Judge Melvin D. Sandvig, Case 21CHCV00874 2023-01-11 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 21CHCV00874, Date: 2023-01-11 Tentative Ruling

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Case Number: 21CHCV00874 Hearing Date: January 11, 2023 Dept: F47

Dept. F47

Date: 1/11/23

Case #21CHCV00874

SUMMARY JUDGMENT

Motion filed on 10/11/22.

MOVING PARTY: Plaintiff 22125 Roscoe Corp. dba Topanga Terrace Rehabilitation and Subacute

RESPONDING PARTY: Defendants Hubert W. Willis and Bobbie S. Willis

NOTICE: ok

RELIEF REQUESTED: An order granting summary judgment in favor of Plaintiff 22125 Roscoe Corp. dba Topanga Terrace Rehabilitation and Subacute and against Defendants Hubert and Bobbie Willis.

RULING: The motion is denied.

This action arises out of the care and treatment provided to Defendant Hubert Willis by Plaintiff 22125 Roscoe Corp. dba Topanga Terrace Rehabilitation and Subacute (Plaintiff).

Plaintiff alleges that on or about December 4, 2020, Hubert Willis was admitted to Plaintiff’s skilled nursing facility. (Complaint ¶6). In connection with the admission, Plaintiff alleges that Bobbie Willis, Hubert Willis’ wife, signed a California Standard Admission Agreement (Agreement). (Id. ¶¶5-6, Ex.A). Plaintiff further alleges that the Agreement provides that invoice payments are due by the 10^th of each month and that interest charges of 18% per annum may be assessed on the unpaid balance beginning on the 15^th day of the month in which payment was due and continuing until paid in full. (Complaint ¶8). Plaintiff has billed Defendants the principal sum of $86,800.00 for the Services provided to Hubert Willis through October 19, 2021, which Plaintiff alleges has not been paid after demand. (Id. ¶9).

On November 17, 2021, Plaintiff filed this action against Defendants Hubert Willis (Hubert Willis) and Bobbie S. Willis (Bobbie Willis) (collectively, Defendants) for breach of contract and quantum meruit/unjust enrichment. On December 17, 2021, Defendants, representing themselves, filed their answer to the complaint. In their answer, Defendants admitted all of the statements in the complaint, except they claimed that Plaintiff did not provide the services that were promised to Defendant and that Plaintiff breached the contract by failing to provide therapy. (See Answer ¶¶3.b., 4).

On October 11, 2022, Plaintiff filed and served the instant motion seeking an order granting summary judgment in favor of Plaintiff and against Defendants. Although the motion is unopposed, it is denied because Plaintiff failed to meet its initial burden. Therefore, the burden never shifted to Defendants. See CCP 437c(p)(1).

First, the separate statement filed in support of the motion is not in the format required by California Rules of Court. See CRC 3.1350(h).

More importantly, the declarations submitted in support of the motion are not executed under penalty of perjury as required. See CCP 2015.5; (See Camarena Decl.; Oliva Decl.). The fact that the declarations were signed before a notary public does not satisfy the statutory requirements of CCP 2015.5. As such, the declarations do not provide admissible evidence to support the motion.

Even of the declarations were properly executed, Plaintiff would have still failed to meet its burden on this motion. Those declarations, the Agreement on which this action is based, the allegations in the complaint and the admissions in the answer do not establish Plaintiff’s entitlement to judgment as a matter of law.

Plaintiff admits that the charges for which it seeks payment in this action are for services allegedly provided to Hubert Willis from March 16, 2021 through October 19, 2021. (Separate Statement (SS) 3, 4, 8). Plaintiff further admits that Bobbie Willis requested that Hubert Willis be discharged in March, April and June of 2021. (SS 6, 28). Plaintiff contends that it did not discharge Hubert Willis pursuant to Bobbie Willis’ request because it was not safe to do so. (SS 29-30). Citing the inadmissible declaration of Silvia Camarena, Plaintiff further contends that it is prohibited by law from discharging a resident for lack of payment if it is not safe to do so. (SS 31). The memorandum of points and authorities in support of the motion cites 42 CFR 483.15, without reference to any of its many subsections, to support this proposition. (See Motion, p.5:10).

With regard to discharge, 42 CFR 483.15 provides:

(1) Facility requirements—

(i) The facility must permit each resident to remain in the facility, and not transfer or discharge the resident from the facility unless—

(A) The transfer or discharge is necessary for the resident's welfare and the resident's needs cannot be met in the facility;

(B) The transfer or discharge is appropriate because the resident's health has improved sufficiently so the resident no longer needs the services provided by the facility;

(D) The health of individuals in the facility would otherwise be endangered;

(E) The resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) a stay at the facility. Non-payment applies if the resident does not submit the necessary paperwork for third party payment or after the third party, including Medicare or Medicaid, denies the claim and the resident refuses to pay for his or her stay. For a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid; or

(F) The facility ceases to operate.

(ii) The facility may not transfer or discharge the resident while the appeal is pending, pursuant to § 431.230 of this chapter, when a resident exercises his or her right to appeal a transfer or discharge notice from the facility pursuant to § 431.220(a)(3) of this chapter, unless the failure to discharge or transfer would endanger the health or safety of the resident or other individuals in the facility. The facility must document the danger that failure to transfer or discharge would pose.

(2) Documentation. When the facility transfers or discharges a resident under any of the circumstances specified in paragraphs (c)(1)(i)(A) through (F) of this section, the facility must ensure that the transfer or discharge is documented in the resident's medical record and appropriate information is communicated to the receiving health care institution or provider.

(i) Documentation in the resident's medical record must include:

(A) The basis for the transfer per paragraph (c)(1)(i) of this section.

(B) In the case of paragraph (c)(1)(i)(A) of this section, the specific resident need(s) that cannot be met, facility attempts to meet the resident needs, and the service available at the receiving facility to meet the need(s).

(ii) The documentation required by paragraph (c)(2)(i) of this section must be made by—

(A) The resident's physician when transfer or discharge is necessary under paragraph (c)(1)(A) or (B) of this section; and

(B) A physician when transfer or discharge is necessary under paragraph (c)(1)(i)(C) or (D) of this section.

(iii) Information provided to the receiving provider must include a minimum of the following:

(A) Contact information of the practitioner responsible for the care of the resident

(B) Resident representative information including contact information.

(D) All special instructions or precautions for ongoing care, as appropriate.

(E) Comprehensive care plan goals,

(F) All other necessary information, including a copy of the resident's discharge summary, consistent with § 483.21(c)(2), as applicable, and any other documentation, as applicable, to ensure a safe and effective transition of care.

(3) Notice before transfer. Before a facility transfers or discharges a resident, the facility must—

(i) Notify the resident and the resident's representative(s) of the transfer or discharge and the reasons for the move in writing and in a language and manner they understand. The facility must send a copy of the notice to a representative of the Office of the State Long–Term Care Ombudsman.

(ii) Record the reasons for the transfer or discharge in the resident's medical record in accordance with paragraph (c)(2) of this section; and

(iii) Include in the notice the items described in paragraph (c)(5) of this section.

(4) Timing of the notice.

(i) Except as specified in paragraphs (c)(4)(ii) and (8) of this section, the notice of transfer or discharge required under this section must be made by the facility at least 30 days before the resident is transferred or discharged.

(ii) Notice must be made as soon as practicable before transfer or discharge when—

(A) The safety of individuals in the facility would be endangered under paragraph (c)(1)(i)(C) of this section;

(B) The health of individuals in the facility would be endangered, under paragraph (c)(1)(i)(D) of this section;

(C) The resident's health improves sufficiently to allow a more immediate transfer or discharge, under paragraph (c)(1)(i)(B) of this section;

(D) An immediate transfer or discharge is required by the resident's urgent medical needs, under paragraph (c)(1)(i)(A) of this section; or

(E) A resident has not resided in the facility for 30 days.

(5) Contents of the notice. The written notice specified in paragraph (c)(3) of this section must include the following:

(i) The reason for transfer or discharge;

(ii) The effective date of transfer or discharge;

(iii) The location to which the resident is transferred or discharged;

(iv) A statement of the resident's appeal rights, including the name, address (mailing and email), and telephone number of the entity which receives such requests; and information on how to obtain an appeal form and assistance in completing the form and submitting the appeal hearing request;

(v) The name, address (mailing and email) and telephone number of the Office of the State Long–Term Care Ombudsman;

(vi) For nursing facility residents with intellectual and developmental disabilities or related disabilities, the mailing and email address and telephone number of the agency responsible for the protection and advocacy of individuals with developmental disabilities established under Part C of the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (Pub.L. 106–402, codified at 42 U.S.C. 15001 et seq.); and

(vii) For nursing facility residents with a mental disorder or related disabilities, the mailing and email address and telephone number of the agency responsible for the protection and advocacy of individuals with a mental disorder established under the Protection and Advocacy for Mentally Ill Individuals Act.

(6) Changes to the notice. If the information in the notice changes prior to effecting the transfer or discharge, the facility must update the recipients of the notice as soon as practicable once the updated information becomes available.

(7) Orientation for transfer or discharge. A facility must provide and document sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility. This orientation must be provided in a form and manner that the resident can understand.

(8) Notice in advance of facility closure. In the case of facility closure, the individual who is the administrator of the facility must provide written notification prior to the impending closure to the State Survey Agency, the Office of the State Long–Term Care Ombudsman, residents of the facility, and the resident representatives, as well as the plan for the transfer and adequate relocation of the residents, as required at § 483.70(l).

(9) Room changes in a composite distinct part. Room changes in a facility that is a composite distinct part (as defined in § 483.5) are subject to the requirements of § 483.10(e)(7) and must be limited to moves within the particular building in which the resident resides, unless the resident voluntarily agrees to move to another of the composite distinct part's locations.

42 CFR 483.15(c)(1)(i)(E) specifically provides for discharge of a resident for failure to pay. Plaintiff fails to point to authority which provides it is prohibited by law from discharging a resident, even if not safe to do so, pursuant to the resident or resident’s representative’s request. The Agreement relied upon by Plaintiff provides that Plaintiff will help arrange for the resident’s voluntary discharge and discusses discharge against the resident’s wishes, not the facility’s refusal to discharge upon the resident or resident’s representative’s wishes. (See Complaint, Ex.A, Section VI “Transfers and Discharges”). The Agreement does not provide that Defendants’ agreed that Hubert Willis would remain a resident and that they would be bound to pay for Plaintiff’s services, if Defendants requested that he be discharged and Plaintiff failed/refused to do so upon Defendants’ request. Even if Bobbie Willis acknowledged that it was not safe for Hubert Willis to be discharged at the time of her requests in March, April and June of 2021, there is no indication that she agreed to continue paying for Plaintiff’s services after such time.

The Court notes that the attachments referenced in the Agreement are not included in the Complaint nor are they provided as evidence with this motion. (See Complaint, Ex.A).