Estate of Jennifer Joan Vyden v. Vista Del Sol LTC, Inc.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 21-4628-GW-PLAx Date August 5, 2021

Title Estate of Jennifer Joan Vyden, et al. v. Vista Del Sol LTC, Inc.

Present: The Honorable GEORGE H. WU, UNITED STATES DISTRICT JUDGE

Javier Gonzalez Terri A. Hourigan

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

Robert D. Jarchi Kim S. Cruz

PROCEEDINGS: TELEPHONIC HEARING ON PLAINTIFFS' MOTION FOR REMAND

[11]

Court hears oral argument. The Tentative circulated and attached hereto, is adopted as the Court’s Final

Ruling. The Court grants Plaintiffs’ motion to remand the matter back to the California Superior Court

for Los Angeles County.

: 06

Estate of Vyden, et al. v. Vista Del Sol LTC, Inc., Case No. CV 2:21-cv-04628-GW-(PLAx)

Ruling on Motion for Remand

I. Background

A. Procedural Background

On May 3, 2021, the Estate of Jennifer Joan Vyden by and through its Successor-in-

Interest David Vyden and David Vyden as an individual (collectively, “Plaintiffs”) filed a

Complaint in Los Angeles County Superior Court against Vista Del Sol LTC, Inc.

(“Defendant”). See Docket No. 4-1. The Complaint contains five causes of action: (1) elder

abuse and neglect (Cal. Welf. & Inst. Code §§ 15600 et seq.); (2) negligence/negligence per se;

(3) violation of Residents ‘ Bill of Rights (Cal. Health & Safety Code § 1430(b)); (4) wrongful

death; and (5) concealment. See id. On June 4, 2021, Defendant removed the case to federal

court, claiming that federal courts have subject matter jurisdiction over the action because: (1)

federal question jurisdiction exists due to complete preemption under the Public Readiness and

Emergency Preparedness Act (“PREP Act”), (2) federal question jurisdiction exists because the

case raised substantial federal issues, and/or (3) that removal is proper under 28 U.S.C. §

1442(a)(1), the federal officer removal statute. See Docket No. 1, ¶¶ 14-93. Plaintiff has now

filed a motion to remand.

The Court considered the exact arguments Defendant raises for subject matter jurisdiction

in this type of case on July 1, 2021, remanding to state court the case of Acra v. California

Magnolia Convalescent Hospital, Inc., No. 5:21-cv-00898-GW (SHKx). See Acra, Docket No.

19. Defendant has not presented the Court with any controlling decision issued since the Court’s

Acra decision which would indicate that the Court erred in issuing its ruling in Acra. The short

answer to this motion, therefore, is that it will be granted for the same reasons the Court set forth

in Acra.

B. Factual Allegations

The Complaint asserts the following:

Defendant is in the business of providing long-term custodial care as a 24-hour skilled

nursing facility in Los Angeles, California. See Complaint ¶ 4. Jennifer Joan Vyden

(“Decedent”) was a resident of Defendant’s facility from approximately 2017 through the time of

her death in 2020, at the age of 80 years old. See id. ¶ 6.

On or about May 27, 2020, Defendant transferred Decedent to Cedars Sinai Medical

Center (“Cedars”) for advanced testing and treatment. See id. ¶ 14. Prior to May 27, 2020,

Decedent received substandard care with respect to her nourishment and general treatment,

including by not having been properly provided fluids for an extended period of time to the point

that she was suffering from dehydration and was malnourished prior to the time of transfer from

Defendant’s facility to Cedars, facts that Defendant concealed. See id. ¶¶ 12, 33, 64. Decedent’s

potential for rehabilitation at Cedars was noted as “poor.” See id. Upon admission at Cedars,

Decedent was also diagnosed with “low oxygen saturation” and “rapid breathing.” See id. ¶ 15.

In addition, at this time cases of COVID-19 were present at Defendant’s facility, and

Defendant knew or should have known of COVID-19’s presence. See id. ¶ 13. Defendant failed

to take adequate measures to protect Decedent from contracting COVID-19 and concealed

Decedent’s exposure to an unreasonable risk of harm based on exposure to infected residents and

staff. See id. ¶¶ 33, 64. Defendant acted with conscious disregard to Decedent’s rights, health,

and safety in numerous respects, including by, among other things: failing to follow, implement,

and adhere to all CDC guidelines on how to protect and treat Decedent in light of the risk of

COVID-19; failing to take all reasonable and necessary precautions to ensure that Decedent did

not contract COVID-19; failing to test Decedent and other residents and staff for COVID-19 to

quickly address and isolate any infected person(s) if necessary; and failing to provide its

employees with adequate personal protective equipment and failing to ensure employees

properly utilized that equipment. See id. ¶ 33(e), (l), (m), (q), (r); see also id. ¶ 49(e).

David Vyden, Decedent’s son, learned immediately after transfer of Decedent to Cedars

that Decedent was positive for COVID-19, despite visiting Defendant’s facility on multiple

occasions to check on his mother and despite being the point-of-contact for his mother’s health.

See id. ¶¶ 16, 66. Decedent’s condition deteriorated rapidly, and she passed away on June 11,

2020. See id. ¶¶ 17, 57.

II. Discussion

Plaintiffs’ Complaint presents only claims under California law. Federal courts operate

under the presumption that they do not have jurisdiction over state-law causes of action. See

Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). “The defendant bears the burden

of establishing that removal is proper,” and removal statutes are “strictly construed against

removal jurisdiction.” Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083,

1087 (9th Cir. 2009); see also Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)

(“[J]urisdiction must be rejected if there is any doubt as to the right of removal.”). Here,

Defendant asserts that the Court has federal question jurisdiction and/or that jurisdiction is

proper as a result of the federal-officer removal statute.

A. Federal Question Jurisdiction

Federal courts have original jurisdiction over all civil actions that arise under federal law.

28 U.S.C. § 1331. The presence of federal question jurisdiction is governed by the “well-

pleaded complaint rule,” which provides that federal jurisdiction exists only when a federal

question is presented on the face of the plaintiff’s properly pleaded complaint. See Caterpillar

Inc. v. Williams, 482 U.S. 386, 392 (1987). This rule makes a plaintiff the master of his/her

complaint: it allows him/her to avoid federal jurisdiction by relying exclusively on state law. It

is “settled law that a case may not be removed to federal court on the basis of a federal defense,

including the defense of preemption, even if the defense is anticipated in the plaintiff’s

complaint, and even if both parties admit that the defense is the only question truly at issue in the

case.” Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S.

1, 13-14 (1983).

There are, however, cases where the well-pleaded complaint rule gives way to “complete

preemption” by federal statute. The United States Supreme Court has concluded that the

preemptive force of some federal statutes is so strong that they “completely pre-empt” an area of

state law. See Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987). In those cases, any

claim purportedly based on that preempted state law is considered, from its inception, a federal

claim, and therefore is deemed to have arisen under federal law. See Franchise Tax Bd., 463

U.S. at 24.

In response to Plaintiffs’ motion, Defendant first argues that the Court has federal

question jurisdiction because of complete preemption by the PREP Act. The PREP Act is

invoked when the Secretary of the Department of Health and Human Services (“HHS”) issues a

declaration determining that a disease or other health condition constitutes an ongoing public

health emergency. 42 U.S.C. § 247d-6d(b). If the Secretary determines that there is such an

emergency, he “may make a declaration, through publication in the Federal Register,

recommending . . . the manufacture, testing, development, distribution, administration, or use of

one or more covered countermeasures, and stating that [42 U.S.C. § 247d-6d(a)] is in effect with

respect to the activities so recommended.” Id.

Once invoked (as no one disputes occurred here), the PREP Act provides that “a covered

person shall be immune from suit and liability under Federal and State law with respect to 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.” 42 U.S.C. § 247d-6d(a)(1). This immunity

is broad. It applies to “any claim for loss that has a causal relationship with the administration to

or use by an individual of a covered countermeasure, including a causal relationship with the

design, development, clinical testing or investigation, manufacture, labeling, distribution,

formulation, packaging, marketing, promotion, sale, purchase, donation, dispensing, prescribing,

administration, licensing, or use of such countermeasure.” 42 U.S.C. § 247d-6d(a)(2)(B). The

PREP Act preempts state laws that create different standards regarding covered

countermeasures1:

During the effective period of a declaration under subsection (b), or at any time

with respect to conduct undertaken in accordance with such declaration, no State

or political subdivision of a State may establish, enforce, or continue in effect

with respect to a covered countermeasure any provision of law or legal

requirement that –

(A) is different from, or is in conflict with, any requirement applicable

under this section; and

(B) relates to the design, development, clinical testing or investigation,

formulation, manufacture, distribution, sale, donation, purchase,

marketing, promotion, packaging, labeling, licensing, use, any other aspect

of safety or efficacy, or the prescribing, dispensing, or administration by

qualified persons of the covered countermeasure, or to any matter included

in a requirement applicable to the covered countermeasure under this

section or any other provision of this chapter, or under the Federal Food,

Drug, and Cosmetic Act.

42 U.S.C. § 247d-6d(b)(8).

“[C]omplete preemption for purposes of federal jurisdiction under § 1331 exists when

Congress: (1) intended to displace a state-law cause of action, and (2) provided a substitute cause

1 “Covered countermeasures” under the PREP Act cover drugs, biological products, or devices that are designed to

diagnose, mitigate, prevent, treat, cure, or limit the harm from the public health emergency. 42 U.S.C. § 247d-

6d(i)(1), (7). The HHS Secretary’s COVID-19 Declaration more specifically defines covered countermeasures as

“any antiviral, any other drug, any biologic, any diagnostic, any other device, or any vaccine, used to treat, diagnose,

cure, prevent, or mitigate COVID-19 . . . or any device used in the administration of any such product, and all

components and constituent materials of any such product.” Docket No. 17-9, at pg. 6 of 7. “Administration” and

“use” are not defined in the act, but the HHS Secretary’s COVID-19 Declaration states that “administration” of

covered countermeasures “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 purpose of

distributing and dispensing countermeasures.” Id.

of action.” City of Oakland v. BP PLC, 969 F.3d 895, 906 (9th Cir. 2020) (citing Hansen v. Grp.

Health Coop., 902 F.3d 1051, 1057 (9th Cir. 2018)), cert. denied, 2021 WL 2405350 (U.S. June

14, 2021). Essentially, Congress must intend for the statute to “provide the exclusive cause of

action.” See Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 9 (2003).

“[M]any courts have held [that] the PREP Act does not prevent plaintiffs from bringing

state law claims based on an alleged failure to use covered countermeasures.” See Stone v. Long

Beach Healthcare Ctr., LLC, No. CV 21-326-JFW-(PVCx), 2021 WL 1163572, at *5 (C.D. Cal.

Mar. 26, 2021) (citing cases which “plainly hold that the PREP Act does not wholly displace

state law claims that implicate healthcare entities and COVID-19” (quotation omitted)); see also

Golbad v. GHC of Canoga Park, No. 21-CV-01967-ODW-(PDx), 2021 WL 1753624, at *2

(C.D. Cal. May 4, 2021) (“And, simply put, the PREP Act does not satisfy the Ninth Circuit’s

two-part complete preemption test.”); Padilla v. Brookfield Healthcare Ctr., No. CV 21-2062-

DMG-(ASx), 2021 WL 1549689, at *4 (C.D. Cal. Apr. 19, 2021) (collecting cases and

concluding that “[n]early every other federal court addressing the issue of complete preemption

has found that the PREP Act is not a statute with complete preemptive effect”); Riggs v. Country

Manor La Mesa Healthcare Ctr., No. 21-CV-331-CAB-DEB, 2021 WL 2103017, at *2 (S.D.

Cal. May 25, 2021) (“Although this exact issue does not appear to have been considered by an

appellate court, district courts in the Ninth Circuit and around the country have consistently held

that the PREP Act does not satisfy [the] requirements for complete preemption.”). This is the

most Plaintiffs appear to have alleged here insofar as covered countermeasures are concerned.

Although Defendant cites two district court cases (only one from within this

Circuit/District) that came out differently on the question of the question of complete preemption

and consequential federal question jurisdiction, as the Court noted previously herein, no

controlling decision has been issued since this Court’s decision in Acra. The Court therefore

sees no reason to approach the issues covered in Acra differently here.

Specifically, the Court declines to defer to the HHS Office of the General Counsel’s

January 8, 2021 Advisory Opinion concerning whether the PREP Act is a complete preemption

statute. Again, a federal agency’s interpretations of a statute in the form of opinion letters lack

the force of law and are only “entitled to respect” to the extent they have the “power to

persuade.” See Christensen v. Harris Cty., 529 U.S. 576, 587 (2000) (quoting Skidmore v. Swift

& Co., 323 U.S. 134, 140 (1944)). The Court would agree with the other district courts holding

that the January 8, 2021 Advisory Opinion is not persuasive and therefore “entitled to minimal

respect” because, inter alia, it does “not cite any legal support for the proposition that an

exclusive federal administrative remedy is sufficient for complete preemption.” See Padilla,

2021 WL 1549689, at *4-5 (quotation omitted); see also Smith v. Colonial Care Ctr., Inc., No.

2:21-cv-00494-RGK-PD, 2021 WL 1087284, at *6 (C.D. Cal. Mar. 19, 2021) (same); Stone,

2021 WL 1163572, at *6 (concluding that the “HHS Secretary’s and the OGC’s interpretations

of this Court’s jurisdiction under the PREP Act are not entitled to deference and lack the ‘power

to persuade’”).

Moreover, as other courts within this district have noted, the intra-district decision

Defendant relies upon “did not consider the Ninth Circuit’s two-part complete preemption test.”

See Golbad, 2021 WL 1753624, at *3; see also Estate of McCalebb v. AG Lynwood, LLC, No.

2:20-cv-09746-SB-PVC, 2021 WL 911951, at *4 (C.D. Cal. Mar. 1, 2021). As for the district

court decision from the Western District of Louisiana that Defendant relies upon, the Court again

– as it did in its Acra decision – rejects that ruling as non-binding here. As such, the Court

would decline to hold that the PREP Act is one of the rare statutes to which complete preemption

applies. See Hansen, 902 F.3d at 1057 (the Ninth Circuit has observed that complete preemption

is “rare”); City of Oakland, 969 F.3d at 905-06 (the Supreme Court has identified only three

statutes that meet the complete preemption criteria).

Defendant next contends that federal question jurisdiction exists because Plaintiffs’

claims raise substantial federal issues establishing federal question jurisdiction. Under Grable &

Sons Metal Products, Inc. v. Darue Engineering and Manufacturing, 545 U.S. 308 (2005), state

law claims can provide a basis for federal question jurisdiction if the claims “satisfies both the

well-pleaded complaint rule and passes the ‘implicate[s] significant federal issues’ test,” which

“requires that the federal issue within a state-law claim be ‘necessar[y], actually disputed and

substantial, which a federal forum may entertain without disturbing any congressionally

approved balance of federal and state judicial responsibilities.’” Cal. Shock Trauma Air Rescue

v. State Compensation Ins. Fund, 636 F.3d 538, 542 (9th Cir. 2011) (quoting Grable, 545 U.S. at

314); see also City of Oakland, 969 F.3d at 904 (noting that Grable line of cases concerns “a

‘special and small category’ of state-law claims” and that “[o]nly a few cases have fallen into

this ‘slim category’”) (quoting Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 699,

701 (2006)). Here, the Court sees no indication that Plaintiffs’ case rests on the affirmative use

or administration of any covered countermeasure under the PREP Act. See Smith, 2021 WL

1087284, at *4 (Plaintiffs’ allegations “that Decedent’s injuries were caused by Defendant’s

failure to implement an effective policy for isolating proven or suspected carriers of the

coronavirus, and protecting its residents from exposure to COVID-19 . . . refer to policies and a

failure to protect, not to any covered countermeasure, i.e., drug, product, or device” (quotation

omitted)); Padilla, 2021 WL 1549689, at *5 (“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.”).

Additionally, PREP Act immunity relates to Defendant’s defense, rather than the claims

Plaintiffs allege. “As such, the federal issue is not necessarily raised.” Stone, 2021 WL

1163572, at *7; see also Padilla, 2021 WL 1549689 at *6 (“[I]mmunity under the PREP Act is a

defense, not a necessary aspect of Plaintiffs’ state law claims.”); Thomas v. Century Villa Inc.,

No. 2:21-cv-03013-MCS-KS, 2021 WL 2400970, at *6 (C.D. Cal. June 10, 2021) (observing that

“the PREP Act merely provides [Defendant] with a potential affirmative defense to Plaintiffs’

claims” and therefore does not confer federal question jurisdiction); McCalebb, 2021 WL

911951, at *6 (“Indeed, Defendant fails to distinguish between the scope of preemption required

to confer federal jurisdiction, on the one hand, and the federal defense of preemption, on the

other.”). Defendant cannot remove this action to federal court based on a federal defense,

including the defense of preemption. Franchise Tax Bd., 463 U.S. at 13-14.

Finally, as in Acra, the Court sees no proper basis for deferring to agency opinions

regarding the propriety of Grable-based federal jurisdiction in this context. See Thomas, 2021

WL 2400970, at *6 (Amendment Four and the Advisory Opinion do not persuade the court that

the Grable doctrine grants federal jurisdiction over plaintiffs’ state law claims); McCalebb, 2021

WL 911951, at *3 (“Neither the Secretary nor the OGC provides any significant analysis of

Grable’s narrow holding and its two-pronged test. Deference to the Secretary’s jurisdictional

assertion is not due, and adherence to his conclusory assertion is not warranted.”).

The Court thus would conclude it does not have federal question jurisdiction over

Plaintiffs’ claims.

B. Federal Officer Jurisdiction

As was the case in Acra, Defendant also argues that the Court has jurisdiction over the

case pursuant to 28 U.S.C. § 1442(a)(1), which permits removal of an action against “any officer

(or any person acting under that officer) of the United States or of any agency thereof.” Like in

Acra, however, the Court would find that federal officer jurisdiction does not apply in the instant

case. While the federal officer removal statute must be “liberally construed” in favor of removal

and the words “acting under” are broad, “[a] private firm’s compliance (or noncompliance) with

federal laws, rules, and regulations does not by itself fall within the scope of the statutory phrase

‘acting under’ a federal ‘official.’” Watson v. Philip Morris Cos., Inc., 551 U.S. 142, 147, 153

(2007). “And that is so even if the regulation is highly detailed and even if the private firm’s

activities are highly supervised and monitored.” Id. at 153. At best, that is what appears to be at

issue here. As such, 28 U.S.C. § 1442(a)(1) does not apply here, where Defendant merely points

to its alleged compliance with federal orders and directives pertaining to COVID-19. See

Thomas, 2021 WL 2400970, at *7; McCalebb, 2021 WL 911951, at *6-7; Golbad, 2021 WL

1753624, at *2; Smith, 2021 WL 1087284, at *8.

III. Conclusion

Accordingly, the Court would conclude that Defendant has not sufficiently-demonstrated

this Court’s subject matter jurisdiction over Plaintiffs’ claims. Based on the foregoing

discussion, the Court would grant Plaintiffs’ motion to remand the matter back to the California

Superior Court for Los Angeles County.