Sarnoff v. Silverado Senior Living, Inc.

• Decision Date: 14 September 2021
• Docket Number: LA CV 21-00070 JAK (JPRx)
• Court: U.S. District Court — Central District of California
• Parties: Albert Sarnoff, et al. v. Silverado Senior Living, Inc., et al.

Albert Sarnoff, et al. v. Silverado Senior Living, Inc., et al.

No. LA CV 21-00070 JAK (JPRx)

United States District Court, C.D. California

September 14, 2021

Present: The Honorable JOHN A. KRONSTADT, UNITED STATES DISTRICT JUDGE

CIVIL MINUTES - GENERAL

Proceedings: (IN CHAMBERS) ORDER RE PLAINTIFFS' MOTION TO REMAND (DKT. 14) JS-6

I. Introduction

On December 10, 2020, Albert Sarnoff (“Decedent”), by and through his successor in interest Kenneth Sarnoff; Kenneth Sarnoff (“Kenneth”), individually; and Douglas Sarnoff (“Douglas”), individually (collectively, “Plaintiffs”) brought this action in the Los Angeles Superior Court against the following defendants: Silverado Senior Living, Inc.; Silverado Senior Living Management, Inc.; Subtenant 330 North Hayworth Avenue, LLC; Loren Shook (“Shook”); Jason Russo (“Russo”) (collectively, “Defendants”); Nancy Sarnoff (“Nancy”), as a nominal defendant; and Does 1 through 25. Dkt. 1-1 at 5-26 (“Complaint”).^[1] On January 5, 2021, the action was removed. Dkt. 1. The Complaint advances two causes of action: (i) elder abuse and neglect, and (ii) wrongful death. Complaint ¶¶ 57-76.

The Sarnoff action has been consolidated for pretrial purposes with the following cases (the “Consolidated Cases”):

1. Jakob Khorsandi, et al. v. Silverado Senior Living, Inc., et al., LA CV 21-1503;

2. Catherine Apothaker, et al. v. Silverado Senior Living, Inc., et al., LA CV 21-1509;

3. Anne Palamides v. Silverado Senior Living, Inc., et al., LA CV 21-1526;

4. Barbara Lebow, et al. v. Silverado Senior Living, Inc., et al., LA CV 21-1548;

5. Brittany C. Ringo, et al. v. Silverado Senior Living, Inc., et al., LA CV 21-1649;

6. Frank Paul Piumetti, et al. v. Silverado Senior Living, Inc., et al., LA CV 21-3488; and

7. Joe Ann Clack v. Silverado Senior Living, Inc., et al., LA CV 21-3815.

Dkts. 30, 33, 34. The Sarnoff action has been designated as the lead case in the consolidated action, In Re: Silverado Senior Living, Inc., LA CV 21-70. Dkt. 33.

On February 26, 2021, Plaintiffs filed a motion to remand (the “Motion” (Dkt. 14)). On March 19, 2021, Defendants filed an opposition to the Motion (the “Opposition” (Dkt. 24)) and a request for judicial notice (“Defendants' RFN” (Dkt. 25)). On April 2, 2021, Plaintiffs filed a reply (the “Reply” (Dkt. 26)).

Pursuant to the Court's May 6, 2021 Case Management Order (Dkt. 33), on June 21, 2021, a hearing was held on the Motion, as well as similar ones in all of the Consolidated Cases except for the Clack action, and the matters were taken under submission. Dkt. 52.

For the reasons stated in this Order, the Motion is GRANTED.

II. Factual Background

A. The Parties

It is alleged that, on April 20, 2020, while Decedent was a resident at Silverado Senior Living - Beverly Place (the “Silverado Facility” or “Facility”), he died from COVID-19 at the age of 94. The Facility is a “Residential Care Facility for the Elderly” (“RCFE”), which is located at 330 N. Hayworth Avenue, Los Angeles, CA 90048. Complaint ¶¶ 2, 18. It is alleged that Decedent was classified as an “elder” or “dependent adult” under California law, and that he had certain physical limitations that impeded “his ability to carry out normal activities and protect his rights.” Id. ¶ 14.

It is alleged that Kenneth is Decedent's son and successor in interest. Id. ¶ 15. Kenneth and his brother Douglas are alleged to be Decedent's heirs. Id. ¶ 16.

It is alleged that Nancy is Decedent's surviving spouse and that she is named as a nominal defendant. Id. ¶ 17.

It is alleged that Silverado Senior Living Management, Inc. and Subtenant 330 North Haywood Avenue, LLC, are the co-licensees of the Silverado Facility, which is “part of the Silverado brand - a national chain operating facilities in seven states: California, Illinois, Texas, Utah, Virginia, Washington, Wisconsin.” Id. ¶¶ 18-19. It is further alleged that there are 20 Silverado facilities in California. Id. ¶ 19.

It is alleged that “Silverado Senior Living, Inc. is and was at all times relevant herein, the parent corporation of the Silverado enterprise” and “exercises control over the management and policies of the facilities in the Silverado chain in California and other states.” Id. ¶ 20. It is further alleged that “Silverado Senior Living, Inc. controls the provision of administrative, legal services, and risk management services to each of its facilities, including Silverado Senior Living - Beverly Place.” Id.

It is alleged that Shook “is and at all relevant times was the President, Chief Executive Officer, and Chairman of the Board at Silverado Senior Living Management, Inc.” Id. ¶ 24.

It is alleged that Russo was, at all relevant times, the Certified Administrator of the Silverado Facility. Id. ¶ 25. It is also alleged that an administrator is “the person designated by the licensee to act on behalf of the licensee in the overall management of the facility” and is required at all RCFE facilities. Id.

B. Substantive Allegations in the Complaint

It is alleged that a state of emergency due to the coronavirus outbreak in the United States was declared in California and Los Angeles County on March 4, 2020, and in New York State on March 7, 2020. Id. ¶ 42. It is further alleged that, because the elderly were known to be particularly susceptible to the coronavirus, the Centers for Disease Control and Prevention (“CDC”) issued “requirements, and guidelines for nursing homes and assisted living providers/RCFEs to promptly take reasonable measures to protect their patients from exposure to the coronavirus, ” including “testing of residents and employees, restricting visitors, requiring employees to use face masks, gloves, and gowns, and isolating employees and residents who are suspected or known carriers of the virus.” Id. ¶ 43.

It is next alleged that, between March 10 and 20, 2020, New York City experienced a significant coronavirus outbreak, with local and state leaders taking a No. of responsive measures to contain the outbreak, including the closure of all nonessential businesses throughout the state. Id. ¶ 45.

It is alleged that, on March 14, 2020, Russo sent an email to residents at the Silverado Facility asking that their family members avoid visiting for the next two weeks due to COVID-19. Id. ¶ 46. On March 15, 2020, Russo allegedly sent another email prohibiting private duty companions from visiting the Facility. Id. ¶ 47.

It is next alleged that, on March 19, 2020, a new resident (the “New Resident”) was admitted to the Facility who had “fl[own] on a commercial flight from Manhattan to Los Angeles and [went] directly to [the Facility's] memory care unit on the third floor, without any period of isolation or quarantine.” Id. ¶ 5. The New Resident was allegedly accompanied by his daughter, who had also flown from New York to Los Angeles after an earlier flight from London to New York. Id. It is alleged that, upon the arrival of the New Resident at the Facility, “[n]o isolation measures were implemented, ” and he “was allowed to roam freely throughout the [F]acility unattended.” Id. ¶ 49.

It is alleged that, on March 20, 2020, the day after the New Resident's arrival, he began to exhibit symptoms of “cough, fever and lethargy, ” which were “alarming enough for the [F]acility to call 911.” Id. ¶ 5. It is further alleged that, on the following day, the New Resident was transported to Cedars-Sinai Medical Center, and tested positive for the coronavirus. Id. It is alleged that this was the first coronavirus case at the Facility. Id. ¶¶ 5, 8.

It is alleged that Defendants “concealed [the New Resident's] condition, and the fact that [he] had exposed other residents at the [F]acility, ” while Russo and Shook allegedly “continued to reassure residents and their families that they were doing ‘everything in their power' to manage the crisis and keep residents safe.” Id. ¶ 51.

It is alleged that, on March 22, 2020, Shook notified the families of the residents of the Facility that the New Resident had tested positive for the coronavirus, and “falsely claim[ed] that [the New Resident] [had been] confined to his room since he was admitted to the [F]acility.” Id.

It is alleged that, since the New Resident tested positive for the coronavirus, at least 58 residents and 39 employees at the Facility have contracted the coronavirus, and at least 14 of those individuals have died. Id. ¶ 52.

It is alleged that Decedent was admitted to the Silverado Facility on March 3, 2020. Id. ¶ 53. It is further alleged that Decedent began to display symptoms of the coronavirus on April 12, 2020 and tested positive for the virus on April 15, 2020. Id. ¶¶ 54-55. Finally, it is alleged that Decedent died on April 20, 2020, without having been treated by a physician for the coronavirus. Id. ¶¶ 55-56.

III. Requests for Judicial Notice

Each of the parties has made a request for judicial notice. Fed.R.Evid. 201(b) permits judicial notice of any fact “not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot be questioned.” Under this standard, judicial notice is appropriate as to public records, government documents, judicial opinions documents on file in federal or state courts, municipal ordinances, newspaper and magazine articles, and the contents of websites. See, e.g., Makaeff v. Trump Univ., LLC, 715 F.3d 254, 259 n.2 (9th Cir. 2013); Harris v. Cty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012); Tollis, Inc. v. Cty. of San Diego, 505 F.3d 935, 938 n.1 (9th Cir. 2007); United States v. Chapel, 41 F.3d 1338, 1342 (9th Cir. 1994); Heidelberg USA, Inc. v. PM Lithographers, Inc., No. CV 17-02223-AB (AJ...