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GARCIA, ARTIGLIERE & MEDBYStephen M. Garcia, State Bar No. 123338

edocs@lawgarcia.comOne World Trade Center, Suite 1950Long Beach, California 90831Telephone z (562) 216-527 0Facsimile: (562) 216-527 I

Attomeys for Plaintiff

SYLVIA MATHES, by and through herAttorney in Fact, Gerald Sanoff,

Plaintiff,

vs.

MOTION PICTURE AND TELEVISIONFTIND dba MOTION PICTURE &TELEVISION FI.]ND; RAFAEL PALACIOS;and DOES 1 through 250, inclusive,

Defendants.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES, NORTHWEST DISTRICT

CASE NO. LC1O6O47

PLAINTIFF'S NOTICE OF MOTION ANDMOTION FOR LEAVE TO F'ILE ASECOND AMENDED COMPLAINT

Date: February 26,2018Time: 8:30 a.m.Dept.: U

Assigned to Hon. Rupert A. Byrdsong, Dept. U

Action Filed:Trial Date:

August 8,2017February 20,2018

TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORI)

PLEASE TAKE NOTICE that on February 26,2018, at 8:30 A.m. in Department U of the

above-entitled courthouse, Plaintiff will and hereby does apply for an order granting leave to file a

Second Amended Complaint, a copy of which is attached to the Declaration ofDavid M. Medby filed

herewith.

The purpose of the proposed amendment is to insert additional detailed factual allegations

regarding the Defendants' concerted and intentional action to fraudulently cover up and conceal the

multiple sexual assaults of Sylvia Mathes and other residents of the defendant facility by Rafael

Palacios, which is directly relevant to both the recklessness and corporate authorization and ratification

PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE A SECOND AMENDEDCOMPLAINT

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elements of the ElderAbuse cause of action as well as Plaintiff s claim forpunitive damages. Plaintiff

further requests that, after this motion is granted, Plaintiff s proposed Second Amended Complaint be

deemed to be the Second Amended Complaint, and that itbe deemed filed and served as ofthe date of

the granting of this motion.

Pursuant to Rule 3.82a@) of the California Rules of Court, Plaintiff hereby states the

following revisions are contained in the Proposed Second Amended Complaint:

On Paee 3, Lines 12 to 24 were added;

Parasraohs 25 throush 45 of the SAC were added;

Parasraph 51 of the SAC was added;

On Paee 28, Lines 28 the phrase "And then remarkably a few short weeks later on" was

added;

Parasraph 83 of the SAC was added;

On Pase 37. Lines I to 10 the phrase "and to have the FACILITY "employ an adequate

number of qualified personnel to carry out all of the functions of the facility" was added.

This Motion is based on the accompanying Memorandum of Points and Authorities, the

Declaration of David M. Medby submitted herewith, the records and files herein, and on such other

and further oral and documentary evidence as may be presented at the hearing.

DATED: December 18, 2017 GARCIA, ARTIGLIERE & MEDBY

David

PLAINTIFF'S NOTICE OF MOTION AND MOTION FOCOMPLAINT

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MEMORAIIDUM OF POINTS AND AUTHORITIES

I. FACTS NECESSITATING AMENDING TIIE COMPLAINT

A Complaint was filed in this matter on August 8,2017 by Plaintiff Sylvia Mathes. After

conducting depositions, receiving documents from Defendants, and being in contact with witnesses, it

became clear to plaintifps counsel inserting additional detailed factual allegations regarding the

Defendants, concerted and intentional action to fraudulently coverup and conceal themultiple sexual

assaults of Sylvia Mathes and other residents of the defendant facility by Rafael Palacios would be

proper and necessary as such detailed allegations are directly relevant to both the recklessness and

corporate authorization and ratification elernents of the Elder Abuse cause of action as well as

plaintiff s claim for punitive damages. Therefore, Plaintiff is requesting leave to file the proposed

Second Amended Complaint attached hereto as Exhibit "1". This proposed Second Amended

Complaint sets forth the new allegations described hereinabove. The new allegations are set forth in

bold in the proposed Second Amended Complaint attached hereto as Exhibit "l".

Code of Civil Procedure ga73(aX1) provides that "[t]he court may, in furtherance ofjustice,

and on such terms as may be proper, allow apa4v to amend any pleading..." And justice usually

mandates that leave to amend be granted. That is because of "the fundamental policy of our courts

that cases should be decided on their me rits." See Hirsav. Superior Court (1981) 1 l8 Cal.App.3d 486,

490. Toward that end, the California Supreme Court has declared that "[t]here is a strong policy in

favor of liberal allowance of amendments." See Mesler v. Bragg Mgt. Co. (1985) 39 Cal.3d 290'296'

Indeed, "[t]he policy favoring amendment is so strongthat it is arare case in which denial of

leave to amend can be justi fred" (Weil & Brown, California Practice Guide: Civil Procedure Before

Trial (TheRutter Group 2011), $ 6:6391.)t In fact, "the court is almost certain to grant leave" (1d.,

$6:663) - and any denial of leave is almost certain to be questioned on appeal. As held by the Second

District Court of Appeal:

I The second District concurs that "[i]t is a rare case in which 'a court will be justified in refusing aparty leavelo'amend

his pleadings so that he may prop"riy p..rent his case" Morgan v. Superior Court (1959) 172 Cal.App'2d 52'l '

R LEAVE TO FILE A SECOND AMENDEDCOMPLAINT

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If the motion to amend is timely made and the granting of the motion will notpr.irdi6 the opposin Eparty,it is 6nor t9 reflrs^e pen-nission to amend; and, where the

iefusal also resuits ini part/Ueing deprived of the right to assert a meritorious cause

of action or a meritorioirs dbfense, it is not only error but abuse of discretion.

Morgan v. Superior court (1959) 172 Cal.App.2d 527. (emphasis added.)

Furthermore, 'othe court has discretion to permit any sort of amendment" (Weil & Brown,

California Practice Guide: Civil Procedure Before Trial (TheRutter Group 20ll), $ 6:640.) "Thus,

amended pleadings may set forth entirely different claims, add new parties, seek a different or greater

remedy, etc." (Id.)

Moreover, "[o]rdinarily, the judge y,1ll not consider the validitv qf the proposed amended

pleading in deciding whether to grant leave to amend. Grounds for demurrer or motion to strike are

premature. Afterleaveto amend is granted, the opposing party will have the opportunity to attack the

validity of the amended pleading." (Weit & Brown, Califurnia Practice Guide: Civil Procedure Before

Trial (TheRutter Group 2011),$6:6aa].) Thus, "even if the proposed legal theory is a novel one, 'the

preferable practice would be to permit the amendment and allow the parties to test its legal sufficie'ncy

by demurrer, motion for judgment on the pleadings or other appropriate proceedings."' (Kittredge

Sports Co. v. Superior Court (1939) 213 Cal.App.3d 1045, 1048.)

As declared by the Second District, "[i]f discovery and investigation develop factual grounds

justifuing a timely amendment to a pleading, leave to amend must be liberally granted." (Mabie v.

Hyatt(l99S) 61 Cal.App.4th 581, 596.) Under such circumstances, "[i]t [is].. .the trial court's duty" to

permit an amended pleading to be filed "so that the facts might properly be brought before the trial

court." (Fuller v. Vista Del Arroyo Hotel (194t) 42 Cal.App.2d 400,404.) Amendment should be

allowed whenever "new information requires a change in the nature of the claims...pteviousiy

pleaded." (Weil &Brown, California Practice Guide: Civil Procedure Before Trial(TheRutterGroup

20Il), $ 6:636 (emphasis in original).)

UI. PLAINTIFF'S MOTION IS TIMELY

As set forth in Code of Civil Procedure section 576,"fa)nyjudge, at any time before or after

commencement of trial, in the furtherance ofjustice, and upon such terms as may be proper, may

allow the amendment of any pleading or pretrial conference order." Indeed, "[t]hat trial courts are to

OTION FOR LEAVE TO FILE A SECOND AMENDEDCOMPLAINT

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liberally permit such amendments, at any stage of the proceeding, has been established policy in this

state since 1901." (Hirsav. Superior Court (1981) 118 Cal.App.3d486,488-489.)

And it does not matter that a case is on the "fast track" and amendment would require a

postponement ofthe trial: "An otherwise proper amendment should not be refused solely because the

case is on fast track. This is true even where the amendment will require a continuance of the hial

date." (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (TheRutter Group 20Ol),$ 6:654.)2

Nor does it matter if the trial date is approaching. As confirmed by Weil and Brown: "If [plaintiffl is

the party seeking leave to amend (knowing the trial will be delayed), proximity to the trial date is not

pround for denial. As long as no prejudice to the defendant is shown, the liberal policy re amendment

prevails and it is an abuse of discretion to refuse the amendment." (Weil & Brown, CaL Practice

Guide: Civil Procedure Before Trial (The Rutter Group 2001), $ 6:653.)

Indeed, leave to amend is warranted even iftrial has commenced. As indicated above, Code of

Civil Procedure $576 authorizes a court to grant leave to amend "at any time before or after

commencement of triaf'. The Second District concurs that "[m]otions to amend are appropriately

granted as late as the first day of trial (citations) or even during trial (citation)." Qlonig v. Financial

Corp. of America (1992) 6 Cal.App.4th960,965.) Thus, 'o[]eave to amend is frequently granted to

conform to proof offered at triaf'(Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The

Rutter Group 2001), $6:685) and "the trial judge has discretion to permit amendment of the pleadings

even.. .afterthetrial" (Id.). Here, Plaintiff did not wait until the end of trial, or the first day oftrial, to

file her motion for leave to amend. Plaintiff actually seeks leave to amend prior to the setting of trial

and at the earliestjuncture practicable.

Even if there had been any delay by Plaintiff in seeking leave to amend (which, again, there

was up!), and even if that *delay" was Plaintiffls.fault, such delay would rol constitute grounds for

denial ofthis motion in any event. It is well settled that "[e]ven if'the plaintiff "unreasonably delayed

moving to amend", "it is an abuse of discretion to deny leave to amend where the opposing party was

2 The Second District concurs that "[i]f an amendment is appropriate the trial court should continue the trial if necessary,

evenifthematterison-fasttrack(citations)" Honigv.FinancialCorp.ofAmerica(1992) 6Cal.App.4th960,967.

PLATNTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE A SECOND AMENDEDCOMPLAINT

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not misled or prejudiced by the amendmefit." (Kittredge Sports Co. v. Superior Court (1989) 213

Cal.App.3d 1045, 1048.) "If the delay in seeking the amendment has not misled or prejudiced the

other side, the liberal policy of allowing amendments prevails. Indeed, it is an abuse of discretion to

deny leave in such a case...even if sought as late as the time of trial!" (Weil & Brown, Cal. Prac.

Guide: Civ. Proc. Before Trial (The Rutter Group 2001), $ 6:659.)

Thus, for exampl e, in Honig v. Financial Corp. of America, supra, the plaintiff filed his

complaint in February 1988. New facts supporting amendment (the defendants' termination of

plaintiffs ernployment) occurred in April 1988, but the plaintiff did not seek leave to amend to add

those new facts and new causes of action (for wrongful termination and defamation) until October

1990 - 2% years later. Despite that extensive, unexplained delay, the Second Dishict Court ofAppeal

held that the trial court erred in denying leave to amend. The Court reasoned that "[t]he proposed

amendments finished tetling the story begun in the original complaint," and that the defendants had

already been "fully aware of the events" alleged in the amended complaint before it was filed. (See

Honig v. Financial Corp. of America, supra, 6 Cal.App. 4th at 966.)

For the reasons set forth above, and because leave to amend would be proper even if Plaintiff

had delayed seeking it, Plaintiff s motion should be granted.

CONCEALMENT OF RAFAEL PALACIOS' REPEATED ASSAULTS OF SYLVIA

MATHES AND OTHER RESIDENTS ARE DIRECTLY RELEVANT TO

PLAINTIFF'S CASE

A. These Allegations Are Directlv Relevant To Recklessness

Generally speaking, evidence of other similar complaints or incidents, like the one being

litigated, is discoverable. These may be admissible in order to show intent, scherne, design, causation,

or knowledge of "prior acts" of an existing condition. See Stewart v. Colonial Western Agency, Inc.

(2001) 87 Cal.App.4th 1006, 1016; Morfi.nv. State, (1993) 12Cal.App.4th8l2.

For example, in the context of long term care, a failure to comply with a plan of correction

issued by the Department of Health Services may be evidence of a pattern of deceit or violation. See

II.

PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE A SECOND AMENDEDCOMPLAINT

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Haft v. Lone Palm Hotel, (1970) 3 Ca1.3d 756,778, (error to exclude prior Health Department

inspection results, which were relevant to the issue of knowledge and conscious disregard). clearly,

the plaintiff has made allegations of the Defendant's willful ignorance of known perils and

corresponding injury to the Plaintiff.

And, of course, the willful disregard of these known perils is exactly the type of evidence

required to prove ooa conscious disregard" of a known peril as it relates to Plaintiff s elder abuse cause

of action. see Delaney v. Baker (1999) 20 Cal. th23,971P.2d986, and GACI 3105') In order to

obtain the rernedies available pursuant to Welfare & Institutions Code $15657, a Plaintiff must

demonstrate by clear and convincing evidence that the Defendant is guilty of something more than

negligence; he or she must show reckless, oppressive, fraudulent ormalicious conduct. The latterthree

categories involve "intentional," "willful," or "conscious" wtongdoing of a "despiCable" Or

,,injurious" nature. Civil Code $29a; subdivision (c); see also College Hospital' Inc' v' Superior

court,(lgg4)gcal.46To4,T2l."Recklessness"referstoasubjectivestateofculpabilitygreaterthan

simple negligence, which has been described as "deliberate disregard" with the "high degree of

probability,, that an injury will occur (BAJI 12.77 [defining oorecklessness" in the context of a

intentional infliction of emotional distress action]); see also Restatement 2d Torts, 500)'

Recklessness, unlike negligence, involves more than "inadvertent, incompetence, unskillfulness' or a

failure to take precautions," but rather rises to a level of a "conscious course of action " ' with

knowledge of the serious danger to others involved in it." Restatement 2d Torts, 500, Com' (g), p'

590. Delaney v. Baker, supra at 30-31'

In Delaney v. Baker, supra,the Califomia Supreme Court emphasized that "'[r]ecklessness'

refers to a subjective stateof culpability greater than simple negligence,"3 and that recklessness is "a

,deliberatedisregard, ofthe 'high degree of probability' that an injury will occur."a Based thereon,

the Court confirmed that recklessness can - and indeed must -beproven through evidence ofwhat the

3 1d.,20 cal.4th23,3l, 82 Cal.Rptr.Zd610,618 (emphasis added)'

o Id., citingBAJl No. 12J7 (emphasis added)'

FILE A SECOND AMENDED- COMPLAINTM :\Mathes, Sylvia ( I 7-1 61 )PleadingsV\'Itn.Amend'Complaint'docx

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Defendant lcnew atthe time it subjected the elder to abuse:

Recklessness, unlike negligence, inv-olves more than oinadvertence,

i"ro-r-.-ii".i, *it iUnire-ss, oi a failure to take precautions' but

rattreiiisli; til level of a oconscious choice of a course of act.ion...

with knowledge of the serious danger to others involved in tt"""

Indeed, it was precisely because the Defendant knew that severe injury was likely that the

DelaneyCourt found that the Defendant acted recklessly. Specifically, the court concluded that there

was ,,substantial evidence to support the jury's finding that the conduct was reckless, given

Defendants , lvr.owledgeof [the decedent's] deteriorating condition and [her daughter's] repeated effort

to intervene in [the decedent's] behalf."6

Further guidance may be found in applicable jury instructions speciffing th e required elements

of proof in an elder abuse case. For example CACI 3113, defines the term "recklessness" within the

confines of elder abuse case as follows:

The term "recklessness" means that the defendant acted with

n"o*iiii" that it was highly probable that his conduct could cause

f** *3i i k"oii"giy disrigirded the risk. It is also described as the

f::i,;&ir;'Brl;:f ;^Ltl;"(W;',"811%tFtr'#H:!;Cal.RPtr'2d 610).

ln Delaney, the Court noted that to prove an elder abuse cause of action the Plaintiff must

show conduct which, as to fraud, oppression and malice, involves 'o'intentional,' 'willful,' or

'conscious' 'wrongdoing."' The Delaney court held that "recklessness" involves more *tan

inadvertence,itrefersto"...toasubjectivestateofculpabilitydescribedas'deliberatedisregard'of

the .high probability, that an injury will occur." It rises to a "conscious choice of a course of action" '

withknowledge of theserious dangerto others involved init." Delaney,supra.20Cal.4thatpp3l-32'

Thus, it is clear that evidence of what the Defendant knew as of the time it committed the alleged

elder abuse is highlyprobative on the issue ofwhetherthe Defendant acted recklessly forpurposes of

Welfare & Institutions Code $15657.

t Id. at3l-32,82 Cal.Rptr .2d at 622 (errryhasis added) [citing Rest.2d Torts, $ 500, com' (g)]'

u Id.,20 cal.4th at 41,82 cal.Rptr .2d at 622.

O FILE A SECOND AMENDEDCOMPLAINT

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Of course, this knowledge, and corresponding disregard ofthis knowledge, maybe established

by other similar complaints or incidents relating to other residents of the facility. For example, if

other residents suffered from neglect and/or abuse occasioned by the conduct alleged of in the

complaint, as a result of the same type of misconduct that caused plaintiff s injuries, this would tend

to show a pattern of misconduct on the part of Defendants, and a corresponding disregard of known

perils to the health and safety of residents at the facility, including Plaintiff.

Thus, what the Defendant's knew and ignored as it relates to the care of residents at the facihty

other than plaintiff is not only relevant to the subject matter of this action and discoverable but is also

apartof the Plaintiff s prima facie case. And, of course, the EADACPA requirss as an element of

proof that plaintiff establish the facts necessary to meet the standards of california civil code

$32940) to prevail on an elder abuse claim. See Welfare and Institutions Code $15657(c)'

Califomia Civil Code $3294(b) states:

An employer shall not be liable for damage: pursuant to, subdivision(a). based ,pon u.t, of an anployee of th6 employer, unless the

L?* f

" r"Jr- t

",i "d"*r" t"o*t

"a gr o i the unfi tne s s oT the.ernployee and

ffii;i,;a Hil *rr"i*itr, a conicious disregard qfthe rights Ol qafeJY

;ffii#;;^urtto.ir"a or ratified the wrongtul act for which the

ffirg6 ;;.;;dA-. - With respect of a corporate. employer, the

;;;;;;; k ;itedge o1conscious diiregard, authorization, raffication;; ;;; of oppresiroi, fraud or maliie must be on the party of the

fficer, "dtriito, or managing ogent of the corporation'

B.

ln Colonial Life A. Accident Ins. Co. v. Superior Court (1952) 31 Cal.3d 785, an insurance

company (Colonial), its independent claims adjuster (Equifax, Inc.) and the adjuster's employee (J'T'

sharkey) were sued for damages resulting from alleged unfair practices in violation of lnsurance code

$ 790.03. Equifax had been ordered by the trial court to produce records concerning other cases

handled by Sharkey. colonial petitioned for a writ ofmandate to bar the plaintifffrom discovering the

identities of other Colonial claimants, or to restrict the plaintiffs use thereof'

The Supreme Court affirmed and denied relief, emphasizing that "evidence regarding

Sharkey's previous dealings may be relevant to prove ratification or authorizationby Equifax and

colonial of his alleged unfair acts." Id., at792,fn.9, 183 Cal.Rptr. 810,647 P'2d86 (emphasis

ILE A SECOND AMENDEDCOMPLAINT

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added). The Supreme Court concluded that "[w]ithout doubt, the discovery of the names' addresses

and fi.les of other colonial claimants with whom Sharkey attempted settlements is relevant to the

subject matter of this action and may lead to admissible evidence'" Id', at 792 (emphasis added'

footnote omitted).

Ratification is routinely found where the Defendant was on notice of an actual or potential

peril yet failed to take any corrective action. See Farvour v. Geltis (1'949) 91 Cal'App '2d 603' 605;

selmon v. southern pacific (rg77) 67 Cal.App.3d 600, 609. And ratification is also found where the

acts perpetrated on the plaintiff were the Defendant's "customary practice" and "usual performance'"

Schanafelt v. Seaboard Finance Co. (195t) 108 Cal'App'2d 420' 423-424' lndeed' in Maffon v'

superior court (2003) 108 Cal.App .4th lo4g, the court found that complaints made to the

Defendant, s director of patient services about understaffing and her failure to take any remedial action

was evidence of reckless neglect . Marron, supra. The court further found that o'many of alleged

instances of reckless neglect consisted of acts of omission, not commission, and therefore a specific

time, place, or person may not necessarily be identified with an alleged omission'" Id' at20'

C.

Other similar incidents are also highly relevant to plaintiffs claim for punitive damages' See'

e.g., Eganv. Mutual of omaha Ins. co. (lg7g) 24 Ca1.3d809,. Punitive damages must be based on a

showing of o'oppression, fraud, or malice." (Civ.Code, $ 3294') To be liable for punitive damages'

defendant must act oowith the intent to vex, injure, or annoy, or with a conscious disregard of the

plaintiffs rights. [citations.] " Taylor v. superior court (lg7g) 24 Cal'3d 890, 895; Neal v' Farmers

Ins. Exchange(lg7S) 21 Cal.3d 910,922; Silberg v. califurnia Life Ins. co' (197 4) ll cd"3d 452'

462.Theseelementsmaybeprovendirectlyorbyimplication. Neal,supra,2lcal'3datp'923'frr'6';

Berterov.NationalGeneralCorp.(|974)13Ca1.3d43,65_66.

Indirect evidence of the elements of punitive damages may be suggested by a pattern of

misconduct by a defendant. In Neal, supra, for example, we affirmed an award of punitive damages

based on a failure to settle where the evidence indicated that defendant insurance company's refusal

.oto accept [plaintiffs] offer of settlement, and its subsequent submission of the matter to its attorney

A SECOND AMENDEDCOMPLAINT

M:\lr4atlres, Sylvia (l ?-l 61 )\Pleadings\lr'ltn Amend'Complaint'docx

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for opinion, [fir. omitted] were all part of a conscious course of conduct, firmly $ounded in

established company policy ...." Neal, supra, 2l Cal3d at 923. SimilarlS in Delos v. Farmers

Insurance Group (lg7g) 93 Cal.App .3d 642, 664, the court upheld an award of punitive damages

based in part or1"arr inextricable involvement with conduct aptly described ... as a 'nefarious scheme

to mislead and defraud thousands of policyholders' with defendants' decision to deny [plaintiffs]

claim." See also Ferraro v. Pacific Finance Corp. (1970) 8 Cal.App.3 d 339,352-353.

Nothing could be better calculated to lead to discovery of information relating to existing

problems at the facility prior to plaintiff s residency and injuries than the identities of other residents

of the defendant facility, percipient witnesses with unique and firsthand knowledge of the care

provided by Defendant and of other incidents and injuries similar to those suffered by Plaintiff.

This case cannot be limited to the isolated acts and omissions pertaining to Plaintiff. In order

to prove the allegations of the Complaint, Plaintiff must establish a pattern of conduct as to the entire

operation of the Facility and effects of that conduct on Plaintiff and other residents to meet the

heightened burden of proof. The operative complaint sufficiently pleads facts alleging that lack of

sufficient staffing, incompetent staff, lack of resources, continuous violations of state and federal

regulations, conscious disregard of the harm being inflicted on residents, and the knowledge of this

harm. The discovery requests are necessary to provide Plaintiff a reasonable opportunity to obtain

evidence to show Defendant's knowledge of inadequacies in its staffing and the pattern and practices

of the facility in rendering care and services.

IV.

Plaintiffs are seeking to only add one new cause of action against two Defendants who have

answered the Complaint. These Defendants are free to file a responsive pleading to the First Amended

Complaint if they feel an attackon the pleadings is somehow justified. Furthermore, the case has not

been set for trial, not all Defendants have been served or appeared, and discoveryhas onlyjust started.

There is simply no prejudice here.

The fact that the amendment involves a change in legal theory that would make admissible

evidence damaging to the opposing party is not the kind of prejudice the court will consider. Hirsa v.

Superior Court (Vickers) (1981) 118 Cal.App.3d 486,490.

COMPLAINTM:\l\4athes, Sylvia (1 7- I 61 )PleadingsWtn.Amend'Complaint.docx

pI-ArtirrlFFls NouCB or ltortoN aND MortoN FoR LEAVE To FILE A SECOND AMENDED

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V. CONCLUSION

Based on the foregoing, Plaintiffs respectfully request that the Court grant Plaintiffs' motion

and order that the proposed First Amended Complaint attached as Exhibit I to the Declaration of

William M. Artigliere be deemed filed and served as of the date of the granting of this motion by the

Court.

DATED: December 18, 2017 GARCIA, ARTIGLIERE & MEDBY

PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE A SECOND AMENDEDCOMPLAINT

M:\l\rlathes, Sylvia ( I 7- I 61 )Wleadings\\4tn.Amend.Complaint.docx

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Attorneys for Plaintiff

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DECLARATION OF DAVID M. MEDBY

I, David M. Medby, declare as follows:

1. I am an attomey duly admitted to practice before this Court. I am a Partner with

Garcia, Artigliere & Medby, attorneys of record for Plaintiff. I have personal knowledge of the

facts set forth herein, except as to those stated on information and belief and, as to those, I am

informed and believe them to be true. If called as a witness, I could and would competently testify

to the matters stated herein.

2. Attached hereto as Exhibit o'1" is the proposed First Amended Complaint. The new

allegations to the Complaint are in bo1d.

3. The purpose of the proposed amendment is to insert additional detailed factual

allegations regarding the Defendants' concerted and intentional action to fraudulently cover up

and conceal the multiple sexual assaults of Sylvia Mathes and other residents of the defendant

facility by Rafael Palacios, which is directly relevant to both the recklessness and corporate

authorization and ratification elements of the Elder Abuse cause of action as well as Plaintiff s

claim for punitive damages. Ptaintiff further requests that, after this motion is granted, Plaintiff s

proposed Second Amended Complaint be deemed to be the Second Amended Complaint, and that

it be deemed filed and served as of the date of the granting of this motion.

ffioN AND MoTIoN FoR LEAVE TO FILE A SECOND AMENDEDCOMPLAINT

M:Mathes, Sylvia ( 1 7- l 6l )\Pleadings\l\4tn.Amord.Complaint.docx

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4. The following revisions are contained in the Proposed Second Amended

Complaint:

On Paee 3, Lines 12 to 24 were added;

Paraeraphs 25 throueh 45 of the SAC were added;

Paraeraph 51 of the SAC was added;

On Pase 28, Lines 28 the phrase "And then remarkably a few short weeks later on" was

added;

Paraeraph 83 of the SAC was added;

On paee 37. Lines I to 10 the phrase "and to have the FACILITY "employ an adequate

number of qualified personnel to carry out all of the functions of the facility" was added.

I declare under penalty of perjury under the laws of the State of California that the foregoing is

true and correct.

Executed December 18,2017, at Long Beach, Califomia.

MOTION FOR LEAVE TO FILE A SECOND AMENDEDCOMPLAINT

M:\lVlathes, Sylvia ( I 7-1 61 )Pleadings\Ir4tn.Amend.Complaint.docx

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GARCIA, ARTIGLIERE & MEDBYStephen M. Garcia, State Bar No. 123338

edocs@lawgarcia.comOne Wdita Tlade Center, Suite 1950

Long Beach, California 90831Telephone: (562) 216-5270Facsimile : (562) 216-527 I

Attomeys for Plaintiff

SYLVIA MATHES, bY and througlr her

Attorney in Fact, Gerald Sanoff,

vs.

MOTION PICTURE AND TELEVISIONFuNn dba MorIoN PICTURE 8L

tnr.pvrstoN FUND; RAFAEL PALACIoS;and DOES 1 through 250, inclusive,

SUPERIORCoURT0FTIIESTATEoFCALIFoRNIA

COUNTY OF LOS ANGELES, NORTHWEST DISTRICT

Defendants.

CASE NO. LC1O6O47

IPROPOSEDI SECOND AMENDEDbourluNf FoR DAITAGES

1) Elder Abuse (Pursuatrt to the Elder Abuse-' *d Dependent Adult Civil Protection Act -We,lfari and Institutions Code $$15600, er

seo.\2) VJlations of Health & Safety Code

$14300)3) bililLr Legal Remedies Action (Civil

Code $1750 et seq.+l Viofutions of Business & Professions Code

$17200

Assigned to Hon. Rupert A. Byrdsong, Dept' U

Action Filed: August 8,2017Trial Date: FebruarY 20,2018

coMES NOW SYLVIA MATHES and alleges upon information and belief as follows:

TIIE PARTIES

l. plaintiff SYLVIA MATHES is and was at all times relevant hereto a resident of the

State of califomia, and bring this action, by and through her Attorney in Fact, Gerald Sanoff'

) DEfENdANtS MOTION PICTURE AND TELEVISION FI'ND dbAMOTION PICTURE

& TELEVISION FUND and DoES 4-50 (hereinafter collectively referred to as the "FACILITY") are

LAINT FORDAMAGESM:Mathes, Sylvia ( 1 7-l 6l )Pleadings\Complaint'02'Proposed'docx

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and were at all relevant times in the business ofproviding custodial care as a Skilled Nursing Facility

doing business under the fictitious name Motion Picture & Television Fund which is located at2338

Mulholland Dr., woodland Hills, cAgl364,and subject to the requirements ofstate law regardingthe

operation of a Skilled Nursing Facility in the State of California.

3. Defendants DOES 51 - 100 (hereinafter the "MANAGEMENT DEFENDANTS") were

at all relevant times the FACILITY',S owners, operators, parent company, employment company

and/or management company of the FACILITY as a skilled Nursing Facility and were at all times

relevant hereto subject to the requirements of state law governing the operation of a Skilled Nursing

Facility in the State of California. (Hereinafter the FACILITY and MANAGEMENT DEFENDANTS

may be collectively referred to as "DEFENDANTS". And wherein the term DEFENDANTS is

utilized it is specifically meant to exclude RAFAEL PALACIOS and DOES 1-3')'

4. Defendants RAFAEL PALACIoS and DOES 1-3 are individuals who arebelievedto

be individuals who reside in the State of Califomia and were residents of the FACILITY during the

same time period in which SYLVIA MATHES was a resident at said FACILITY, and rernains a

resident of the FACILITY, and who assaulted SYLVIA MATHES as more fully described herein.

5. The DEFENDANTS, by and through the corporate officers, directors and/ormanaging

agents including David Asplund, Randy stone, Robert Beitcher, Jim Gianopulos, Frank Guarrera,

Mike Malinowski, Sharon Siefert, Linda Healy, Joe Rich, and others presentlyunknownto SYLVIA

MATHES and according to proof at time of trial, ratified the conduct of their co-defendants and the

FACILITy, in that they were aware of the understaffing of the FACILITY, in both number and

training, and the relationship between understaffing and wrongful withholding of required care to

residents of the FACILITY, including syLVIA MATHES. That notwithstanding said knowledge,

these officers, directors, and/or managing agents meaningfully disregarded the issues even though

they knew the understaffing could, would and did lead to unnecessary injuries to residents of the

FACILITY, including SYLVIA MATHES.

6. The liability of the Defendants for the abuse of SYLVIA MATHES as alleged herein

arises from their own direct misconduct as alleged herein as well as all other legal basis and according

to proof at the time of trial.

ffiED COMPLAINT FOR DAMAGESM:Wathes, Sylvia (l 7-1 61 )\Pleadings\Complaint.O2.Proposed'docx

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7. That, based upon information and belief, DOES 151-160 were members of the

..Governing Body" of the FACILITY responsible for the creation and implementation of policies and

procedures for the operation of the FACILITY pursuant to 42 C.F.R. $483.75. That these mernbers, as

executives, managing agents andlorowners ofthe FACILITY, were focused on unlawfully colluding

and conspiring to fraudulently conceal that Rafael Palacios, a former ernployee ofthe FACILITY and

current resident of the FACILITY was a known sexual predator of other FACILITY residents who

chronically and systernatically was allowed by the DEFENDANTS to run free and physically abuse,

within the meaning of lTelfare & Institutions code $ 1 561 0.63 . As a result of this known conspiracy of

cover up by the DEFENDANTS involving the cover up of the physical abuse of approximately six

other female residents, Rafael Palacios was then let free to roam the FACILITY for prey and

ultimately physically abused SYLVIA MATHES. That the focus of these individuals and the

DEFENDANTS was in.,looking good" and building a false name brand for the thereby violating

state and federal rules, laws and regulations and led to the injuries and to SYLVIA MATHES as

alleged herein.

g. SyLVIA MATHES is informed and believes and therefore alleges that at all times

relevant to this Complaint, Joe Rich, Mike Malinowski, Sharon Siefert, Linda llealy, DOES

190-200 and other employees of the DEFENDANTS whose names are unknown to the Ptaintiff

and according to proof at time of trial, were licensed and unlicensed individuals anilor entities

and other employees of the DEFENDANTS whose names are presently unknown and aceording

to proof at time of trial, rendering care and services to sYLVIA MATHES and whose conduct

caused the injuries and damages alleged herein were unfit to perform their job duties at the

FACILITY and known to be so unfit based upon documents in the possession of the FACILITY

which included job appHcations, resumes; job performance evaluations, discipline, skill checks

and other mechanisms and according to proof at time of trial. It is alleged that at all times

relevant hereto, the DEFENDANTS were aware of the unfitness of these employees to proof at time

of trial, to perform their necessary job duties and yet ernployed these persons and/or entities in

disregard of the health and safety of SYLVIA MATHES'

g. The DEFENDANTS operated in such a way as to make their individual identities

ffiED COMPLAINT FOR DAMAGESM:Mathes, Sylvia ( 1 7-1 6l )\Pleadings\Complaint.02.Proposed'docx

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indistingUishable, and are therefore, the mere alter-egos of one another.

10. At all relevant times, the DEFENDANTS and each oftheir tortious acts and omissions,

as alleged herein, were done in concert with one another in furtherance of their common design and

agreement to accomplish a particular result, namely max iminngfalsely imaging the FACILITY so it

would be attractive to Hollywood's stars who would then give money freely . Moreover, the

DEFENDANTS aided and abetted each otherin accomplishingthe acts and omissions allegedherein.

(See Restatement (Second) of Torts $876 (1979)).

11. SyLVIA MATHES is ignorant ofthe true names and capacities of those Defendants

sued herein as DOES 201 through 250, and for that reason has sued such Defendants by fictitious

names. SYLVIA MATHES will seek leave of the Court to amend this Complaint to identify said

Defendants when their identities are ascertained.

SyLVIA MATHES hereby incorporates the allegations asserted in paragraphs 1

above as though set forth at length below.

At all relevant times, SYLVIA MATHES was over the age of 65 and thus was an

ooelder" as that term is defined in the Welfare and Institutions Code 515610.27.

14. That DEFENDANTS were to provide'ocare or seryices" to SYLVIA MATHES and

were to be ..care custodians" of SYLVIA MATHES and in a trust and fiduciary relationship with

SYLVIA MATHES.

15. That the DEFENDANTS provided "care or services" to dependent adults and the

elderly, including SYLVIA MATHES, and housed dependent adults and the elderly, including the

SYLVIA MATHES.

16. And, according to its website, DEFENDANTS were created "to act as a safety net of

health and social services" and were "created by Hollywood's earliest entertainment luminaries such

as Charlie Chaplin, Mary pickford, Douglas Fairbanks, and D.W. Griffith, who realized the need for

reaching out to those in the entertainment industry who fell upon hard times. It began with a simple

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TPROPOSEDI SECOND AMENDED COMPLAINT FOR DAMAGESM:Wathes, Sylvia ( 1 7-1 61)\Pleadings\Complaint.02.Proposed.docx

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coin box in Hollywood where entertainment industry workers would deposit spare change for fellow

colleagues."

17 . DEFENDANTS operation evolved from a "simple coin box" for "spare change" in the

past 100 yearsto requiring SYLVIA MATHES'familytopay over $15,000.00 permonth for asemi-

private room, over three times the monthly rate for similar services in other communities, for the

privilege of housing, caring for, and protecting SYLVIA MATHES, in "Harry's Haven" the memory

care unit operated bY DEFENDANTS.

1g. DEFENDANTS' website paints a rosy picture of Harry's Haven, which enlisted the

help and generosity of Hollywood legend Kirk Douglas who stated after giving DEFENDANTS

$15,000,000.00 to expand their FACILITY, ooAnne and I created Harry's Haven in1992 because we

wanted to help families in the entertainment communitystrugglingto care for and comforttheirloved

ones who have Alzheimer's. What MPTF has done at Harry's Haven over the past25 years never

ceases to afiraze me. We wanted visitors as well as patients to experience a wafin and loving

environment, and MPTF has fulfilled our wishes admirably," Added Mr. Douglas, "When Jeffrey

Katzenberg explained the urgency of enlarging the current facility to accommodate more patients, we

had to say yes! Jeffrey knows it is our philosophy to provide funding where it is needed most."

19. DEFENDANTS President and Chief Executive Officer, Bob Beitcher stated, "The

KDCp will allow MpTF to expand its care to more industry members with Alzheimer's and those

needing skilled nursing cate."

ZO. Despite charging a premium for SYLVIA MATHES' care and safety, financial

mismanagement has been a hallmark of DEFENDANTS for the past decade:

o In 20O6,DEFENDANTS shut down a critical care unit at its on-campus hospital due to

financial problems;

. In 2OOg,DEFENDANTS announced that to avoid bankruptcy, it would close its acute-

A;h;brfi-"ir[rtitt"a nursing facility, but after an yprbar in the entertainment

i"a"stw, Uu.f."a 6Lff tt ut decisio-n thanlis to a sustained grassroots campaign from

Su"i"E"tir" Lives of Our Own, a collection of residents and their families;

o In 2010, the DEFENDANTS' Chief Executive offiger, Pavid Tilllap, who had a

$?00,bbb.00 p* V"uir"lary, resigngd *d current President and Chief Executive

bm".. goU'Beiicher. who'himielf was ousted as Chief Executive Officer atpanavision and had never worked in the healthcare industry, was names as a temporary

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replacement. And, in20l1, he was officially appointed President and Chief ExecutiveOfficer of DEFENDANTS.

. In 2071, DEFENDANTS finally recognized that they were unable to-p_rovid-e theneeded services to its wards and Bob Beitcher sough[ the assistance ofProvidenceHealth & Services to run its hospital and long term care. This plan was abandonedover financial concerns. An alternative plan to bring on Kindred Healthcare to do thesame also failed;

. Bv z}l2,the number of patients serviced by the DEFENDANTS' dwindled from 140iiZOOg io 29. A commeit from a family m,Smbers at that time stated, "The people thatwork there do the best they can, but the atmosphere has changed. My mommale grgat

friends there, but sadly **y have passed away and there are no new friends to be

made because no one new is comingln to talk about the old times and what they havein common. She's depressed because of it." Another family member commented, l'Illstime for the MPTF-to do more than pay lip service....I think we're hopefullyfrustrated. Even though the MPTF has said it is not going to close, which is wonderfuland was our goal when we first formed Saving the Lives, not closing is not the same as

being open.";

21. Despite its ongoing financial difficulties, DEFENDANTS constantly tout its motto,

"Taking Care of Our Own." However, DEFENDANTS do not actually provide the necessary

supervision to protect its residents as set forth herein. DEFENDANTS instead choose to use loads of

money generously donated by luminaries in the entertainment industry that could be earmarked for

additional needed staff to instead build new buildings as monuments to their generosity and careers,

but inside the walls, the FACILITY is truly a house of horrors.

22. On December 29,2011, the State of California issued a Class AA Citation and

$80,000.00 fine to DEFENDANTS' skilled nursing facility when a resident with dementia and a

history of falls fell down a flight of stairs in her wheelchair, broke her neck and back, and died as a

result. This resident had previously fallen down the same flight of stairs on a prior occasion. Yet,

DEFENDANTS did not learn from the previous incident and it happened again.

23. On March 7,2012, the State of California's Attorney General's Office, through its

23 llOperation Guardians program raided the DEFENDANTS' skilled nursing units and found the

following in regard to Harry's Haven, which contains wandering residents with dementia issues:

a. The Oxygen Room was unlocked and contained no oxygen supplies, The

unlocked room was observed with loose cords dangling from the ceiling and unlocked with open

doors to the electrical boxes;

b. There was a glass vase, metal container and debris observed in an unlocked

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cabinet under a sink;

c. There was peeling paint and wall paper in the residents'rooms throughout the

unit. The beds were positioned against the walls of the room where the peeling paper had direct

contact with the residents'bodie;

d. Room 2I wasobserved with a hole in the wall exposing the walls' foundation;

e. Room 24 was observed with an exposed night light bulb. The night light was

plugged into the electrical socket located above the resident's side of the bed. This exposed bulb was

within the resident's reach;

f. In regard to staffing, the facility did not provide time cards for registered nurses

(RN) and it could not be determined if the facility was providing the required RN hours perTitle22

Regulations. It also could not be determined if the licensed vocational nurses (L VN) were being

appropriately supervised by a RN, Another issue identified was determining if any licensed nurse was

in charge of the units. tncluded in the time sheets were detailed time cards tor several persons not

listed on the employee list and several time cards that listed abbreviations and codes on the sheet

instead of an employee name. The codes did not correspond to the code sheet supplied by the facility

that accompanied the staffing records.

24. California's Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) is

found at Welfare & Institutions Code $ 1 5600 et seq. In the EADACPA at Welfare & Institutions Code

$15610.57 "neglect" is defined to include the "Failure to protect from health and safety hazards."

Welfare & Institutions Code $15610.570)(3).

25. And, SYLVIA MATHES suffered repeated sexual assaults in the FACILITY

occasioned by not only the reckless neglect of the FACILITY staff but more troublingly the

concerted and intentional action of the FACILITY in a conspiracy of action to fraudulently

conceal the repeated sexual assaults of SYLVIA MATHES by a known sexual predator not of

his on doing but as the result of an insidious disease of dementia the known symptoms of which

are sexual disinhibition and for which this person, Rafael Palacios was entrusted to the care of

the FACILITY to protect not only Rafael Palacios , but all residents of the FACILITY

including SYLVIA MATIIES . Rather than providing to Rafael Palacios this required care of

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the known perils of the side effects of dementiar 66sexual disinhibition", the FACILITY ignored

their responsibilities knowing residents of the FACTLITY would be injured by sexual assault as

WAS SYLVIA MATHES.

26. More troubling and establishing the ratification of the misconduct of the

FACILITy, is the cover up of the FACILITY the sexual assault suffered by SYLVIA MATIIES

in the FACILITY. Specifically, on a date specifically unknown but in July of 2017, the

FACTLITY staff christine contawe and Diane Shaw observed Rafael Palacios exiting the room

of SyLvIA MATIIES. Christine contawe and Diane Shaw immediately ran to the room of

Rafael palacios for, as more funy alleged below, Rafael Palacios had a significant history of

sexual assault of residents of the FACILITY by early July of 201 7 , andupon entering the room

of sYLVIA MATHES, Christine contawe and Diane Shaw found SYLVIA MATHES

disheveled and with her breasts fully exposed with her top puned down around her waist. This

event was never reported to anyone, no one, and in fact was specifically excluded fromthe chart

of syLVIA MATHES in the FACILITY in the clear hopes the truth would never come out'

27. on July 23-24,2017 Rafael Palacios was again found in the room of female

patient syLvIA MATHES uninvited and without permission. This occurred because given the

known history of Rafael Palacios of sexual assault of residents of the FACILITY, Rafael

palacios was to have .,1 : I supervision at all times." According to the Administrator Designate of

the FACILITY, Mike Malinowky, this meant a caregiver of the FACILITY was to be within two

feet of Rafael Palacios at all times when he was out of his room. But, simply to promote their

profit at the expense of care required to be provided by the FACILITY to protect residents from

ongoing sexual assault, on July 23-2412017 refused to provide required staff and so at one point

the FACILITY employee Diane shaw was assigned to provide not only "L:1 supervision at all

times,, but in reality also required to take care of every other resident in the wing in the

FACILITY . This was a literal impossibility. And so predictably, Rafael Palacios entered the

room of syLVIA MATITES again uninvited and without permission and was found fondling

the breast of SyLVIA MATITES and kissing her aggressively. As part of their intent and goal

of cover up orchestrated by the FACILITY "risk manager" Joe Rich, this groping was never

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disclosed and in fact actively hidden.

Zg. Even more troubling is action of conspiracy of cover up of the FACILITY of the

world of misconduct, Specifically, once this litigation was filed the defense attorney (Attorney 1)

in this matter called Diane Shaw in to speak with him. During this conversation Diane Shaw

repeatedly told Attorney 1 that he was not her attorney and that he did not represent her. Diane

shaw further told Attorney 1., who was not then nor has he ever been her attorney, about not

only the groping of SyLVIA MATHES's breasts by Rafael Palacios in the Jaly 23'24' 2017

event but also having found SyLvIA MATITES previously with Rafael Palacios leaving her

room with her breasts fully exposed. Troublingly, notwithstanding the fact that Diane Shaw had

expressly advised Attorney 1 that he did not represent her, through this litigation Attorney L

knowingly, falsely and with the direction of Joe Rich, misrepresented that he represented Diane

Shaw as legal counsel with the most recent occasion being on video and on the record at the

deposition of Milton Moratawa taken on December lr20l7'

29. Further evidence of the conspiracy of fraudulent concealment of the FACILITY is

the fact that while Attorney L falsely asserted that he represented Diane Shaw and that the

scheduling of her deposition must proceed through his office, the deposition of Diane Shaw was

scheduled to take place on Decemb er 1,2017. Recognizing that their fraudulent cover up was

about to be exposed by the truthful testimony of Diane Shaw, Attorney I falsely asserted that

Diane Shaw had the pneumonia that she therefore had decided that she was not going to appear

at her deposition. This was another known and intentional misstatement of truth byAttorney 1'

For the truth was that as Diane Shaw was about to leave her home on her way to the deposition

she received a telephone call from the FACTLTTY risk manager Joe Rich who directed her to

not attend the deposition. In truth of fact Diane Shaw was prepared to and desirous of attending

her deposition on December l't and was directed to not attend by Joe Rich and then this

cancellation was misrepresented by Attorney f- in concert with co-conspirator Joe Rich on

behalf of the FACILITY. The fraudulent concealment and the action and effort of same is not

only despieable it is also ratification of the conduct alleged below'

30. The fact of the matter is that the DEFENDANTS have long known, and covered

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up that they freely allowed a sexual predator, and their former employee Rafael Palacios to

roam their halls endangering residents and quite literally lied to the pubHc and actual and

potential residents of the FACTLITY as to the danger this posed to these residents. These were

ries relied upon by the actual and potential residents of the FACILITY to their detriment in

becoming and remaining residents of the FACILITY'

31. And why such a depth of misconduct? Because as will be more fully explained

below in a four short month period between March and July of 2017 the FACILITY so

radically and completely withheld required care from Rafael Palacios so as to thereby withhold

required care to residents of the FACILITY so as to protect them from health and safety

hazards in the form of sexual assaults as to allow Rafael Palacios to:

o sexually Assault L3 female residents of the FACILITY; and

oExposehimselfinanaggressivemannertoatleasttwostaffoftheFACILITYon

two totally separate occasionsl and

o Additionally Rafael palacios was allowed to enter uninvited and unwanted and

without their permission the rooms of an additional 9 female residents; and

o per the records of the FACILITY have over 200 separate and distinct episodes of

exhibited ,,sexual disinhibition" as to residents and staff of the FACILITY '

32. So in sum, the FACILITY allowed Rafael Palacios to sexually assault 13

residents, 2 employees, enter uninvited and unwanted as a known sexual assaulter on at least an

additional nine occasions and then an the while sat back and watched over 200 episodes of

sexuar disinhibition with the only real interventions being unlawfully throwing drugs down the

throat of Rafael palacios as chemical restraint and then "1:1 supervision" for the '6safety of

residents,, of Rafaer palacios which was knowingly withheld by the FACILITY . The despicable

conduct of the FACILITY is complete and obvious and hence the motivation for the fraudulent

concealment -moneY.

33. This cover up is now complete through the conspiracy of the FACILITY as

orchestrated by Joe Rich working with Attorney I all with the FACILITy trained to say, "these

sexual assaults are the expected progression of the disease." First, that is a factually false and

FORDAMAGESM :\lr4athes, Sylvia ( 1 7- 1 6l )Pleadings\Complaint'02'Proposed'docx

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knowingly false assertion. Secondly, the FACILITY most assuredly never told the sexually

assaulted residents of the FACILITY that the "expected course of their stay at the facilitywould

include being sexually assaulted by male residents of the facility"'

34. According to deposition testimony of employees of the FACILITY including the

Nurse practitioner who was responsible as what she called herself, "the provider" for Rafael

palacios, and who also signed in Mr. paracios records at the FACILITY as his "physician"

Linda Healy the FACrLrry Director of Geriatric and Palliative care and Mike Malinowski the

Administrator Designate of the FACILITY:

o when Rafael palacios was first admitted to the FACTLITY he had exhibited no history of

a phrase coined by the FACILITY'(sexual disinhibition" lThat on April 14,2017 Rafael

Palacios had entered the room of a female resident of the FACILITY (JANE DOE 1)

uninvited while she was in her bed in what she thought was the safety of her room; that the

FACILITY staff was completely unaware of the entry into the room by Rafael Palacios until

they found him on top of the female resident with his penis exposed' This conduct

constituted the physical abuse of JANE DOE 1 within the meaningof werfare & Institutions

cod,e $15610.63, by RAFAEL PALACIOS in the FACILITY' Notwithstanding this

knowledge, and the duty imposed upon them pursuant to Welfare & Institutions Code

$15610.63 to advise their licensing body, the ombudsman and their local police agency of the

allegation which reasonably appeared to be the physical abuse JANE DOE 1' the

DEFENDANTS did not timely provide these notifications in favor of a conspiracy of cover

up.

o Moreover it was learned from the FACILITY notes that the representation of Ms. Healy

that Rafael Palacios had no history of "sexual disinhibition" prior April 14,2017 was

completely farse. And in fact, the notes of the FACILITY actually confirm advisement to the

FACILITY from family member of Rafael Palacios that while living at home Rafael Palacios

would ,,often unzip his pants and putl his penis out." That the response of the FACILITY to

address these known issues as to Rafael Palacios, over which he had little to no control as his

dementia was becoming so severe that he simply lacked the mental ability and capacity to

PLAINT FOR DAMAGES

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control his actions, was to begin a campaign of chemically sedating and restraining Rafael

palacios rather than putting into place proper interventiors such as additional staff which

would have cut into the financial bottom line of the FACILITY, adding the psychotropic

medication of Celexa to Rafael Palacios already toxic pharmaceutical cocktail to "control

libido" according to Linda HealY;

o Further accordingly to Linda Healy a mere 11 days later the drug cocktail was not

working and Rafael palacios and another significant exhibition of "sexual disinhibition" as

noted in the FACILITY care plan on April 28,20l7,although no witness thus far can shed

any light as to what happened and to whoml

o And then, not surprisingly and in fact predictably given the difficult situation of Rafael

Palacios, a few short weeks later on May 18,20!7,at approximately 4:30 pm Rafael Palacios

was allowed to enter without invitation or permission the room in which Nancy Renard

resided and where she believed she was in the safety of her room only to have Rafael

palacios also climb upon her while she slept in her bed once again exposing himself' And the

.,good newsl on this occasion according to the FACILITY notes was that at least there was

,,no penetration,r, and in actuality the reality is according to another note only that the

Certified Nursing Assistant who found Rafael Palacios on top of Nancy Renard "did not see

any penetration." This conduct constituted the physicat abuse of Nancy Renard within the

meaning of Welfore & Institutions Code $15610.63, by Rafael Palacios in the FACILITY'

Notwithstanding this knowledge, and the duty imposed upon them pursuant to Welfure &

Institutions Code $15610.63 to advise their licensing body, the Ombudsman and their local

police agency of the allegation which reasonably appeared to be the physical abuse of

NANCY RENARD, the DEFENDANTS did not timely provide these notifications in favor of

a conspiracy of cover uP.

o perhaps even more disturbingly, and at the direction of the FACILITY risk manager

Joe Rich, when this event was reported to the family and responsible party of NANCY

RENARD as required by law, the FACILITY lied by knowing concealment advising only of

a simple entry of resident into the room of Nancy Renard and intentionally concealing the

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fact that it was a male resident who had previously been found on top of another female

resident in her room with his penis exposed and that in truth of fact Rafael Palacios had

been found on top of Nancy Renard in her bed with his pants down sexually assaulting her.

The family and responsible party of Nancy Renard justifiably relied upon this false assertion

by the FACILITY and allowed Nancy Renard to remain a resident of the FACILITY rather

than being able to come forward and file complaints which would have saved the female

residents of the FACILITY from the sexual assaults suffered at the FACILITY subsequent

to May 18,2017.

o According to the FACILITY chart as to Rafael Palacios hewas "immediately" placed on

one to one supervision of Rafael palacios immediately after he was found mounted on top of

Nancy Renard. According to the facitity Administrator designate Mike Malinowsky, the

highest authority in the FACILITY when the Administrator is not presenf one to one

supervision of Rafael Palacios meant that when he was out of his room a facility staff

memberwas to be 66no more than two feet" from Rafael Palacios. Shockingly, after having

just been found exposing himself to Nancy Renard as he mounted her at4t30 P'il'r a mere

three plus hours later Rafael Palacios apparently evades his non-existent one to one

supervision and enters uninvited yet a different female residents room and is found kissing

her without her permission and approval. Even more shockingly, on that same date Rafael

palacios is found in yet a third female residents room uninvited and unwanted once again

somehow evading the supposed one to one supervision. And remarkably, even with all of this

in the records of the FACILITY, they stop the supposed one to one supervision of Rafael

Palacios, which clearly was never commenced in the first place, a mere 72 hours later;

o And not surprisingly, according to Linda Healy, on June l2r20l7 Rafael Palacios has yet

another episode of ,,sexual inhibition" such that a "care plan" is created although it is more

of the same, no substance and all words to make it look as if something is actually be done to

address the unfortunate behavior of Rafael Palaciosl

o And predictably, on June 16120lTrRafael Palacios is actually "observed walking into

another femare residents room, not by a caregiver but by the "unit secretary" who does

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nothing in a timely fashion allowing by inaction allowing Rafael Palacios to once again climb

on a defenseless female resident JANE DOE 2. This conduct constituted the physical abuse

of JANE DOE 3 within the meanin gof Welfare & Institutions Code $15610.63, by RAFAEL

PALACIOS in the FACILITY. Notwithstanding this knowledge, and the duty imposed upon

them pursuant to Welfare & Institutions Code 515610.63 to advise their licensing body, the

Ombudsman and their local police agency of the allegation which reasonably appeared to be

the physical abuse of Jane Doe 3, the DEFENDAI\TS did not timely and with a true and

accurate factual statement of what had truly occurred, provide these notifications in favor of

a conspiracy of cover up.

o Nowr at least according to the chart of the FACILITY Rafael Palacios will have "1:1

supervision to prevent continued behaviors".

o On June 17, 2017 Rafael Palacios is noted to be "constantly attempting to enter other

female residents rooms."

o And on June l8r2[l/rwhile clearly not receiving the required "l:1 supervision to

prevent continued behaviors" Rafael Palacios is noted to be "going into female resident

rooms and requiring to be removed by staff several times." And in response the F'ACILITY

now has another intervention, which is simply to repeat the prior unimplemented

intervention and writes that it will now provide "L :1 supervision until the behaviors abate",

or precisely what the FACILITY said it was going to do to protect residents and did not do a

mere two days prior.

o Andr once again, the FACILITY did not actually implement their knowingly required

intervention of "1:1 supervision to prevent continued behaviors", for on June 19r2017 at

10:12 p.m. Rafael Palacios entered yet another female residents room (JANE DOE 3)

uninvited and assaulted her and when attempts to remove Rafael Palacios from this females

room were finally undertaken by the FACILITY staff, Rafael Palacios exhibited immediate

anger and aggression. And in response, the FACILITY staff did nothing other than prior

failed efforts and less than two short hours later at l2z0l a.m. on June 20, 2017, Rafael

Palacios was again allowed to enter uninvited yet another residents room (JANE DOE 4)

TPROPOSEbI SECOND AMENDED COMPLAINT FOR DAMAGESM:\lvlathes, Sylvia ( I 7-1 6l )Pleadings\Complaint.02.Proposed.docx

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with the golden lining according to the FACILITY staff being that he was found '6with his

clothes on.', And in response, the FACILITY staff did nothing other than prior failed efforts

and just a bit more than two short hours later at 2:08 a.m. on June 20r20l7 rRafael Palacios

was again allowed to enter uninvited yet another residents room (JANE DOE 5) and on this

occasion being found on top of the other resident and once again with the golden lining

according to the FACILITY staff being that he was found "with his clothes on." And in

response, the FACILITY staff did nothing other than prior failed efforts and a few short

hours later at 5:46 a.m. on June 20r2017, Rafael Palacios was again allowed to enter

uninvited the same female residents room (JANE DOE 5) where he had been found a mere

few hours prior once again physically accosting the female resident. This conduct constituted

the physical abuse of JANE DOES 3, 4 and 5 within the meanin g ol welfare & Institutions

code g15610.63, by RAFAEL PALACIOS in the FACILITY. Notwithstanding this

knowledge, and the duty imposed upon them pursuant to lYelfote & Institutions Code

515610.63 to advise their licensing body, the Ombudsman and their local police agency of the

allegation which reasonably appeared to be the physical abuse of Jane Doe 3, 4 and 5, the

DEFENDANTS did not timely and with a true and accurate factual statement of what had

truly occurred, provide these notifications in favor of a conspiracy of cover up.

o The response of the FACILITY at this poin! more drugs, this time Depakote, to

chemically restrain Rafael Palacios and to "leave the light on" in his room.

o And so on June 27r2017, Rafael Palacios was very clearly not receiving the "l:1

supervision to prevent continued behaviors" required and had time to pull down his pants

and expose himself to a female staff member of the FACILITY. Rafael Palacios so clearly

required far more care than the FACILITY could provide, whereby retention of him as a

resident violated the provisions of 22 Code of Regulations 72515(b)r ,that on this day it took

four members of the FACILITY staff to simply clean and change the clothes of Rafael

| 22 code of Regulations 725 15(b ) rnandates that "the licensee shall: (b) Accept and retain only those patients for whom it

can provide adequate care."

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palacios and on that same day Rafael Palacios was so ignored by staff of the FACILITY that

he was once again allowed to enter unattended a female residents room without invitation

exposing his genitals to JANE DoE 7. This conduct constituted the physical abuse of JAI\IE

DOE 6 within the meanin g of welfore & Institutions code s15610.63, by RAFAEL

PALACIOS in the FACILITY. Notwithstanding this knowledge, and the duty imposed upon

them pursuant to Welfore & Institutions Code S15610.63 to advise their licensing body, the

Ombudsman and their local police agency of the allegation which reasonably appeared to be

the physical abuse of JAIrIE DOE 6, the DEFENDANTS did not timely and with a true and

accurate factual statement of what had truly occurred, provide these notifications in favor of

a conspiracy of cover uP.

o The situation is now so bothersome, and scary to the FACILITY residents and their

families that Gerald Sanoff, the son of one of the residents sexually assaulted by Rafael

Palacios sends an email to Linda Healy on Monday, July lr20l7 warning of the dangers of

Rafael palacios. Linda Healy does nothing and actually claims to have not read the email

until July Srzlli. please see Exhibit o'1". In the interim while Mr. Sanoff s warning is being

ignored, Rafael palacios is noted at2z54 a.m. to have made attempts to enter uninvited not

one but two female residents rooms.

o And once again, on July 612017 and ostensibly in response to the warning of Mr' Sanoff

of five days prior, the FACILITY care plan approach change, beyond throwing more drugs

down the mouth of Rafael palacios and chemically restraining Rafael Palacios in violation of

law, was to provide .,1:1 supervision to intercept behaviors" or the same unsuccessful

intervention that had allegedly been in place since June l8r2017ror eighteen days prior'2

o And not surprisinglyo while very clearly not receiving the required "1:1 supervision to

prevent continued behaviors", on July 7, 2017 Rafael Palacios was allowed to enter yet

another female residents room (JANE DOE 7) uninvited and unwanted and at least on this

, Bring to mind the adage coined by Alfred Einstein, "The definition of insanity is doing the same thing over and over

again and expecting a different result."

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occasion he was stopped as he attempted to climb into the female residents bed and assault

her. This conduct constituted the physical abuse of JANE DOE 7 within the meaning of

Welfare & Institutions Code S15610.63, by RAFAEL PALACIOS in the FACILITY.

Notwithstanding this knowledge, and the duty imposed upon them pursuant to lVelfare &

Institutions Code S15610.63 to advise their licensing body, the Ombudsman and their local

police agency of the allegation which reasonably appeared to be the physical abuse ofJAl[E

DOE T TIheDEFENDANTS did not timely and with a true and accurate factual statement of

what had truly occurred, provide these notifications in favor of a conspiracy of cover up.

o On July 10, 2017, and once again clearly not receiving the "1:1 supervision to prevent

continued behaviors" required, Rafael Palacios was so unattended that atlz26 a.m. Rafael

palacios was allowed to enter yet another residents room (JANE DOE 8) and remove all of

his clothing. And then at 1:32 a.m. he was allowed to enter yet another residents room

(JANE DOE 9) unwanted and uninvited. And then Rafael Palacios was so unattended that

he walked up to Christina Contawe and took his genitals out asking Mrs. Contawe "if she

wanted this.,, This conduct constituted the physical abuse of JANE DOES 9 and 10 within

the meanin g of Welfare & Institutions Code S15610.63' by RAFAEL PALACIOS in the

FACILITY. Notwithstanding this knowledge, and the duty imposed upon them pursuant to

Welfore & Institutions Code $15610.63 to advise their licensing body, the Ombudsman and

their local police agency of the allegation which reasonably appeared to be the physical

abuse of JANE DOES 8 and 9, the DEFENDAI{TS did not timely and with a true and

accurate factual statement of what had truly occurred, provide these notifications in favor of

a conspiracy of cover uP.

o Now the FACILITY was then advised on July 10, 2017, of an alleged sexual of yet

another resident which apparently occurred on July 91 2017 as to JANE DOE 10. This

conduct constituted the physical abuse of JANE DOE 10 within the meaningof Welfate &

Institutions code 915610.63, by RAFAEL PALACIOS in the FACILITY. An interview was

had wherein the FACILITY staff clearly advised management that Rafael Palacios required

a higher level of care than they could provide so as to ensure the safety of other residents of

I'PROPOSEDI SECOND AMENDED COMPLAINT FOR DAMAGESM:Wathes, Sylvia ( I ?-l 61 )Pleadings\Cornplaint.02.Proposed.docx

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the FACILITy. And the response of the FACILITY as to new interventions to protect the

FACILITy residents beyond cram more drugs down the mouth of Rafael Palacios to

chemically restrain him in violation of law was thisr "continue 1:1 supervision" which the

FACILITY did not really even accomplish.

o Somewhere in this time frame and on a date not precisely known, Rafael Palacios was

observed walking out of the room of resident Sylvia Mathes' room. When staff entered the

room Mrs. Mathes, breasts were fully exposed and she looked disheveled. More specificity is

unfortunately not yet available as the result of the intentional fraudulent concealment of this

event by the FACILITY through its 6'risk manager" Joe Rich who has actively operated to

ensure the truth never comes out as to this and other actions involving Rafael Palacios.

o And, again surely not receiving the "1.:1 supervision to prevent continued behaviors"

required, Rafael Palacios was left so alone as to remove his pants and enter the nurses office

on July l2r20l7 throwing his pants at the FACILITY staff.

o As part and parcel of their fraudulent concealment of the misconduct of Rafael Palacios,

and as directed by Joe Rich, on July l7,2017 rthe FACILITY "MSW" Josephine Obedencio

actually had the unmitigated gall to falsely, and knowingly, write as follows:

As reported by Nursing and Activity staff resident continues to

demonstrate sexual disinhibition towards both male and female staff

by attempting to kiss them or touch their genitals or buttocks area'

towards other residents" (emphasis added)

This is most assuredly a false and knowing false entry intended by the FACILITY at the

direction of Joe Rich to deceive. And on that date, once again, Rafael Palacios attempts to

barge into a female residents room uninvited and unwanted.

o And a day later on JuIy 18, 2017 Rafael Palacios is so out of it and comparative that it

takes 3 FACILITY staff to calm him down.

o And so not surprisingly it is noted by the FACILITY staff member Susana Hasburn on

July 19, 2017 thatRafael palacios has had a "significant change of condition" requiring he

ffiENDED COMPLAINT FOR DAMAGESM:\I\4a0res, Sylvia (1 7-161 )Pleadings\Complaint.02.Proposed docx

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be "monitor closely by caregiver around 2417.'

o And yet the next day on July 2012017 while clearly not receiving the "1:1 supervision to

prevent continued behaviors" to being "monitor closely by caregiver around 2417" Rafael

palacios enters the room of the resident in room 3 on three occasions, the resident in room 8

on four occasions, the resident in room 9 on two occasions and the resident in room 13 on

one occasion.

o Remarkably three days later on July 23r 2017 while clearly not receiving the "1:1

supervision to prevent continued behaviors" to being "monitor closely by caregiver around

Z4t7u Rafael Palacios enters the room of the residents in room Lr 31 8, 9127rand2O uninvited

and unwanted.

o And at this point the FACILITY is not even paying affention to the medication overload

they are giving Rafael Palacios to chemically restrain him and in so doing endangered other

residents. For example, although Linda Healy prescribed the drug Desyrel, in incredibly and

unacceptably high doses, to be taken by Rafael Palacios to squelch his "sexual disinhibition"

with orders that it be provide twice a day, Rafael Palacios was not provided as ordered in

the days leading up to July 23'd and the drug Celexa specifically ordered for Rafael Palacios

to controlo according to Linda Healy, sexual libido, had not even been provided to Rafael

palacios by the FACILITY as ordered on July 23,2017. And not surprisingly, Rafael

palacios was once again allowed to roam the FACILITY unattended, enter the room of

female resident Sylvia Mathes for the second and sexually assault her for the second time.

35. The fact of the matter is at least according to the "Nursing Weekly Summary" of

the FACILITY as to Rafael Palacios, from his admission date of March 8r2017rthrough the

week before April l4r 2017 had only one episode of "sexual disinhibition", no episodes of

.,pacingr, (an indicator of aggressive behavior), no episodes of paranoid delusions, and no

episodes of restlessness (another indicator of aggressive behavior).. Ilowever, thereafter, in the

one week prior to May 512017rRafael Palacios was noted by the FACILITY to have had 56

episodes of pacing, 44 episodes of paranoid delusions and 55 episodes of restlessness. And the

FACILITY response as to a modification of their Care Plan to address these new, emergent,

IPROPOSEDI SECONO EUBXOED COMPLAINT FOR DAMAGESM :Mathes, Sylvia ( 1 7-1 61 )Pleadings\Complaint.02.Proposod.docx

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obvious and dangerous issues-nothing, in violatio n of 22 Code of Regulations $72311(a).3

36. And not surprisingly, in the week prior to the sexual assault of Nancy Renard the

FACILITY noted as to Rafael Palaciosr 32 episodes of pacingr 20 episodes of motor restlessness

andlz separate and distinct episodes of '6sexual disinhibition". And what did the FACILITY do

in response prior to the sexual assault of Nancy Renard by Rafael Palacios-nothing in violation

of 22 Code of Regulations $72311(a).

37. And not surprisingly, in the week after the sexual assault of Nancy Renard the

FACILITY noted as to Rafael Palacios,4l episodes of pacing 15 episodes of motor restlessness

and 9 separate and distinct episodes of "sexual disinhibition". And what did the FACILITY do

in response save more chemical restraint of Rafael Palacios, in violation of 22CalifomiaCode of

3 22 Code of Regulations $72311(a) mandates as follows:

(a) Nursing service shall include, but not be limited to, the following:

(1) Plaruring of patient care, which shall include at least the following:

(A) Identification of care needs based upon an initial written and continuing assessment of the patient's needs with

input, as necessary, from health professionals involved in the care of the patient. Initial assessments shall commence

at the time of admission of the patient and be completed within seven days after admission.

(B) Development of an individual, written patient care plan which indicates the care to be given, the objectives to be

accomplished and the professional discipline responsible for each element of care. Objectives shall be measurable and

timelimited.(C) Reviewing, evaluating and updating of the patient care plan as necessary by the nursing staff and other

professional personnel involved in the care ofthe patient at least quarterly, and more often ifthere is a change in the

patient's condition.

(2) Implementing of each patient's care plan according to the methods indicated. Each patient's care shall be based on

this plan.

(3) Notifying the attending licensed healthcare practitioner acting within the scope of his or her professional licensure

promptly of:

(A) The admission of a patient.

(B) AnV sudden and/or marked adverse change in signs, symptoms or behavior exhibited by a patient.

(C) An unusual occurence, as provided in Section 72541, involving a patient.

(D) A change in weight of five pounds or more within a 30-day period unless a different stipulation has been stated in

writing by the patient's licensed healthcare practitioner acting within the scope of his or her professional licensure'

(E) Any untoward response or reaction by a patient to a medication or treatment.

(F) Any error in the administration of a medication or treatment to a patient which is life threatening and presents a

risk to the patient.

(G) The facility's inability to obtain or administer, on a prompt and timely basis, drugs, equipment, supplies or

services as prescribed under conditions which present a risk to the health, safety or security of the patient.

20I'PROPOSEDI SECOND AMENDED COMPLAINT FOR DAMAGES

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Regulations Q72527(23), Health and Safety Code Sechon 1180.4(k\,22 California Code of

Regulationsg 72018, Health and Safety Code Section 1180.4(k), United States Code, Title 42,

Section 1395i-3(c)(lxAxii), United States Code, TitleA2,Section 1396r(cX1)(AXir), andCodeof

Regulations, Title 22, Section 723lg4 rwhich chemicals were not even provided to Rafael Palacios

apursuant to title 22 Californi a Code of Regdations $72527(23) Patients shall have the right:

(23) To be free from psychotherapeutic drugs and physical restraints used for the purpose of patient discipline

or staffconvenience ,rrd to be free from psychotherapeutic drugs used as a chemical restraint as defined in

Section 721l1,except in an emerger.y rnhi.h threatens to bring immediate injury to the patient or others. If a

chemical restraint is administe""a Ao.irg an emergency, such medication shall be only that which is required

to treat the emergency condition and shall be provided in ways that are least restrictive of the personal liberty

of the patient and used only for a specified and limited period of time.

Pursuant to 22 California Code of Regulations$ 72018

Chemical Restraint.

Chemical restraint means a drug used to control behavior and used in a manner not required to treat the

patient's medical symptoms.

Note: The excerpt of the following law contains pertinent provisions on the right of residents to be free from

chemical restraints but excludes other parts of the law.

Pursuant to California Heqlth and Safety Code Seetion 1180.4(k)

(k) A person in a facility described in subdivision (a) of Section1180.2 and subdivision (a) of Section 1180.3 has

inu rigfrt to be free from the use of seclusion and behavioral restraints of any form imposed as a means of

.o.r.ioo, discipline, convenience, or retaliation by staff. This right includes, but is not limited to, the right to be

free from the use of a drug used in order to control

behavior or to restrict the person's freedom of movement, if that drug is not a standard treatment for the

person's medicat or psychiatric condition.

Note: The excerpt of the following law contains pertinent provisions on the right of residents to be free from

chemical restraints but excludes other parts of the law.

Pursuant to United States Code, Title 42, Section 1395i-3(cX1)(A)(ii)

Requirements relating to residents' rights

(1) General rights

(A) Specified rights

A skilted nursing facility must protect and promote the rights of each resident, including each of the following

rights:

(ii) Free from restraints

The right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any

physicil or chemical restraints imposed for purposes of discipline or convenience and not required to treat the

resident's medical symptoms. Restraints may only be imposed-

(footnote continued)

TPROPOSEDI SECOND AMENDED COMPLAINT FOR DAMAGES

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(f) to ensure the physical safety ofthe resident or other residents, and

(ID only upon the written order of a physician that specifies the duration and circumstances under which the

restraints are to be used (except in emergency circumstances specified by the Secretary until such an order

could reasonably be obtained).

Pursuant to United States Code, Title 42, Section 1396r(c)(1XA)(ii)

Requirements relating to residents' rights

(1) General rights

(A) Specified rights

A nursing facility must protect and promote the rights of each resident, including each of the following rights:

(ii) Free from restraints

The right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any

physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the

resident's medical symptoms. Restraints may only be imposed-

(f) to ensure the physical safety ofthe resident or other residents, and

(II) only upon the written order of a physician that specifies the duration and circumstances under which the

restraints are to be used (except in emergency circumstances specified by the Secretary until such an order

could reasonably be obtained).

Pursuant to California Code of Regulations,Title22, Section 72319

Nursing Service - Restraints and Postural Supports.

(a) Written policies and procedures concerning the use of restraints and postural supports shall be followed.

(b) Restraints shall only be used with a written order of a licensed healthcare practitioner acting within the

scope of his or her professional licensure. The order must specify the duration and circumstances under which

the restraints are to be used. Orders must be specific to individual patients. In accordance with Section 72317,

there shall be no standing orders and in accordance with Section 72319(i)(2)(A), there shall be no P.R.N. orders

for physical restraints.

(c) The only acceptable forms of physical restraints shall be cloth vests, soft ties, soft cloth mittens, seat belts

and trays with spring release devices. Soft ties means soft cloth which does not cause abrasion and which does

not restrict blood circulation.

(d) Restraints of any type shall not be used as punishment, as a substitute for more effective medical and

nursing care, or for the convenience of staff.

(e) No restraints with locking devices shall be used or available for use in a skilled nursing facility.

(0 Seclusion, which is defined as the placement of a patient alone in a room' shall not be employed.

(g) Restraints shall be used in such a way as not to cause physical injury to the patient and to insure the least

possible discomfort to the patient.

(h) Physical restraints shall be applied in such a manner that they can be speedily removed in case of fire orother emergency.

(i) The requirements for the use of physical restraints are:

(footnote continued)22

IPROPOSEDI SECOND AMENDED COMPLAINT FOR DAMAGES

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as prescribed, they ordered "1:1 supervision to prevent continued behaviors" which the

FACILITY did not even provide to Rafael Palacios so as to protect the health and safety of other

FACILITY residents-nothing in violation of 22 Code of Regulations $72311(a).

(1) Treatment restraints may be used for the protection of the patient during treatment and diagnostic

procedures such as, but not limited to, intravenous therapy or catheterization procedures. Treatment restraints

shall be applied for no longer than the time required to complete the treatment.

(2) Physical restraints for behavior control shall only be used on the signed order of a physician, or unless the

provisions of section 1180.4(e) of the Health and Safety Code apply to the patient, a psychologist, or otherperson lawfully authorized to prescribe care, except in an emergency which threatens to bring immediate

injury to the patient or others. In such an emergency an order may be received by telephone, and shall be

signed withi1r$ days. Futl documentation of the episode leading to the use of the physical restraint, the type ofthe physical restraint used, the length of effectiveness of the restraint time and the name of the individualapplying such measures shall be entered in the patient's health record.

(A) Physical restraints for behavioral control shall only be used with a written order designed to lead to a less

restrictive way of managing, and ultimately to the elimination o! the behavior for which the restraint isapplied. There shall be no PRII orders for behavioral restraints.

(B) Each patient care plan which includes the use of physical restraint for behavior control shall specify the

behavior to be eliminated, the method to be used and the time limit for the use of the method.

(C) Patients shall be restrained only in an area that is under supervision ofstaffand shaU be affordedprotection from other patients who may be in the area.

fi) When drugs are used to restrain or control behavior or to treat a disordered thought process' the followingshall apply:

(1) The specific behavior or manifestation of disordered thought process to be treated with the drug is

identified in the patient's health record.

(2) The plan ofcare for each patient specifies data to be collected for use in evaluating the effectiveness ofthedrugs and the occurrence of adverse reactions.

(3) The data collected shall be made available to the prescriber in a consolidated manner at least monthly.

(4) PRN orders for such drugs shall be subject to the requirements of this section.

(k) ,,Postural support" means a method other than orthopedic braces used to assist patients to achieve proper

body position and balance. Postural supports may only include soft ties, seat belts, spring release trays or cloth

vests and shall only be used to improve a patient's mobility and independent functioning, to prevent the patient

from falling out of a bed or chair, or for positioning, rather than to restrict movement. These methods shall not

be considered restraints.

(1) The use of postural support and the method of application shall be specified in the patient's care plan and

approved in writing by the physician, psychologist, or other person lawfully authorized to provide care.

(2) Postural supports shall be applied:

(A) Under the supervision of a licensed nurse.

(B) In accordance with principles of good body alignment and with concern for circulation and allowance forchange of position.

23I'PROPOSEDI SECOND AMENDED COMPLAINT FOR DAMAGES

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38. And in the week before June 2, 2017, as the sexual assault of JANE DOE 2 on

June 16, 2017 approached, the FACILITY in its "Nursing Weekly Summary" as to Rafael

palacios noted 46 episodes of pacing, g episodes of aggressive behavior and 6 episodes of 6'sexual

behavior.', And what did the FACILITY do in response save more chemical restraint of Rafael

palacios, which chemicals were not even provided to Rafael Palacios as prescribed, they

ordered ,,1:l supervision to prevent continued behaviors" which the FACILITY did not even

provide to Rafael palacios so as to protect the health and safety of other FACILITY residents-

nothing in violation of 22 Code of Regulatiozs $72311(a)'

39. And in the week before the sexual assault of JANE DOE 2 on June 1612017rthe

FACILITY in its ,,Nursing Weekly Summary" as to Rafael Palacios noted 68 episodes of pacing,

22 episodes of aggressive behavior and 33 episodes of '(66sexual disinhibition"." And what did the

FACILITy do in response save more chemical restraint of Rafael Palacios, which chemicals

were not even provided to Rafael Palacios as prescribed, they ordered t'1:1 supervision to

prevent continued behaviors, which the FACILITY did not even provide to Rafael Palacios so

as to protect the health and safety of other FACILITY residents-nothing in violation of 22

Code of Reguhrtonsg7231l(a). And so on June 1612017,JANE DOE 2 was predictably sexually

assaulted by Rafael Palacios.

40. And in the week of June 19 and 2012017 when Rafael Palacios was allowed by the

FACILITy to enter the rooms of multiple female residents without invitation and actually was

found on top of the female resident in "room 9" , andthereafter allowed to sneak back into the of

the female resident in *room 9" and again sexually assault her the FACILITY in their "Nursing

Weekly Summary', noted as to Rafael Palacios 20 episodes of aggressive behaviorr 63 separate

and distinct episodes of ,,sexual disinhibition", 82 episodes of restlessness, 36 episodes of

irritation and 33 episodes of irritability. And what did the FACILITY do in response save more

chemical restraint of Rafael Palacios, which chemicals were not even provided to Rafael

palacios as prescribed, they ordered "l:1 supervision to prevent continued behaviors" which

the FACILITy did not even provide to Rafael Palacios so as to protect the health and safety of

other FACILITY residents-nothing in violation ol22 Code of Regulatiozs $72311(a).1A

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41. And in the week before June27o20l7 eventwherein Rafael Palacios is allowed to

enter the room of female resident JAIIE DoE 6 without invitation ard unwanted and expose his

genitals to JANE DOE 6, the FACILITY in its '6Nursing weekly summary'o as to Rafael

palacios noted 79 episodes of pacing, 62 episodes of recklessness and 47 episodes of "sexual

disinhibition.,, And what did the FACILITY do in response save more chemical restraint of

Rafael palacios, which chemicals were not even provided to Rafael Palacios as prescribed, they

ordered,,L:1 supervision to prevent continued behaviors" which the FACILITY did not even

provide to Rafael palacios so as to protect the health and safety of other FACILITY residents-

nothing in violation of 22 Code of Regulations $72311(a)'

42. And not surprisingly, in the week prior to Rafael Palacios being allowed to enter

the room of JANE DOE 7 on July 7 12017 uninvited and being found just about to mount her in

her bed as he had done to many others in the FACILITY, Rafael Palacios was noted by the

FACILITY in its ,,Nursing Weekly Summary" to have had 65 episodes of pacing,33 episodes of

..sexual disinhibition'o and 63 episodes of restlessness. And what did the FACILITY do in

response prior to the sexual assault of NANCY RENARD by Rafael Palacios-nothing.

43. And not surprisingly, in the week prior to Rafael Palacios being allowed to take

his penis out and accost the FACILITY employee Christina Contawe and enter the room of

female residents JANE DOES 8 and 9 and sexually assault JANE DOE L0 and take all of his

clothes off on July 10, 2017 aswell as being allowed to enter the nurse's station on July l2r20l7

pantless, Rafael Palacios was noted by the FACILITY in its "Nursing Weekly Summary" to

have had ,,excessive pacing and aggressive behavior." And what did the FACILITY do in

response prior to the sexual assault of NANCY RENARD by Rafael Palacios-nothing in

violation of 22 Code of Regulatiors $72311(a).

44. And emblematic of the abject refusal of the FACILITY to actually provide the

o,l:1 supervision to prevent continued behaviors" on a 24 hour a day basis as required by the

records of the FACILITY from, at a minimum, June 1612017 ra review of the staffing records of

the FACILITy confirm this was simply not done by the FACILITY on a regular basis as

required to protect the health and safety of the FACILITY residents. For example, according to

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the FACILITY sheet, there was no "L:1 supervision to prevent continued behaviors" as to

Rafael palacios for 2 of the 3 staff shifts on over 75oh of the days between June 17, 2017 and

July 25, 2017.And the reason for this failure, no refusal, of the FACILITY to provide required

care to protect the health and safety of the FACILITY residents-money plain and simple. The

FACILITY made a conscious and knowing choice to withhold clearly required care to protect

the FACILITy residents from a known peril, Rafael Palacios, knowing full well sexual assaults

would, and did, occur. Simply the FACILITY disgustingly put its own financial gain above the

health and safety of its residents including the Plaintiff herein.

45. The fact of the matter is that the DEFENDANTS have long known, and covered

up that they freely allowed a sexual predator to roam their halls endangering residents

46. And given this conspiracy of silence by the DEFENDANTS ultimately, in July of 201 7

the DEFENDANTS failed to protect SYLVIA MATHES from known health and safetyhazards and

allowed RAFAEL pALACIOS physically abuse and sexually assault SYLVIA MATHES. Moreover,

the DEFENDANTS were made aware of the improper sexual advances of their resident and former

employee RAFAEL PALACIOS when they were advised that SYLVIA MATHES was physically

abused, within the meanin g of Welfare & Institutions Code $ 1 561 0.63, by RAFAEL PALACIOS in

the FACILITY. Notwithstanding this knowledge, and the duty imposed upon them pursuant to

Welfare & Institutions Code g 1 561 0.63 to advise their licensing body, the Ombudsman and their local

police agency of the allegation which reasonably appeared to be the physical abuse of SYLVIA

MATHES, the DEFENDANTS did not timely provide these notifications in favor of a conspiracy of

cover up and continue the cover up to at least the date of the filing of this Complaint.

4j . The cold, unfortunate, shocking and hard reality is that prior to the assault of SYLVIA

MATHES alleged herein below by RAFAEL PALACIOS and DOES 1-3, RAFAEL PALACIOS and

DOES l-3 were known to the DEFENDANTS to have dangerous propensities which endangered the

health and safety of FACILITY residents. In fact, DEFENDANTS knew, or in the exercise of

reasonable should have known, that RAFAEL PALACIOS and DOES 1-3 had sexually assaulted up

to seven other FACILITY residents, and perhaps more, over the course of the three months before

they assaulted SyLVIA MATHES. These unfortunate FACILITY residents, all of who were allowed

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bythe DEFENDANTS to also suffer at thehands of RAFAELPALACIOS and DOES 1-3, include at

a minimum seven other female residents whose names are known, but withheld from this filing out of

respect for their privacy, in as many as eight (8) separate incidents prior to the incident complained of

herein. And in fact, these women, including SYLVIA MATHES, as residents of the FACILITY, as

well as RAFAEL PALACIOS and DOES 1-3 also required, and deserved care from the

DEFENDANTS which protected them from being put in situations wherein their knowingly

dangerous propensities occasioned by physical and mental maladies, arose thereby endangering not

only other residents of the FACILITY, but also RAFAEL PALACIOS and DOES 1-3.

48. That with the knowledge of the frailty of SYLVIA MATHES and her particular

wlnerability to those with known dangerous tendencies such as RAFAEL PALACIOS and DOES 1-

3, it was incumbent upon the DEFENDANTS to protect SYLVIA MATHES from the health and

safety risks imposed by RAFAEL PALACIOS and DOES 1-3. The mechanisms of this required

protection included, without limiting the generality of the foregoing, 1:1 assistance for SYLVIA

MATHES when in the proximity of RAFAEL PALACIOS and DOES 1-3, isolation from RAFAEL

pALACIOS and DOES 1-3 and Care Planning which addressed this known hazard. T\e

DEFENDANTS wrongfully withheld these required care services from SYLVIA MATHES and most

importantly, a duty to discharge RAFAEL PALACIOS from the FACILITY as the DEFENDANTS

clearly could not, and did not, provide required services to RAFAEL PALACIOS so as to protect the

health and safety of SyLVIA MATHES and as many as seven other fernale residents of the

FACILITY.

49 . This care, was mandated to be undertaken by the DEFENDANTS pursuant to 22 Code

of Regulations g72315(b) which mandates that each patient ofthe FACILITY shall not be subjected to

physical abuse. And yet, the DEFENDANTS wrongfully and unjustifiably withheld this required care

from residents and SyLVIA MATHES by knowingly allowing her to suffer physical abuse within the

FACILITY

50. That notwithstanding the knowledge alleged above, the DEFENDANTS knowingly

disregarded risks to SyLVIA MATHES and wrongfully withheld required care from SYLVIA

MATHES including, and without limiting the generality of the foregoing and according to proof at

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time of trial, 1:1 assistance for SYLVIA MATHES when in the proximity of RAFAEL PALACIOS

and DOES I -3, isolation from RAFAEL PALACIOS and DOES I -3, CarePlanning which addressed

this known hazard.,and failingto have competentlytrained staffassist SYLVIAMATHES intansfer

and locomotion to prevent assaults and other injuries according to proof at time of trial. And yet, the

DEFENDANTS withheld this required care from residents and SYLVIA MATHES thereby causing

the injuries and sexual assault alleged herein.

51. On a date unknown in July and in a sexual assault of SYLVIA MATHES by

Rafael Palacios, which was physically abuse within the meaning of 15610.63 by RAFAEL

PALACIOS who obviously had known violent and aggressive sexual propensities which were

abjectly ignored by the DEFENDANTS, wherein Rafael Palacios left the room of SYLVIA

MATHES and when the FACILITY staff finally responded only to find the breasts of SYLVIA

MATIIES fully exposed an event relating to which there has been a total cover up by the

FACILITY.

52. And then remarkably a few short weeks later on or about July 24,2017, SYLVIA

MATHES was physically abused within the meaning of 15610.63 by RAFAEL PALACIOS who

obviously had known violent and aggressive sexual propensities which were abjectly ignored by the

DEFENDANTS. In so allowing SYLVIA MATHES to be physically abused by a man known by the

DEFENDANTS to be physically aggressive and dangerous, the DEFENDANTS wrongfully wittrheld

from SYLVIA MATHES required service as mandated by regulation in 22 Code of Regulations

$72315(b) in not ensuring that SYLVIA MATHES not be subjected to physical abuse. As the result

thereof SYLVIA MATHES suffered severe and ireparable damages to be proven according to proof

attial.

53. AlmostimmediatelyaftertheassaultofSYLVlA MATHES theDEFENDANTS knew

of the cause of the injuries to SYLVIA MATHES. And just as rapidlythe DEFENDANTS went into

cover up mode and sought to fraudulently conceal from the family of SYLVIA MATHES the true

story as to how this occurred and how they planned to keep SYLVIA MATHES and other fernale

residents .of Harry's Haven safe from RAFAEL PALACIOS unwanted, unconsented to sexual

assaults. Instead, the DEFENDANTS through management, including but not limited to Linda Healy

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and Joseph Rich from DEFENDANTS' "Risk Management Department" began a campaign oftlneats

to staff members of the FACILITY to keep their mouths shut, despite their legal obligation as

mandated reporters, and hunt to unearth staff members purportedly leaking information regarding

RAFAEL PALACIOS to family members who simply wish to keep their loved ones safe.

54. In abject dereliction of their legal responsibilities, and in a clear effort to fraudulently

conceal the assault of SYLVIA MATHES by RAFAEL PALACIOS and DOES 1-3, and the other

fernale residents, the DEFENDANTS have ignored their legal obligations as a "mandated reporter" of

suspected elder abuse as required by l|telfore & Institutions Code $ 15630 and Welfare & Institutions

Code $15610.67.

55. As the owners, operators and administrators of the FACILITY where SYLVIA

MATHES and RAFAEL PALACIOS and DOES 1-3 were residents, and having the care, custody, and

control of SYLVIA MATHES, DEFENDANTS owed a duty to SYLVIA MATHES and other

residents of the FACILITY to take reasonable steps to secure the FACILITY against foreseeable

intentional and criminal acts of third parties that are likely to occur in the absence of such

precautionary measures and to control the wrongful acts of third parties that can be reasonably

anticipated. The DEFENDANTS failed to provide these required services to SYLVIA MATHES

thereby causing the injuries to SYLVIA MATHES as alleged herein.

56. The DEFENDANTS knew well prior to the physical abuse of SYLVIA MATHES that

the FACILITY

57. At all times relevant hereto DEFENDANTS knew, or in the exercise of reasonable

diligence should have known, of the dangerous and violent propensities and history of RAFAEL

PALACIOS and DOES 1-3 based on its knowledge ofpastincidents involvingRAFAELPALACIOS

and DOES 1-3's aggression and physical violence toward others, and yet DEFENDANTS, as the

direct result of insufficiency of staff in both number and training, failed to put in place legally required

interventions and precautionary measures to protect FACILITY residents including SYLVIA

MATHES from health and safety hazards. Predictably and foreseeably, RAFAEL PALACIOS and

DOES 1-3 violently assaulted SYLVIA MATHES. As a direct result of the failure of the FACILITY

to protect SYLVIA MATHES from health and safety dangers, SYLVIA MATHES suffered a violent

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assault and battery at the hands of RAFAEL PALACIOS and DOES l-3.

58. That DEFENDANTS recklesslyignoredtheknowledgeofRAFAELPALACIOS and

DOES 1-3's violent propensities and, predictably, that led to injury to SYLVIA MATHES.

59. That because of RAFAEL PALACIOS and DOES 1-3's history of violent and

aggressive behavior toward others, of which DEFENDANTS had advance knowledge, or in the

exercise of reasonable diligence should have had knowledge, the assault and battery of SYLVIA

MATHES by RAFAEL PALACIOS and DOES 1 -3 was foreseeable and likely to occur in the absence

of precautionary measures. That DEFENDANTS ignored this known risk and its corresponding

likelihood of injury to SYLVIA MATHES, and others similarly situated, and failed to institute

required precautionary measures to protect SYLVIA MATHES, thereby withholding required skilled

nursing services, resulting in the physical abuse of SYLVIA MATHES.

60. The accumulated and consistent withholding ofrequired care to SYLVIA MATHES by

the DEFENDANTS included, and subject to that learned in discovery and according to proof at time

of trial:

o Wrongfully withhoiding from SYLVIA MATHES required care by &iling toprovid'e caie and service-s to SYLVIA MATHES to prot-ect her from well knownhealth and safety risks and hazards thereby violating the provisions of 22 Code ofRegulations $723 I 5(b);

. Wrongtully withholding from SYLVIA MATHES required carg_by {ai[qg_totimely] aciurately and pioperly implement Plans of Care for SYLVIA MATHESto protect her from well-known health and safety risks and hazards therebyviolating the provisions of 22 Code of Regulations $72311;

The wrongful withholding of required care to SYLVIA MATHES in-failing.totimely anif accurately notlfu SYIVIA MATHES 'S physician of sudden and/ormarked adverse changes in the signs, symptoms or behavior by SYLVIAMATHES as required by 22 California Code of Regulations $72311 so as toprevent falls;

The wrongful withholding of required care to SYLVIA MATHES in failing to,treat her Ivitn aignity and resfect as required by 22 Califomia Code ofRegulations $72315;

The wrongful withholding of required care to SYLVIA MATHES in failing tohave employed and on dity sufficient staff to provide the necessary nursingservices fof SyMA MATHES as required by 22 California Code ofRegulations 572329 .1 so as to protect her from known health and safety risks andhazards;

The wrongful withholding of required care to SYLVIA MATHES in failing to

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have employed and on duty staff with required qualifications to provide thenecessary nursing services for patients admitted care as requiredby 22 CalifomiaCode of Regulations 572329.1so as to protect her from known health and safetyrisks and hazards;

. The wrongful withholding of required care to SYLVIA MATHES in failing toprovide SYLVIA MATHES with the necessary custodial and professional careto attain or maintain the highest practicable physical, mental, and psychosocialwell-being, in accordance with the comprehensive assessment and plan of care,as required by 22 California Code of Regulations $725150) so as to protect herfrom known health and safety risks and hazards;

o The wrongful withholding of required care to SYLVIA MATHES in failing toensure that SYLVIA MATHES'S environment remains as free of accidenthazards as is possible as requiredby 42 C.F.R. $483.25 (hxl) so as to protect herfrom known health and safety risks and hazards;

o The wrongful withholding of required care to SYLVIA MATHES in failing toensure that SYLVIA MATHES receives adequate supervision and assistancedevices to prevent accidents as required by 42 C.F.R. $483.25 (h)(2) so as toprotect her from known health and safety risks and hazards.

6l . The DEFENDANTS wrongfully withheld this required care to SYLVIA MATHES due

to their refusal to provide services to her with sufficient budget and sufficient staffing to meet the

needs of SYLVIA MATHES consistent with the requirernents of 42 U.S.C. $1396rOXa)(C).

62. The DEFENDANTS wrongfullywithheld this required care to SYLVIA MATHES due

to their refusal to provide services to SYLVIA MATHES with a sufficient number of personnel on

duty at the FACILITY on a24-hottr basis to provide appropriate custodial and professional services to

SYLVIA MATHES in accordance SYLVIA MATHES 'S resident care plans as required by 42

C.F.R. $483.30 and22 C.C.R. 572329.r.

63. The DEFENDANTS knew that where their skilled nursing facility suffered from

understaffing, lack of training, failure to allot sufficient economic resources, unfitness of staff in

capacity and competency, this inevitably led to the improper withholding ofrequired medical andlor

custodial services to residents of the FACILITY such as SYLVIA MATHES as alleged herein and

injury was not only likely, but inevitable. The FACILITY ignored this known peril which led to the

wrongful withholding of required care to SYLVIA MATHES which led to the injuries and death of

SYLVIA MATHES.

64. The DEFENDANTS knew that where their skilled nursing facility suffered from

understaffing, lack of training, failure to allot sufficient economic resources, unfitness of staff in

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capacity and competency, this inevitably led to the improper withholding ofrequired medical andlor

custodial services to residents of the FACILITY such as SYLVIA MATHES as alleged herein and

injury was not only likely, but inevitable. The FACILITY ignored this known peril which led to the

wrongful withholding of required care to SYLVIA MATHES which led to her injuries.

65. That as a result of the DEFENDANTS' wrongfully withholding of required care

facilitated, in part, by the understaffing, lack of training, failure to allot sufEcient economic resources,

unfitness of staff in capacity and competency, could, would and did lead to the improper withholding

of required medical and/or custodial services, SYLVIA MATHES was forced to suffer unjustifiable

pain and suffering through the deprivation of required medical and custodial care.

66. The DEFENDANTS, by and through the corporate officers, directors and managing

agents set fonh in paragraph 5 and according to proof at time of trial, ratified the conduct of their co-

defendants and FACILITY, in that they were, or in the exercise of reasonable diligence should have

been, aware of the understaffing of FACILITY, in both number and training, the relationship between

understaffing and sub-standard provision of care to residents of the FACILITY including SYLVIA

MATHES. Furthermore, the DEFENDANTS, by and through the corporate officers and directors set

forth in paragaph 5 and according to proof at time oftrial, ratified the conduct ofthemselves and their

co-defendants in that they were aware that such understaffing and deficiencies would lead to injuryto

residents of the FACILITY, including SYLVIA MATHES, and insufficiency of financial budgets to

lawfully operate the FACILITY. The DEFENDANTS and their Governing Body failed to ensure the

safety of SYLVIA MATHES and said failures were a direct result of DEFENDANTS' inability to

properly train their staff in proper custodial are and failure to provide appropriate staff resulting in the

injuries alleged herein.

67 . The DEFENDANTS, and pled based upon information and belief, enacted, established

and implemented the financial plan and scheme which led to FACILITY being understaffed, in both

number and training, by way of imposition of financial limitations on the FACILITY in matters such

as, and without limiting the generality of the foregoing, the setting of financial budgets which clearly

did not allow for sufficient resources to be provided to SYLVIA MATHES by the FACILIry. These

choices and decisions were, and are, at the express direction of the DEFENDANTS' managemenl

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personnel including the corporate officers and directors, having power to bind the DEFENDANTS set

forth in para$aph 5 and according to proof at time of trial. The DEFENDANTS and their Governing

Body failed to ensure the safety of SYLVIA MATHES and said failures were a direct result of

DEFENDANTS' inability to proper custodial are and failure to provide appropriate staffresulting in

the injuries alleged herein.

68. The Corporate authorization and enactment of DEFENDANTS, alleged in the

preceding paragraphs, constituted the permission and consent of the FACILITY'S misconduct by the

DEFENDANTS, by and through the corporate officers and directors, who had within theirpowerthe

ability and discretion to mandate that FACILITY employ adequate staff to meet the needs of their

residents, including SYLVIA MATHES, as required by applicable rules, laws and regulations

governing the operation of a Skilled Nursing Facility in the State of California. The DEFENDANTS

and their Governing Body failed to ensure the safety of SYLVIA MATHES and said failures were a

direct result of DEFENDANTS' inability to proper custodial care and failure to provide appropriate

staff resulting in the injuries alleged herein.

69. Based upon information and belief it is alleged that after receiving "complaint

investigations" from the Department of Public Health, that the DEFENDANTS, by and through its

officers, directors, and managing agents set forth inparagraph 3 and according to proof at time oftrial,

and as a matter of corporate policy, created and implemented plans and schemes to hide the truth from

the Complainants and/or the State of California. ln so doing, these corporate officers, acting with the

full knowledge, consent, authority and direction ofthe DEFENDANTS, ratified and participated in the

unlawful and deceptive conduct alleged herein. The DEFENDANTS and their Governing Body failed

to ensure the safety of SYLVIA MATHES and said failures were a direct result of DEFENDANTS'

inability to properly train their staff in proper custodial care and failure to provide appropriate staff

resulting in the injuries alleged herein.

70. The DEFENDANTS, and each of them, were aware (and thus had notice and

knowledge) of the danger to their residents when they violated applicable rules, laws and regulations,

yet they acted in conscious disregard of these known perils and at the expense of legally mandated

minimum care to be provided to residents in Residential Care Facilities for the Elderly in the State of33

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Califomia.

71 . Notwithstanding the knowledge of the DEFENDANTS, and their managing agents set

forth in paragraph3 and according to proof at time of trial, the DEFENDANTS consciously chose not

to increase staff, in number or training, at the FACILITY and as the direct result thereof SYLVIA

MATHES suffered injuries alleged herein. This ignorance, on the part of the DEFENDANTS,

constituted at a minimum, a reckless disregard for the health and safety of SYLVIA MATHES. The

DEFENDANTS failed to ensure the safety of SYLVLA MATHES and said failures were a direct result

of DEFENDANTS' understaffing, lack of training, failure to allot sufficient economic resources,

unfitness of staff in capacity and competency, lead to the improper withholding of required medical

andlor custodial services to prevent SYLVIA MATHES from suffering the injuries alleged herein.

72. The DEFENDANTS' conduct, as alleged herein, created circumstances or conditions

likely to produce great bodily harm, and DEFENDANTS caused or permitted SYLVIA MATHES to

suffer, or inflicted upon SYLVIA MATHES, unjustifiable physical pain and mental suffering. The

DEFENDANTS failed to ensure the safety of SYLVIA MATHES and said failures were a direct

result of DEFENDANTS' inability to properly train their staff in proper custodial care and failure to

provide appropriate staff to prevent SYLVIA MATHES from suffering unnecessary injury.

73. By engaging in the conduct, neglect, and abuse, as alleged herein DEFENDANTS'

actions were malicious, oppressive, fraudulent andlor reckless.

74. Plaintiffs refer to, and incorporate herein by this reference, paragraphs I through 73

above, as though fully set forth herein.

75. It is alleged that in doing the acts alleged herein as to, at a minimum, SYLVIA

MATHES and the residents described above as Jane Doe 1-5, the defendant violated the provisions of

22 Code of Regulations g72315(b) and the Patients' Bill of Rights found at22 Code of Regulations

572527(10) and Health A Safety Code $1599.1 incorporated into the Patients Bill of Rights..

76. And in so doing the DEFENDANTS fall within the prohibition of Health & Safety

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Code g1430(b) and Plaintiffbrings action for all remedies afforded by Health & Safety Code $Ia30S)

and according to proof at time of trial .

THIRD CAUSE OF ACTION\TIOLATIONS OF THE CONSUMER LEGAL REMEDIES ACT (Civil Code Q1750. Et SEq.)

IBv SYLVIA MATHES Aeainst AlI Defendants Except RAFAEL PALACIOS And DOES 1-

31

77. Plaintiff refers to, and incorporate herein by this reference, paragraphs I through 76

above, as though fully set forth herein.

78. The DEFENDANTS make representations to prospective residents and their families,

and others similarly situated via their uniform admission agreements as set forth more fully above.

79. These representations by DEFENDANTS were intended to induce and lure elderly

residents (and their representatives) into agreeing to be admitted to their skilled nursing facilities

based on false and misleading representations without disclosing that DEFENDANTS cannot and do

not provide the represented level and quality of care to residents in that the DEFENDANTS

LICENSEES were in chronic, knowing and concealed violation of applicable rules, laws and

regulations.

80. SYLVIA MATHES, and others similarly situated, as persons unknowledgeable and

unsophisticated in the operation of skilled nursing facilities in the State of California and having no

knowledge of the material concealments by DEFENDANTS alleged herein, justifiably relied on the

material terms of and the representations set forth in, the DEFENDANTS' uniform Admission

Agreement in entering into the admission agreement and becoming residents of DEFENDANTS'

skilled nursing facilities thereby assuming the obligation of payment to the DEFENDANTS. Most

specifically, Plaintiff , and others similarly situated, relied on the following material term of the

California Standard Admission Agreement relating to resident rights:

IV. Your Rights as a Resident. Residents of this Facility keep alltheir basic rights and liberties as a citizen or resident of the UnitedStates when, after, they are admitted. Because these rights are soimportant, both federal and state laws and regulations describe themin detail, and state law requires that a comprehensive Resident Bill ofRights be attached to this Agreement.

Attachment F, entitled "Resident Bill of Rights," lists your rights as

set forth in State and Federal law. For your information, the

3-5

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attachment also provides the location of your rights in statute.You should review the attached "Resident Bill of Rights" verycarefully. To acknowledge that you have been informed of the"resident Bill of Rights," please sign here: -

81. Irl"q[iffi their residents to specifically and separately acknowledge receipt of

DEFENDANTS' representations regarding the minimum standards of care as set forth in the Resident

Bill of Rights, DEFENDANTS knew, or should have known, that Plaintiff , and others similarly

situated, were reasonably and justifiably relying on said representations.

82. It is alleged that Plaintiff, and others similarly situated, suffered injury in fact and

concrete harm in that they relied on the representations of the DEFENDANTS that they would be

provided with minimum standards of care consistent with the requirements of Title 22 C.C.R.

572527(10) and ensure that these residents "were free from mental and physical abuse", yet did not

receive this promised standard of care and suffered pecuniary harm by being deprived of the value of

payments made for skilled nursing services when these services were not actually rendered consistent

with the DEFENDANTS' representations.

83. It is alleged that Plaintiff, and others similarly situated, suffered injury in fact and

concrete harm in that they relied on the representations of the DEFENDANTS that they would

be provided with minimum standards of care consistent with the requirements of Title 22

C.C.R. 572527(25) and ensure that these residents had respected "(25) Other rights as specified

in Health and Safety Code, Section 1599.1." That these rights as set forth in Health & Safely

Code g1599.1(a) which were abridged by the Defendants including a failure by the

DEFENDANTS to ensure that 6'The facility shall employ an adequate number of qualified

personnel to carry out all of the functions of the facility."

84. In addition, Plaintiff, and others similarly situated, made monetary payments to the

DEFENDANTS in return for skilled nursing services ofthe standard promised by the DEFENDANTS

in the uniform Admission Agreement and its attachments which are incorporated into the Admission

Agreement as alleged above. Plaintiff , and others similarly situated, has suffered pecuniary harm in

that the Defendants did not provide such services of the standard represented. In addition, Plaintiff ,

and others similarly situated, have suffered pecuniary harm in that DEFENDANTS misrepresented

IPROPOSEDI SECOND AMENDED COMPLAINT FOR DAMAGESM:Mathes, Sylvia ( t 7-l 61 )Pleadings\Complaint.02.Proposed.docx

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that entering into an admission agreement with DEFENDANTS conferred the statutory residentright

of Plaintiff, and others similarly situated, to reside in facilities that "shall not (allow a resident) to be

subjected to ...physical abuse of any kind."

85. That is, simply by entering into an admission agreement with a resident, the

DEFENDANTS represent in writing as an exhibit or addendum attached to the admission agreement

of Plaintiff , and others similarly situated, that the transaction conferred the statutory resident rights

afforded to all residents of skilled nursing facilities under 22 California Code of Regulations

572527(a)(10), most specifically the right o'to be free from... physical abuse" and to have the

FACILITY "employ an adequate number of qualified personnel to carry out all of the functions

of the facility.".

86. The representations of DEFENDANTS as incorporated into each of their admissions

contracts are false and known by the DEFENDANTS to be false when made. Plaintiffs and the class

relied on these misrepresentations into becoming residents of the FACILITY. ln reliance of these

misrepresentations, the Plaintiff , and others similarly situated, madepayments to the DEFENDANTS

in return for these services as promised. Plaintiff , and others similarly situated, suffered pecuniary

harm in the form of lost pa5rments and lost services when the DEFENDANTS actually failed to

provide these promised skilled nursing services as represented.

87. It is alleged that DEFENDANTS' representations set forth in their uniform resident

admission agreements that they would ensure their residents' right "to be free from... physical abuse"

were false because, instead of providing the represented standard of care, at all times herein relevant

the DEFENDANTS intentionally concealed from Plaintiff, and others similarly situated, that the

DEFENDANTS conceived and implernented a plan to cover up physical abuse in the FACILIry,

rendering the representations of the DEFENDANTS as to the nature and quality of their services as

false.

88. It is alleged that22 Code of Regulations $72527(10) which is incorporated into each

and every Admission Agreement with residents of the FACILITY, and all skilled nursing facilities in

the State of Califomia, require skilled nursing facilities to provide care which was "free from mental

and physical abuse" and to have the FACILITY "employ an adequate number of qualified personnel

M:Mathes, Sylvia ( I 7- 1 6 I )Pleadings\Complaint.02.Proposed.docx

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to carry out all of the functions of the facility."

89. The DEFENDANTS did not provide these promised services to SYLVIA MATHES,

and others similarly situated.

90. The representations DEFENDANTS made in theiruniform admission agreement were

false and known to be false when made.

91. Plaintiffs, and others similarly situated, relied on these misrepresentations into

becoming residents of the DEFENDANTS' facilities. In reliance of these misrepresentations, the

Plaintiffs and the class made payments to the DEFENDANTS in return for these services as promised.

Plaintiffs and the class suffered pecuniaryharm in the form of lost payments and lost services when

the DEFENDANTS actually failed to provide these promised skilled nursing services as represented.

92. As a result, Defendants have violated and continue to violate the Consumer Legal

Rernedies Act, Civil Code $1770 et seq. ("CLRA"; in at least the following respects:

a. In violation of sectior 1770(a)(5), the defendants' acts and practices

constitute misrepresentations that the skilled nursing carethattheypurport

to provide had characteristics, standards, performance and level of quality

which it did not have; and

b. In violation of section 1770(a)(7), the defendants have misrepresented that

the skilled nursing care that they purport to provide is of a particular

standard, quality andlor grade, when it is not.

c. In violation of section 1770($(a), the defendants havemisrepresented that

the transaction of entering into admission agreement with Defendants

conferred or involved rights, remedies, or obligations which the transaction

did not have or involve, or which was prohibited by law.

93 . Plaintiffs and members of the class are "senior citizens" as defined by Section 17 6l(f)

and meet the requirements of Section 17800).

94. Plaintiff relied on these misrepresentations into becoming residents of the

DEFENDANTS' facilities. In reliance of these misrepresentations, the Plaintiffs payments to the

DEFENDANTS in return for these services as promised. Plaintiffs suffered pecuniary harm in the

I'PROPOSEDI SECOND AMENDED COMPLAINT FOR DAMAGESM:Mathes, Sylvia ( I 7-1 61 )\Pleadings\Complaint.02.Proposed.docx

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form of lost payments and lost services when the DEFENDANTS actually failed to provide these

promised skilled nursing services as represented.

95. As a result, Defendants have violated and continue to violate the Consumer Legal

Remedies Act, Civil Code $1770 et seq. ("CLRA"; in at least the following respects:

a. In violation of section 1770(a)(5), the defendants' acts and practices

constitute misrepresentations that the skilled nursing care that they purport to

provide had characteristics, standards, performance and level of quality

which it did not have; and

b. In violation of section 1770(a)(7), the defendants have misrepresented that

the skilled nursing care that they purport to provide is of a particular

standard, quality andlor grade, when it is not.

c. In violation of section 1770(ilOa), the defendants have misrepresented that

the transaction of entering into admission agreement with Defendants

conferred or involved rights, remedies, or obligations which the transaction

did not have or involve, or which was prohibited by law.

96. Plaintiffs is a member of the class as a "senior citizens" as defined by Section 176l(f)

and meet the requirements of Section 1780(b) to be entitled to an award of $5,000 in addition to the

other remedies available under the CLRA.

97. The Defendants' conduct as alleged in this cause of action was, and is, malicious,

oppressive and/or fraudulent.

98. Plaintiff refers to, and incorporate herein by this reference, paragraphs 1 through 97

above, as though fully set forth herein.

99. The conduct of the DEFENDANTS, as alleged, is part of a general business practice of

the DEFENDANTS, conceived and implemented by DEFENDANTS engaged in a chronic cover up

of the physical abuse of their residents which was an unlawful practice in violation of 22 Code of

Regulations g70215(b) and 972527(10). This practice exists in part because the Defendants

39IPROPOSEDI SECOND AMENDED COMPLAINT FOR DAMAGES

M:Wathes, Sylvia ( 1 7-l 6 I }Pleadings\Complaint.02.Proposed.docx

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unreasonably expect few adverse consequences will flow from the mistreatment of their elderly and

vulnerable clientele, and DEFENDANTS made a considered decision to promoteprofit at the expense

of their statutory and regulatory obligations, as well as their moral, legal and ethical obligations to

their residents. This practice exists so as to maximize profit by retaining monies that were paid to the

DEFENDANTS for the care and services to be provided to residents of DEFENDANTS' facilities.

That is, DEFENDANTS, for a period of four years preceding the filing of the complaint in this matter,

received payment from, and/or on behalf of Plaintiffs and class members for services which were not

rendered as represented, granting DEFENDANTS a windfall of profit derived from violation of law.

100. It has been expressly acknowledged by the California State Legislature that elder and

infirm adults are a disadvantaged class of citizens. That it serves an important and vital State interest

to protect these elders from financial abuse and pecuniary as defined in California law.

1 01 . These practices constitute unlawful business practices within the meaning of Business

and Professions Code $$17200, et seq.

102. That the Plaintiff suffered particular and specific pecuniary and physical injury as the

result of the conduct alleged in that she paid monies to the Defendant without which was not earned or

deserving and hence improperly withheld and was physically abused as the result of the unlawful

conduct of the Defendants.

103. And accordingly, the Plaintiff seeks an award of all rernedies available pursuant to of

Business and Professions Code $ $ 1 7200, et seq. including disgorgement and according to proof at

time of trial.

WHEREFORE, PLAINTIFF prays for judgment and damages as follows:

1. For general damages according to proof;

2. For special damages according to proof;

3. For punitive and exemplary damages (as to the First and Third Causes of Action

40IPROPOSEDI SECOND AMENDED COMPLAINT FOR DAMAGES

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only);

For attorney's fees and costs as allowed by law according to proof at the time of trial;

That as to the Second and Fourth Causes of Action for an Order permanently enjoiningdefendants, and each of them, from violating residents' rights pursuant to Health &Safety Code $1430(b). For an injunction, requiring that:

a. the Defendants report to DPH all incidents of actual or suspected abuse or

neglect (as defined by law) of which it has learned in the last three (3) years at

each of their facilities, which were not reported to DPH, Adult Protective

Services and/or Law Enforcement;

b. the Defendants provide proof to the Court of compliance with the reporting

requirements over the last three (3) years for any and all such incidents in the

form of a copy of the report submitted to DPH;

c. the Defendants facilities each conduct quarterly, confidential surveys of all

residents and residents' representatives inquiring whether any conduct which

may be deemed suspected abuse andlor neglect, and/or a violation of residents'

rights has occurred (with a clear, court approved definition of these terms

included, with examples), and requiring that the responses to these surveys be

turned over to the Long Term Care Ombudsman assigned to the pertinent

facility for review. Further, after providing confidential surveys in unredacted

form to the Ombudsman, the facilities shall than redact only the name of the

individual residents who completed the survey (or on whose behalf the survey

was completed) from the surveys, and maintain copies of those surveys for a

period of five (5) years, and that the surveys be made available (with names

redacted) to any prospective resident, or their representative, any current

resident, or their representative, or any past resident, or their representative,

within 24 hours of a request;

d. the Defendants' facilities each notiS'all current residents ofthis injunction by

providing a copy of the injunction to them and their power of

attomeylresponsible party andlor personal representative, if any;

41IPROPOSEDI SECOND AMENDED COMPLAINT FOR DAMAGES

M:Mathes, Sylvia ( I 7- I 6l )\Pleadings\Complaint.02.Proposed.docx

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e. the Defendants' facilities each notify all future residents (at the time the

admission agreement is signed) by providing a copy of this injunction during

the period for which this injunction is in force to any new resident and to his or

her power of attorney/responsible party and/or personal representative, if any;

That this injunction shall remain in full force and effect until the earlier of

either ofthe following; (1) ten years from the date of entry ofjudgment,or (2)

five years if no other violations of the injunction have been found by this or

any other Court of competentjurisdiction regarding Defendants' facilities. The

burden of proof to obtain the shorter period shall be on the Defendants;

This injunction shall be enforced by the Court upon motion of any interested

party (i.e., plaintiffs or any other current or former resident (and/ortheirpower

of altomeylresponsible party andlor personal representative, if any, or any

employee of the Defendants' facilities) and/or the filing of a new action of any

such interested party. Each separately identifiable violation of this injunction

shall be punishable by a $5,000 fine payable to the person filing the motion or

bringing the action and a payment of all reasonable attomey's fees and costs

incurred by the person bringing the motion or action against the Facility for

violation of the injunction.;

the Defendants' shall each draft a policy and procedure to the satisfaction of

the Court covering the handling of suspected abuse and neglect reporting as

well as the obligation to asses and document patients' needs immediatelyvpon

arrival and when an emergency occurs; and on staffing; and

the Defendants' shall each prepare a training program to the satisfaction of the

Court to train its staff on the new policies and procedures; and shall submit

verification, under oath, of compliance with that training program by all

employees of each of the facilities within 12 months, and then repeated

annually during the term of this judgment;

(,

h.

For Treble Damages;

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7 . For costs of suit; and

8. For such other and further relief as the Court deems just and proper.

DATED: December 18, 2017 GARCIA, ARTIGLIERE & MEDBY

By:Stephen M. GarciaAttorneys for Plaintiff

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PROOF OF SERVICE

STATE OF CALTFORNIA, COUNTY OF LOS ANGELES

At the time of service, I was over 18 years of age and not a party to this action. I amemployed in the County of Los Angeles, State of Califomia. My business address is One World TradeCenter, Suite 1950, Long Beach, Califomia 90831.

On December 18, 2017, I served true copies of the following document(s) described asPLAINTIFF'S NOTICE OT MOTION AND MOTION FOR LEAVE TO FILE A SECONDAMENDED COMPLAINT on the interested parties in this action as follows:

James C. Schaeffer, Esq.Boyce, Schaeffer, Mainieri, LLP500 Esplanade Drive, Ste. 950Oxnard, CA 93036

Attorneys for Defendant Motion Picture& Television Fund

Telephone: (805) 988-9200Facsimile : ( 805\ 988-9292

BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons atthe addresses listed in the Service List and placed the envelope for collection and mailing, followingour ordinary business practices. I am readily familiar with Garcia, Artigliere & Medby's practice forcollecting and processing correspondence for mailing. On the same day that the correspondence isplaced for collection and mailing, it is deposited in the ordinary colrse of business with the UnitedStates Postal Service, in a sealed envelope with postage fully prepaid.

I declare under penalty of perjury under the laws of the State of Califomia that the foregoing istrue and correct.

Executed on December 18, 2017, at Long Beach, Califomia.

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Reservation Printout-LC I 060 47 -17 l2l22l 3 61 4

THIS IS YOUR CRS RECEIPT

INSTRUCTIONS

Please print this receipt and attach it to the corresponding motion/document as the last page. lndicatethe Reservation lD on the motion/document face page (see example). The document will not beaccepted without this receipt page and the Reservation lD.

Page 1 of 1

RESERVATION INFORMATION

Reservation lD:

Transaction Date:

Gase Number:Case Title:Party:

Courthouse:Department:Reservation Type:Date:Time:

171212273614December 12,2017

1Cl06047SYLVIA MATHES VS. MOTION PICTURE AND TELEVISION FUNDMATHES SYLVIA (Plaintiff)

Van Nuys Courthouse EastUMotion for Leave to Amend21261201808:30 am

FEE INFORMATION (Fees are non-refundable)

First Paper Fee: Party asserts first paper was previously paid.

Description Fee

Motion for Leave to Amend $60.00

Total Fees: Receipt Number: 1 17 1212K7 601 $60.00

PAYMENT INFORMATION

Name on Credit Card: Jill FosterCredit Card Number: XXXX-XXXX-XXXX-0817

A COPY OF THIS RECEIPT MUST BE ATTACHED TO THE CORRESPONDINGMOTION/DOCUMENT AS THE LAST PAGE AND THE RESERVATION ID INDICATED ON THE

MOTION/DOCUMENT FACE PAGE.

https : //www. lacourt. org I rrtr s I uil printablereceipt. aspx?id:undefi ned t2lt2l20t7

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