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JOHN L. SUPPLE {SBN: 94582)
jsupple@jsupplelaw. com
ROBERT SANFORD (SBN: 129790)
rsanford@jsupplelaw. com
MICHELE WESTHOFF (SBN: 266707)
mwesthoff@jsupplelaw. com
JSUPPLELAW
A Professional Corporation
2330 Marinship Way, Suite 250
Sausalito, CA 94965
Telephone: (415) 366-5533
Facsimile: (415) 480-6301

11

Attorneys for Defendants
CATHEDRAL PIONEER CHURCH HOMES II, CONGREGATIONAL CHURCH
RETIREMENT COMMUNITY, BIXBY KNOLLS TOWERS, INC., GOLD COUNTRY
HEALTH CENTER, MAYFLOWER GARDENS HEALTH FACILITIES, INC., STOCKTON
CONGREGATIONAL HOMES, INC., FOUNDATION PROPERTY MANAGEMENT, INC.,
RHF MANAGEMENT, INC., A~ND RHF FOU1~DATION

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

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IN AND FOR THE COUNTY OF SACRAMENTO

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GLORIA SINGLE, CALIFORNIA LONG TERM
CARE OMBUDSMAN ASSOCIATION,

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Plaintiffs,

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Case No. 34-2017-00220058
Memorandum of Points &
Authorities in Opposition to Motion
for Preliminary Injunction

vs.
CATHEDRAL PIONEER CHURCH HOMES II,
CONGREGATIONAL CHURCH RETIREMENT
COMMUNITY, BIXBY KNOLLS TOWERS,
INC., GOLD COUNTRY HEALTH CENTER,
MAYFLOWER GARDENS HEALTH
FACILITIES, INC., STOCKTON
CONGREGATIONAL HOMES, INC.,
FOUNDATION PROPERTY MANAGEMENT,
INC., RHF MANAGEMENT, INC., AND RHF
FOUNDATION,

PUBLIC-REDACTS MATERIALS
FROM CONDITIONALLY
SEALED RECORD (California Rule
of Court 2.551)
Date:
Tin1e:
Dept.:

November 13, 2017
9:00 a.m.
54

Co1nplaint Filed: October 2, 2017

Defendants.

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Memorandum of Points & Authorities in Opposition to Motion for Preliminary Injunction

 TABLE OF CONTENTS
PAGE

2
3
4
5

I.

INTRODUCTION .............................................................................................................. 1

II.

STATEMENT OF FACTS ................................................................................................. 3
A.

The Parties .............................................................................................................. 3

B.

Mrs. Single's Dangerous Conduct and Involuntary Hospitalization ...................... 5

C.

Pioneer House's Attempts to Determine Whether Mrs. Single Could
Safely Return Following Her Aggressive Outburst and Suicide Threat ................. 6

9

D.

The Hearing Before the Department of Health Care Services ................................ 6

10

E.

Pioneer's Post-Hearing Efforts to Allow Mrs. Single to Safely Return to
the Facility .............................................................................................................. 7

6
7
8

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IV.

ARGUMENT ...................................................................................................................... 9
A.

The Court Exercises Its Independent Judgment in Evaluating Whether to
· Issue a Preliminary Injunction to Allow Mrs. Single to Return to Pioneer
House ...................................................................................................................... 9

B.

Plaintiffs Fail to Show Irreparable Harm that Warrants Immediately
Allowing Mrs. Single to Return to the Facility ....................................................... 9

C.

Plaintiffs Fail to Clearly Show that Mrs. Single Is Entitled to Immediately
Return to Pioneer House ....................................................................................... 11

CONCLUSION ................................................................................................................. 15

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-1-

Memorandum of Points & Authorities in Opposition to Motion for Preliminary Injunction

 TABLE OF AUTHORITIES

2

PAGE

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4
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7
8
9
10

Cases
Abrams v. St. John's Hospital & Health Center (1994) 25 Cal.App.4th 628 ............................... 10
Butt v. State ofCalifornia (1992) 4 Cal.4th 668 ............................................................................ 10
Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435 ............................................... 9
Fukuda v. City ofAngels (1999) 20 Cal. 4th 805 ............................................................................. 7
Integrated Dynamic Solutions, Inc. v. Vita Vet Labs, Inc. (2016) 6 Cal.App.5th 1178 ......... 2, 9, 11
O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452 ......................................................... 10
St. John of God Retirement & Care Center v. Department ofHealth Care Services Office
(2016) 2 Cal. App.5th 638 ......................................................................................... .2, 11, 12, 15
White v. Davis (2003) 30 Ca1.4th 528 ................................................................................... 1, 9, 10
Wilkins v. Oken (1958) 157 Cal.App.2d 603 ................................................................................ 10

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Statutes
22 C.C.R. §72520 .......................................................................................................................... 11
22 C.C.R. §72520(c) ................................................................................................................... 2, 7
42 C.F.R. §483.12 ......................................................................................................................... 12
42 C.F.R. §483.12(b) .................................................................................................................... 11
42 C.F.R. §483.12(b)(3) ................................................................................................................ 11
42 C.F.R. §483.15 ................................................................................................................... 11, 14
42 C.F.R. §483.15(c) ..................................................................................................................... 13
42 C.F.R. §483.15(c)(1)(i) ............................................................................................................ 13
42 C.F.R. §483.15(c)(4)(ii) ........................................................................................................... 12
42 C.F.R. §483.15(e) .................................................................................-.................................... 11
42 C.F.R. §483.15(e)(1) ................................................................................................................ 14
42 U.S.C. § 1296r(c) ...................................................................................................................... 13
42 U.S.C. §1296r(c)(2)(A) ............................................................................................................ 13
42 U.S.C . §1396r(c) ...................................................................................................................... 13
42 U.S.C. §1396r(c)(2) ........................................................................................................... 13, 14
42 U.S.C. §1396r(c)(2)(A) ............................................................................................................ 13
WIC §5150 .................................................................................................................. 1, 2, 5, 12, 13

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-II-

Memorandum of Points & Authorities in Opposition to Motion for Preliminary Injunction

 I.

INTRODUCTION

2

Plaintiffs ask the Court to order Defendant Cathedral Pioneer Church Homes II ("Pioneer

3

House") to allow Plaintiff Gloria Single ("Mrs. Single") to return to Pioneer House after she was

4

involuntarily hospitalized by a police officer under Welfare & Institutions Code ("WIC") §5150

5

for threatening to commit suicide by jumping from the sixth floor, following her aggressive

6

outburst which jeopardized the safety of residents and staff.

7

A preliminary injunction is warranted only to prevent imminent, irreparable harm, which

8

does not exist here. Mrs. Single currently resides in a skilled nursing facility where she is

9

receiving proper care, so an immediate return to Pioneer House is unwarranted. Far from

10

preventing any harm, Mrs. Single's return to Pioneer House may actually increase the likelihood

11

of harm to her, since she will be back on the sixth floor where she could carry out her threat to

12

jump. White v. Davis (2003) 30 Cal. 4th 528, 554 ["The ultimate goal of any test to be used in
deciding whether a preliminary injunction should issue is to minimize the harm which an
erroneous interim decision may cause."]. The likelihood of this harm is unknown, since

Plaintiffs offer no evidence Mrs. Single's current physical or mental condition or

I

As a result, neither the Court nor Pioneer House can

17

determine if she can safely return. Based on the information known to Pioneer House, however,

18

the risk of harm from her immediate return clearly outweighs any harm from denying this

19

motion. See Declaration of Carl Bryant, R.N. in Opposition to Motion for Preliminary Injunction

20

("Bryant Decl."),

21

that she cannot see her husband, who lived in a separate room from his wife before her

22

hospitalization and whose presence triggered Mrs. Single's aggression and outbursts. Mrs.

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Single can visit her husband in a controlled environment, without having to immediately move

24

back to Pioneer House. Pioneer House can and will facilitate visits between Mrs. and Mr.

25

Single, including providing transportation and transfer assistance. Besides providing Mrs. Single

26

with the opportunity to see her husband, the visits would also be an essential part of Pioneer

27

House's evaluation of whether it can provide appropriate care for Mrs. Single so she can safely

28

return. The highest priority is the safety of I\1rs. Single and the Pioneer House residents, who are

~~39-40.

Mrs. Single's only clai1n ofharmjustifying her immediate return is

-1Memorandum of Points & Authorities in Opposition to Motion for Preliminary Injunction

 not currently in jeopardy, so the preliminary injunction is not warranted to prevent any
2

irreparable harm.
Plaintiffs also fail to meet their burden on the second prerequisite for a preliminary

3
4

injunction which requires a substantial probability of prevailing on the merits, particularly since

5

a mandatory injunction to compel a party to act is granted "only in those in extreme cases where

6

the right is clearly established." Integrated Dynamic Solutions, Inc. v. Vita Vet Labs, Inc. (2016)

7

6 Cal.App.5th 1178, 1184 Plaintiffs fail to clearly establish Mrs. Single's right to immediately

8

return to Pioneer House because they cite no legal authority for that right or offer any evidence

9

that Mrs. Single can safely return without risk to herself, residents or staff. Contrary to

10

Plaintiffs' claim, St. John of God Retirement & Care Center v. Department of Health Care

11

Services Office (20 16) 2 Cal. App.5 1h 63 8, 648 is not controlling. The St. John court never

12

considered the moot issue of whether the resident should immediately return to a facility,

13

particularly when it is unknown whether the resident can safely return. St. John involved a

14

planned transfer of the resident by a hospice working at the facility, not an unplanned emergency

15

hospitalization by a police officer under WIC §5150. The St. John court never considered the

16

issue of whether a facility must accept a resident whose condition is unknown so the facility

17

cannot determine if it can safely care for her. St. John does not clearly establish Mrs. Single's

18

right to return to Pioneer House, since it is unclear whether she will be safe. To the contrary,

19

Mrs. Single is not entitled to immediately return to Pioneer House under numerous applicable

20

regulations designed to protect her safety and that of all Pioneer House residents. Bryant Decl.,

21

~38.

22

Pioneer House residents.

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Pioneer House has done nothing wrong in prioritizing the safety of Mrs. Single and the

The Department of Health Care Services ("DHCS") order that Pioneer House allow Mrs.

24

Single to return is also not controlling. The Court is not bound by the DHCS order, but exercises

25

its independent judgment. The DHCS erred in at least one respect, since DHCS ordered Pioneer

26

House to provide its "first available bed" under 22 C.C.R. §72520(c), when the regulation

27

actually requires a facility to "offer to the patient the next available bed appropriate for the

28

patient's needs." The DHCS n1ade no finding whether Mrs. Single could safely return to Pioneer
-2Memorandum of Points & Authorities in Opposition to Motion for Preliminary Injunction

 House and took no account of the n1yriad regulations governing her adtnission to Pioneer House.

2

Bryant Decl., ,),)38-42. Moreover, the order provided that that Mrs. Single be readmitted only

3

once Pioneer House received the clinical records that the hospital "routinely provides to the

4

receiving facility." Plaintiffs rely on the inadmissible declaration of their attorney to claim that

5

Pioneer House received those records. In fact, Pioneer House never received the records, such as

6

to which it is entitled in order to evaluate whether it had a

7

bed appropriate for Mrs. Single's needs. Plaintiffs have not shown a substantial probability of

8

prevailing on the merits that Pioneer House has wrongfully refused to readmit Mrs. Single so her

9

immediate right to return is clearly established.
Pioneer House respectfully requests that the Court deny this motion and instead instruct

10

11

the parties to meet and confer about arranging visits between Mrs. and Mr. Single and providing

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the necessary opportunity to evaluate Mrs. Single's current condition.

II.

STATEMENT OF FACTS
A.

The Parties

Plaintiffs are Gloria Single and the California Long Term Care Ombudsman Association.
According to the Complaint, Mrs. Single is 82 years old and suffers from pulmonary disease,
chronic pain, fainting and dementia. Complaint, ,-r4. She has a history of Alzheimer's disease

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23

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and psychotic behavior. Declaration of Robert Godfrey in Opposition to Motion for Preliminary
Injunction ("Godfrey Decl."), ~3. Mrs. Single was admitted to the skilled nursing facility at
Pioneer House on November 18, 2016 with a concussion. Mrs. Single's husband also resides in
the skilled nursing facility at Pioneer House and his presence (not any of his behavior) would
often trigger Mrs. Single to act aggressively toward him and other residents, as well as staff. !d.
Mr. Single and other residents \Vere son1etimes frightened of and/or upset by Mrs. Single when
she exhibited aggressive behavior. I d.; Declaration of Jennifer Northart in Opposition to Motion
for Prelin1inary Injunction (''Northart Decl."), ,-r2. Excerpts from Mrs. Single's medical records
at Pioneer House which are attached hereto as Exhibit F document numerous incidents where
Mrs. Single engaged

which posed a risk of harm to

herself and other residents, including:
-3Memorandum of Points & Authorities in Opposition to Motion for Preliminary Injunction

 Ex. F, p. 2 [Noven1ber 25,2016 nursing note];

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ld. at Ex. F, pp. 7-8 [January 23,

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-4-

Memorandum of Points & Authorities in Opposition to Motion for Preliminary Injunction

 2
3

Pioneer House provides three levels of care: independent residential living, assisted
~2.

4

living, and skilled nursing care. Godfrey Decl.,

5

beds and is located on the sixth floor of the facility, so it is feasible for a resident to jump from

6

the building either by breaking a window or accessing an emergency exit. ld. At the skilled

7

nursing level of care, residents are typically wheelchair bound and suffer from a variety of

8

physical and mental conditions. Id. While the skilled nursing level is the highest level of care

9

provided at Pioneer House, it is the lowest level of care provided by skilled nursing facilities in

The skilled nursing level of care has only 59

10

the area for dementia patients. ld. Some skilled nursing facilities that specialize in dementia

11

care are secured and locked, so that residents cannot leave. Jd. Pioneer House is not a secured

12

skilled nursing facility and does not generally care for dementia patients who are also suffering

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from psychosis except on a case-by-case basis. ld.

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On March 23, 2017, during lunch at Pioneer House, Mrs. Single became upset and

Mrs. Single's Dangerous Conduct and Involuntary Hospitalization

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aggressive in the dining room ("Incident"). Godfrey Decl.,

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people, yelled and acted with hostility towards staff members who were trying to calm her. !d.

18

Mrs. Single's aggression frightened and upset several residents. Jd. Mrs. Single's behavior

19

forced Pioneer House staff to call the Sacramento police, and eventually four officers arrived,

20

along with three emergency medical technicians ("EMTs") and several firefighters. ld. Mrs.

21

Single hit a police officer with a hanger and spit on another officer. !d. After Mrs. Single had

22

been moved from the dining room to her room, she threatened to jump off of her balcony located

23

on the sixth floor of the facility, which was heard by a Sacramento Police officer who concluded

24

that Mrs. Single had to be involuntarily hospitalized as a danger to herself under Welfare &

25

Institutions Code §5150. ld. After an EMT administered

26

and was transported to Sutter Hospital ("Sutter") where she was involuntarily admitted.

27

Plaintiffs wrongly claim that Pioneer House hospitalized Mrs. Single, when in fact she was

28

involuntarily hospitalized by a Sacramento police officer.

Mrs. Single threw silverware at

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-5Memorandum of Points & Authorities in Opposition to Motion for Preliminary Injunction

 C.

Pioneer House's Atten1pts to Detennine Whether Mrs. Single Could Safely
Return Following Her Aggressive Outburst and Suicide Threat

2
After Mrs. Single's involuntary hospitalization, Pioneer House staffundcrtook concerted

3
efforts to determine whether she could safely return to Pioneer House. Godfrey Decl.,

~~6-11,

4
16, 18-20, Ex. C. At the same time as these efforts were undertaken, Pioneer House believed

5
that Mrs. Single's son, Aubrey Jones ("Jones"), recognized that his mother's behavior was a

6
problem and was looking into moving her to a different facility where her husband's presence

7
would not pose a trigger. ld. at ~5; Northart Decl.,

~3.

Pioneer House's efforts, described in

8
detail in the accompanying Godfrey Declaration, included repeated conversations with Sutter

9
staff and attempts to obtain Mrs. Single's medical records, including her
10
which were particularly relevant. ld. at ~~11, 16-18. While Pioneer House never
11
from Sutter, the

received the relevant records, including
12

records that were provided raised serious concerns about whether Mrs. Single could safely return
to the facility. I d. at ~~11. For example, Pioneer House learned that on April12, 2107, Mrs.

17
ld. at ~~7, 9, 11. Based on this information, on April 20,

18
2017, Pioneer House advised Sutter that Pioneer House could not safely allow Mrs. Single to

19
return at that time. Jd. at 11.
20

D.

The Hearing Before the Department of Health Care Services

21
On April 26, 2017, Pioneer House received notice of a hearing of a complaint that Mr.

22
Jones filed with DHCS regarding Pioneer House's decision not to allow Mrs. Single to return.

23
Godfrey Decl.,

~12.

At the hearing on May 17, 2017, Pioneer House submitted two declarations.

24
First, a psychiatrist who consulted Mrs. Single, Glen Xiong, M.D., declared that:

25

26
27
28
Memorandum of Points & Authorities in Opposition to Motion for Preliminary Injunction

 6

meet Mrs. Single's needs. !d. at ~14, Ex. B.

7

At the hearing on May 17, 2017, Pioneer House learned from Sutter staff that Mrs. Single
which were all new antipsychotic medications

8

was rece1 v1ng

9

prescribed after the Incident, even though Mrs. Single had not been diagnosed with a psychosis.

10

!d. at ~ 15. The hearing officer advised that Sutter needed to provide medical records to Pioneer

11

House, and Pioneer House wrote to Sutter on May 18, 2017 to request to review Mrs. Single's

12

medical records from April20, 2017 until the present. Jd. at ~16, Ex. C.

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On May 24, 2017, Pioneer House received the Decision and Order ("Order") from the

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Godfrey Decl., ~17, Ex. D. The Order states that Sutter denied Pioneer House

14

DHCS hearing.

15

access to Mrs. Single's medical records because Mr. Jones' authorization was required. !d. at

16

Ex. D, p. 4:17-24. The Order stated that a facility that fails to issue a seven-day bed hold notice

17

under 22 C.C.R. §72520 "must offer the resident readmission to the first available bed." ld. at

18

Ex. D, p. 5:2-9 [emphasis in original]. 2 The Order directed Pioneer House to "immediately

19

readmit Gloria Single to the first available bed, upon receipt of the clinical records that Sutter

20

Medical Center routinely provides to the receiving facility." !d. at Ex. D, p. 7:12-14. To date,

21

Pioneer House has not received the Sutter records, including the psychiatric and social work

22

records which are relevant given Mrs. Single's psychiatric issues. ld. at

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E.

~17.

Pioneer's Post-Hearing Efforts to Allow Mrs. Single to Safely Return to the
Facility

24
On June 5, 2017, Sutter staff advised Pioneer House that Mr. Jones refused to authorize
25
Sutter to release

for Mrs. Single. ld. at

~18.

On June 6,

26
1

27
28

The Court exercises its "independent judgment" in this case and "is free to substitute its own findings after first
giving due respect to the agency's findings" in the DHCS order. Fukuda v. City of Angels ( 1999) 20 Cal. 4th 805,
818.
2
The regulation cited in the Order in fact states that the facility "shall offer to the patient the next available bed
appropriate for the patient's needs." 22 C.C.R. §72520(c) [emphasis added].
-7Memorandum of Points & Authorities in Opposition to Motion for Preliminary Injunction

 2017, Pioneer House received additional n1edical records frorn Sutter for Mrs. Single, but the
2

records did not include

3

a Medication Administration Report, but o·nly for a ten-day period, as well as the hospitalist' s

4

notes, but the following days of Mrs. Single's stay were omitted: 1, 2, 4, 5-30, 38, 41, and 70.

5
6

. !d. The records provided included

On June 28, 2017, Mrs. Single was observed at Sutter
which was not her prior baseline at Pioneer House.

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8
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House. !d. at ,-r20, Ex. E. After describing the situation in detail and explaining pertinent

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regulations regarding Pioneer House's ability to care for Mrs. Single, Pioneer House requested

16

guidance from DPH regarding how Pioneer House could allow Mrs. Single to return to Pioneer

17

House and still comply with all applicable regulations. !d. at Ex. E. DPH never responded to the

18

request, which was made twice. Jd. at ,-r20.

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of Health ("DPH"), who was investigating the alleged discharge of Mrs. Single from Pioneer

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On August 7, 2017, Sutter advised that Mrs. Single had been released but did not disclose

20

where Mrs. Single currently resides. ld. at ,-r21. Her current condition

22

medication, except that she cannot walk. Declaration of Aubrey Jones in Support of Motion for

23

Preliminary Injunction ("Jones Decl."), ,-r17.

24

Pioneer House has always been willing to have Mrs. Single return, provided she can be

25

properly cared for and does not pose a risk to herself, other residents, or staff. !d. at ~22. The

26

limited information provided by Sutter, as well as direct observation of Mrs. Single, raises

27

serious concerns whether Pioneer House can provide proper care for Mrs. Single. !d. There is

28

currently
-8Memorandum of Points & Authorities in Opposition to Motion for Preliminary Injunction

 and Pioneer House has no infonnation to detern1ine if Mrs. Single can be

2

provided proper care at Pioneer House, while other residents and staff are safe. I d. Pioneer

3

House is willing to work with Mr. and Mrs. Single and Mr. Jones to arrange visits between Mr.

4

an9 Mrs. Single, including providing reasonable transportation. Id. These visits would alleviate

5

concerns that Mr. and Mrs. Single are currently unable to spend time together, while

6

simultaneously providing an opportunity for Pioneer House to evaluate whether it is appropriate

7

and safe for Mrs. Single to return to the facility. ld.

8

III.

9

ARGUMENT

A.

10
11

The Court Exercises Its Independent Judgment in Evaluating Whether to
Issue a Preliminary Injunction to Allow Mrs. Single to Return to Pioneer
House

The requirements for the issuance of a preliminary injunction are well-established:
To obtain a preliminary injunction, a plaintiff ordinarily is required to present
evidence of the irreparable injury or interim harm that it will suffer if an
injunction is not issued pending an adjudication of the merits .... [~] [A]s a
general matter, the question whether a preliminary injunction should be granted
involves two interrelated factors: (1) the likelihood that the plaintiff will prevail
on the merits, and (2) the relative balance of harms that is likely to result from the
granting or denial of interim injunctive relief.

White, supra, 30 Ca1.4th at 554.
Preliminary injunctions may either prohibit or mandate a party's action. Davenport v.
18

Blue Cross of California (1997) 52 Cal.App.4th 435, 446. As cited above, a mandatory

19

injunction sought "mandates an affirmative act that changes the status quo," injunctive relief is

20

warranted "only in those extreme cases where the right thereto is clearly established." Integrated

21

Dynamic Solutions, supra, 6 Cal.App.5th at 1184 [citation and quotation marks omitted;

22

emphasis added]. Plaintiffs have not shown any irreparable injury requiring Mrs. Single's

23

immediate return to Pioneer House, where it is unknown if she can safely live at Pioneer House

24

and she does not have to live there in order to see her husband. In addition, Plaintiffs fail to

25

clearly established Mrs. Single's immediate right to return to Pioneer House.

26

B.

Plaintiffs Fail to Show Irreparable Harm that Warrants Immediately
Allowing Mrs. Single to Return to the Facility

27
"Injunction is an extraordinary remedy and courts have consistently proceeded with great
28
caution in exercising their power, and have required a clear showing that the threatened and
-9-

Memorandum of Points & Authorities in Opposition to Motion for Preliminary Injunction

 irnpending injury is great, and can be averted only by injunction." Wilkins v. Oken (1958) 157
2

Cal.App.2d 603, 606. The irreparable harm warranting the extraordinary remedy of a

3

preliminary injunction "involves consideration of such things as the inadequacy of other

4

remedies, the degree of irreparable harm, and the necessity of preserving the status quo."_

5

Abrams v. St. John's Hospital & Health Center (1994) 25 Cal.App.4th 628, 636. The Court must

6

also balance of any harm that may result from granting a preliminary injunction against the harm

7

that the injunction is supposed to prevent. White, supra, 30 Cal. 4th at 554. Any delay in seeking

8

a preliminary injunction should be "taken into account in determining what weight to give

9

plaintiffs' claim of imminent irreparable injury." O'Connell v. Superior Court (2006) 141

10

Cal.App.4th 1452, 1481. Any preliminary injunction- particularly a mandatory injunction such

11

as sought here- should be narrowly tailored to address the specific harm sought to be remedied.

12

ld. at 1478, quoting Butt v. State of California (1992) 4 Cal.4th 668, 695 ["a judicial remedy must

13

be tailored to the harm at issue"]. Applying these principles, Plaintiffs fail to meet their burden

14

to show that Mrs. Single must immediately be allowed to live at Pioneer House in order to

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prevent imminent and irreparable harm, particularly when balanced against the potential harm

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17

that may result if she is readmitted without any evidence as to her physical or mental condition.
Mrs. Single is already at another skilled nursing facility, so she has a safe place to live

18

and does not have to be immediately transferred to Pioneer House. On the other hand, allowing

19

Mrs. Single to return may increase the risk of harm to her and the Pioneer House residents. Mrs.

20

Single threatened to jump from the sixth floor of Pioneer House, so there must be a particularly

21

compelling reason to return her to the sixth floor. Plaintiffs _offer no evidence of Mrs. Single's

22

mental condition, so the Co uti and Pioneer House do not know if it is safe for her to return.

23

Since the Court cannot balance the relative harm of allowing or not allowing Mrs. Single to

24

return without knowing her current condition, the preliminary injunction should not issue.

25

There is a sufficiently alternative to the injunctive relief sought. Plaintiffs' claim that

26

Mrs. Single is being deprived of her husband's companionship does not require that she be

27

readmitted, since there is no reason that she cannot regularly visit her husband, which Pioneer

28

House is willing to facilitate by providing transportation. Mr. and Mrs. Single did not share a
-I 0-

Memorandum of Points & Authorities in Opposition to Motion for Preliminary Injunction

 roon1 at Pioneer House, so the visits are an adequate interin1 re1nedy that preserves the status quo
2

until Pioneer House receives the records necessary to determine whether Mrs. Single can safely

3

return. The visits will also assist Pioneer House in evaluating whether Mrs. Single can be safely

4

readmitted. In sum, Plaintiffs do not demonstrate that the balance of harm warrants the Court

5

forcing Pioneer House to readmit Mrs. Single, since she can visit her husband while Pioneer

6

House determines if it can provide her with proper care.

7

C.

Plaintiffs Fail to Clearly Show that Mrs. Single Is Entitled to Immediately
Return to Pioneer House

8
In addition to the lack of immediate irreparable harm, Plaintiffs fail to meet their burden
9
they are likely to prevail on the merits and clearly establish that Mrs. Single has the legal right to
10
compel Pioneer House to immediately admit her without any opportunity to assess whether she

11
can be provided proper care and does not pose a risk to residents or staff at Pioneer House.

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not hold that a facility must immediately accept a resident without knowing her physical and

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mental condition or her required level of care. In St. John, a resident of a skilled nursing facility

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return under St. John of God Retirement & Care Center, supra, 2 Cal. App.5 h at 638, which does

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Plaintiffs wrongly argue that Pioneer House must immediately allow Mrs. Single to

17
who received care from a separate hospice provider suffered a psychotic episode, so the
18
hospice's attending physician transferred her to a hospital for psychiatric evaluation. Jd. at 64319
644. Upon the resident's discharge from the hospital, the facility refused to accept her because
20
the facility could not provide the services rec01nmended by a "P ASRR" report prepared by a
21
DHCS evaluator. Jd. at 644. Following a DHCS hearing, the hearing officer made two findings.
22
I d. at 646. First, the facility failed to give the resident written notice of the seven-day bed hold

23
prior to the transfer as required by fonner 42 C.F.R. §483.12(b) (now §483.15) and 22 C.C.R.
24
§72520, but the bed was in fact held for seven days and the resident spent more than seven days
25
in the hospital (like this case), so that violation was moot. Second, the facility violated the "next26
available-bed requirement" under forn1er 42 C.F .R. §483.12(b )(3) (now §483 .15( e)), which
27
required the resident be "readn1itted to the first available bed if the resident requires the facility's
28
services and is Medicare eligible." ld.
-1 1Memorandum of Points & Authorities in Opposition to Motion for Preliminary Injunction

 The facility filed a petition for writ of adn1inistrative 111andate to overturn the DHCS

2

administrative ruling. Jd. at 64 7. The St. John court first held that the writ petition to overturn

3

the DHCS ruling requiring the resident's immediate return to the facility was moot, since the

4

resident did not want to return to the facility after the death of her mother who had also lived at

5

the facility. ld. at 648. Contrary to Plaintiffs' argument, St. John is not controlling authority that

6

Pioneer House must immediately allow Mrs. Single to return to the facility, since the court never

7

reached that issue. Instead, given the separate civil action between the parties, the St. John court

8

rejected the facility's argument that it did not have to comply with 42 C.F.R. §483.12, including

9

readmitting the resident to the first available bed, because the hospice ordered the transfer and

10
11

not the facility. ld. at 649-657.
[G]iven that a terminally ill resident at a skilled nursing facility is authorized to
elect hospice care, and that the skilled nursing facility is authorized to contract
with hospice care providers to provide such care at the facility, federal regulations
would not deprive such a resident of the protections of section 483.12 simply
based on whose employee-the hospice's or the facility's-----determines the need
for a transfer. And if that were the intent, we presume that the regulations would
so state. Thus, we decline to read into section 483.12 any exemption that applies
solely because a resident's hospice care provider determines the need for an acute
care hospitalization rather than the long term care facility.

ld. at 655
St. John is thus limited to the specific situation involving planned transfers by an entity
18

under contract to provide services at the facility. In contract, this case involves an immediate

19

involuntary transfer under WIC §5150 ordered by a police officer, not a planned transfer (even if

20

ordered by another entity such as the hospice) known ahead of time by the facility. Statutes or

21

regulations requiring advance notice related to a transfer cannot apply as a practical matter in an

22

emergency, such as the Incident, where the facility has no advance knowledge of the transfer.

23

See, e.g., 42 C.F .R. §483 .15( c)( 4 )(ii) [notice must be given "as soon as practicable before

24

transfer or discharge" for immediate transfers or discharges]. Unlike this case, the facility in St.

25

John refused to readmit the resident because it could not provide the care recommended in the

26

PASRR report, not because the resident continued to pose a risk to herself or others. 2 Cal.

27

App.5 1h at 644. This distinction is significant because the St. John court never considered under

28

what circumstances a resident who is involuntarily hospitalized under WIC §5150 as a danger to
-12-

Memorandum of Points & Authorities in Opposition to Motion for Preliminary Injunction

 herself or others rnust be readrnitted. More specifically, the St. John court never considered
2

whether a facility must readmit the resident without receiving the necessary medical records

3

from the involuntary hospitalization in order to determine if proper care can be provided.

4

Plaintiffs wrongly contend that Mrs. Single must be admitted because Pioneer House

5

allegedly improperly transferred or discharged her in violation of 42 U.S.C. §1396r(c)(2), which

6

provides in relevant part:

7

A nursing facility must permit each resident to remain in the facility and must
not transfer or discharge the resident from the facility unless--

8
9

(i) the transfer or discharge is necessary to meet the resident's welfare and the
resident's welfare cannot be met in the facility; ...

10

(iii) the safety of individuals in the facility is endangered;

11

(iv) the health of individuals in the facility would otherwise be endangered.

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42 U.S.C. §1396r(c)(2)(A); see also 42 C.F.R. §483.15(c)(1)(i) [same requirements as

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§ 1296r(c)(2)(A)].

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By their terms, 42 U.S.C. §1396r(c) and 42 C.F.R. §483.15(c) do not even apply here
because Pioneer House did not transfer or discharge Mrs. Single. Instead, a Sacramento police

16

officer involuntarily transferred Mrs. Single to Sutter as authorized by WIC §5150, which

17

Pioneer House could not have prevented. The inapplicability of§ 1396r(c) is further evident in

18

Plaintiffs' argument that Pioneer House had to give at least thirty days' notice of the transfer,

19

which was impossible under the circumstances since Pioneer House could not have anticipated

20

the Incident or the involuntary transfer. 42 U.S.C. § 1296r(c).

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Even if§ 1396r( c) somehow applied, the grounds for a transfer clearly existed here: (i)

22

the involuntary hospitalization was necessary for Mrs. Single's welfare which could not be n1et

23

at Pioneer House; (ii) the safety of individuals at Pioneer House was endangered; and (iii) the

24

health of individuals at Pioneer House were endangered. Once Mrs. Single was transferred to

25

Sutter for more than seven days, she arguably was entitled to the first available bed if the resident

26

"requires the services provided by the facility," unless the facility "determines that a resident

27

who was transferred with an expectation of returning to the facility cannot return to the facility

28

[in which case] the facility n1ust comply with the requirements of' 42 C.F.R. §483.15(c). 42
-13-

Memorandum of Points & Authorities in Opposition to Motion for Preliminary Injunction

 C.F.R. §483 .15( e)( 1). Regulations regarding readmission to skilled nursing facilities upon
2

discharge from acute care hospitals conflict with regulations requiring the skilled nursing

3

facilities to ensure residents are safe and receive appropriate care. Bryant Decl. ~~41-42. Where

4

there is a conflict, those regulations which directly impact the health, safety, and well-being of

5

residents must take precedence over the regulations regarding bed holds and a facility's duty to

6

readmit residents upon discharge from an acute care hospital (e.g., 42 C.F.R. 483.15 and 42

7

U.S.C. §1396r(c)(2)), which have a lesser potential to endanger the health and safety of

8

residents. Bryant Decl., ~42. As shown by the facts above, Pioneer House repeatedly tried to

9

find out if Mrs. Single could return to the Facility because she no longer posed a,danger to

10

herself or others, and Pioneer House could meet its legal obligations to Mrs. Single and the other

11

residents, including not

12

House still does not know whether Mrs. Single can safely return to the facility, given her suicide

. See Bryant Decl.,

~~38-40.

Pioneer

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threat and history of outbursts, which is exacerbated by the presence of Mr. Single.
Plaintiffs claim Pioneer House could have evaluated whether to readmit Mrs. Single

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because Sutter provided Pioneer House with "all the clinical records that Sutter Medical Center

16

routinely provides to a receiving facility" on June 26, 2017, without even identifying those

17

records. Borden Decl., ~3; Plaintiffs MPA, p. 10:1-5. Plaintiffs have no admissible evidence

18

that Sutter provided its "routine" records, but cite only to the inadmissible declaration of their

19

attorney who provides no foundational facts that he has personal knowledge about what records

20

were produced or whether the records were "routine." See Defendants' Evidentiary Objections

21

in Opposition to Motion for Preliminary Injunction. Moreover, Plaintiffs provide no evidence at

22

all that the records provided by Sutter were sufficient for Pioneer House to determine if Mrs.

23

Single could be safely readmitted. The evidence shows that Sutter did not provide the required

24

records, specifically Mrs. Single's psychiatric and social work records, which were necessary to

25

evaluate whether Pioneer House could accept Mrs. Single. Moreover, Mrs. Single's physical and

26

mental condition has likely changed between her discharge from Sutter sometime in August

27

2017 and when Plaintiffs filed the Complaint on October 9, 2017. Plaintiffs provide no evidence

28

regarding Mrs. Single's current physical and mental condition, or the current level of

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-14Memorandum of Points & Authorities in Opposition to Motion for Preliminary Injunction

 except that she apparently cannot walk. Jones Decl., ~17. As a result
2

neither the Court nor Pioneer House has any evidence that it is safe for her to return or that

3

Pioneer House's legal obligations to Mrs. Single and all residents can be met. In short, Plaintiffs

4

fail to clearly show that Mrs. Single has the immediate right to the next appropriate bed, where

5

the appropriate care that will ensure the safety of residents and staff is unknown. St. John does

6

not establish the "black letter rule" that that the Court must order Mrs. Single to be admitted to

7

Pioneer House without any evidence as to her current condition.

8

IV.

9

CONCLUSION
As shown by Pioneer House's opposition to this motion, this is not a case of"hospital

10

dumping" as Plaintiffs contend without any evidence. Instead, Pioneer House has acted to

11

ensure the safety of Mrs. Single and its residents. Pioneer House can and will facilitate visits
between Mr. and Mrs. Single with the goal that Mrs. Single can safely return to Pioneer House
where she receives care appropriate for her condition. Pioneer House respectfully requests that
the Court deny this motion.
Dated: October 30, 2017

18
19

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21

22
23

24
25

26

J SUPPLE LAW
A Professional Corporation

By~t.Jpp~

MICHELE E. WESTHO
ROBERT SANFORD
Attorneys for Defendants
CATHEDRAL PIONEER CHURCH HOMES
II, CONGREGATIONAL CHURCH
RETIREMENT COMMUNITY, BIXBY
KNOLLS TOWERS, INC., GOLD
COUNTRY HEALTH CENTER,
MAYFLOWER GARDENS HEALTH
FACILITIES, INC., STOCKTON
CONGREGATIONAL HOMES, INC.,
FOUNDATION PROPERTY
MANAGEMENT, INC., RHF
MANAGEMENT, INC., AND RHF
FOUNDATION

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f·\SINGLE v. Pioneer House\Motions\Pitf Motion for Preliminary Injunction\Opposition\SINGLE- MPA in Opp to PI (I 0.2817).docx

-15Memorandum of Points & Authorities in Opposition to Motion for Preliminary Injunction