV24087 are related. On June 6, 2022, Judge Holly J. Fujie concluded the cases are not related.

On August 31, 2022, the Martin plaintiffs and Ivey plaintiffs filed a Motion to Relate Cases in Department 1, seeking an order relating cases 20STCV19545 and 20STCV24087. (CRC 3.300(h)(1)(D) (authorizing the Supervising Judge of the Civil Division to relate cases upon motion after relation is denied under 3.300(h)(1)(A)-(C).) On September 13, 2022, Serrano and Landa filed an Opposition to the Motion to Relate. Dr. Filart filed a separate Opposition. On September 20, 2022, the Ivey plaintiffs and Martin plaintiffs filed a Reply to each Opposition.

Cases are related when they (1) involve the same parties and are based on the same or similar claims, (2) arise from the same or substantially identical transactions, incidents, or events requiring the determination of the same or substantially identical questions of law or fact, (3) involve claims against, title to, possession of, or damages to the same property, or (4) are likely for other reasons to require substantial duplication of judicial resources if heard by different judges. (CRC 3.300(a).) The Motion to Relate asserts the cases are related on the first, second, and fourth grounds.

In order of filing, the cases sought to be related are: 

• Emma Martin, et al. v. Benjamin Landa, et al. (20STCV19545) – initiated on May 21, 2020 when Emma Martin, Elizabeth Gagliano, and Kathryn Sessinghaus, individually and as the successors-in-interest to decedent Vincent Paul Martin, filed a Complaint against Serrano Post Acute LLC, Benjamin Landa, Marcel Adrian Solero Filart, and Does 1-50 stating causes of action for elder abuse, negligence, wrongful death, fraudulent concealment, and fraudulent misrepresentation.

On March 21, 2022, Martin, Gagliano, and Sessinghaus filed the operative Fourth Amended Complaint (“FAC”) against Serrano, Landa, Filart, and Does 1-50 stating the same causes of action. The FAC alleges decedent Martin entered the Hollywood Premier Healthcare Center care facility in 2014. In February 2020, the "COVID-19 pandemic began to emerge in California." The decedent's family visited him in late February 2020 and "did not observe [personal protective equipment] worn by any member of the staff." In "early March 2020," the facility was locked down and visitors disallowed. When decedent's family members visited, they were turned away by staff members that "did not have PPE on" or were "not wearing a mask."

On April 1, 2020, staff at the facility informed Emma Martin that decedent was sick with fever, "was confused," "having trouble breathing, and was not eating or drinking." The nurse indicated that no tests had been ordered for decedent (including a COVID-19 test) and stated the facility had "four active cases" of COVID-19. Notably, after decedent's death, "County records confirmed 68 positive cases at [the facility] on April 2, 2020," just one day later; the Complaint alleges the nurse "misrepresent[ed] the number of positive cases" as well as the facility's ability to manage COVID-19 infections. On April 2, 2020, the decedent was tested for COVID-19. On April 4, 2020, the decedent passed away. On April 5, 2020, the decedent’s COVID-19 test returned a positive result.

In connection with the decedent’s death, Dr. Filart, decedent's "primary 'attending' physician," allegedly failed "to aid [decedent] in any meaningful way.” The Complaint alleges Dr. Filart's "only action was to give [decedent] oxygen 3 hours prior to his death, failing to even investigate the caus of his symptoms. In the weeks preceding his death, the decedent allegedly received inadequate "fluid intake necessary to survive "didn't receive a shower or bath," and "only got out of bed 1 to 3 times," causing him to develop "Stage IV pressure ulcers Moreover, after the decedent passed away on April 4, 2020, Dr. Filart allegedly prepared a death certificate that "lists cardiac arrest, hypertension and coronary artesy disease as the cause of death" despite a positive COVID-19 test days earlier. The Complaint alleges “misrepresentation in [the] death certificate was clearly fraudulent" and "intended to hide COVID-19 results in order to keep vital information from the Martin Family, residents, families, staff and the government."

The Martin plaintiffs allege Serrano "staff[ed] the nursing home with underqualified staff in order to save money and increase profits for the owners” prior to the COVID-19 pandemic, citing high turnover rates from the facility as early as 2016. The plaintiffs allege these "chronic problems with understaffing continued – even worsened – during the COVID-19 crisis." The Martin plaintiffs also allege the facility had been cited in 2019 by the U.S. Department of Health and Social Services for various violations, such as the misuse of personal protective equipment by failing to use such equipment while caring for infected residents or failing to remove and clean such equipment to avoid infection. The Complaint alleges just two (2) nurses were caring for eighty-three (83) residents at the facility when the decedent passed away.

On May 12, 2022, the Martin plaintiffs filed a Notice of Related Case indicating civil case 20STCV19545 is related to civil case 20STCV24087.

On June 6, 2022, Judge Fujie found cases 20STCV19545 and 20STCV24087 not related.

This case is pending in Department 56 of the Stanley Mosk courthouse with a Motion to Continue Trial set for October 5, 2022.

·       Jamie Ann Ivey, et al. v. Serrano Post Acute, LLC (20STCV24087) – initiated on June 25, 2020 when Jamie Ann Ivey, individually and as successor-in-interest to decedent James Marvin Ivey; Sandra Dee Ivey; and James Edward Ivey, Jr. filed a Complaint against Serrano Post Acute, LLC (dba Hollywood Premier Healthcare Center) and Does 1-100 stating causes of action for wrongful death and elder abuse.

The Complaint alleges decedent entered the facility on January 21, 2020. On March 11, 2020, "the World Health Organization declared COVID-19 a global pandemic." When Jamie Ivey visited decedent that day, she was informed the facility "was being placed in a lockdown" and visitors would not be permitted. On April 4, 2020, decedent "tested positive for COVID-19," but Serrano "did not notify" the Ivey plaintiffs of decedent's infection. On April 16, 2020, a nurse from the facility called Jamie Ivey and "indicated that Decedent's heart [rate] was extremely low -- 40 beats per minute" -- and asked if she "should call 911." Soon after, paramedics informed Jamie Ivey that "they were not going to take Decedent to a hospital" to avoid potential exposure to COVID-19." The Ivey plaintiffs allege nobody informed the paramedics of Decedent's positive COVID-19 test.

On April 20, 2020, despite prior reassurances from the nurse that decedent's condition was improving or stable, Decedent passed away, and his "Death Certificate lists COVID-19 as the cause of his death." The Complaint asserts Serrano failed to carry out thirty-four (34) "obligations and duties" relating to COVID-19, alleging Serrano "made a conscious and evil choice to 'write off' their elderly residents" to save money by not adopting necessary COVID-19 precautions. (Complaint, para. 50, 54.) In particular, the Ivey plaintiffs allege the facility failed to implement “appropriate infection control protocols and procedures,” including “surveillance . . . for the purpose of detecting COVID-19 infections and prevent spreading of the infection” and “consistent monitoring of acute respiratory infection symptoms”; failed to test residents and staff members for COVID-19; “demanded” infected staff members return to work and interact with residents despite COVID-19 symptoms; failed to equip staff with personal protective equipment; failed to isolate possibly infected residents; continued to admit residents with “symptoms of acute respiratory illness” without “information pertaining to these new residents’ potential contact with COVID-19 positive persons; failed to properly sanitize and disinfect rooms “known to have been previously occupied by COVID-19 patients”; failed to report potential and actual COVID-19 infections to the Department of Public Health “in a willful effort to ‘hide’ and downplay the severity of COVID-19 outbreak” at the facility”; and “failed to timely notify families when their loved ones . . . tested positive for COVID-19” or send infected residents to hospitals for timely medical care. The Ivey plaintiffs further allege Serrano engaged “in a significant pattern of willful understaffing and made several nurses provide care to multiple residents,” alleging Serrano “had a long-standing pattern and practice of understaffing” resulting in citations from the Department of Public Health.

On May 12, 2022, the Ivey plaintiffs filed a Notice of Related Case indicating civil case 20STCV19545 is related to civil case 20STCV24087.

On June 6, 2022, Judge Fujie found cases 20STCV19545 and 20STCV24087 not related.

On September 13, 2022, the Ivey plaintiffs filed a Motion to Relate in Department 1, seeking an order relating cases 20STCV19545 and 20STCV24087.

This case is pending in Department 49 of the Stanley Mosk courthouse with a Post-Mediation Status Conference set for December 15, 2022.

Upon review, the Court finds civil cases 20STCV19545 and 20STCV24087 are related within the meaning of CRC 3.300(a)(2). Both cases arise from “substantially identical transactions, incidents, or events requiring the determination of the same or substantially identical questions of law or fact.” Specifically, both cases arise out of the deaths of two residents of the same care facility operated by defendant Serrano. The residents, Vincent Paul Martin and James Marvin Ivey, died as a result of COVID-19 infections within about two weeks of each other on April 4 and April 20, 2020 (respectively). The Ivey and Martin plaintiffs allege the decedents were infected and died as a result of Serrano’s negligent and reckless operation of the care facility during the early stages of the COVID-19 pandemic.

The Ivey plaintiffs and Martin plaintiffs allege Serrano mishandled the COVID-19 outbreak in several respects. The plaintiffs allege Serrano failed to sufficiently test and isolate infected residents and staff members, failed to provide personal protective equipment and require it be used by staff, intentionally misled residents’ family members about the status of the COVID-19 outbreak in the facility, and failed to timely secure medical care for infected residents. (See Martin Complaint, para. 60 ("Plaintiffs noted the apparent lack of infection control protocols in place at HPHC to deal with the [COVID-19] outbreak"); para. 62-65 (alleging "HPHC was not taking basic precautions," such as masks or other protective equipment, despite locking down the facility); para. 72 (failure to order COVID-19 test despite respiratory symptoms); para. 73-75, 82 (misinformation regarding number of active cases and management of cases); Ivey Complaint, para. 74 (noting failure to use protective equipment, test residents and staff members, and efforts to mislead residents’ family and the public about severity of COVID-19 outbreak))

Further, the Ivey plaintiffs and Martin plaintiffs both allege Serrano intentionally understaffed the facility to save costs. The Ivey plaintiffs allege Serrano engaged “in a significant pattern of willful understaffing and made several nurses provide care to multiple residents” as a long-standing pattern and practice of understaffing.” The Martin plaintiffs allege Serrano "staff[ed] the nursing home with underqualified staff in order to save money and increase profits for the owners” prior to the COVID-19 pandemic, citing high turnover rates from the facility as early as 2016. The Martin plaintiffs allege "chronic problems with understaffing continued – even worsened – during the COVID-19 crisis Notably, both sets of plaintiffs allege the facility had two (2) nurses taking care of eighty-three (83) residents during early 2020, increasing the possibility of transmitting the COVID-19 virus throughout the facility. (Martin Complaint, para. 89-90; Ivey Complaint, para. 74.) Thus, the cases are essentially certain to require determination of “substantially identical questions of law or fact” relating to Serrano’s policies and practices at the facility between January and April 2020, as well as the common allegations of extreme understaffing during and before the pandemic.

Due to these common issues of fact, the plaintiffs assert there will likely be “substantial overlap of fact witnesses, including, but not limited to, Director of Nursing Debra Layaoen, MDS Coordinator Elizabeth Edra, Social Services Designee, Ciara Tomines, MDS Coordinator Maribel Espejo, former HPHC Administrator Juhn Cayabyab, and current HPHC Administrator Simcha Stern.” (Motion, p. 7; see also CRC 3.300(a)(4) (relation to avoid “substantial duplication of judicial resources”).)

In response, Dr. Filart and Serrano argue there may be non-overlapping witnesses relevant to only one decedent (specifically, the treating physicians for each decedent). Dr. Filart argues the decedents “had different physicians, different comorbidities, and died on different days.” But this alone is not a basis to deny relation; the cases still have substantial and overlapping issues of fact relating to the COVID-19 protocols implemented at the facility during the same time period. It would be more efficient for one trier of fact to resolve those factual issues; this is true even if the trier of fact will also need to address non-overlapping issues of fact specific to each decedent.

The Court recognizes that the Ivey and Martin plaintiffs' claims will also require determination of issues of fact relating to each decedent's health and treatment. For example, decedent Martin allegedly did not receive timely or adequate treatment from Dr. Filart, including testing for COVID-19, until his health had deteriorated; he also allegedly incurred bedsores from being left in bed and received inadequate nutrition. By contrast, decedent Ivey allegedly tested positive for COVID-19 but did not receive adequate treatment for over two weeks, causing his health to deteriorate; decedent’s positive test was allegedly kept secret from the Ivey plaintiffs until the day before decedent’s death. These individualized health issues are typically better-suited to individual trials; allegations that two residents died in the same facility close in time would not be enough to support relation.

But here, there still are substantially overlapping allegations that these deaths were caused by COVID-19 infections around the same time flowing from the same inadequate practices to avoid a COVID-19 outbreak in the facility. It would be duplicative of court and party resources to conduct two trials regarding the same facility’s COVID-19 response during the same time period. The gains in efficiency from trying these cases together plainly outweigh the potential for confusing a jury by assessing the deaths of two residents, allegedly from the same cause, in one case. The Court is unpersuaded the jury will be unable to distinguish testimony concerning individualized health issues, as Dr. Filart and Serrano argue.

The Ivey and Martin plaintiffs request the cases also be consolidated. But cases “may not be consolidated unless they are in the same department,” and critically, a “motion to consolidate two or more cases may be noticed and heard after the cases . . . have been related into a single department.” (Local Rule 3.3(g) (emphasis added).) It is not proper to simultaneously move for relation and consolidation. Moreover, Department 1 cannot consolidate cases not pending before it. The judge assigned to the related cases is responsible for determining whether to consolidate the cases. The Motion is thus DENIED without prejudice to the extent it seeks an order from Department 1 consolidating these cases.

Thus, the Motion to Relate is GRANTED. Civil cases 20STCV19545 and 20STCV24087 are related within the meaning of CRC 3.300(a)(2). For good cause shown, civil case 20STCV24087 is reassigned to Department 56 of the Stanley Mosk courthouse for all purposes. Any hearings in civil case 20STCV24087 are advanced and vacated, but may be reset as needed. The request to consolidate the cases is denied without prejudice.

Plaintiffs to give notice.