In Re: Silverado Senior Living, Inc

CIVIL MINUTES – GENERAL

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

Title Albert Sarnoff, 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.

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)).

CIVIL MINUTES – GENERAL

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

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

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

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

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

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 number 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

CIVIL MINUTES – GENERAL

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

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

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 (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. Dkt. 25 at 2-6. 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’

RFN is GRANTED.

Although Plaintiffs have not filed a separate request for judicial notice, they seek judicial notice of

Exhibits D through F to the Motion: the Complaint, Notice of Removal and Order in Martin v. Serrano

Post Acute LLC, No. CV 20-5937 DSF (SKx), 2020 U.S. Dist. LEXIS 165874 (C.D. Cal. Sep. 10, 2020).

Dkt. 14 at 22 n.4 (“Plaintiffs’ RFN”). The Complaint and Notice of Removal in Martin are documents on

file in a federal court and are properly the subject of judicial notice. However, it is unnecessary to take

judicial notice of the Order in Martin because it is a published decision. See Care First Surgical Ctr. v.

ILWU-PMA Welfare Plan, No. CV 14-01480 MMM (AGRx), 2014 U.S. Dist. LEXIS 165744, at *10-11

(C.D. Cal. July 28, 2014) (citations omitted). Therefore, Plaintiffs’ RFN is GRANTED IN PART.

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

CIVIL MINUTES – GENERAL

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

Title Albert Sarnoff, 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). Since then, the Secretary of HHS has issued several

amendments to the Declaration. See Defendants’ RFN, Dkt. 25 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

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).

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

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

already administer certain vaccines. Ex. 30 to Defendants’ RFN, Dkt. 25-2 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. 25-2 at 4; 86 Fed. Reg. 7872-02 (Jan. 28, 2021).

B. Application

Plaintiffs argue this action should be remanded because there is neither federal question nor diversity

jurisdiction. Dkt. 14 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. 24 at 10.

“Federal-question jurisdiction stems from a congressional enactment, 28 U.S.C. § 1331, which provides

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.

CIVIL MINUTES – GENERAL

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

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

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 (KSx), 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

(PDx), 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

*10 (C.D. Cal. Mar. 19, 2021).

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, 2020

U.S. Dist. LEXIS 165874, at *4 (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

CIVIL MINUTES – GENERAL

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

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

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).2

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

“Advisory Opinion”) is not persuasive. Dkt. 24 at 14. 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

2 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-PVC, 2021 U.S. Dist. LEXIS 47239, at *8

(C.D. Cal. Mar. 1, 2021); Lyons v. Cucumber Holdings, LLC, No. CV 20-10571-JFW(JPRx), 2021 U.S. Dist.

LEXIS 20838, at *14 (C.D. Cal. Feb. 3, 2021) (citing Hansen, 902 F.3d at 1057); see also Roebuck v. Mayo Clinic,

No. CV-21-00510-PHX-DLR, 2021 U.S. Dist. LEXIS 89127, at *12 (D. Ariz. May 7, 2021); Estate of Judith Joy

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.

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both.” Ex. 29 to Defendants’ RFN, Dkt. 25-1 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 ¶ 34. “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

law and raises a substantial federal issue, actually disputed and substantial.” Dkt. 1 ¶ 45 (citing Grable,

545 U.S. at 308).

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

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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-JEM, 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 ¶ 47. Defendants contend that they were acting at the direction of the CDC and the Centers for

Medicare and Medicaid Services (“CMS”). Id. ¶¶ 57-58.

“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

regarding the provision of medical services.” Martin, 2020 U.S. Dist. LEXIS 165874, at *3; Saldana,

2020 U.S. Dist. LEXIS 216490, at *6-7 (citing Martin, 2020 U.S. Dist. LEXIS 165874, at *3). As

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

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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).

2. Diversity Jurisdiction

Federal courts have diversity jurisdiction where the amount in controversy exceeds $75,000 and the

adverse parties are citizens of different states. 28 U.S.C. §§ 1332, 1441. Complete diversity of

citizenship is required, i.e., “the citizenship of each plaintiff [must be] different from that of each

defendant.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1043 (9th Cir. 2009). A “natural person’s state

citizenship is [ ] determined by her state of domicile, not her state of residence. A person's domicile is

her permanent home, where she resides with the intention to remain or to which she intends to return.”

Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001).

The parties do not dispute that the amount in controversy requirement is met. See Dkt. 1 ¶ 5; Dkt. 14 at

12. Nor do they disagree as to the citizenship of most of the parties and whether that citizenship should

be considered in determining whether the complete diversity requirement has been satisfied. See Dkt. 1

¶¶ 6-17; Dkt. 14 at 18. Defendants contend that Kenneth is a citizen of North Carolina, Douglas is a

citizen of New York, and Nancy Sarnoff, who is a nominal defendant whose citizenship is not

considered for diversity jurisdiction purposes, is a citizen of California. Dkt. 1 ¶¶ 6, 8-9. Defendants then

add that Silverado Senior Living, Inc., is a California corporation whose principal place of business is in

Ohio, Silverado Senior Living Management, Inc. is a Delaware corporation whose principal place of

business is in California, and Subtenant 330 North Hayworth Avenue, LLC, is a citizen of Ohio. Id. ¶¶

11-12, 14. Plaintiffs have not challenged these contentions as to the citizenship of the parties.

What is disputed is the citizenship of Decedent’s estate (the “Estate”), i.e., whether it is deemed a

California citizen. “Kenneth brings the claim of Elder Abuse and Neglect on behalf of [Decedent] in his

capacity as Successor in Interest.” Dkt. 1-1 ¶ 15. Plaintiffs argue that, because “‘the legal

representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the

decedent,’” the Estate is a citizen of California. Dkt. 14 at 18. Plaintiffs then argue that this defeats

complete diversity. Id. (citing 28 U.S.C. § 1332(c)). Defendants argue that Kenneth has not established

that he is Decedent’s successor in interest. Dkt. 1 ¶ 7. They contend that Kenneth lacks standing to

bring an action on behalf of the Estate, so the claim asserted on behalf of the Estate must be dismissed

and the Estate’s California citizenship must not be considered.

As noted, 28 U.S.C. § 1332(c)(2) provides that “the legal representative of the estate of a decedent

shall be deemed to be a citizen only of the same State as decedent.” 28 U.S.C. § 1332(c)(2).

California Code of Civil Procedure § 377.32 imposes the following requirement:

The person who seeks to commence an action or proceeding . . . as the decedent’s successor

in interest under this article, shall execute and file an affidavit or a declaration under penalty of

perjury under the laws of this state stating all of the following:

(1) The decedent’s name.

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(3) “No proceeding is now pending in California for administration of the decedent’s estate.”

(4) If the decedent’s estate was administered, a copy of the final order showing the distribution

of the decedent’s cause of action to the successor in interest.

(5) Either of the following, as appropriate, with facts in support thereof:

(A) “The affiant or declarant is the decedent’s successor in interest (as defined in

Section 377.11 of the California Code of Civil Procedure) and succeeds to the

decedent’s interest in the action or proceeding.”

(B) “The affiant or declarant is authorized to act on behalf of the decedent’s successor in

interest (as defined in Section 377.11 of the California Code of Civil Procedure) with

respect to the decedent’s interest in the action or proceeding.”

(6) “No other person has a superior right to commence the action or proceeding or to be

substituted for the decedent in the pending action or proceeding.”

(7) “The affiant or declarant affirms or declares under penalty of perjury under the laws of the

State of California that the foregoing is true and correct.”

Cal. Code Civ. Proc. § 377.32(a).

The declaration of Kenneth Sarnoff (the “Initial Sarnoff Declaration” (Dkt. 1-5)) is attached to the

Complaint. It presents statements as to each of the aforementioned statutory elements except, as

Defendants argue, “facts in support [of]” Kenneth’s assertion that he is Decedent’s successor in interest

as § 377.32(a)(5) requires. See Dkt. 1 ¶ 7; Crosby v. Cty. of Alameda, No. 20-cv-08529-MMC, 2021

U.S. Dist. LEXIS 37769, at *2-3 (N.D. Cal. Feb. 26, 2021) (dismissing claim for lack of standing

because the plaintiff’s declaration pursuant to § 377.32(a)(5) “lacks the requisite ‘facts in support

thereof’”); Cavanaugh v. Cty. of San Diego, No. 3:18-cv-02557-BEN-LL, 2020 U.S. Dist. LEXIS 212779,

at *148-150 (S.D. Cal. Nov. 12, 2020) (citing J.K.J. v. City of San Diego, No. 19-CV-2123-CAB-RBB,

2020 U.S. Dist. LEXIS 87003, at *3 (S.D. Cal. May 18, 2020)) (dismissing claim because the plaintiff

failed to provide facts sufficient to show that he was the decedent’s successor in interest).

At the hearing on the Motion, Plaintiffs were directed to file a supplemental brief, and any supporting

evidence, “as to whether Plaintiff Kenneth Sarnoff has standing to bring claims for elder abuse and

neglect as Decedent Albert Sarnoff’s successor in interest.” Dkt. 52. Plaintiffs did so on June 28, 2021

(“Plaintiffs’ Supplemental Brief” (Dkt. 54)). Plaintiffs simultaneously filed the “Amended Declaration of

Kenneth Sarnoff” (the “Amended Sarnoff Declaration” (Dkt. 54-1)). Plaintiffs also filed a declaration of

Douglas (Dkt. 54-2). Attached as Exhibit “A” to the Amended Sarnoff Declaration is a copy of

Decedent’s will (the “Will”). Dkt. 54-1 ¶ 5. Also attached as Exhibit “B” is a copy of Decedent’s living

trust (the “Living Trust”). Id. Defendants filed a reply to Plaintiffs’ Supplemental Brief on July 6, 2021

(“Defendants’ Supplemental Reply Brief” (Dkt. 55)).

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Dependent Adults of the California Welfare and Institutions Code,” provides that, subject to certain

limitations that do not apply here,

[A]fter the death of the elder or dependent adult, the right to commence or maintain an action

shall pass to the personal representative of the decedent. If there is no personal representative,

the right to commence or maintain an action shall pass to any of the following, if the

requirements of Section 377.32 of the Code of Civil Procedure are met:

(A) An intestate heir whose interest is affected by the action.

(B) The decedent’s successor in interest, as defined in Section 377.11 of the Code of Civil

Procedure.

(C) An interested person, as defined in Section 48 of the Probate Code, as limited in this

subparagraph. . . .

Cal. Welf. & Inst. Code § 15657.3(d)(1). “Personal representative” is defined as an

executor, administrator, administrator with the will annexed, special administrator, successor

personal representative, public administrator acting pursuant to Section 7660, or a person who

performs substantially the same function under the law of another jurisdiction governing the

person’s status.

Cal. Prob. Code § 58.

The Will names Kenneth as a “Co-Executor” of the Estate. Under the heading “Article 2: Executor,” the

Will provides in relevant part:

2.1 Executor. I nominate DOUGLAS GLEN SARNOFF, KENNETH CRAIG SARNOFF, and

GARY SCOTT SARNOFF, or those of them willing and able to serve, to serve by unanimous

vote as Co-Executors of my estate.

Dkt. 54-1 at 8.

It appears likely that, had the Will been probated, Kenneth, as an executor, would have been appointed

a “personal representative” pursuant to Cal. Prob. Code § 58. If that had occurred, he would have

standing to bring a claim for elder abuse and neglect on behalf of the Estate pursuant to Cal. Welf. &

Inst. Code § 15657.3.

Plaintiffs argue that “since no probate proceeding was opened for the administration of [the Estate],

Kenneth was never actually appointed as executor” and instead was entitled to bring this action as

Decedent’s successor in interest. Dkt. 54 at 4. Cal. Prob. Code § 8001 provides:

Unless good cause for delay is shown, if a person named in a will as executor fails to petition

the court for administration of the estate within 30 days after the person has knowledge of the

death of the decedent and that the person is named as executor, the person may be held to

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Cal. Prob. Code § 8001. Neither of the living individuals named as Decedent’s Co-Executors petitioned

for administration of the Estate within the applicable time period.3 Therefore, both are deemed to have

waived the right to appointment as personal representative. Thus, Decedent has no personal

representative. Accordingly, pursuant to Cal. Welf. & Inst. Code § 15657.3(d)(1), in the absence of a

personal representative, “the right to commence or maintain an action . . . pass[es] to . . . [t]he

decedent’s successor in interest as defined in Section 377.11 of the Code of Civil Procedure,” as long

as “the requirements of Section 377.32 of the Code of Civil Procedure” are satisfied.

As noted, Cal. Code Civ. Proc. § 377.32(a) requires that “[t]he person who seeks to commence an

action or proceeding . . . as the decedent’s successor in interest” must “execute and file an affidavit or a

declaration under penalty of perjury” that includes, “with facts in support thereof,” that “[t]he affiant or

declarant is the decedent’s successor in interest (as defined in Section 377.11 of the California Code of

Civil Procedure) and succeeds to the decedent’s interest in the action or proceeding.” Cal. Code Civ.

Proc. § 377.32(a). Cal. Code Civ. Proc. § 377.11 defines “decedent’s successor in interest” as “the

beneficiary of the decedent’s estate or other successor in interest who succeeds to a cause of action or

to a particular item of the property that is the subject of a cause of action.” Cal. Code Civ. Proc §

377.11.

The Amended Sarnoff Declaration satisfies each of the requirements of Cal. Code Civ. Proc. §

377.32(a). Dkt. 54-1 ¶ 1-7. The Initial Sarnoff Declaration did not present “facts in support [of]”

Kenneth’s assertion that he is Decedent’s successor in interest. Cal. Code Civ. Proc. § 377.32(a). The

Amended Sarnoff Declaration does so; it presents copies of Decedent’s Will and Living Trust.

The Living Trust defines “beneficiary” as “a person to whom a donative transfer of property or a

distribution from a trust is or could be made or that person’s successor in interest . . . .” Dkt. 54-1 at 77.

This definition is satisfied as to Kenneth; the Trust provides for the distribution of Trust assets to him.

See Dkt. 54-1 at 33-37. Trust assets are also to be distributed to other family members, see id., but

Defendants’ argument that others being named as beneficiaries precludes Kenneth from being

Decedent’s successor in interest is not persuasive, see Dkt. 55 at 3. Nothing in the applicable statutes

requires that a decedent’s successor in interest be that decedent’s sole beneficiary.

As Decedent’s successor in interest, Kenneth has standing to bring a claim for elder abuse and neglect

on behalf of the Estate. Pursuant to 28 U.S.C. § 1332(c)(2), Kenneth is deemed to be a citizen of

California. Therefore, there is not complete diversity as required for subject matter jurisdiction under

that statute.

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. 20STCV47409).

IT IS SO ORDERED.

:

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Initials of Preparer mr