Opinion

Frank Paul Piumetti v. Silverado Senior Living, Inc.

Court
District Court, C.D. California
Filed
Sep 14, 2021
Cited by
0 cases
Authority
More cited than 18.0%

The opinion

CIVIL MINUTES – GENERAL

LA CV 21-03488 JAK (JPRx)

Case No. (Lead Case No. CV 21-00070 JAK) Date September 14, 2021

Title Frank Paul Piumetti, et al. v. Silverado Senior Living, Inc., et al.

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

T. Jackson Not Reported

Deputy Clerk Court Reporter / Recorder

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

Not Present Not Present

Proceedings: (IN CHAMBERS) ORDER RE PLAINTIFFS’ MOTION TO REMAND (DKT.

36) JS-6

I. Introduction

On March 2, 2021, Frank Paul Piumetti (“Decedent”), by and through his successors in interest Rosa

Piumetti (“Rosa”), individually; Lisa Farland (“Lisa”), individually; Agatha Piumetti (“Agatha”),

individually; Francesca Piumetti (“Francesca”), individually; Teresa Piumetti (“Teresa”), individually; and

Patricia Piumetti Gutto (“Patricia”), 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”); and

Does 1 through 100 (collectively, “Defendants”). Dkt. 1-2 (“Complaint”).1 On April 23, 2021, the action

was removed. Dkt. 1. The Complaint advances three causes of action: (i) elder abuse and neglect, (ii)

wrongful death, and (iii) negligence. Complaint ¶¶ 58-81.

The Piumetti action has been consolidated for pretrial purposes with the following cases (the

“Consolidated Cases”):

1. Albert Sarnoff, et al. v. Silverado Senior Living, Inc. et al., LA CV 21-70;

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

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

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

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

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

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

CV21-70 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. CV21-70 Dkt. 33.

CIVIL MINUTES – GENERAL

LA CV 21-03488 JAK (JPRx)

Case No. (Lead Case No. CV 21-00070 JAK) Date September 14, 2021

Title Frank Paul Piumetti, et al. v. Silverado Senior Living, Inc., et al.

On May 12, 2021, Plaintiffs filed a motion to remand. Dkt. 21 (“Motion”). On May 25, 2021, Defendants

filed an opposition to the Motion. CV21-70 Dkt. 47 (“Opposition”).2

Pursuant to the Court’s May 6, 2021 Case Management Order (CV21-70 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. CV21-70 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 22, 2020, while Decedent was a resident at Silverado Senior Living – Beverly

Place (the “Silverado Facility” or “Facility”), he died from COVID-19. Complaint ¶ 4. The Facility is a

“Residential Care Facility for the Elderly” (“RCFE”), which is located at 330 N. Hayworth Avenue, Los

Angeles, CA 90048. Id. ¶ 8. 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. ¶ 7.

It is alleged that Rose was Decedent’s spouse, and that Lisa, Agatha, Francesca, Teresa and Patricia

were Decedent’s children. Id. ¶ 7. It is further alleged that Rose, Lisa, Agatha, Francesca, Teresa and

Patricia are Decedent’s heirs and successors in interest. Id.

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. ¶ 8-9. It is further alleged that there are 20 Silverado facilities in California. Id. ¶ 9.

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. ¶ 10. 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. ¶ 14.

2 The Motion was filed on the docket in the Piumetti action (LA CV 21-3488) on May 11, 2021. Dkt. 21. On May

12, 2021, an Order issued closing the docket in the Piumetti action and directing the parties to re-file all pending

motions on the docket in the Consolidated Cases (LA CV 21-70). Dkt. 23. Accordingly, the Motion was re-filed on

the docket in the Consolidated Cases. CV21-70 Dkt. 36. The Opposition was only filed on the docket in the

CIVIL MINUTES – GENERAL

LA CV 21-03488 JAK (JPRx)

Case No. (Lead Case No. CV 21-00070 JAK) Date September 14, 2021

Title Frank Paul Piumetti, et al. v. Silverado Senior Living, Inc., et al.

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. ¶ 32. 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. ¶ 33.

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 number of responsive measures to contain

the outbreak, including the closure of all nonessential businesses throughout the state. Id. ¶ 35.

It is alleged that, on March 14, 2020, Jason Russo (“Russo”), the Certified Administrator of the

Silverado Facility, 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. ¶¶ 15, 38. On March 15, 2020, Russo

allegedly sent another email prohibiting private duty companions from visiting the Facility. Id. ¶ 39.

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 from

the airport to [the Facility’s] memory care unit on the third floor, without any period of isolation or

quarantine.” Id. ¶ 42. 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, “he was not quarantined and not tested for the

virus.” Id.

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.

¶ 43. 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. ¶ 44.

It is alleged that Defendants “concealed [the New Resident’s] condition from their staff, residents, and

residents’ families and in doing so concealed the fact that they had been exposed to the virus,” while

allegedly “communicating that they were taking the virus seriously and taking precautions to protect

residents from its spread.” Id. ¶ 65.

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 COVID-19 and had been “transferred to Cedars-Sinai for medical

attention.” Id. ¶ 46.

It is alleged that, since the New Resident tested positive for the coronavirus, at least 58 residents and

CIVIL MINUTES – GENERAL

LA CV 21-03488 JAK (JPRx)

Case No. (Lead Case No. CV 21-00070 JAK) Date September 14, 2021

Title Frank Paul Piumetti, et al. v. Silverado Senior Living, Inc., et al.

It is alleged that Decedent was admitted to the Silverado Facility on May 18, 2019. Id. ¶ 4. It is further

alleged that Decedent “contracted COVID-19 shortly after [the New Resident] was admitted to [the

Facility].” Id. Finally, it is alleged that Decedent died on April 22, 2020, ”[a]fter suffering a lengthy battle

with the virus.” Id.

III. 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 (AJWx), 2017 U.S. Dist. LEXIS 218428, at *6-7 (C.D. Cal.

Oct. 19, 2017); U.S. ex rel. Modglin v. DJO Glob., Inc., 114 F. Supp. 3d 993, 1008 (C.D. Cal. 2015).

Defendants request judicial notice of 32 exhibits. CV21-70 Dkt. 43 at 2-6.3 Each is either a government

document, a document on file in a federal or state court, or a judicial opinion, for which there is not a

reasonable dispute as to authenticity. Therefore, judicial notice of these documents is appropriate, and

Defendants’ Request for Notice is GRANTED.

IV. Analysis

A. Legal Standards

1. Removal

A motion to remand is the vehicle used to challenge the removal of an action. Moore-Thomas v. Alaska

Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009); see 28 U.S.C. § 1447(c). In general, a state civil

action may be removed only if, at the time of its removal, it is one that initially could have been brought

in a federal court on the basis of either federal question or diversity jurisdiction. Id. § 1441.

Because federal courts are ones of limited jurisdiction, the removal statute is to be strictly construed;

any doubt about removal is to be resolved in favor of remand. Gaus v. Miles, Inc., 980 F.2d 564, 566

(9th Cir. 1992) (citing Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979)). The

removing party has the burden to establish that it was proper to do so. Id. “If a case is improperly

removed, the federal court must remand the action because it has no subject-matter jurisdiction to

3 Defendants state that they filed a Request for Judicial Notice concurrently with their Opposition. Opposition at 2.

None was filed. In the Opposition, Defendants cite to Dkt. 43, which is a Request for Judicial Notice in support of

CIVIL MINUTES – GENERAL

LA CV 21-03488 JAK (JPRx)

Case No. (Lead Case No. CV 21-00070 JAK) Date September 14, 2021

Title Frank Paul Piumetti, et al. v. Silverado Senior Living, Inc., et al.

decide the case.” ARCO Envtl. Remediation, L.L.C. v. Dep’t of Health & Envtl. Quality of Mont., 213

F.3d 1108, 1113 (9th Cir. 2000).

2. The PREP Act

The Public Readiness and Emergency Preparedness (“PREP”) Act confers on the Secretary of the

Department of Health and Human Services (“HHS”) the authority to “make[] a determination that a

disease or other health condition or other threat to health constitutes a public health emergency, or that

there is a credible risk that the disease, condition, or threat may in the future constitute such an

emergency.” 42 U.S.C. § 247d-6d(b)(1). If the Secretary of HHS has made such a determination, 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.

Id. § 247d-6d(a)(1). “[C]overed countermeasure[s]” include certain types of drugs and biological

products and certain types of devices, including respiratory protective devices. Id. § 247d-6d(i)(1). A

“covered person” is a “person or entity” that manufactures or distributes a covered countermeasure; “a

program planner of such countermeasure”; “a qualified person who prescribed, administered, or

dispensed such countermeasure”; or “an official, agent, or employee of” any covered person. Id. §

247d-6d(i)(2).

If the Secretary of HHS relies on the PREP Act to declare a public health emergency, the Act provides

for an administrative remedy for “eligible individuals for covered injuries directly caused by the

administration or use of a covered countermeasure pursuant to such declaration.” Id. § 247d-6e(a).

Such persons may seek compensation from the “Covered Countermeasure Process Fund,” which is

established by the Act to “provid[e] timely, uniform, and adequate compensation” for such individuals.

Id.

On March 10, 2020, the Secretary of HHS issued a declaration pursuant to the PREP Act (the

“Declaration”) “determin[ing] that the spread of SARS-CoV-2 or a virus mutating therefrom and the

resulting disease COVID-19 constitutes a public health emergency.” Ex. 2 to Defendants’ RFN, Dkt. 5-2

at 5; 85 Fed. Reg. 15198 (Feb. 4, 2020).4 Since then, the Secretary of HHS has issued several

amendments to the Declaration. See Defendants’ RFN at 2-6. Two of these amendments are relevant

to the Motion.

The fourth amendment states that there are “substantial federal legal and policy interests within the

4 Defendants’ RFN was filed on the docket in the Consolidated Cases. CV21-70 Dkt. 43. It states that a copy of

each of the documents of which it requests judicial notice is attached as an exhibit to “Dkt. No. 5.” Id. at 2-6. Dkt.

5 on the docket in the Consolidated Cases, where Defendants’ RFN was filed, does not include all of these

exhibits. However, Dkt. 5 on the docket in the Piumetti action does include all of the exhibits referenced in

CIVIL MINUTES – GENERAL

LA CV 21-03488 JAK (JPRx)

Case No. (Lead Case No. CV 21-00070 JAK) Date September 14, 2021

Title Frank Paul Piumetti, et al. v. Silverado Senior Living, Inc., et al.

meaning of Grable & Sons Metal Products, Inc. v. Darue [Eng’g & Mfg.], 545 U.S. 308 (2005), in having

a uniform interpretation of the PREP Act.” Ex. 5 to Defendants’ RFN, Dkt. 5-5 at 9; 85 Fed. Reg. 79190-

01 (Feb. 4, 2020). This amendment also “clarif[ies] that the ‘administration’ of a covered

countermeasure may also include not administering a covered countermeasure.” Padilla v. Brookfield

Healthcare Ctr., No. CV-21-2062-DMG (ASx), 2021 U.S. Dist. LEXIS 75846, at *7 (C.D. Cal. Apr. 19,

2021) (citing 85 Fed. Reg. 79190-01 (Feb. 4, 2020)).

The fifth amendment expands the definition of “qualified person” so that it includes pharmacists who

already administer certain vaccines. Ex. 30 to Defendants’ RFN, Dkt. 5-30 at 5; 86 Fed. Reg. 7872-02

(Jan. 28, 2021). Designating these pharmacists as “qualified person[s]” brings them within the PREP

Act’s definition of “covered person[s].” The fifth amendment then states:

On May 19, 2020, the Office of the General Counsel issued an advisory opinion concluding that,

because licensed pharmacists are “qualified persons” under this declaration, the PREP Act

preempts state law that would otherwise prohibit such pharmacists from ordering and

administering authorized COVID-19 diagnostic tests. The opinion relied in part on the fact that

the Congressional delegation of authority to the Secretary under the PREP Act to specify a

class of persons, beyond those who are authorized to administer a covered countermeasure

under State law, as “qualified persons” would be rendered a nullity in the absence of such

preemption. . . . Based on the reasoning set forth in the May 19, 2020 advisory opinion, any

State law that would otherwise prohibit a member of any of the classes of “qualified persons”

specified in this declaration from administering a covered countermeasure is likewise

preempted. . . .

The plain language of the PREP Act makes clear that there is complete preemption of [S]tate

law as described above. Furthermore, preemption of State law is justified to respond to the

nation-wide public health emergency caused by COVID-19 as it will enable States to quickly

expand the vaccination workforce with additional qualified healthcare professions where State

or local requirements might otherwise inhibit or delay allowing these healthcare professionals to

participate in the COVID-19 vaccination program.

Ex. 30 to Defendants’ RFN, Dkt. 5-30 at 4; 86 Fed. Reg. 7872-02 (Jan. 28, 2021).

B. Application

Plaintiffs argue this action should be remanded because there is no subject matter jurisdiction. Motion

at 11.

1. Federal Question Jurisdiction

a) Whether Plaintiffs’ Claims Are Completely Preempted by the PREP Act

Defendants argue that there is federal question jurisdiction because the PREP Act completely preempts

Plaintiffs’ claims. Dkt. 1 ¶ 21; Opposition at 11.

CIVIL MINUTES – GENERAL

LA CV 21-03488 JAK (JPRx)

Case No. (Lead Case No. CV 21-00070 JAK) Date September 14, 2021

Title Frank Paul Piumetti, et al. v. Silverado Senior Living, Inc., et al.

that ‘[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution,

laws, or treaties of the United States.’” City of Oakland v. BP PLC, 969 F.3d 895, 903 (9th Cir. 2020).

“The general rule, referred to as the ‘well-pleaded complaint rule,’ is that a civil action arises under

federal law for purposes of § 1331 when a federal question appears on the face of the complaint.” Id.

(citing Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)); see Hawaii ex rel. Louie v. HSBC Bank

Nev., N.A., 761 F.3d 1027, 1034 (9th Cir. 2014); Dahl v. Rosenfeld, 316 F.3d 1074, 1076-77 (9th Cir.

2003) (citing Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1106 (9th Cir. 2000)). It is

well settled under the well-pleaded complaint rule that “a case may not be removed to federal court on

the basis of a federal defense, including a defense of preemption, 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.” Dahl, 316 F.3d at 1077 (citing Balcorta, 208 F.3d at 1106) (internal quotation marks

omitted).

There are some exceptions to the well-pleaded complaint rule, including “the artful-pleading doctrine.”

City of Oakland, 969 F.3d at 905 (internal quotation marks omitted). Under this doctrine, removal is

proper when the “preemptive force” of a federal statute is “so strong that [it] ‘completely preempt[s]’ an

area of state law.” Dahl, 316 F.3d at 1077 (citing Balcorta, 208 F.3d at 1107). “Once an area of state

law has been completely pre-empted, any claim purportedly based on that pre-empted state law is

considered, from its inception, a federal claim, and therefore arises under federal law.” Caterpillar, 482

U.S. at 393 (citing Franchise Tax. Bd. of State of Cal. v. Construction Laborers Vacation Tr. for S. Cal.,

463 U.S. 1, 24 (1983)); see also Hall v. N. Am. Van Lines, Inc., 476 F.3d 683, 689 n.8 (9th Cir. 2007);

Moore-Thomas, 553 F.3d at 1244.

For a federal statute to preempt completely an area of state law, it “must ‘provide[] the exclusive cause

of action for the claim asserted and also set forth procedures and remedies governing that cause of

action.’” City of Oakland, 969 F.3d at 905 (quoting Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8

(2003)). “The Supreme Court has identified only three statutes” that have complete preemptive effect:

(1) § 301 of the Labor Management Relations Act, 29 U.S.C. § 185; (2) § 502 of the Employee

Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1132(a); and (3) §§ 85 and 86 of the

National Bank Act, 12 U.S.C. §§ 85, 86. Id. (citations omitted). The Ninth Circuit has “held that complete

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 of action.” Id. at 906.

Plaintiffs’ claims do not come within the scope of the PREP Act. They arise from Defendants’ allegedly

permitting the New Resident who had traveled from New York to move into the Silverado Facility. In

taking this action, Defendants allegedly allowed the New Resident and his daughter, who recently had

traveled to California from London via New York, to enter the Facility without requiring either to be

tested for COVID-19 or to quarantine for any period. None of Defendants’ alleged actions or omissions

involve covered countermeasures. Therefore, Plaintiffs’ claims do not come within the scope of the

PREP Act. Accord Thomas v. Century Villa Inc., No. 2:21-cv-03013-MCS-KS, 2021 U.S. Dist. LEXIS

110094, at *9 (C.D. Cal. June 10, 2021) (citing Smith v. Colonia Care Ctr. Inc., No. 2:21-cv-00494-

RGK-PD, 2021 U.S. Dist. LEXIS 53554, at *5 (C.D. Cal. Mar. 19, 2021)); Padilla, 2021 U.S. Dist. LEXIS

75846, at *13-14; Nava v. Parkwest Rehab. Ctr. LLC, No. 2:20-cv-07571-ODW (AFMx), 2021 U.S. Dist.

LEXIS 65837, at *7 (C.D. Cal. Apr. 5, 2021) (citations omitted); Smith, 2021 U.S. Dist. LEXIS 53554, at

CIVIL MINUTES – GENERAL

LA CV 21-03488 JAK (JPRx)

Case No. (Lead Case No. CV 21-00070 JAK) Date September 14, 2021

Title Frank Paul Piumetti, et al. v. Silverado Senior Living, Inc., et al.

Even if Plaintiffs’ claims did fall within the scope of the PREP Act, that statute is not one of complete

preemption. “[C]omplete preemption that confers federal question jurisdiction is very rare.” Martin v.

Serrano Post Acute LLC, No. CV 20-5937-DSF (SKx), 2020 U.S. Dist. LEXIS 165874, at *4 (C.D. Cal.

Sep. 10, 2020) (citing City of Oakland, 969 F.3d at 895). “[T]he PREP Act is ‘not one of the three

statutes that the Supreme Court has determined has extraordinary preemptive force.” Saldana v.

Glenhaven Healthcare LLC, No. CV 20-5631-FMO (MAAx), 2020 U.S. Dist. LEXIS 216490, at *5 (C.D.

Cal. Oct. 14, 2020) (citing City of Oakland, 969 F.3d at 907; Martin, 2020 U.S. Dist. LEXIS 165874, at

*1-2); see also Parker v. St. Jude Operating Co., LLC, No. 3:20-cv-01325-HZ, 2020 U.S. Dist. LEXIS

249253, at *12 (D. Or. Dec. 27, 2020) (citing City of Oakland, 969 F.3d at 905).

Nor does the PREP Act provide an exclusive federal cause of action. “For a federal statute to

completely preempt a state law claim, the federal statute must ‘provide[] the exclusive cause of action

for the [state law] claim asserted and also set forth procedures and remedies governing that cause of

action.’” Smith, 2021 U.S. Dist. LEXIS 53554, at *12-13 (citing, inter alia, Beneficial Nat’l Bank, 539

U.S. at 8; Moore-Thomas, 553 F.3d at 1245). Rather than provide “an exclusive federal cause of

action,” “the PREP Act provides for a federal administrative remedy for injuries arising from non-willful

behavior.” Padilla, 2021 U.S. Dist. LEXIS 75846, at *11. This is insufficient to make the PREP Act a

complete preemption statute. See id.; Dupervil v. All. Health Operations, LLC, No. 20-CV-4042 (PKC)

(PK), 2021 U.S. Dist. LEXIS 20257, at *24 (E.D.N.Y. Feb. 2, 2021).5

5 Many other orders issued in this District have reached the same determination, i.e., that the PREP Act is not a

complete preemption statute. See Cortez v. Parkwest Rehab. Ctr. LLC, No. CV 21-05172-AB (ASx), 2021 U.S.

Dist. LEXIS 168019, at *11 (C.D. Cal. Sep. 3, 2021); Estate of Heim v. 1495 Cameron Ave., LLC, No. CV 21-

6221-PA (ADSx), 2021 U.S. Dist. LEXIS 155006, at *12 (C.D. Cal. Aug. 17, 2021); Estate of Jenkins v. Beverly

Hills Senior Care Facility, Inc., No. CV 21-4902-JFW (KSx), 2021 U.S. Dist. LEXIS 152198, at *10 (C.D. Cal. Aug.

12, 2021); Olivares v. BMS Healthcare, Inc., No. CV 21-6298-DMG (JEMx), 2021 U.S. Dist. LEXIS 149395, at *2-

3 (C.D. Cal. Aug. 9, 2021) (citing Padilla, 2021 U.S. Dist. LEXIS 75846, at *2-6); Estate of Vyden v. Vista Del Sol

LTC, Inc., No. CV 21-4628-GW (PLAx), 2021 U.S. Dist. LEXIS 149139, at *11 (C.D. Cal. Aug. 5, 2021) (citations

omitted); Romeo v. Canoga Healthcare, Inc., No. CV 21-02918-AB (RAOx), 2021 U.S. Dist. LEXIS 147172, at *8

(C.D. Cal. Aug. 5, 2021); Swick v. Canoga Healthcare, Inc., No. CV 21-02876-AB (RAOx), 2021 U.S. Dist. LEXIS

147237, at *8 (C.D. Cal. Aug. 5, 2021); Holloway v. Centinela Skilled Nursing & Wellness Ctr. W., LLC, No. CV

21-6106-DMG (AGRx), 2021 U.S. Dist. LEXIS 146141, at *2 (C.D. Cal. Aug. 4, 2021) (citing Padilla, 2021 U.S.

Dist. LEXIS 75846, at *2-6); Estate of Acosta v. WDW Joint Venture, No. CV 21-05762-PA (MRWx), 2021 U.S.

Dist. LEXIS 137027, at *9-10 (C.D. Cal. July 21, 2021); Acra v. Cal. Magnolia Convalescent Hosp., Inc., No.

EDCV 21-898-GW-SHKx, 2021 U.S. Dist. LEXIS 124484, at *14 (C.D. Cal. July 1, 2021); Green v. Westwood

Healthcare & Wellness Ctr., LP, No. CV 21-4839-MWF (AFMx), 2021 U.S. Dist. LEXIS 124488, at *4 (C.D. Cal.

July 1, 2021); Reed v. Sunbridge Hallmark Health Servs., LLC, No. CV 21-3702-JFW (AGRx), 2021 U.S. Dist.

LEXIS 119092, at *17 (C.D. Cal. June 25, 2021); Thomas, 2021 U.S. Dist. LEXIS 110094, at *9; Lopez v.

Greenfield Care Ctr. of S. Gate, No. 2:21-cv-02806-RGK-PVC, 2021 U.S. Dist. LEXIS 117647, at *4 (C.D. Cal.

May 19, 2021); Golbad v. GHC of Canoga Park, No. 2:21-CV-01967-ODW (PDx), 2021 U.S. Dist. LEXIS 85331,

at *4-5 (C.D. Cal. May 4, 2021); Padilla, 2021 U.S. Dist. LEXIS 75846, at *13 (citing Hansen v. Grp. Health Coop.,

902 F.3d 1051, 1057 (9th Cir. 2018)); Winn v. Cal. Post Acute LLC, No. CV 21-02854-PA (MARx), 2021 U.S. Dist.

LEXIS 67760, at *14 (C.D. Cal. Apr. 6, 2021); Stone v. Long Beach Healthcare Ctr., LLC, No. CV 21-326-JFW

(PVCx), 2021 U.S. Dist. LEXIS 58410, at *18 (C.D. Cal. Mar. 26, 2021); Smith, 2021 U.S. Dist. LEXIS 53554, at

*17; Estate of McCalebb v. AG Lynwood, LLC, No. 2:20-cv-09746-SB (PVCx), 2021 U.S. Dist. LEXIS 47239, at *8

CIVIL MINUTES – GENERAL

LA CV 21-03488 JAK (JPRx)

Case No. (Lead Case No. CV 21-00070 JAK) Date September 14, 2021

Title Frank Paul Piumetti, et al. v. Silverado Senior Living, Inc., et al.

Defendants’ citation to Advisory Opinion 21-01 of the HHS Office of the General Counsel (“OGC”) (the

“Advisory Opinion”) is not persuasive. Opposition at 10. The Advisory Opinion states, “The 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.” Ex. 9 to Defendants’ RFN, Dkt. 5-9 at 3. “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.” Padilla, 2021 U.S. Dist. LEXIS

75846, at *12 (citing United States v. Mead Corp., 533 U.S. 218, 228 (2001); Skidmore v. Swift & Co.,

323 U.S. 134, 139-40 (1944)).

The Advisory Opinion “lacks the power to persuade.” Smith, 2021 U.S. Dist. LEXIS 53554, at *16 (citing

Dupervil, 2021 U.S. Dist. LEXIS 20257, at *10); accord Estate of Heim, 2021 U.S. Dist. LEXIS 155006,

at *11 n.1; Estate of Jenkins, 2021 U.S. Dist. LEXIS 152198, at *14; Estate of Vyden, 2021 U.S. Dist.

LEXIS 149139, at *10 (citations omitted); Acra, 2021 U.S. Dist. LEXIS 124484, at *14 (citations

omitted); Reed, 2021 U.S. Dist. LEXIS 119092, at *17; Thomas, 2021 U.S. Dist. LEXIS 110094, at *11-

12; Lopez, 2021 U.S. Dist. LEXIS 117647, at *4 (citing Stone, 2021 U.S. Dist. LEXSIS 58410, at *7);

Golbad, 2021 U.S. Dist. LEXIS 85331, at *7; Padilla, 2021 U.S. Dist. LEXIS 75846, at *12-13; Stone,

2021 U.S. Dist. LEXIS 58410, at *18. “The Ninth Circuit . . . has affirmed that ‘a federal statute must

provide the “exclusive cause of action” for complete preemption to apply.’” Smith, 2021 U.S. Dist.

LEXIS 53554, at *16 (citing Moore-Thomas, 553 F.3d at 1245). As in Smith, “[n]either Defendant[s] nor

the [Advisory Opinion] cites any legal support for the ‘proposition that an exclusive federal

administrative remedy is sufficient for complete preemption,’” which is also inconsistent with Ninth

Circuit authority. Id. (citing Dupervil, 2021 U.S. Dist. LEXIS 20257, at *10).

The Advisory Opinion is also not entitled to Chevron deference. See Dkt. 1 ¶ 19; Opposition at 14, 19.

“Courts give administrative agency decisions ‘Chevron deference when it appears that Congress

delegated authority to the agency generally to make rules carrying the force of law, and that the agency

interpretation claiming deference was promulgated in the exercise of that authority.’” Thomas, 2021

U.S. Dist. LEXIS 110094, at *12 (citing Mead, 533 U.S. at 226-27). “[T]he Advisory Opinion . . .

expressly states that it ‘does not have the force or effect of law.’ Thus, even assuming that Congress

intended to delegate authority to the Secretary and HHS's Office of the General Counsel ‘generally to

make rules carrying the force of law,’ the Office of the General Counsel interpretation relied upon by

Defendants here explicitly was not ‘promulgated in the exercise of that authority’ and is not entitled to

Chevron deference.” Dupervil, 2021 U.S. Dist. LEXIS 20257, at *28 (citations omitted); accord Thomas,

2021 U.S. Dist. LEXIS 110094, at *12 (citing Dupervil, 2021 U.S. Dist. LEXIS 20257, at *10).

b) Whether Plaintiffs’ Claims Raise a Substantial Federal Issue

Defendants argue that “[f]ederal jurisdiction is . . . appropriate as the state action ‘arises under’ federal

Jones v. St. Jude Operating Co., No. 3:20-cv-01088-SB, 2021 U.S. Dist. LEXIS 43876, at *16 (D. Or. Feb. 16,

2021); Parker v. St. Jude Operating Co., LLC, No. 3:20-cv-01325-HZ, 2020 U.S. Dist. LEXIS 249253, at *14 (D.

CIVIL MINUTES – GENERAL

LA CV 21-03488 JAK (JPRx)

Case No. (Lead Case No. CV 21-00070 JAK) Date September 14, 2021

Title Frank Paul Piumetti, et al. v. Silverado Senior Living, Inc., et al.

law and raises a substantial federal issue, actually disputed and substantial.” Dkt. 1 ¶ 46 (citing Grable,

545 U.S. at 308); see Opposition at 25-27.

Another exception to the well-pleaded complaint rule applies to a “‘special and small category’ of state-

law claims that arise under federal law for purposes of § 1331 ‘because federal law is a necessary

element of the . . . claim for relief.’” City of Oakland, 969 F.3d at 904 (citing Empire Healthchoice

Assur., Inc. v. McVeigh, 547 U.S. 677, 699 (2006)) (internal quotation marks omitted). Under this

exception, there is federal question jurisdiction when a “substantial, disputed question of federal law is

a necessary element of one of the well-pleaded state claims.” Wander v. Kaus, 304 F.3d 856, 858 (9th

Cir. 2002) (quoting Franchise Tax Bd. of State of Cal., 463 U.S. at 13). Thus, “federal jurisdiction over a

state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial,

and (4) capable of resolution in federal court without disrupting the federal-state balance approved by

Congress.” Gunn v. Minton, 568 U.S. 251, 258 (citing Grable, 545 U.S. at 310). “Where all four of these

requirements are met . . . jurisdiction is proper because there is a ‘serious federal interest in claiming

the advantages thought to be inherent in a federal forum,’ which can be vindicated without disrupting

Congress’s intended division of labor between state and federal courts.” Id. This doctrine “captures the

commonsense notion that a federal court ought to be able to hear claims recognized under state law

that nonetheless turn on substantial questions of federal law, and thus justify resort to the experience,

solicitude, and hope of uniformity that a federal forum offers on federal issues.” Grable, 545 U.S. at 312

(citation omitted).

The first question under Gunn is whether a federal issue is “necessarily raised.” Because Plaintiffs’

claims do not fall within the scope of the PREP Act, they do not raise a federal issue. Accord Golbad,

2021 U.S. Dist. LEXIS 85331, at *5-6 (citing City of Oakland, 969 F.3d at 906-07); Padilla, 2021 U.S.

Dist. LEXIS 75846, at *13-14; Holman v. Sunrise Villa Culver City, No. 2:21-cv-01054-RGK (JEMx),

2021 U.S. Dist. LEXIS 74922, at *15 (C.D. Cal. Apr. 16, 2021). “Instead, the PREP Act merely provides

[Defendants] with a potential affirmative defense to Plaintiffs’ claims,” which “does not confer this Court

with federal question jurisdiction.” Thomas, 2021 U.S. Dist. LEXIS 110094, at *15 (citations omitted).

c) Whether the Federal Officer Removal Statute Applies

Defendants argue that there is federal question jurisdiction “under 28 U.S.C. § 1442(a)(1), which

provides for removal when a defendant is sued for acts undertaken at the direction of a federal officer.”

Dkt. 1 ¶ 54. Defendants contend that they were acting at the direction of the CDC and the Centers for

Medicare and Medicaid Services (“CMS”). Id. ¶¶ 64-65.

“Federal officer removal is available under 28 U.S.C. § 1442(a) if ‘(a) [the removing party] is a person

within the meaning of the statute; (b) there is a causal nexus between its actions, taken pursuant to a

federal officer's directions, and plaintiff's claims; and (c) it can assert a colorable federal defense.’”

Martin, 2020 U.S. Dist. LEXIS 165874, at *3 (citing Fidelitad, Inc. v. Insitu, Inc., 904 F.3d 1095, 1099

(9th Cir. 2018)) (internal quotation marks omitted).

The federal regulations cited by Defendants are not sufficiently detailed to warrant applying the federal

officer removal statute. “The directions Defendants point to are general regulations and public directives

CIVIL MINUTES – GENERAL

LA CV 21-03488 JAK (JPRx)

Case No. (Lead Case No. CV 21-00070 JAK) Date September 14, 2021

Title Frank Paul Piumetti, et al. v. Silverado Senior Living, Inc., et al.

Defendants note, “the federal officer removal statute must be ‘liberally construed.’” Id. (citing Watson v.

Philip Morris Cos., Inc., 551 U.S. 142, 147 (2007)); see also Dkt. 1 ¶ 48. However, Defendants did not

act “pursuant to a federal officer’s directions” within the meaning of the statute. See Thomas, 2021 U.S.

Dist. LEXIS 110094, at *16 (citations omitted); Golbad, 2021 U.S. Dist. LEXIS 85331, at *4; Winn, 2021

U.S. Dist. LEXIS 67760, at *14; Stone, 2021 U.S. Dist. LEXIS 58410, at *21. “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.’” Martin, 2020 U.S. Dist. LEXIS 165874,

at *4 (citing Watson, 551 U.S. at 153) (internal quotation marks omitted); accord Green v. Westwood

Healthcare & Wellness Ctr., LP, No. CV 21-4839-MWF (AFMx), 2021 U.S. Dist. LEXIS 132963, at *3

(C.D. Cal. July 16, 2021); Stone, 2021 U.S. Dist. LEXIS 58410, at *22; Saldana, 2020 U.S. Dist. LEXIS

216490, at *6-7. This is the case “even if the regulation is highly detailed and even if the private firm's

activities are highly supervised and monitored.” Winn, 2021 U.S. Dist. LEXIS 67760, at *15 (citing

Martin, 2020 U.S. Dist. LEXIS 165874, at *4).

* * *

For the foregoing reasons, there is no federal jurisdiction.

V. Conclusion

For the reasons stated in this Order, the Motion to Remand is GRANTED. This action is remanded to

the Los Angeles Superior Court at its Stanley Mosk Courthouse (Case No. 20STCV08232).

IT IS SO ORDERED.

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Initials of Preparer mr

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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