Opinion
Case No. 3:11-cv-00050-JSW
11-14-2011
HAZEL WALSH, Plaintiff, v. KINDRED HEALTHCARE, INC., et al., Defendants.
Robert J. Nelson (State Bar No. 132797) Lexi J. Hazam (State Bar No. 224457) Andrew Kingsdale (State Bar No. 255669) LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP Michael D. Thamer (State Bar No. 101440) LAW OFFICES OF MICHAEL D. THAMER Old Callahan School House Kathryn A. Stebner (State Bar No. 121088 Sarah Colby (State Bar No. 194475) STEBNER & ASSOCIATES [Additional Counsel Appear on Signature Page] Attorneys for Plaintiffs Arlene Bettencourt and Harry Harrison
Robert J. Nelson (State Bar No. 132797)
Lexi J. Hazam (State Bar No. 224457)
Andrew Kingsdale (State Bar No. 255669)
LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
Michael D. Thamer (State Bar No. 101440)
LAW OFFICES OF MICHAEL D. THAMER
Old Callahan School House
Kathryn A. Stebner (State Bar No. 121088
Sarah Colby (State Bar No. 194475)
STEBNER & ASSOCIATES
[Additional Counsel Appear on Signature Page]
Attorneys for Plaintiffs Arlene Bettencourt
and Harry Harrison
STIPULATION AND [PROPOSED]
ORDER REGARDING ALTER EGO
DISCOVERY AND PLAINTIFFS'
SECOND AMENDED COMPLAINT
The Honorable Jeffrey S. White
WHEREAS on June 15, 2011 the Court granted in part and denied in part Defendants' motions to dismiss Plaintiffs' First Amended Complaint, and granted Plaintiffs leave to amend their Complaint, see Order Regarding Defendants' Motions to Dismiss (Dkt. 58), at 16;
WHEREAS with respect to alleged vertical alter ego relationships between the Facility Defendants, Subsidiary Licensee Defendants, and the Parent Kindred Defendants, the Court held in its June 15, 2011 Order that "Plaintiffs have sufficiently alleged 'unity of interest and ownership' as between Kindred and the Facilities," and that Plaintiffs have also sufficiently alleged "an injustice based on the parent Kindred entities' attempt to avoid liability," id. at 7; however, the Court also held that "Plaintiffs have not alleged what injustice would result if the Facilities, other than Rossmoor, were not held liable or if Hillhaven and Smith Ranch were not held liable," id. at 7-8;
The thirteen "Facility Defendants" are: Alta Vista Healthcare & Wellness Centre (a/k/a Alta Vista Healthcare); Bay View Nursing And Rehabilitation Center; Canyonwood Nursing and Rehab Center; Care Center of Rossmoor (f/k/a Guardian of Rossmoor); Fifth Avenue Health Care Center; Golden Gate Healthcare Center; Hacienda Care Center; Nineteenth Avenue Healthcare Center; Kindred Healthcare Center of Orange; Santa Cruz Healthcare Center; Smith Ranch Care Center (f/k/a Guardian at Smith Ranch Care Center); Valley Gardens Healthcare & Rehabilitation Center; and Victorian Healthcare Center (f/k/a Hillhaven Victorian).
The three "Subsidiary Licensee Defendants" are: Care Center of Rossmoor, LLC; Smith Ranch Care Center, LLC; and Hillhaven-MSC Partnership.
The four "Kindred Defendants" are: Kindred Healthcare, Inc. ("Kindred Inc."); Kindred Healthcare Operating, Inc. ("KHOI"); Kindred Nursing Centers West, LLC ("Kindred West"); and California Nursing Centers, LLC ("California Nursing").
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WHEREAS the Parties stipulated, and the Court ordered, that Plaintiffs' Second Amended Complaint would be due ninety (90) days from when Plaintiffs' Motion for Limited, Expedited Discovery was granted, see Order Postponing Deadline for Filing of Amended Complaint and Continuing Case Management Conference (Dkt. 64);
WHEREAS the Court subsequently granted Plaintiffs' Motion for Limited, Expedited Discovery, and therefore the deadline for Plaintiffs to file their Second Amended Complaint is November 23, 2011, see Order Regarding Plaintiffs' Motion for Leave to Conduct Discovery (Dkt. 69);
WHEREAS Plaintiff intend to join, in their Second Amended Complaint, additional class representatives who resided at Facilities other than Care Center of Rossmoor; and
WHEREAS the parties have met and conferred about alleged alter ego discovery and the addition of new Plaintiffs who resided in facilities other than Care Center of Rossmoor;
NOW THEREFORE, it is stipulated that:
1. Plaintiffs will file their Second Amended Complaint by November 23, 2011;
2. Defendants will stipulate to the filing of a Second Amended Complaint that adds Plaintiffs who resided in Facilities other than Care Center of Rossmoor. This stipulation is made without prejudice to Defendants' right to raise any appropriate challenge(s) to the Second Amended Complaint after it is filed;
3. Defendants will not move to dismiss Plaintiffs' Second Amended Complaint based upon insufficiency of Plaintiffs' alter ego allegations as to 1) the vertical alter ego relationships between the Facility Defendants, Subsidiary Licensee Defendants, and the Parent Kindred Defendants, or 2) the horizontal alter ego relationships between the Facility Defendants. Nothing in this stipulation will prevent Defendants from challenging Plaintiffs' vertical or horizontal alter ego theories through motion for summary judgment, opposition to class certification or other motion that does not merely challenge the legal sufficiency of the allegations in Plaintiffs' Second Amended Complaint or any subsequent complaint;
4. If any Defendant or Defendants move to dismiss Plaintiffs' Second Amended Complaint based upon lack of personal jurisdiction, the Parties agree that litigation related to the Defendants' challenge to personal jurisdiction shall be stayed until further notice. If any Party wishes to lift the stay, it may move the Court for such relief after providing all other Parties with fourteen (14) days written notice;
5. If any Party moves to lift the stay on litigation of personal jurisdiction, then Plaintiffs will have ninety (90) days from the date the stay is lifted to conduct jurisdictional discovery, including on alter ego issues, before filing their opposition brief. This agreement is without prejudice to Defendants' ability to challenge the scope of such discovery, including the alter ego discovery propounded by Plaintiffs;
6. Plaintiffs withdraw their currently pending discovery requests on horizontal and vertical relationships among Defendants, without prejudice to their right to reassert the requests ninety (90) days prior to the close of fact discovery, or if and when any of the following occur:
a. The Court sets a schedule for class certification briefing; or
b. Any Defendant moves to lift the stay on personal jurisdiction; or
c. Any Defendant moves for summary judgment based in whole or part on the insufficiency of Plaintiffs' alter ego, agency, or joint venture allegations.
7. Nothing stated herein shall preclude any Party from seeking a Court-ordered modification of the above-stated provisions for good cause shown.
Respectfully submitted,
MANATT, PHELPS & PHILLIPS
By: _______________
Brad W. Seiling
Attorney for Defendants
Brad W. Seiling (State Bar No. 143515)
Andrew H. Struve (State Bar No. 200803)
Jessica L. Slusser (State Bar No. 217307)
Justin C. Johnson (State Bar No. 252175)
Respectfully submitted,
STEBNER & ASSOCIATES
By: _______________
Kathryn Ann Stebner
Attorney for Plaintiffs
Kathryn A. Stebner (State Bar No. 121088)
Sarah Colby (State Bar No. 194475)
Robert J. Nelson (State Bar No. 132797)
Lexi J. Hazam (State Bar No. 224457)
Andrew S. Kingsdale (State Bar No. 255669)
LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
Michael D. Thamer (State Bar No. 101440)
LAW OFFICES OF MICHAEL D. THAMER
Christopher J. Healey (State Bar No. 105798)
LUCE, FORWARD, HAMILTON & SCRIPPS LLP
W. Timothy Needham (State Bar No. 96542)
Michael J. Crowley (State Bar No. 102343)
JANSSEN, MALLOY, NEEDHAM, MORRISON,
REINHOLTSEN & CROWLEY, LLP
Robert S. Arns (State Bar No. 65071)
Steven R. Weinmann (State Bar No. 190956)
THE ARNS LAW FIRM
Attorneys for Plaintiffs ARLENE BETTENCOURT and
HARRY HARRISON
Pursuant to General Order 45, Part X-B, the filer attests that concurrence in the filing of this document has been obtained from Brad W. Seiling and Kathryn Ann Stebner.
[PROPOSED] ORDER
PURSUANT TO STIPULATION, IT IS SO ORDERED.
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The Honorable Jeffrey S. White