Carmen Padilla v. Brookfield Healthcare Center

UNITED STATES DISTRICT COURT JS-6 / REMAND

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. CV 21-2062-DMG (ASx) Date April 19, 2021

Title Carmen Padilla, et al. v. Brookfield Healthcare Center, et al. Page 1 of 9

Present: The Honorable DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

KANE TIEN NOT REPORTED

Deputy Clerk Court Reporter

Attorneys Present for Plaintiff(s) Attorneys Present for Defendant(s)

None Present None Present

Proceedings: IN CHAMBERS—ORDER RE PLAINTIFFS’ MOTION TO REMAND [11]

AND DEFENDANT’S MOTION TO DISMISS [10]

On February 2, 2021, Plaintiffs Carmen, Leticia, Jose, Jesus, Ismael, and Alfredo Padilla

filed a Complaint in Los Angeles County Superior Court against Defendants Brookfield

Healthcare Center (“Brookfield”) and Downey Community Care LLC (“Downey”), alleging

claims for elder neglect in violation of California Welfare and Institutions Code section 15600, et

seq., and wrongful death. [Doc. # 1-1.] Defendant Downey, which uses “Brookfield Healthcare

Center” as a fictitious business name and states that Brookfield is not an independent entity, was

served with the Complaint on February 5, 2021. Not. of Removal (“NOR”) at ¶ 2 [Doc. # 1]. On

March 5, 2021, Defendant removed the case to this Court, asserting federal question jurisdiction

under the Public Readiness and Emergency Preparedness (“PREP”) Act, 42 U.S.C. §§ 247d-6d,

247d-6e. Id. at ¶ 10.

On March 18, 2021, Plaintiffs filed the instant Motion to Remand (“MTR”). [Doc. # 11.]

The motion is fully briefed. [Doc. ## 16, 17.] Also pending before the Court is Defendant’s fully-

briefed Motion to Dismiss (“MTD”), filed on March 12, 2021. [Doc. # 10.]

For the reasons stated below, the Court GRANTS Plaintiffs’ MTR and DENIES as moot

Defendant’s MTD.

I.

FACTUAL BACKGROUND

Plaintiffs are the wife and children of Decedent Asuncion Padilla, and they are all residents

of Los Angeles County. Compl. at ¶¶ 1-8 [Doc. # 1]. Defendant Downey is a Nevada limited

liability company doing business in Los Angeles County as the Brookfield Healthcare Center

(“Brookfield”), an assisted living facility located at 9300 Telegraph Road, Downey, California.

Id. at ¶ 9. Brookfield is not a separate entity from Downey. See NOR at ¶ 2.

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On September 14, 2020, Decedent, who was 77 years old at the time, underwent a hip

replacement procedure. Compl. at ¶¶ 8, 14. Two days later, he was transferred to Brookfield for

recovery and rehabilitation, with an anticipated discharge date of November 14, 2020. Id. at ¶ 14.

Decedent was placed in a room with three other patients, each separated by a few feet and curtains,

who “came and went as patients were admitted and discharged,” although Plaintiffs were able to

visit Decedent only through a glass window outside of his room. Plaintiffs observed that Decedent

seemed to be over-medicated. Id. at ¶ 15.

On October 5, 2020, Brookfield tested Decedent for COVID-19, and his results were

negative. On November 12, 2020, one of Decedent’s roommates tested positive for COVID-19,

and Plaintiffs believe that Brookfield then removed the ill roommate and put him in isolation. The

next day, Decedent also tested positive for COVID-19 and was put into isolation. Brookfield never

notified Plaintiffs of any prior COVID-19 exposure or positive test results before Decedent became

infected. Id. at ¶ 16. On November 20, 2020, Decedent was admitted to a hospital for intensive

care for COVID-19, and on December 14, 2020, he passed away from COVID-19 and related

complications. Id. at ¶ 17.

Plaintiffs are now informed and believe that since the start of the pandemic, Brookfield had

91 cases of COVID-19 among its residents, 16 cases of COVID-19 among its staff, and 17 deaths

due to COVID-19. In addition, in July 2020, the State of California cited Brookfield for COVID-

19 reporting violations. Plaintiffs were unaware of these facts until after Decedent’s death and

allege that had they known these facts before Decedent was admitted to Brookfield, they would

not have allowed him to be admitted. Id. at ¶ 18.

II.

LEGAL STANDARD

A defendant may remove an action to federal court only where there is either complete

diversity among the parties or federal question jurisdiction. 28 U.S.C. § 1441. Federal question

jurisdiction exists over all civil actions arising under the Constitution, laws, or treaties of the

United States. Id. § 1331. Removal is proper if the case could have originally been filed in federal

court. Lee v. Am. Nat’l Ins. Co., 260 F.3d 997, 1004 (9th Cir. 2001).

The “well-pleaded complaint” rule requires a federal question to be present on the face of

the complaint at the time of removal for federal question jurisdiction to exist. Duncan v. Stuetzle,

76 F.3d 1480, 1485 (9th Cir. 1996). Causes of action “arise under” federal law in accordance with

28 U.S.C. § 1331 if federal law creates the cause of action or the complaint necessarily depends

on a substantial question of federal law. Christianson v. Colt Indus. Operating Corp., 486 U.S.

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Title Carmen Padilla, et al. v. Brookfield Healthcare Center, et al. Page 3 of 9

800, 808 (1988). Federal jurisdiction cannot rest upon an actual or anticipated defense or

counterclaim. Vaden v. Discover Bank, 556 U.S. 49, 60 (2009). “The burden of establishing

federal subject matter jurisdiction falls on the party invoking removal.” Marin Gen. Hosp. v.

Modesto & Empire Traction Co., 581 F.3d 941, 944 (9th Cir. 2009) (citing Toumajian v. Frailey,

135 F.3d 648, 652 (9th Cir. 1998)). There is a “strong presumption against removal jurisdiction,”

and courts must reject it “if there is any doubt as to the right of removal in the first instance.”

Geographic Expeditions, Inc. v. Est. of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010)

(quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam)) (internal quotation

marks omitted).

III.

DISCUSSION

Neither party argues that the Court has diversity jurisdiction over this case, and they focus

their arguments on whether the Court has federal question jurisdiction based on the PREP Act.

Plaintiffs argue that there is no subject matter jurisdiction under 28 U.S.C. section 1331 because

their claims arise solely under state law and the PREP Act does not provide for complete

preemption of their claims.

A. PREP Act Background

Passed in 2005, the PREP Act authorizes the Secretary of Health and Human Services

(“HHS”) to issue a declaration determining that “a disease or other health condition or other threat

to health constitutes a public health emergency.” 42 U.S.C. § 247d-6d(b). The Act provides

immunity from liability for “all claims for loss caused by, arising out of, relating to, or resulting

from the administration to or the use by an individual of a covered countermeasure.” Id. § 247d-

6d(a)(1). “Covered countermeasures” include drugs, biological products 1 , and devices

manufactured, used, designed, developed, modified, licensed, or procured to diagnose, mitigate,

prevent, treat, or cure a serious or life-threatening disease or to limit the harm of a pandemic or

epidemic. Id. § 247d-6d(i). Covered persons who may be immune from liability include “a

program planner of such countermeasure.” Id. If immunity applies, the injured person or their

survivors may seek compensation from an administrative program that provides reimbursement

for some losses associated with the use of covered countermeasures. Id. § 247d-6e. The only

exception to the Act’s immunity is when the injury occurs through willful misconduct, in which

1 A biological product is “a virus, therapeutic serum, toxin, antitoxin, vaccine, blood, blood component or

derivative, allergenic product, protein, or analogous product, or arsphenamine or derivative of arsphenamine (or any

other trivalent organic arsenic compound), applicable to the prevention, treatment, or cure of a disease or condition of

human beings.” 42 U.S.C. § 262.

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case an injured person or their survivors may file a claim in the U.S. District Court for the District

of Columbia. Id. § 247d-6d(d).

On January 31, 2020, the HHS Secretary declared the nascent COVID-19 outbreak a public

health emergency under a more general section of the Public Health Service Act. On March 10,

2020, he declared the COVID-19 pandemic a public health emergency under the PREP Act,

thereby authorizing liability protection for use of covered countermeasures (“March 10, 2020

Declaration”). 85 Fed. Reg. 15198-01. To this date, the Secretary has issued seven amendments

to the March 10, 2020 Declaration clarifying the scope of covered countermeasures and covered

persons.

Several of those amendments are relevant to Plaintiffs’ MTR. On April 10, 2020, the

Secretary issued the First Amendment, noting that the Coronavirus Aid, Relief, and Economic

Security (“CARES”) Act, Public Law 116-136, enacted on March 27, 2020, created a new category

of covered countermeasures eligible for liability immunity under the PREP Act: respiratory

protective devices approved by the National Institute for Occupational Safety and Health (NIOSH)

that the Secretary determines to be a priority for use during a public health emergency. 85 Fed.

Reg. 21012-02. On December 3, 2020, the Secretary issued the Fourth Amendment clarifying

that the “administration” of a covered countermeasure may also include not administering a

covered countermeasure:

Administration of the Covered Countermeasure means physical provision of the

countermeasures to recipients, or activities and decisions directly relating to public

and private delivery, distribution and dispensing of the countermeasures to

recipients, management and operation of countermeasure programs, or

management and operation of locations for the purpose of distributing and

dispensing countermeasures.

Where there are limited Covered Countermeasures, not administering a Covered

Countermeasure to one individual in order to administer it to another individual can

constitute “relating to . . . the administration to . . . an individual” under 42 U.S.C.

247d-6d. For example, consider a situation where there is only one dose . . . of a

COVID-19 vaccine, and a person in a vulnerable population and a person in a less

vulnerable population both request it from a healthcare professional. In that

situation, the healthcare professional administers the one dose to the person who is

more vulnerable to COVID-19. In that circumstance, the failure to administer the

COVID-19 vaccine to the person in a less-vulnerable population “relat[es] to . . .

the administration to” the person in a vulnerable population. The person in the

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CIVIL MINUTES—GENERAL

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vulnerable population was able to receive the vaccine only because it was not

administered to the person in the less-vulnerable population. Prioritization or

purposeful allocation of a Covered Countermeasure, particularly if done in

accordance with a public health authority’s directive, can fall within the PREP Act

and this Declaration's liability protections.

85 Fed. Reg. 79190-01. The Fourth Amendment also provided that “there are substantial federal

legal and policy issues, and substantial federal legal and policy interests within the meaning of

Grable & Sons Metal Products, Inc. v. Darue Eng’g. & Mf’g., 545 U.S. 308 (2005), in having a

uniform interpretation of the PREP Act.” Id. On January 28, 2021, the Secretary issued the Fifth

Amendment, specifying that licensed healthcare professionals ordering and administering

COVID-19 vaccines are covered persons under the PREP Act, and that the PREP Act preempts

state law that otherwise prohibits certain healthcare professionals from ordering and administering

vaccines. The Fifth Amendment states that “[t]he plain language of the PREP Act makes clear

that there is complete preemption of state law as described above.” 86 Fed. Reg. 7872-02.

In addition, on January 8, 2021, the HHS Office of the General Counsel (“OGC”) issued

an advisory opinion regarding the scope of the PREP Act’s preemption, particularly in response to

the increase of lawsuits involving nursing homes and other healthcare facilities alleging that the

“facility, among other things, failed to provide its staff with personal protective equipment

(“PPE”), failed to teach the staff how to properly use that equipment, or failed to ensure that its

staff used the PPE that it had been given.” Def.’s Request for Judicial Notice (“RJN”), Ex. 4 [Doc.

# 16-9].2 The OGC opined that “[t]he sine qua non of a statute that completely preempts is that it

establishes either a federal cause of action, administrative or judicial, as the only viable claim or

vests exclusive jurisdiction in a federal court. The PREP Act does both.” In addition, the OGC

noted that under Grable, a federal court may exercise jurisdiction over state law claims that turn

on substantial questions of federal law, and that determinations of whether the PREP Act immunity

apply should be decided by federal courts. The OGC also reiterated the Fourth Amendment’s

clarification that the PREP Act “extends immunity to anything ‘relating to’ the administration of

a covered countermeasure,” including, in some instances, the failure to use a covered

countermeasure. Id.

2 The Court GRANTS judicial notice of this advisory opinion, as a government document the authenticity of which

is not in dispute. See U.S. ex rel. Modglin v. DJO Glob. Inc., 48 F. Supp. 3d 1362, 1381 (C.D. Cal. 2014). Because

the Court does not rely on the other exhibits of which Defendant seeks judicial notice, the remainder of the RJN is

DENIED as moot.

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B. PREP Act Preemption

Under the doctrine of complete preemption, a state claim arises under federal law when

Congress “so completely preempt[s] a particular area that any civil complaint raising th[e] select

group of claims is necessarily federal in character.” Metro. Life Ins. Co. v. Taylor, 481 U.S. 58,

63–64 (1987). A state law cause of action is only completely preempted when “the federal statute[]

at issue provide[s] the exclusive cause of action for the claim asserted and also set[s] forth

procedures and remedies governing that cause of action.” Beneficial Nat. Bank v. Anderson, 539

U.S. 1, 8 (2003). In short, Congress must intend the statute to provide the exclusive cause of

action. Id. at 9.

Nearly every other federal court addressing the issue of complete preemption has found

that the PREP Act is not a statute with complete preemptive effect. See Smith v. Colonial Care

Ctr., Inc., No. CV 21-00494-RGK-PD, 2021 WL 1087284, at *4 (C.D. Cal. Mar. 19, 2021); Est.

of Jones through Brown v. St. Jude Operating Co., LLC, No. CV 20-01088-SB, 2021 WL 900672,

at *5 (D. Or. Feb. 16, 2021), report and recommendation adopted, No. CV 20-1088-SB, 2021 WL

886217 (D. Or. Mar. 8, 2021) (collecting cases). As those courts have already discussed, the PREP

Act provides for a federal administrative remedy for injuries arising from non-willful behavior,

not an exclusive federal cause of action. See Smith, 2021 WL 1087284, at *5 (citing Dupervil v.

All. Health Operations, LCC, No. CV 20-4042-PKC (PK), 2021 WL 355137, at *9 (E.D.N.Y. Feb.

2, 2021) (“Here, the PREP Act does not provide the exclusive cause of action for claims that fall

within its scope; in fact, for the most part, the Act provides no causes of action at all.”)). Because

the PREP Act does not provide an exclusive cause of action to be filed in federal court, it does not

completely preempt all state law claims. See Beneficial Nat. Bank, 539 U.S. at 8; see also Moore-

Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1245 (9th Cir. 2009) (finding no complete

preemption where a statute did not permit disputes “to be filed initially in federal court”).

The only case Defendant cites finding that the PREP Act is a complete preemption statute,

Garcia v. Welltower OpCo Grp. LLC, No. SA CV 20-02250-JVS (KESx), 2021 WL 492581 (C.D.

Cal. Feb. 10, 2021), paid significant deference to the January 8, 2021 OGC Advisory Opinion. See

id. at *6-7. While a court may consider an agency’s interpretation of a statute to be a source of

guidance, that interpretation is not controlling upon the court and is entitled to respect according

to its persuasiveness. See United States v. Mead Corp., 533 U.S. 218, 228 (2001); Skidmore v

Swift & Co., 323 U.S. 134, 139-40 (1944). Garcia did not address the persuasiveness of the

January 8, 2021 OGC Advisory Opinion before according it deference. By contrast, the court in

Smith found that the Advisory Opinion mischaracterized complete preemption doctrine when it

stated that a statute may completely preempt when it establishes a federal administrative remedy,

as well as when it establishes a federal cause of action. Smith, 2021 WL 1087284, at *6. The

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court noted that the OGC did not cite “any legal support for the proposition that an exclusive

federal administrative remedy is sufficient for complete preemption.” Id. (citation and internal

quotation marks omitted). Accordingly, it held that the January 8, 2021 OGC Advisory Opinion

was not persuasive and entitled to minimal respect. Id.

The Court agrees with Smith. Moreover, the Secretary’s declaration that “[t]he plain language of

the PREP Act makes clear that there is complete preemption of state law” was in specific reference

to its clarification that the PREP Act preempts state law that otherwise prohibits certain healthcare

professionals from ordering and administering vaccines and did not provide any legal reasoning to

support a broad declaration of complete preemption. 86 Fed. Reg. 7872-02. Without the benefit

of more persuasive agency interpretations, the Court concludes that the PREP Act does not present

the “rare” case of complete preemption. Hansen v. Grp. Health Coop., 902 F.3d 1051, 1057 (9th

Cir. 2018).

C. PREP Act Coverage

Defendant also argues that the Court should exercise jurisdiction over Plaintiffs’ state law

claims because they necessarily raise a federal issue regarding interpretation of the PREP Act. The

Court does not find Defendant’s reliance on the Fourth Amendment and Advisory Opinion’s

citation to Grable & Sons Metal Products, Inc. v. Darue Eng’g. & Mf’g., 545 U.S. 308 (2005), to

be persuasive for two reasons.

First, Plaintiffs’ claims do not implicate the PREP Act and therefore do not raise a federal

issue. The “substantial question” doctrine is a longstanding exception to the “well-pleaded

complaint” rule. Cal. ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004). The

Supreme Court has not stated a “single, precise, all-embracing test for jurisdiction over federal

issues embedded in state-law claims.” Grable, 545 U.S. at 314 (internal citation omitted). Under

Grable, a complaint based entirely on state law claims can invoke federal question jurisdiction

only if: (1) the case necessarily raises a federal issue; (2) the federal issue is substantial and

actually in dispute; and (3) the exercise of federal jurisdiction would be “consistent with

congressional judgment about the sound division of labor between state and federal courts

governing the application of § 1331.” Id. at 313-14 (internal citations omitted); see also

Caterpillar, Inc. v. Williams, 482 U.S. 386, 393 (1987); Merrell Dow Pharms. Inc. v. Thompson,

478 U.S. 804, 817 (1986).

The gravamen of Plaintiffs’ Complaint is that Defendant failed to care for Decedent by

(1) allowing him to remain in a room with new roommates with no evidence of COVID-19 testing

of those roommates; (2) possibly over-medicating him after his hip replacement; and (3) failing to

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notify Plaintiffs of COVID-19 exposure or the facility’s prior COVID-19 cases such that Plaintiffs

could make an informed decision regarding Decedent’s placement there. Compl. at ¶¶ 16, 18.

None of these arguments involve the use of drugs, biological products, or devices used to treat,

mitigate, or prevent COVID-19, such as personal protective equipment (“PPE”), therapeutics, or

vaccines. Defendant’s policies regarding social distancing, use of medication for conditions

unrelated to COVID-19, and reporting COVID-19 cases thus do not constitute covered

countermeasures under the PREP Act. In a similar case, the court held that where the plaintiffs

alleged the defendant care facility failed to implement an effective policy for isolating proven or

suspected carriers of COVID-19, and protecting its residents from exposure to COVID-19, “the

square peg of Plaintiffs’ allegations does not fit into the round hole of the PREP Act's definition

of a covered countermeasure.” Smith, 2021 WL 1087284, at *4.

The only issue in the Complaint that relates to a covered countermeasure is the alleged lack

of COVID-19 testing of Decedent’s roommates before they were placed into his room. Even so,

Plaintiffs allege that Defendant failed to act with respect to testing, and inaction generally does not

fall under the scope of the PREP Act. See 42 U.S.C. § 247d-6d(b)(1) (providing immunity from

liability for “all claims for loss caused by, arising out of, relating to, or resulting from the

administration to or the use by an individual of a covered countermeasure.”); see also Lyons v.

Cucumber Holdings, LLC, No. CV 20-10571-JFW (JPRx), 2021 WL 364640, at *5 (C.D. Cal. Feb.

3, 2021) (finding no PREP Act coverage where “inaction, rather than action, by Defendants that

caused Decedent's death” and collecting similar COVID-19 cases). Defendant argues that the

Fourth Amendment and the January 8, 2021 OGC Advisory Opinion explicitly provide that certain

types of inaction may trigger PREP Act immunity. But the Fourth Amendment states that “[w]here

there are limited Covered Countermeasures, not administering a Covered Countermeasure to one

individual in order to administer it to another individual can constitute ‘relating to . . . the

administration to . . . an individual’ under 42 U.S.C. 247d-6d.” 85 Fed. Reg. at 79,197 (emphasis

added). Plaintiffs do not allege that in October 2020, there were limited COVID-19 tests, such

that Defendant’s alleged policy of failing to test new roommates was a result of “[p]rioritization

or purposeful allocation of a Covered Countermeasure,” as opposed to negligent failure to act. Id.

Courts addressing similar state law claims on removal have found that such failure to act

does not implicate the PREP ACT and remanded those cases to the state courts. See Smith, 2021

WL 1087284, at *4; Lyons, 2021 WL 364640, at *1–2; Est. of Jones through, 2021 WL 900672,

at *5 (collecting cases). Although Defendant again relies on Garcia, that case involved allegations

of inadequate PPE—i.e., a covered countermeasure. 2021 WL 492581 at *9. Because this case

does not allege actions or a specified type of inaction related to covered countermeasures,

Plaintiffs’ elder abuse and negligence claims do not necessarily raise a disputed federal issue over

which the Court may or should exercise its jurisdiction.

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Second, even if Plaintiffs’ claims based on the lack of COVID-19 testing fall under the

PREP Act’s covered countermeasures, immunity under the PREP Act is a defense, not a necessary

aspect of Plaintiffs’ state law claims. It is axiomatic that federal jurisdiction cannot rest upon an

actual or anticipated defense. See Vaden v. Discover Bank, 556 U.S. 49 (2009). “[A] case may

not be removed to federal court on the basis of a federal defense, including the defense of pre-

emption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties

concede that the federal defense is the only question truly at issue.” Caterpillar Inc. v. Williams,

482 U.S. 386, 393 (1987). Thus, the Court does not have subject matter jurisdiction over this case

solely because the PREP Act may be raised as a defense. See Lyons, 2021 WL 364640, at *6.

IV.

CONCLUSION

In light of the foregoing, Plaintiffs’ motion to remand is GRANTED, and Defendant’s

pending MTD is DENIED as moot. This action is hereby remanded to Los Angeles County

Superior Court.

IT IS SO ORDERED.