Gregory L. Johnson, 177889 Jody C. Moore, 192601...

Gregory L. Johnson, 177889 Jody C. Moore, 192601 Stephanie A. Johnson, 296370 JOHNSON MOORE 100 E. Thousand Oaks Boulevard, Suite 229 Thousand Oaks, CA 91360 Telephone: (805) 988-3661 Facsimile: (805) 494-4777

Attorneys for Plaintiffs

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF FRESNO

CASE NO.:

COMPLAINT FOR DAMAGES:

1. Elder Abuse and Neglect (Welf. & Inst. Code, § 15600 et seq.)

2. Violation of Resident Rights (Health & Saf. Code, § 1430(b))

3. Negligence

Plaintiff alleges the following:

Parties

1. Plaintiff: VIRGINIA SANTILLAN ("MS. SANTILLAN") was born on August 10,

1943. At all times relevant herein, MS. SANTILLAN is and was an elder as that term is defined

in Welfare & Institutions Code section 15610.27.

2. Defendant LICENSEE: Defendant MANNING GARDENS CARE CENTER, INC. and

DOES 1-10 ("MANNING GARDENS" or "LICENSEE") is and was at all times relevant herein,

a corporation licensed to do business in the State of California. (License No. C3346666.)

MANNING GARDENS is engaged in the business of providing long-term custodial and skilled

care as a licensed Skilled Nursing Facility ("SNF") operating under the same name located at

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VIRGINIA SANTILLAN,

Plaintiffs, VS.

MANNING GARDENS CARE CENTER, INC., a California corporation; RON KINNERSLEY, an individual; and DOES 1-25, inclusive,

Defendants.

COMPLAINT

E-FILED10/26/2017

FRESNO COUNTY SUPERIOR COURTBy: M.Sanchez, Deputy

17CECG03683

2113 East Manning Avenue, Fresno, California 93725, within the County of Fresno. This

location is also the LICENSEE's principal place of business as registered with the Secretary of

the State of California.

3. Defendant OWNER/Operator/Administrator: Defendant RON KINNERSLEY

("OWNER" or "MR. KINNERSLEY") is the owner, operator, and Administrator of the

LICENSEE. He is licensed to do business in the State of California, County of Fresno. On

information and belief, at all times relevant herein, MR. KINNERSLEY was a resident of the

County of Fresno.

4. LICENSEE DUTIES: A LICENSEE is responsible for compliance with licensing

requirements and the organization, management, operation and control of the MANNING

GARDENS. The general duties of a licensee are set forth in Title 22 of the California Code of

Regulations section 72501. Certain duties are non-delegable including the responsibility for

compliance with regulations and the management and control of the Skilled Nursing Facility.

Delegation of authority by a licensee shall not diminish the responsibilities of the licensee.

Therefore, even where a LICENSEE delegates operational control to another person or entity,

that LICENSEE remains directly liable for management, operation and control of the

FACILITY. (Cal. Code Regs., tit. 22, § 72501(a).)

5. MANNING GARDENS was subject to the requirements of federal and state laws and

regulations that govern the operation of a Skilled Nursing Facility in California. In connection

with its operation of the facility, MANNING GARDENS has a substantial and ongoing

caretaking and custodial relationship involving ongoing responsibility for the basic needs of its

residents, including MS. SANTILLAN.

6. By law, the LICENSEE of SNFs operating in California must delegate to a designated

administrator, in writing, the authority to organize and carry out the day-to-day functions of the

SNF. During MS. SANTILLAN's admission to the MANNING GARDENS, MANNING

GARDENS' Administrator was, and is, also the owner, MR. KINNERSLEY, who was

responsible for the administration and management of the SNF in accordance with Title 22 of the

California Code of Regulations section 72513. During MS. SANTILLAN' admission to the

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COMPLAINT

MANNING GARDENS, MANNING GARDENS had a Director of Nursing, believed to be

Jaspreet Bassi, who was responsible for the administration and management of the SNF in

accordance with Title 22 of the California Code of Regulations section 72327. MR.

KINNERSLEY and Ms. Bassi, as the Administrator and the Director of Nursing, respectively,

were managing agents of the LICENSEE and had care or custody of MS. SANTILLAN.

7. MANNING GARDENS had the duty to employ an adequate number of qualified

personnel to carry out all the functions of the SNF. (Health & Safety Code § 1599.1(a); Cal.

Code Regs., tit. 22, § 72501, subd. (e).) Adequate staffing is essential to proper patient care and

outcomes. There is no greater predictor of patient outcome in a skilled nursing facility than

understaffing. The standard of care codified at 42 Code of Federal Regulations parts 482.30 and

483.25 is to provide sufficient qualified nursing staff to provide nursing and related services to

attain or maintain the highest practicable physical, mental and psychosocial well-being of each

resident, as determined by resident assessments and plans of care. Because these requirements

are codified in state and federal regulations, everyone involved in nursing home operations,

including the owners, operators, managers, administrators, and directors of nursing in this case,

understands the direct relationship between quality staff and patient outcomes.

8. In addition to MANNING GARDENS' duty to have sufficient numbers of well-qualified

and trained staff, MANNING GARDENS had a duty to ensure that the facility was operated in a

way that respected and did not violate well-recognized resident rights under Title 22 of the

California Code of Regulations; Health and Safety Code section 1599.1; 42 U.S.C. sections

1395-1396; and 42 Code of Federal Regulations part 483.

9. Advance Knowledge/Authorization/Ratification: Because of the unity of interest and

common ownership and control alleged herein, the acts of the MANNING GARDENS and MR.

KINNERSLEY (as OWNER and Administrator) were done pursuant to policies, practices,

procedures, written or otherwise, established and implemented by and with the advance

knowledge, acquiescence or subsequent ratification of MANNING GARDENS, by and through

its officers, directors and managing agents, and MR. KINNERSLEY (as OWNER and

Administrator). MANNING GARDENS and MR. KINNERSLEY's (as OWNER and

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Administrator) process and plan for the operation of the facility is solely for the purpose of

generation of revenue.

10. MANNING GARDENS and MR. KINNERSLEY (as OWNER and Administrator), and

each of their tortious acts and omissions, as alleged herein, were done in concert and with each

other and pursuant to a common design and agreement to accomplish a particular result, namely

maximizing profits from the operation of the facility. MANNING GARDENS and MR.

KINNERSLEY (as OWNER and Administrator), and each of them, implemented a business plan

to underfund, understaff, undertrain, and undersupervise the staff at the FACILITY.

11. MS. SANTILLAN's injuries arise out of the organization, management, operation and

control of the facility by and between MANNING GARDENS and MR. KINNERSLEY (as

OWNER and Administrator) in their capacity as owner/operators/managers. As such,

MANNING GARDENS and MR. KINNERSLEY (as OWNER and Administrator) share joint

responsibility for MS. SANTILLAN's injuries.

12. DOES: The true names and capacities of defendants named herein as DOES 1-25,

inclusive, are unknown to Plaintiff, who therefore sue those defendants by such fictitious names.

Plaintiff will amend this complaint to allege the true names and/or capacities and/or involvement

of said fictitiously named defendants when ascertained. Plaintiff is informed and believes, and

thereon alleges, that each of the defendants designated as a DOE is responsible in some manner

for the events and happenings herein referred to and thereby legally caused the injuries and

damages herein alleged.

13. On information and belief, DOES 1 through 10 are, and at all times mentioned herein

owned, operated, managed, supervised, controlled, maintained, or were otherwise responsible for

the business activities of MANNING GARDENS. Such DOES would include officers, directors,

controlling shareholders, partners, and governing board members, persons in de facto control of

healthcare, operators, or employees of MANNING GARDENS. At all times relevant to this

action, DOES 1 through 10 helped set and enforce policies and procedures for the services

rendered to clients of MANNING GARDENS.

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14. On information and belief, DOES 11 through 15 may be staff or contracted personnel of

MANNING GARDENS and MR. KINNERSLEY (as OWNER and Administrator), including

physicians, licensed nurses, aides, social workers, business office personnel, or other clinical, or

administrative, personnel including without limitation persons directly or indirectly responsible

for provision of patient care, persons having made representations or warranties to Plaintiffs, and

persons acting in concert with other Defendants.

15. On information and belief, DOES 16 through 25 include persons directly or indirectly

responsible for provision of care or services to MS. SANTILLAN, including but not limited to

physicians, medical groups, managed care organizations, acute care hospitals, home health

agencies, visiting nurses, therapists, or other ancillary care providers who saw, examined,

evaluated, observed or treated or failed to treat MS. SANTILLAN for care or conditions relating

to the allegations in the Complaint, and/or persons having made representations or warranties to

or from the Department of Social Services, the Department of Public Health, the Long Term

Care Ombudsman, Adult Protective Services, MANNING GARDENS and MR. KINNERSLEY

(as OWNER and Administrator), and/or anyone purporting to act on behalf of or in concert with

these persons or entities. The identities of such persons or entities are unknown to Plaintiff and

Plaintiff will seek leave to amend when those identities are ascertained. Plaintiff is informed and

believes, and thereon alleges, that each of the defendants designated as a DOE is responsible in

some manner for the events and happenings herein referred to and thereby legally caused the

injuries and damages herein alleged.

16. Joint Liability Allegations: Upon information and belief, Plaintiff further alleges that

each Defendants and DOES 1-25 were the agent, servant, employee, joint venturer and/or partner

of each Co-Defendant, and at all times acted within the course and scope of said agency,

employment, venture, and/or partnership pursuant to the policies, practices, procedures, written

or otherwise, and with the advance knowledge, acquiescence, or subsequent ratification of each

Co-Defendant.

JURISDICTION AND VENUE

17. This Court has jurisdiction over the cause of action asserted.

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COMPLAINT

1 18. The acts alleged in this complaint occurred at MANNING GARDENS which is located

2 in the County of Fresno.

3 19. The Defendants and each of them have sufficient minimum contacts in California based

4 on their residency in California or otherwise intentionally avail themselves of the California

5 market though their provision of services in the County of Fresno, so as to render them

6 essentially at home in California and making the exercise of jurisdiction by the California courts

7 consistent with traditional notions of fair play and substantial justice.

8 20. Venue is proper in the County of Fresno under Code of Civil Procedure section 395(a)

9 based on the facts, without limitation, that this Court is a court of competent jurisdiction, that the

10 defendants reside in the County of Fresno, and that all of the events described occurred in the

11 County of Fresno.

12 GENERAL ALLEGATIONS

13 21. MS. SANTILLAN was admitted to MANNING GARDENS on May 17, 2016. Her

14 admitting diagnoses included diabetes, heart failure, and an open wound on her right foot. She

15 suffered a stroke approximately 15 years ago, leaving her with weakness in all extremities and

16 right sided hemiplegia (paralysis on one side of the body). As a result, she was, and is, non-

17 ambulatory.

18 22. Because MS. SANTILLAN did not ambulate, she required total staff support for bed

19 mobility, transfers from bed to wheelchair, getting around in her wheelchair, dressing, toilet use,

20 personal hygiene, bathing, provision of food and water, and medication management. Despite

21 her physical limitations, she was, and is, cognitively intact and has no memory impairment.

22 23. While a resident at MANNING GARDENS, MS. SANTILLAN was the victim of elder

23 abuse and neglect in three areas: 1) failure to provide care and treatment to ensure adequate

24 hydration and nutrition in light of her dysphagia from a prior stroke; 2) failure to protect from

25 health and safety hazards posed by a male resident who preyed on MS. SANTILLAN; and 3)

26 wrongfully evicting MS. SANTILLAN to an unsafe and uninhabitable home.

27 24. Care Issue No. 1: MS. SANTILLAN had known esophageal issues as a result of a stroke

28 she suffered years prior to her residency. It was very painful to eat and drink and as a result, MS.

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COMPLAINT

SANTILLAN was supposed to have "honey thick" liquids, also known as a mechanical diet.

MANNING GARDENS failed to comply with MS. SANTILLAN's eating and drinking orders.

MS. SANTILLAN became so dehydrated and malnourished that MANNING GARDENS staff

believed she was having a stroke one day. They sent her to the hospital where she was

rehydrated and given adequate nutritional intake to the point where she was stabilized and

discharged back to the facility.

25. Care Issue No. 2: A male resident of MANNING GARDENS preyed on and stalked MS

SANTILLAN while she was a resident. MS. SANTILLAN complained to MANNING

GARDENS staff that this resident frightened her immensely. On one occasion, she called 911

she felt so threatened by his presence. On another occasion, he came into her room while staff

was attending to her personal hygiene and dressing needs, and he watched; staff did not redirect

him or ask him to leave the room. MANNING GARDENS knew this resident frightened MS.

SANTILLAN yet failed to take adequate steps to prevent the resident from watching over MS.

SANTILLAN while she was particularly vulnerable. MANNING GARDENS failed to protect

MS. SANTILLAN's dignity and right to privacy.

26. Care Issue No. 3: On October 6, 2016, MANNING GARDENS provided MS.

SANTILLAN with a 30-day notice of discharge. The letter indicated it was hand delivered to

MS. SANTILLAN and a copy was provided to her son. The reason given for discharge was the

failure of MS. SANTILLAN to pay her share of cost. She was a Medi-Cal recipient but

according to MANNING GARDENS, Medi-Cal had determined that MS. SANTILLAN's share

of cost was $2,269 per month. Her outstanding bill as of the date of the notice was $11,649.63.

The letter indicated MS. SANTILLAN would be discharged on November 7, 2016 unless her bill

was paid in full or she established a satisfactory payment plan. The letter indicated she would be

discharged home with her son. The letter also indicated: "We will assist you in setting up in-

home care if you desire. You have all your mental capacities and even with certain physical

limitations you should be able to function at home with some in-home supportive services."

27. On November 7, 2016, MANNING GARDENS called a transport company and

transported MS. SANTILLAN from MANNING GARDENS to her house. However, her son

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refused to open the gate to let her come in. The transport driver notified MANNING

GARDENS' Assistant Administrator that MS. SANTILLAN's son would not let her in the

home. Shortly thereafter, MR. KINNERSLEY and the facility's Assistant Administrator drove

to MS. SANTILLAN's home and found her on the curb outside her home. MR. KINNERSLEY

and the Assistant Administrator told MS. SANTILLAN and her son that she could come back if

her son paid her outstanding bill.

28. At this point, outside the home and in the midst of a heated exchange between MR.

KINNERSLEY and MS. SANTILLAN's son, MS. SANTILLAN complained she did not feel

well. 911 was called and emergency personnel arrived. MR. KINNERSLEY and the Assistant

Administrator left MS. SANTILLAN at the home with the emergency personnel.

29. MS. SANTILLAN was taken to hospital, where emergency department personnel charted

her chief complaint as, "Patient was kicked out of SNF, PD [police department] states home is

unfit for patient to live in... 73 year old was left in front of her house and FPD [Fresno police

department] stated her house is unfit to live in, therefore, was transported to the hospital."

30. MANNING GARDENS failed to prepare a safe and orderly discharge plan in compliance

with state and federal regulations governing discharging residents from SNFs. They made the

decision to discharge MS. SANTILLAN without a safe discharge plan which predictably,

resulted in an unsafe discharge. They called MS. SANTILLAN's son prior to discharge, but he

never answered the phone calls nor returned any messages. Thus, the son did not participate in

any discharge planning. In fact, MS. SANTILLAN's son was ill himself and had been in and out

of the hospital in the month prior to MS. SANTILLAN's unsafe discharge.

31. The Department of Public Health investigated the circumstances regarding MS.

SANTILLAN's unsafe discharge. They issued a Type A citation for discharging MS.

SANTILLAN to a home that was deemed uninhabitable and unsafe; for causing emotional and

physical distress requiring intervention by local police and fire departments; and ultimately

requiring MS. SANTILLAN to be hospitalized. The DPH found MANNING GARDENS

violated 42 Code of Federal Regulations parts 483.15 subdivisions (c)(3)-(5) and (7). In issuing

the Type A citation, the DPH further found these violations placed MS. SANTILLAN in

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imminent danger that death or serious harm would have resulted or a substantial probability that

death or serious physical harm would result.

FIRST CAUSE OF ACTION

(Elder Abuse and Neglect as against All Defendants)

32. Plaintiff incorporates by reference Paragraphs 1 through 31 of this Complaint as though

fully set forth herein and further allege as follows:

33. Elder: MS. SANTILLAN was at all times mentioned herein an "elder" as defined by

Welfare & Institutions Code § 15610.27. At MANNING GARDENS, MS. SANTILLAN was

dependent on defendants for all of her activities of daily living.

34. Substantial Ongoing Caretaking and Custodial Relationship: By virtue of her

residence and dependency, MANNING GARDENS and MR. KINNERSLEY had a substantial

ongoing caretaking and custodial relationship with MS. SANTILLAN. MANNING GARDENS

and MR. KINNERSLEY had responsibility for meeting MS. SANTILLAN's basic needs

including the need for food intake, nutrition, fluids, hydration, hygiene, bed mobility, transfers,

and medication management.

35. Duties of MANNING GARDENS and MR. KINNERSLEY: MANNING GARDENS

and MR. KINNERSLEY had a duty to MS. SANTILLAN to provide care and services, including

medical care, that met her needs and were in accordance with the laws and regulations governing

SNFs, including but not limited to:

a. Duty to be treat residents with consideration, respect, and full recognition of dignity (Cal.

Code Regs., tit. 22, § 72527(a)(12));

b. Duty to identify individual care needs based on assessment of patient's needs with input

from patient and, if necessary, health professionals involved in the care of the patient

(Cal. Code Regs., tit. 22, § 72311(a)(1)(A)); 42 C.F.R. §§ 483.10(f), 483.20(b)(1); 42

U.S.C. § 1395i-3(b)(3));

c. Duty to provide care as implemented by individualized written patient care plan

indicating the care to be given, objectives to be accomplished, and the professional

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discipline responsible for each element of care (Cal. Code Regs., tit. 22, §

72311(a)(1)(B), 72311(a)(2); 42 C.F.R. § 483.10(c)); 42 U.S.C. § 1395i-3(b)(4));

d. Duty to review, evaluate, and update patient care plans as necessary and more often if

there is a change of the patient's condition (Cal. Code Regs., tit. 22, § 72311(a)(1)(C));

e. Duty to record nurses' notes that are clear and legible, dated and signed, among other

qualifications, including narratives or how a patient responds, eats, drinks, looks, feels,

and reacts (Cal. Code Regs., tit. 22, § 72547(a)(5));

f. Duty to provide the patient or responsible party the opportunity to participate in an

immediate and ongoing basis in the total plan of care including identification of medical,

nursing, and psychosocial needs and the planning of related services (Cal. Code Regs., tit

22, § 72527(a)(3); 42 C.F.R. § 483.10(c));

g. Duty to provide care in such a marmer and in such an environment by facility staff to be

free from mental and physical abuse and neglect (Cal. Code Regs., tit. 22, §

72527(a)(10); 42 C.F.R. § 483.12);

h. Duty to provide good nutrition and necessary fluids for hydration, and to assist with

eating if the patient requires assistance (Cal. Code Regs., lit. 22, § 72315(g), (h));

i. Duty to provide adequate number of qualified personnel to carry out all functions of the

facility and to meet patients' needs as well as adequate training and competent

supervision (Cal. Code of Regs., tit. 22, §§ 72329 and 72329.1; Health & Saf. Code, §

1599.1(a); 42 C.F.R. §§ 483.35, 483.95);

j. Duty to notify the patient of transfer or discharge and the reasons for the move in writing

and in a language and manner they understand; duty to send a copy of the notice to the

representative of the Ombudsman (42 C.F.R. § 483.15(c)(3));

k. Duty to provide a 30-day notice of transfer or discharge prior to the resident being

transferred or discharge. The contents of the notice must include the reason for transfer

or discharge; the effective date for transfer or discharge, the location to which the patient

is being transferred or discharged, a statement of the patient's right to appeal including

name and contact information of the entity to send the appeal, information on how to

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obtain an appeal, and assistance in submitting the appeal, and the name and contact

information of the Ombudsman (42 C.F.R. § 483.15(c)(4)-(5));

1. Duty to provide and document sufficient preparation and orientation to patients to ensure

safe and orderly transfer or discharge from the facility (42 C.F.R. § 483.15(c)(7)).

36. Physical Abuse: MANNING GARDENS, MR. KINNSERLEY (as

Administrator/managing agent and OWNER), and DOES 1-25 committed physical abuse as

defined in the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, §

15610.63). MS. SANTILLAN unnecessarily suffered when MANNING GARDENS and MR.

KINNERSLEY continually deprived her of food and water when they failed to follow MS.

SANTILLAN's dietary orders.

37. Neglect: MANNING GARDENS and MR. KINNSERLEY (as Administrator/managing

agent and OWNER), and DOES 1-25 also committed dependent adult neglect as defined in the

Elder Abuse and Dependent Adult Civil Protection Act (Welfare & Institutions Code section

15610.57) by failing to protect MS. SANTILLAN from health and safety hazards.

38. Without limiting the generality of the foregoing paragraph, MANNING GARDENS and

MR. KINNSERLEY (as Administrator/managing agent and OWNER), and DOES 1-25

committed dependent adult neglect by:

a. Failure to provide medical care for physical and mental health needs: MANNING

GARDENS and MR. KINNERSLEY failed to effectively develop, implement, and

modify individualized care plans to ensure adequate hydration and nutritional intake.

MANNING GARDENS and MR. KINNERSLEY failed to monitor and assess MS.

SANTILLAN was indeed getting enough hydration and nutritional intake. MANNING

GARDENS and MR. KINNERSLEY failed to report to her responsibly party and

physician that MS. SANTILLAN was declining because she was not receiving enough

hydration and nutritional intake. MANNING GARDENS and MR. KINNERSLEY's

failures caused unnecessary pain and suffering and MS. SANTILLAN had to be

hospitalized for dehydration and malnourishment.

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b. Failure to protect from health and safety hazards. MANNING GARDENS and MR.

KINNERSLEY failed to protect MS. SANTILLAN from a known male resident who was

preying on and stalking MS. SANTILLAN. Their failures to implement simple

interventions to prevent the male resident from preying on and stalking MS.

SANTILLAN caused her unnecessary pain and suffering. MANNING GARDENS and

MR. KINNERSLEY further failed to protect MS. SANTILLAN from health and safety

hazards when they discharged her to a home that was uninhabitable and unsafe. Their

failure to properly implement discharge procedures resulted in unnecessary pain and

suffering as she had to be hospitalized.

39. Evidence of Recklessness in conscious disregard for the rights and safety of MS.

SANTILLAN: MANNING GARDENS and MR. KINNERSLEY's conduct was despicable and

was carried on by defendants with a willful and conscious disregard for the rights and safety of

their residents. MANNING GARDENS and MR. K1NNERSLEY had a duty to accept and retain

residents whose needs could be met at their facility, and to ensure safe and orderly discharges of

residents. MANNING GARDENS and MR. KINNERSLEY had a duty to hire, train, monitor,

and supervise their employees to ensure they provided minimum services and oversight of

residents, have policies and procedures in place to ensure that basic services and oversight are

implemented to assure the health and safety of residents, employment and training of staff such

that staff is experienced and competent to perform the job duties necessary to assure safety and

oversight of residents, accepting, training and employing staff in a manner that avoids "a

revolving door" of crucial managerial employees such that there is little or no continuity and/or

an absence of crucial managerial employees at critical times.

40. Regarding Care Issue No. 1, MANNING GARDENS and MR. KINNERSLEY knew, or

should have known, MS. SANTILLAN required a special diet in light of her dysphagia as a

result of a stroke she suffered years prior to her residency. MANNING GARDENS and MR.

KINNERSLEY knew, or should have known, they had a duty to implement an individualized

care plan to meet this specific need. MANNING GARDENS and MR. KINNERSLEY knew, or

should have known, their facility was not adequately staffed in both quantity and quality of

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personnel to meet MS. SANTILLAN's care needs with regard to her special diet because MR.

KINNERSLEY is the Administrator and every day, shift after shift, he was responsible for

ensuring MS. SANTILLAN's needs were being met. MANNING GARDENS and MR.

KINNERSLEY knew, or should have known, they were not adequately training, monitoring, and

supervising their employees to ensure MS. SANTILLAN's needs were being met. MANNING

GARDENS and MR. KINNERSLEY knew, or should have known, failing to prepare and

implement care plans, failing to hire competent staff to implement those care plans, and failing to

monitor and supervise their employees created a high probability that substantial injury was

certain to befall MS. SANTILLAN, yet they did it anyway in conscious disregard of MS.

SANTILLAN's rights and safety.


should have known, their facility was not adequately staffed in both quantity and quality

personnel to protect MS. SANTILLAN from the male resident that was preying on and stalking

her. MANNING GARDENS and MR. KINNERSLEY knew, or should have known, the male

resident frightened MS. SANTILLAN yet did nothing to protect her from him. MANNING

GARDENS and MR. KINNERSLEY failed to implement a care plan to address the male

resident's behavior such as redirecting him, reorienting him to time and place, and introducing

interventions to keep him distanced from MS. SANTILLAN. MANNING GARDENS and MR.

KINNERSLEY failed to implement a care plan to address MS. SANTILLAN's fears such as

ensuring her the male resident would be distanced from her, a plan to ensure the male resident

would never be permitted to watch her during a dressing, and a plan to calm MS. SANTILLAN

if the resident appeared. MANNING GARDENS and MR. KINNERSLEY failed to protect MS.

SANTILLAN from these issues with the Male resident in conscious disregard for her rights and

safety.


should have known, that state and federal regulations exist to protect residents from improper

and/or unsafe discharges. MANNING GARDENS and MR. KINNERSLEY knew, or should

have known, they were required to prepare and orient MS. SANTILLAN to the discharge plan to

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ensure a "safe and orderly" discharge. MANNING GARDENS and MR. KINNERSLEY knew,

or should have known, their plan to discharge MS. SANTILLAN home was unsafe. MANNING

GARDENS and MR. KINNERSLEY knew, or should have known, MS. SANTILLAN was sent

to the Emergency Room from her home prior to her admission to the facility precisely because

MS. SANTILLAN was self-neglecting at her home. MANNING GARDENS and MR.

KINNERSLEY knew, or should have known, MS. SANTILLAN was found in her home soiled

with feces from head to toe, with small cockroaches on her, and multiple wounds including a

wound on her right foot found to be infested with maggots. MANNING GARDENS and MR.

KINNERSLEY knew, or should have known, MS. SANTILLAN would self-neglect again if

discharged home yet did it anyway in conscious disregard for MS. SANTILLAN's rights and

safety.

43. Evidence of Malice and Oppression in conscious disregard for the rights and safety

of MS. SANTILLAN: MANNING GARDENS and MR. KINNERSLEY's despicable conduct

subjected MS. SANTILLAN to cruel and unjust hardship in conscious disregard of her rights.

MANNING GARDENS and MR. KINNERSLEY were on notice that they were unsafely

discharging MS. SANTILLAN to an uninhabitable home. They admitted they knew there was

an open investigation involving Adult Protective Services regarding the habitability of the home.

Furthermore, they knew by sending her home she would be in the same circumstance where she

could be subject to self-neglect. MANNING GARDENS and MR. KINNERSLEY's conduct set

the scene for a heated discussion with MS. SANTILLAN's son that further subjected MS.

SANTILLAN to cruel and unjust hardship of being left on a curb with her belongings. She

witnessed the deeply upsetting discussions her son had to have with MR. KINNERSLEY. MS.

SANTILLAN's son desperately pled with MR. KINNERSLEY to not discharge her to the home

because he knew he was unable to care for her considering his own health issues. MS.

SANTILLAN was painfully aware she was being discharged to an unsafe environment, and

suffered fear, anxiety, and the humiliation of being left on the curb. The unnecessary pain and

suffering this caused her resulted in her hospitalization.

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44. Evidence of Fraud in the commission of Elder Neglect: MANNING GARDENS and

MR. KINNERSLEY knew or should have known that MANNING GARDENS' operation was

designed and operated by MANNING GARDENS in a manner to circumvent its legal duty to

comply with applicable statutes and regulations so as to maximize profitability. That knowledge

was exclusively in the possession of the Defendants. MS. SANTILLAN had no such knowledge,

nor the opportunity to obtain such knowledge and information. MS. SANTILLAN and her

family believed that MANNING GARDENS and MR. KINNERSLEY's business operations

were, as represented by the Defendants, properly run in compliance with the law and that the

care afforded to its patients was within all State guidelines. In particular, they understood that

the management and staff, including MR. KINNERSLEY and Director of Nursing of

MANNING GARDENS were "experts" and were readily familiar, capable, able and committed

to the care and oversight of patients such as MS. SANTILLAN. Such representations were

fraudulent. Further, MANNING GARDENS and MR. KINNERSLEY's conduct was reckless

and in conscious disregard of MS. SANTILLAN's rights and safety.

45. Direct Evidence of Neglect by MR. KINNERSLEY who consciously chose to put

profits over his patient, MS. SANTILLAN: One of the reasons MANNING GARDENS and

MR. KINNERSLEY wanted to discharge MS. SANTILLAN, regardless of the conditions of the

discharge, was to protect their bottom dollar. MR. KINNERSLEY was upset that MS.

SANTILLAN had not paid her share of costs and that she was not creating the type of revenue

MR. KINNERSLEY desired due to her Medi-Cal status. MR. KINNERSLEY knew if he kicked

her out, he could replace her with a more lucrative patient. So, MR. KINNERSLEY made the

conscious decision to discharge MS. SANTILLAN to the same conditions she came from where

she self-neglected, and was likely to self-neglect again, in order to free up a bed for a more

lucrative patient. MR. KINNERSLEY knowingly put profits over his patient, MS.

SANTILLAN, in conscious disregard for her rights and safety.

46. MR. KINNERSLEY engaged in direct neglect of MS. SANTILLAN when he failed to

give proper notice of MS. SANTILLAN's discharge, failed to prepare and orient MS.

SANTILLAN to ensure she was safely and orderly discharged, and discharged MS. SATILLAN

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1 to an uninhabitable and unsafe home. MR. KINNERSLEY admits to the DPH that he failed to

2 give proper notice to MS. SANTILLAN because the notice did not have information on MS.

3 SANTILLAN's right to appeal the discharge. He also failed to take steps to ensure MS.

4 SANTILLAN was oriented to the discharge as he did nothing to ensure she had the proper

5 equipment, like a blender, to blend her food; he did nothing to ensure she had adequate wound

6 care orders for home health to treat the wounds on her feet. MR. KINNERSLEY admits to the

7 DPH he thought there was nothing unsafe about the discharge even though he knew MS.

8 SANTILLAN was likely to self-neglect having done it before at her home, and there was an

9 open investigation involving Adult Protective Services regarding the habitability of the home.

10 Defiantly, MR. KINNERSLEY claims there is no requirement by state and federal regulations

11 that when discharging a resident, it must be done safely despite knowing that 42 Code of Federal

12 Regulations part 483.15(c)(7) states the facility must prepare and orient residents "to ensure safe

13 and orderly discharge from the facility". MR. KINNERSLEY directly neglected MS.

14 SANTILLAN as both the Administrator/managing agent of MANNING GARDENS and as the

15 OWNER of MANNING GARDENS. 16

47. MR. KINNERSLEY engaged in direct neglect by making the conscious choice to

17 understaff the nursing home, in both quantity and quality of nursing personnel. The decision to

18 understaff was made at the corporate level by MR. KINNERSLEY in order to increase the

19 profitability of the SNF, in conscious disregard of patient care needs. MR. KINNERSLEY,

20 MANNING GARDENS and their other directors, officers and managing agents, conceived of

21 and implemented a plan to increase business profits at the expense of residents like MS.

22 SANTILLAN, and other facility residents. Integral to this plan was the practice and pattern of

23 MANNING GARDENS and MR. KINNERSLEY staffing its facilities with an insufficient

24 number of care personnel, many of whom were not properly trained nor qualified to care for the

25 elders whose lives were entrusted to them. The understaffing and lack of training was designed

26 to reduce labor costs and to increase profits, and resulted in high staff turnover and the neglect of

27 many patients of the facilities and most specifically, MS. SANTILLAN. This corporate policy to

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conscious disregard for the likelihood of physical harm and injury to those who it is in the

business to protect, including MS. SANTILLAN, who did in fact suffer as a direct consequence

of MANNING GARDENS' proprietary interests, which it placed above that of her and other

residents.

48. MANNING GARDENS and MR. KINNERSLEY knew that by understaffing their

facility, in quantity and quality, they were putting rights and safety of its residents, including

MS. SANTILLAN, at risk. This is because everyone involved in nursing home operations

including the owners, operators, administrators, and directors of nursing understand the direct

relationship between staffing and patient outcomes. The higher the staffing ratio, the better the

patient outcome. Understaffing in quality and quantity of personnel, and then failing to

adequately train, supervise, and monitor personnel caused or contributed to the lack of care MS.

SANTILLAN received resulting in Care Issue Nos. 1 and 2.

49. Corporate directives and reporting: This continual pattern of withholding care and

understaffing at MANNING GARDENS was well known to MR. KINNERSLEY (as OWNER

and Administrator) and their other officers, directors and managing agents. Upon information

and belief, MANNING GARDENS' staff routinely reported up the chain of command in

MANNING GARDENS, who in turn reported to MANNING GARDENS corporate officers,

directors and managing agents about what was happening on the floor at the SNF, including

problems with understaffing and lack of qualified and trained staff, and more specifically the

events leading up to the injuries of MS. SANTILLAN. In addition, as Administrator of the SNF,

MR. KINNERSLEY was actually on the floor of the SNF himself and aware of the understaffing

and lack of qualified and trained staff that he himself hired.

50. MR. KINNERSLEY himself, and MANNING GARDENS' other officers, directors and

managing agents, directed and controlled the staffing budget by allocating resources, setting

staffing minimums and maximums, and directing staff to patient ratios. By law, defendants were

responsible for setting policies and procedures to be implemented in MANNING GARDENS

and provided supervision and oversight of administration and nursing services by and through

managers and directors.

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51. MR. KINNERSLEY and the other officers, directors and managing agents of MANNING

GARDENS have specific knowledge of substandard care at MANNING GARDENS, including a

repeated pattern of failures to assess, monitor and respond to changes in resident condition and

inadequate safety measures at the facility, including inadequate safety measures for discharge

planning and discharges. The officers, directors and managing agents of MANNING

GARDENS and MR. KINNERSLEY knew or should have known of the lack of care to its

patients, as well as its understaffing, poor training, and the failure to implement care plans,

including discharge planning, would probably result in harm to residents, including MS.

SANTILLAN. Despite MANNING GARDENS and MR. KINNERSLEY's conscious

knowledge of poor care, understaffing, unqualified staff, lack of care planning including

discharge planning, MR. KINNERSLEY and the managing agents of MANNING GARDENS

did not take appropriate and adequate steps to prevent and correct them, and they did not inform

MS. SANTILLAN or her family of what they knew about these dangerous conditions.

52. Authorization/Ratification and Knowing Employment of an Unfit Employee:

MANNING GARDENS and MR. KINNERSLEY acted by and through its managers, directors,

officers, and other agents directly oversaw, managed, and/or controlled all aspects of the

operation and management of VALLE VERDE. As such, MANNING GARDENS and MR.

KINNERSLEY are directly responsible for the neglect of MS. SANTILLAN. MANNING

GARDENS and MR. KINNERSLEY were responsible for overall operations, including but not

limited to that facility's budgeting, staffing, staff training, and policies and procedures regarding

assessments and care plans, change of condition, and patient transfer and discharge rights.

53. . KINNERSLEY (as OWNER) and MANNING GARDENS' other officers, directors

and managing agents knew MANNING GARDENS' operation was designed in a manner so as

to maximize profitability by circumventing the legal duty to assure the health, safety and

oversight of residents such as MS. SANTILLAN and, in particular, the duty to hire competent

employees, to train those employees, and to terminate or discipline employees for misconduct

towards the residents, including MS. SANTILLAN. As a result, MR. KINNERSLEY (as

OWNER), and MANNING GARDENS' other officers, directors and managing agents had

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knowledge of, ratified and/or otherwise authorized all the acts or omissions, which caused the

injuries to MS. SANTILLAN.

54. MANNING GARDENS and MR. KINNERSLEY authorized and ratified the

misconduct of its employees. They failed to train, supervise, and monitor their employees to

ensure they were aware of the policies and procedures regarding care planning, the adequate

provision of food and fluids, the right to dignity and privacy, and discharges. They also failed

to retrain, discipline, or terminate the employees who neglected and unsafely discharged MS.

SANTILLAN. The DPH found the Social Services Designee of the facility knew it was an

unsafe discharge yet did it anyway. The Assistant Administrator participated in the unsafe

discharge by accompanying MR. KINNERSLEY to MS. SANTILLAN's home. A nurse at the

facility stated to the DPH she did not think it was a safe discharge. On information and belief,

these employees still work at the facility and have not received any retraining on safe

discharges, nor have they been disciplined for their misconduct. MR. KINNERSLEY

knowingly employed employees who were unfit as any employee who knows a discharge is

unsafe but does it anyway is unfit.

55. Further evidence of ratification can be found by examining public records in the

licensing file for MANNING GARDENS at the DPH. Three months after the wrongful and

unsafe discharge of MS. SANTILLAN, the DPH cited MANNING GARDENS for an unsafe

discharge of a 92-year-old male resident. In that investigation, the DPH found the resident

required skilled care for cognitive impairments and MANNING GARDENS attempted to

discharge him to a Residential Care Facility for the Elderly (a non-medical facility that provides

long-term custodial care for the basic needs of elderly residents) where his care needs could not

be met. The resident was given no notice of discharge and the facility had no real idea of the

level of care RCFEs provide its residents. MR. KINNERSLEY is quoted as saying "We didn't

do everything right. We didn't do our homework." The fact that MR. KINNERSLEY would

repeat such egregious conduct is further evidence that he authorizes wrongful evictions and

ratified MS. SANTILLIAN's wrongful eviction by engaging in same or similar conduct after

the fact.

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56. Damages: As a proximate result of the abuse and neglect of MS. SANTILLAN by

MANNING GARDENS and MR. KINNERSLEY, and each of them, MS. SANTILLAN was

caused to incur medical expenses and other related expenses, the full nature, extent and amount

of which are not yet known to Plaintiff, and leave is requested to amend this Complaint when the

same are ascertained to conform to proof at the time of the trial.

57. As a proximate result of the abuse and neglect of MS. SANTILLAN by MANNING

GARDENS and MR. KINNERSLEY, and each of them, MS. SANTILLAN suffered fear,

anxiety, humiliation, physical pain and discomfort, and emotional distress, all to her general

damage in a sum to be established.

58. By the conduct, acts and omissions of MANNING GARDENS and MR. KINNERSLEY,

and each of them, as alleged above, they are guilty of recklessness, fraud, oppression, and/or

malice. The specific facts set forth above show a disregard of the high probability that MS.

SANTILLAN would be injured. The specific facts set forth above show a disregard for the

rights and safety of MS. SANTILLAN. In addition to special damages, Plaintiff is therefore

entitled to an award of the reasonable attorney's fees and costs incurred in prosecuting this case

as well as MS. SANTILLAN's pain and suffering and punitive damages pursuant to Welfare &

Institutions Code section 15657 and Civil Code section 3294.

59. By the conduct, acts and omissions of MANNING GARDENS and MR. KINNERSLEY,

and each of them, as alleged above, they have engaged in unfair business practices directed at the

elderly. MS. SANTILLAN is therefore entitled to treble damages pursuant to Civil Code section

3345.

SECOND CAUSE OF ACTION

(Violation of Residents Rights against MANNING GARDENS CARE CENTER, INC. and

DOES 1-25)

60. Plaintiff incorporates herein by reference paragraphs 1 through 59 of this Complaint as

though fully set forth.

61. The acts and omissions of MANNING GARDENS alleged above constitute violations of

patients' rights within the meaning of Health and Safety Code section 1430(b). This statute

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allows a current or former resident to pursue damages and an injunction for violations of

patients' rights set forth in Title 22 of the California Code of Regulations section 72527 and

other state and federal laws and regulations.

62. Pursuant to Jarman v. HCR ManorCare, Inc. (2017) 9 Cal.App.5th 807, a plaintiff may

recover up to $500 per cause of action prosecuted under Health & Safety Code section 1430(b).

(Jarman, supra, at p. 248.) Each of the care issues in this matter could be brought as separate

causes of action because they each stand alone and apart from one another. Plaintiff thus alleges

multiple causes of action based on multiple patient rights violations, each constituting a primary

right:

a. Care Issue No. 1: Failure to care plan to ensure adequate provision of food and

fluids: Right to have individual care needs identified based on assessment of patient's

needs with input from patient and, if necessary, health professionals involved in the care

of the patient (Cal. Code Regs., tit. 22, § 72311(a)(1)(A)); 42 C.F.R. §§ 483.10(f),

483.20(b)(1); 42 U.S.C. § 1395i-3(b)(3)); Right to receive care as implemented by

individualized written patient care plans indicating the care to be given, objectives to be

accomplished, and the professional discipline responsible for each element of care (Cal.

Code Regs., tit. 22, § 72311(a)(1)(B), 72311(a)(2); 42 C.F.R. § 483.10(c)); 42 U.S.C. §

1395i-3(b)(4)); Right to have care plans reviewed, evaluated, and updated as necessary

and more often if there is a change of the patient's condition (Cal. Code Regs., tit. 22, §

72311(a)(1)(C)); Right to have nurses' notes that are clear and legible, dated and signed,

among other qualifications, including narratives or how a patient responds, eats, drinks,

looks, feels, and reacts (Cal. Code Regs., tit. 22, § 72547(a)(5)); Right to have the

opportunity to participate in an immediate and ongoing basis in the total plan of care

including identification of medical, nursing, and psychosocial needs and the planning of

related services (Cal. Code Regs., tit. 22, § 72527(a)(3); 42 C.F.R. § 483.10(c)); Right to

receive good nutrition and necessary fluids for hydration, and assistance with eating if the

patient requires assistance (Cal. Code Regs., tit. 22, § 72315(g), (h)); Right to receive

care in such a manner and in such an environment by facility staff to be free from mental

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and physical abuse and neglect (Cal. Code Regs., tit. 22, § 72527(a)(10); 42 C.F.R. §

483.12); Right to have adequate number of qualified personnel to carry out all functions

of the facility and to meet patients' needs as well as adequate training and competent

supervision (Cal. Code of Regs., tit. 22, §§ 72329 and 72329.1; Health & Saf. Code, §

1599.1(a); 42 C.F.R. §§ 483.35, 483.95);

b. Care Issue No. 2: Failure to protect the right to dignity and privacy: Right to be treat

residents with consideration, respect, and full recognition of dignity (Cal. Code Regs., tit.

22, § 72527(a)(12)); Right to receive care in such a manner and in such an environment

by facility staff to be free from mental and physical abuse and neglect (Cal. Code Regs.,

tit. 22, § 72527(a)(10); 42 C.F.R. § 483.12); Right to have adequate number of qualified

personnel to carry out all functions of the facility and to meet patients' needs as well as

adequate training and competent supervision (Cal. Code of Regs., tit. 22, §§ 72329 and

72329.1; Health & Saf. Code, § 1599.1(a); 42 C.F.R. §§ 483.35, 483.95);

c. Care Issue No. 3: Failure to implement appropriate discharge planning measures to

ensure safe and orderly discharge: Right to be notified of discharge and the reasons for

the move in writing and in a language and manner they understand; right to have a copy

of the notice sent to the representative of the Ombudsman (42 C.F.R. § 483.15(c)(3));

Right to receive a 30-day notice of discharge prior to the discharge. The contents of the

notice must include the reason for discharge, the effective date for discharge, the location

to which the patient is being discharged, a statement of the patient's right to appeal

including name and contact information of the entity to send the appeal, information on

how to obtain an appeal, and assistance in submitting the appeal, and the name and

contact information of the Ombudsman (42 C.F.R. § 483.15(c)(4)-(5)); Right to receive

sufficient preparation and orientation to discharge location to ensure safe and orderly

discharge from the facility, and to have preparation and orientation services documented

(42 C.F.R. § 483.15(c)(7)).

63. MANNING GARDENS violated the above-referenced patient rights when MANNING

GARDENS failed to adequately care plan to ensure MS. SANTILLAN received enough food

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and fluids, failed to protect her right to dignity and privacy by failing to protect her from the

male resident, and failed to implement appropriate discharge planning measures to ensure a safe

and orderly discharge. MANNING GARDENS failed to prevent serious injury and insult to

plaintiff.

64. MS. SANTILLAN is entitled to an award of statutory damages as set forth in Health and

Safety Code section 1430(b) for up to $500 for each primary right violated. Plaintiff reserves the

right to amend the pleadings to add additional causes of action based on additional primary rights

as the case progresses.

65. Plaintiff is entitled to attorney's fees and costs and an injunction to prevent further

violations, in addition to other remedies set forth in Health and Safety Code section 1430(b).

The [Proposed] Stipulation for an Injunction is attached hereto as Exhibit A.

THIRD CAUSE OF ACTION

(Negligence as Against All Defendants)

66. Plaintiff incorporates by reference Paragraph 1 through 65 of this Complaint as though

fully set forth herein.

67. MANNING GARDENS and MR. KINNERSLEY owed a duty of care to MS.

SANTILLAN to act reasonably in the discharge of their duties including but not limited to hire,

retain, and train sufficient staff to provide her with necessary care and services based on

assessment and recognition of her individualized care needs; a duty to protect her from health

and safety hazards; a duty to observe and report changes of condition to family and physicians;

duty to provide appropriate discharge planning services and arrange for a safe and orderly

discharge; and a duty to ensure she does not suffer needlessly.

68. MANNING GARDENS and MR. KINNERSLEY breached their duties as described

herein.

69. As a direct and proximate result of the wrongful conduct as alleged by plaintiff, and the

breaches of duty owed to plaintiff, MS. SANTILLAN suffered harm and injury, including but

not limited to physical pain and mental suffering, isolation, fear, anxiety, humiliation, physical

pain and discomfort, and emotional distress, all to her general damage in a sum to be established.

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1 70. As a direct and proximate result of the wrongful conduct as alleged by plaintiff, MS.

2 SANTILLAN was caused to incur the expense all to her special damage in a sum to be

3 established.

4 RELIEF REQUESTED

5 WHEREFORE Plaintiff prays for judgment against Defendants as follows:

6 On the first count — Elder Abuse and Neglect against All Defendants

7 1. For general damages in an amount in excess of the minimum jurisdiction of this court;

8 2. For special damages including past hospital, medical, professional and incidental

9 expenses, according to proof-,

10 3. For attorney's fees and costs pursuant to Welfare & Institutions Code § 15657 and

11 according to proof;

12 4. For exemplary damages pursuant to Welfare & Institutions Code § 15657 and Civil Code

13 § 3294;

14 5. For treble damages pursuant to Civil Code § 3345;

15 On the second count - Violation of Residents Rights against MANNING GARDENS

16 1. For statutory damages according to proof pursuant to Health & Safety Code § 1430(b);

17 2. For attorney's fees and costs pursuant to Health & Safety Code § 1430(b);

18 3. For an injunction to prevent further violations of patients' rights as set forth on the

19 attached [Proposed] Stipulated Order for Injunction, Exhibit A;

20 On the third count — Negligence against All Defendants

21 1. For general damages in an amount in excess of the minimum jurisdiction of this court;

22 2. For special damages including funeral and burial, hospital, medical, professional,

23 financial, and incidental expenses, according to proof;

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2

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1 On all counts

1. For costs of suit;

2. Whatever further relief the court may find just and proper. 4 JOHNSON MOORE Date: October 26, 2017 5

6 By:

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Gregory L. Ison Jody C. Moore Stephanie A. Johnson Attorneys for Plaintiff

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Exhibit A

Gregory L. Johnson, 177889 Jody C. Moore, 192601 Stephanie A. Johnson, 296370 JOHNSON MOORE 100 E. Thousand Oaks Boulevard, Suite 229 Thousand Oaks, CA 91360 Telephone: (805) 988-3661 Facsimile: (805) 494-4777

Attorneys for Plaintiffs

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF FRESNO

CASE NO.:

[PROPOSED] STIPULATED INJUNCTION

Pursuant to the parties' stipulation, IT IS HEREBY ORDERED, ADJUGED, AND

DECREED as follows:

The following injunction shall be entered against MANNING GARDENS CARE

CENTER, INC. (hereinafter referred to as "MANNING GARDENS" or "the Facility"). The use

of the term MANNING GARDENS or Facility throughout this Injunction includes its successors

and/or assigns.

This Court has jurisdiction over the parties and claims asserted by plaintiff VIRGINIA

SANTILLAN.

\\\

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VIRGINIA SANTILLAN,

Plaintiffs, VS.

MANNING GARDENS CARE CENTER, INC., a California corporation; RON KINNERSLEY, an individual; and DOES 1-25, inclusive,

Defendants.

[PROPOSED] STIPULATION FOR INJUNCTION

I. ADMISSIONS, TRANSFERS, AND DISCHARGES

A. POLICIES AND PROCEDURES/STAFF TRAINING

1. Within 30 calendar days of the signing of this Stipulation and Order by the Court,

the Facility shall update its policies and procedures to comply with the state and federal

regulations governing the admission, transfer, and discharges of residents. Said updated policies

and procedures shall incorporate the most up to date Centers for Medicare & Medicaid Services

State Operations Manual for Skilled Nursing Homes regarding admissions, transfers, and

discharges, which is available at https://www.cms.gov/Regulations-and-

Guidance/Guidance/Transmittals/2017Downloads/R168SOMA.pdf. Said updated policies and

procedures shall clearly state that transfers and/or discharges are only permitted if 1) it is

necessary to meet the resident's welfare'; 2) the resident no longer needs skilled care due to

improved health2; or 3) the resident endangers the health or safety of others3. Said updated

policies and procedures shall also include a copy of the sample notices to be given to residents in

reasonable advance of the transfer or discharge that include the reason for transfer or discharge,

the effective date of transfer or discharge, the locations of transfer or discharge, a statement of

the resident's appeal rights, contact information for the Transfer and Discharge Appeal Unit,

contact information for the local Ombudsman, and a statement that the resident may represent

him or herself, or be represented by an attorney, or other spokesperson. Said updated policies

and procedures will also clearly state that if a resident is transferred to a general acute care

hospital, they are entitled to a "bed hold" of at least seven days and the resident must be

permitted to return to the facility if they exercise their right to a "bed hold"; if a resident is

hospitalized for more than seven days, MANNING GARDENS must immediately give the

resident the first available bed in a semi-private room.4

1 42 U.S.C. §§1295i-3(c)(2)(A)(i), 1396r(c)(2)(A)(I); Title 42 Code Fed. Reg. Part 483.12(a)(2)(i); and Cal. Code Regs., tit. 22, § 72527(a)(6).

42 U.S.C. §§ 1395i-3(c)(2)(A)(ii), 1396r(c)(2)(A)(ii); Title 42 Code Fed. Reg. Part 483.12(a)(2)(ii). 3 42 U.S.C. §§ 1395i-3(c)(2)(A)(iii)-(iv), 1396r(c)(2)(A)(iii)-(iv); Title 42 Code Fed. Reg. Part 483.12(a)(2)(iii)-(iv); Cal. Code Regs., tit. 22, § 72527(a)(6). 4 Cal. Code Regs., tit. 22, § 72520.

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2. The updated policies and procedures shall be submitted to the Monitor for

approval within 45 calendar days of the Court's signing of this Stipulation and Order, with a

courtesy copy to JOHNSON MOORE. The Monitor shall provide approval in writing of the

updated policies and procedures within 15 calendar days of submission to counsel for the parties.

3. Within 30 calendar days of approval of the updated policies and procedures by the

Monitor, the facility shall provide in-service training to all direct care staff of the updated

policies and procedures on proper admissions, transfers, and discharges. Said in-service training

shall be provided quarterly to all direct care staff for the duration of this Injunction. MANNING

GARDENS shall prepare and maintain records documenting all in-service training provided to

direct care staff for the duration of the time this Injunction is in effect.

4. All fees and costs of the Monitor shall be paid by Defendants.

B. AUDITS and INSPECTIONS

5. Commencing 30 calendar days after this Stipulation and Order is signed by the

Court, and continuing each month thereafter for so long as this Injunction is in effect,

MANNING GARDENS shall provide the Monitor and JOHNSON MOORE with a quarterly

report that contains all the following information (herein "Quarterly Discharge Report") for

MANNING GARDENS: the number of admissions, transfers, and discharges; the reason for

each admission, transfer, and discharge; the number of appeals made to each transfer and/or

discharge; the number of "bed holds" issued; the number of "bed holds" exercised; the number

of "bed holds" appealed; and the number of involuntary transfers or discharges.

6. The Monitor shall be permitted to make up to three surprise inspections annually

at MANNING GARDENS to determine compliance with this Injunction. Upon arrival, the

Monitor shall announce his/her presence to the Administrator, Director of Nurses or person in

charge. MANNING GARDENS shall permit the Monitor to inspect and examine medical charts

to determine whether the clinical practice guidelines for admissions, transfers, and discharges are

being implemented and adequately adhered to. The Monitor shall be permitted to review the

training of staff being conducted regarding the admission, transfer, and discharge of residents

and review all training records maintained by the Facility. The Monitor shall be entitled to

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interview staff, residents and family members of residents during his/her inspection. In all

circumstances, the Monitor shall in no manner substantially interfere with the delivery of care to

residents, whether directly by his or her own actions or by demands upon staff. The Monitor

shall prepare a report outlining his/her findings during any surprise inspection and deliver a copy

of the report to counsel for the parties.

II. STAFFING

A. COMPLIANCE WITH LAW

7. At all times, the Facility shall comply with Health and Safety Code section 1276.5

by providing each patient with a minimum of 4.1 actual nursing hours per patient day

("NHPPD") at MANNING GARDENS. Nursing hours means the number of hours of work

performed per patient day by aides, nursing assistants, orderlies, registered nurses and licensed

vocational nurses (excluding Director of Nurses because MANNING GARDENS has 60 beds or

larger capacity) who perform direct nursing services. Only direct caregivers shall be counted

toward NHPPD. Notwithstanding the foregoing, "nursing hours" includes the number of hours of

work performed per patient day by Directors of Nurses who perform direct nursing services

when such Directors of Nurses have worked more than 8 hours in one day or more than 40 hours

in one week, as long as these additional nursing hours are separately documented. A person

serving as an Assistant Director of Nurses or Director of Staff Development can be a direct

caregiver when providing direct nursing services beyond the hours required to carry out the

duties of these positions, as long as these additional direct care nursing hours are separately

documented. In order to count for purposes of the NHPPD requirement, an "aide" or "orderly"

must qualify as a "nurse assistant" as that term is defined in Health & Safety Code sections

1337(d)(1) and 1337.5. Only time spent providing nursing services shall be included in

calculating NHPPD. Activities that are not nursing services include, but are not limited to:

a. Paid or unpaid time spent on meal periods;

b. Nursing services provided by the same employee in the same shift to both skilled

nursing patients and intermediate care or sub-acute patients, unless the facility provides

documentation of the actual time spent performing nursing services to skilled nursing patients;

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c. Staff time spent in non-nursing services such as scheduling, food preparation,

laundry, housekeeping, maintenance, administrative and financial recordkeeping, and

administrative maintenance of health records;

d. Nursing serves that are provided in the same shift as non-nursing services by

employees who are primarily engaged in non-nursing services unless the facility provides

documentation of the actual time spent on nursing services as well as the actual nursing

assignment performed;

e. Private duty nursing services performed by staff paid for or supplied by a patient,

patient's family, guardian, conservator, or other representative.

f. Staff vacation, holiday or sick leave time;

g. Training, except for on-site in-service training. No more than 2 hours a month of

in-service training offered at the facility where the staff are employed shall be counted. Time

spent by new employees during orientation shall not count; and

h. Work performed by non-direct nursing staff.

8. At all times, the Facility shall comply with Health and Safety Code section 1599.1

by employing an adequate number of qualified personnel to carry out all of the functions of

MANNING GARDENS, including but not limited to the obligation to provide skilled nursing

services (as that term is defined in California Code of Regulations, title 22, section 72309). The

parties stipulate and agree that the minimum direct care staff necessary to carry out the direct

care nursing functions at the Facility shall be 4.1 actual nursing hours per patient day (NHPPD)

and MANNING GARDENS shall provide a minimum of 4.1 NHPPD for the term of this

injunction.

9. At all times, MANNING GARDENS shall comply with all applicable nurse

posting requirements, including without limitation, 42 Code of Federal Regulations part

483.30(e) and Health & Safety Code section 1276.65(f), by posting the following information in

a prominent public place at MANNING GARDENS: (a) the actual direct care nursing hours for

each shift; and (b) the resident census for each day. In addition, MANNING GARDENS shall

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retain the daily posted nurse staffing sheets for the term of this Injunction, or the period required

under applicable law, whichever is longer.

B. THIRD PARTY MONITOR/COMPLIANCE REPORTS

10. A third-party monitor ("Monitor") shall be appointed to review Compliance

Reports (defined below) submitted by MANNING GARDENS and undertake all other necessary

actions to monitor the MANNING GARDEN S's compliance with the terms of this Injunction.

All fees and costs of the Monitor shall be paid by MANNING GARDENS. The parties shall

meet and confer to select the Monitor within 20 calendar days after this Stipulation and Order is

signed by the Court; if no agreement is reached, the Court shall appoint the Monitor.


Court, and continuing each month thereafter for so long as this Injunction is in effect,

MANNING GARDENS shall provide the Monitor and JOHNSON MOORE with a monthly

report that contains all the following information (herein "Compliance Report"): (a) the actual

direct care nursing hours for each day during the prior monthly period (the "reporting period");

(b) the resident census for each day during the reporting period; (c) the NHPPD for each day

during the reporting period; (d) the hire date, enrollment status and training commencement date

for each nurse assistant who is yet to be certified, if any of those hours have been included in the

NHPPD calculation during the reporting period; the daily Nursing Staff Assignment and Sign-In

Sheets mandated by the California Department of Public Health's All Facility Letter dated

January 31, 2011, for all direct care nursing hours claimed for a Director of Nurses, Assistant

Director of Nurses, Director of Staff Development and any other personnel with primarily

administrative and/or non-nursing titles or duties; (f) documentary evidence demonstrating actual

dates, hours and assignments of all registry personnel providing direct nursing care and included

in categories of "nursing services" as defined above; and (g) all statements of deficiencies and/or

citations for staffing level violations and all AB 1629 nursing staffing audits issued by or

received from the Department of Public Health. This data shall not be used by the Monitor for

any purpose other than overseeing compliance with this Injunction.

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12. The Compliance Report shall be signed under penalty of perjury under the laws of

the State of California by the Director of nursing or the Administrator of MANNING

GARDENS. In addition to the Compliance Report, MANNING GARDENS shall provide the

Monitor with all payroll data, daily labor reports and census reports for all pay periods during the

reporting period. The Compliance Reports and said other documentation shall be delivered on or

before the 25th day of each month.

13. In the event that a question is raised with respect to information contained in the

Compliance Report, the Monitor shall request clarifying information or data from MANNING

GARDENS. The Monitor shall also be authorized to request and receive information from

MANNING GARDENS concerning any staffing or other concerns regarding compliance with

laws governing MANNING GARDENS' s provision of nursing services raised by residents or

family members. MANNING GARDENS shall provide a full and complete response to any such

request to the Monitor and JOHNSON MOORE not later than 15 calendar days after receiving

the request. Any such responses shall be signed under penalty of perjury under the laws of the

State of California by the Director of nursing or the Administrator of MANNING GARDENS.

C. AUDITS and INSPECTION

14. Once a quarter, commencing 30 calendar days after this Stipulation and Order is

signed by the Court, and continuing each quarter thereafter for as long as this Injunction is in

effect, the Monitor shall perform an in-depth audit of the back-up supporting MANNING

GARDENS's Compliance Reports. MANNING GARDENS shall permit the Monitor to examine

the original documents purportedly supporting Compliance Reports and any citations or

deficiencies received by MANNING GARDENS. The Monitor shall be entitled and allowed to

interview staff and residents to determine whether MANNING GARDENS' s reporting is

accurate and whether the Facility's staffing levels are sufficient. The Monitor shall prepare and

written reports for each of the audits of the Facility and deliver a copy of these reports to counsel

for the parties. The reports shall contain a specific description of any Substantial Discrepancies,

the Monitor's findings as to the actual NHPPD for each day in which the Monitor determined

that there was a Substantial Discrepancy, a summary of the statements of deficiencies, citations

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and any AB 1629 audits that concern or relate to staffing issues, a summary of the Monitor's

interviews with staff, residents, and family members of residents and anything the Monitor

believes is relevant to the Facility's compliance with this Injunction. "Substantial Discrepancy"

means a negative difference of 3% or more between the actual NHPPD as determined by the

Monitor and the claimed NHPPD as reported in the Compliance Reports for the audit period that

results in the actual NHPPD being less than 4.1 when it was being reported more than 4.1.


at MANNING GARDENS to determine compliance with this Injunction. Upon arrival, the


charge. MANNING GARDENS shall permit the Monitor to inspect and examine original

documents purportedly supporting the Compliance Reports, the most recent facility survey, any

statements of deficiencies, citations, staffing audit reports conducted by DPH under Welfare &

Institutions Code section 14126.022 or any other authority, the actual direct care nursing staff

postings described in paragraph 3 above, Nursing Staffing Assignment and Sign-in Sheets, and

payroll records. The Monitor shall be entitled to interview staff, residents and family members of

residents during his/her inspection. In all circumstances, the Monitor shall in no manner

substantially interfere with the delivery of care to residents, whether directly by his or her own

actions or by demands upon staff. The Monitor shall prepare a report outlining his/her findings

during any surprise inspection and deliver a copy of the report to counsel for the parties.

16. Without limitation to MANNING GARDENS's obligations to comply with

applicable law and this Injunction and for purposes of enforcement of this Injunction only, the

parties agree that Plaintiff will not seek to enforce the terms of this Injunction unless: (a)

MANNING GARDENS fails to meet the 4.1 NHPPD requirement on more than 1 (one) day in

any Compliance Report, or (b) cumulatively; or MANNING GARDENS fails to provide a timely

Compliance Report; or MANNING GARDENS fails to comply with the Posting Requirements;

or the Monitor identifies and reports a Substantial Discrepancy. MANNING GARDENS shall

not be deemed in violation of the 4.1 NHPPD requirement if that staffing level is not met by

reason of fire, flood, earthquake, outbreak, or other act of God completely beyond the control of

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MANNING GARDENS and which cannot be overcome by reasonable diligence. In such event

MANNING GARDENS will provide a description and evidence of the event or circumstances

and the steps MANNING GARDENS has taken to mitigate the effect in its Compliance Report

for the relevant period.

III. OTHER RIGHTS VIOLATIONS

A. POLICIES AND PROCEDURES/STAFF TRAINING

17. Within 30 calendar days after this Stipulation and Order is signed by the Court,

the Facility shall prepare and/or update its policies and procedures on the following subject

matters: (1) Nursing Assessment: the importance of assessment; RN assessment versus LVN

and/or CNA Observation and reporting; (2) Changes of Condition: assessment, care planning,

reporting, documentation of meaningful and informative nursing progress notes, and when to

transfer to a higher level of care; (3) Care Planning: the importance of preparing and

implementing care plans according to residents' individualized needs, assessing and reassessing

to modify care plans based on changes of condition, and to allow the resident to participate in

care planning; (4) Elder abuse and Neglect: awareness and prevention; (5) Dignity: respecting

and promoting resident dignity, quality of life, and well-being; and (6) Recordkeeping:

importance of complete, accurate documentation containing meaningful and informative nursing

progress notes. The policies and procedures on the foregoing subject matters shall conform to

the current standards of care in the nursing industry. The policies and procedures shall be

submitted to the Monitor for approval within 45 calendar days of the Court's signing of this

Stipulation and Order, with a courtesy copy to JOHNSON MOORE. The Monitor shall provide

approval in writing of the updated policies and procedures within 15 calendar days of submission

to counsel for the parties.

18. Within 30 days of approval of the updated policies and procedures by the

Monitor, the facility shall provide in-service training to all direct care staff of the updated

policies and procedures on elder abuse and neglect awareness and prevention; respecting and

promoting resident dignity, quality of life and well-being; and recordkeeping. Said in-service

training shall be provided quarterly to all direct care staff for the duration of this Injunction.

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MANNING GARDENS shall prepare and maintain records documenting all in-service training

provided to direct care staff for the duration of the time this Injunction is in effect.

19. All fees and costs of the Monitor shall be paid by MANNING GARDENS.

B. AUDITS and INSPECTIONS


court, and continuing each month thereafter for so long as this Injunction is in effect,

MANNING GARDENS shall provide the Monitor and JOHNSON MOORE with a quarterly

report that verifies policies and procedures have been written and/or updated to reflect current

standards of care and that the in-service requirements set forth in this Injunction have been

performed.


at MANNING GARDENS to occur concurrently with the surprise inspections called for in other

provisions of this Injunction to determine compliance with this Injunction. Upon arrival, the


charge. MANNING GARDENS shall permit the Monitor to inspect and examine policy and

procedure manuals and a random sampling of medical charts to determine whether the facility is

violating any of the "Other Rights" provided for in this injunction. The Monitor shall be

permitted to review the training of staff being conducted regarding the prevention and treatment

of pressure ulcers and review all training records maintained by the Facility. The Monitor shall

be entitled to interview staff, residents and family members of residents during his/her

inspection. In all circumstances, the Monitor shall in no manner substantially interfere with the

delivery of care to residents, whether directly by his or her own actions or by demands upon

staff The Monitor shall prepare a report outlining his/her findings during any surprise inspection

and deliver a copy of the report to counsel for the parties.

IV. OTHER PROVISIONS

22. Nothing stated in this Injunction shall relieve MANNING GARDENS from

complying with any other applicable federal or state law or regulation.

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23. This Injunction shall be effective immediately upon the signing of this Order by

the Court, and shall remain in full force and effect for two (2) years from that date. If Plaintiff

believes that MANNING GARDENS has violated any of the terms of this Injunction, however,

Plaintiff may seek a Court order extending the Injunction duration, in addition to any other

available remedy.

24. Pursuant to Code of Civil Procedure section 664.6, the Court shall retain

continuing jurisdiction over all parties and this action to enforce the terms of this Injunction.

SO STIPULATED:

Date: JOHNSON MOORE

By: Gregory L. Johnson Jody C. Moore Attorneys for Plaintiff

Date:

By: MANNING GARDENS CARE CENTER, INC.

IT IS SO ORDERED, ADJUDGED AND DECREED.

Date:

JUDGE OF THE SUPERIOR COURT

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Gregory L. Johnson, 177889 Jody C. Moore, 192601...

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Transcript of Gregory L. Johnson, 177889 Jody C. Moore, 192601...