Sorace v. Orinda Care Ctr.

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OLGA SORACE, et al., Plaintiffs, v. ORINDA CARE CENTER, LLC, et al., Defendants.

No. 21-cv-05714-EMC

United States District Court, N.D. California

November 9, 2021

ORDER GRANTING PLAINTIFFS' MOTION TO REMAND, AND DENYING DEFENDANTS' MOTION TO DISMISS DOCKET NOS. 8 18

EDWARD M. CHEN UNITED STATES DISTRICT JUDGE

On May 13, 2021, Plaintiffs Olga Sorace, deceased, by and through her personal legal representative and successor in interest Essie Bracknell, and Essie Bracknell, individually (“Plaintiff/Plaintiffs”) filed this action in Contra Costa County Superior Court. Notice of Removal (State Court Complaint) at 63, Docket No. 1. On July 26, 2021 Defendants Orinda Care Center, LLC, Renew Health Group, LLC, Larry Goldfarb, Crystal Solorzano, Does 1-25, inclusive, Michael Sorace, Sonya Kolinsky, and John Bracknell (“Defendants”) filed a Notice of Removal in this Court.^[1] Docket No. 1. On August 2, 2021, Defendants filed a Motion to Dismiss. Defs. MTD, Docket No. 8. On August 16, 2021, Plaintiffs filed a Motion to Remand the matter. Pls. MTR, Docket No. 18. On September 18, 2021, the Court temporarily vacated the hearing on Defendants' Motion to Dismiss so as to hear the Motion to Remand first. Clerk's Notice, Docket No. 22. Currently pending before the Court are Defendants' Motion to Dismiss and Plaintiffs' Motion to Remand. For the following the reasons, the Court GRANTS Plaintiffs' Motion to Remand and DENIES AS MOOT Defendants' Motion to Dismiss.

I.BACKGROUND

Plaintiff Essie Bracknell is the natural daughter of Olga Sorace. Pls. MTR at 1. Notably, Plaintiff filed a complaint in Contra Costa Superior Court alleging claims for: (1) elder abuse and neglect in violation of California Welfare and Institutions Code §§ 15600, et. seq.; (2) violations of patient rights pursuant to California Health and Safety Code § 1430(b); (3) negligence; and (4) wrongful death. Notice of Removal (State Court Complaint) at 1. In her complaint Plaintiff alleges that Olga Sorace (the “Decedent”) was admitted to the Orinda Care Center, a skilled nursing facility, for long-term care in 2014. Compl. ¶ 38. Plaintiff notes that the Decedent had a “history of Alzheimer's dementia, unsteady gait, hearing problems, balance problems, impaired communication, weakness, impaired cognition, hypertension, and impaired physical mobility. Additionally, she was labeled a fall risk.” Id. ¶ 39. Plaintiff states that because of her physical and mental condition, the Decedent “was dependent on others for her activities of daily living including, but not limited to, personal hygiene, continence care, transferring in and out of bed, eating, drinking, and managing medication.” Id. Plaintiff specifically alleges that Defendants failed to properly assess and gather information to make decisions about suitable interventions “to avoid individualized health risks.” Id. ¶ 40. Additionally, Plaintiff claims that Defendants failed to assess the Decedent, “update her care plans regarding dehydration, provide her with assistance with feeding and drinking, and failed to monitor her signs and symptoms of dehydration and malnutrition.” Id. ¶ 45. Plaintiff further alleges that Defendants' employees began to fail to show up for work and as a result of understaffing, Defendants “failed to provide required care to the facilit[y's] residents and placed them in harm's way.” Id. ¶ 49. The complaint implies that because of Defendants' aforementioned neglect and failure to provide adequate care due to understaffing, the Decedent contracted COVID-19 and had to be transported to John Muir Medical Center. Id. ¶¶ 49-52. Plaintiff claims that the neglect, elder abuse, and inadequate staffing ultimately resulted in the Decedent's death on April 18, 2020. Id. ¶ 53.

As for Plaintiff's first cause of action, she is seeking: compensatory damages, special damages including past hospital, medical, professional, and incidental expenses, interest on compensatory damages, attorneys' fees, punitive damages, and treble damages. Compl., Prayer for Relief ¶ 1. As for the second cause of action, Plaintiff is seeking statutory damages and attorney's fees. Id. ¶ 2. As for the third and fourth causes of actions, Plaintiff requests compensatory damages, special damages including funeral and burial expenses, medical and incidental expenses according to proof, and for interest on any compensatory damages. Id. ¶ 2.

As noted above, on July 26, 2021, Defendants removed this case to this Court, asserting subject matter jurisdiction on three grounds: (1) Plaintiff's claims are completely preempted by the Public Readiness and Emergency Preparedness Act (“PREP Act”), 42 U.S.C. §§ 247-6d and 247-6e; (2) the action raises a substantial and important federal issue, citing Grable & Sons Metal Products v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005); and (3) removal is proper under the federal officer statute (28 U.S.C. § 1442(a)(1)) because Defendant was acting under the direction of a federal officer when it engaged in the allegedly tortious conduct. See Notice of Removal, Docket No. 1. Plaintiff challenges the removal of this action and moves to remand the matter back to Contra Costa County Superior Court. See Motion to Remand, Docket No. 18.

II.LEGAL STANDARD

A. Removal

A defendant may remove an action to federal court only where there is either complete diversity among the parties or federal question jurisdiction. 28 U.S.C. § 1441. Federal question jurisdiction exists over all civil actions arising under the Constitution, laws, or treaties of the United States. Id. § 1331. Removal is proper if the case could have originally been filed in federal court. Lee v. Am. Nat'l Ins. Co., 260 F.3d 997, 1004 (9th Cir. 2001).

The “well-pleaded complaint” rule requires a federal question to be present on the face of the complaint at the time of removal for federal question jurisdiction to exist. Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). Causes of action “arise under” federal law in accordance with 28 U.S.C. § 1331 if federal law creates the cause of action or the complaint necessarily depends on a substantial question of federal law. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 808 (1988). Federal jurisdiction cannot rest upon an actual or anticipated defense or counterclaim. Vaden v. Discover Bank, 556 U.S. 49, 60 (2009). “The burden of establishing federal subject matter jurisdiction falls on the party invoking removal.” Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 944 (9th Cir. 2009) (citing Toumajian v. Frailey, 135 F.3d 648, 652 (9th Cir. 1998)). Notably, there is a “strong presumption against removal jurisdiction, ” and courts must reject it “if there is any doubt as to the right of removal in the first instance.” Geographic Expeditions, Inc. v. Est. of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010) (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam)) (internal quotation marks omitted).

III.DISCUSSION

Here, the complaint does not assert a federal claim for relief. The claims are all based on state law. Defendants argue that this Court has subject matter jurisdiction on three independent grounds: (1) complete preemption under the PREP Act; (2) embedded question of federal law under the Grable doctrine; and (3) federal officer removal. Plaintiffs contend that none of these grounds applies here.

At the outset, it is noteworthy that several courts in the Central and Southern Districts of California have addressed these questions in the context of state law tort suits arising out of COVID-19 deaths in care facilities. See, e.g., Martin v. Serrano Post Acute LLC, No. 20-cv-5937, 2020 WL 5422949, at *1 (C.D. Cal. Sept. 10, 2020); Jackie Saldana v. Glenhaven Healthcare LLC, No. 20-cv-5631, 2020 WL 6713995, at *1 (C.D. Cal. Oct. 14, 2020) (appeal filed Nov. 13, 2020); Est. of McCalebb v. AG Lynwood, LLC, No. 2:20-cv-09746, 2021 WL 911951, at *1 (C.D. Cal. Mar. 1, 2021) (appeal filed Mar. 31, 2021); Smith v. Colonial Care Ctr., Inc., No. 2:21-cv-00494, 2021 WL 1087284, at *1 (C.D. Cal. Mar. 19, 2021) (appeal filed Apr. 19, 2021); Stone v. Long Beach Healthcare Ctr., LLC, No. 21-cv-326, 2021 WL 1163572, at *1 (C.D. Cal. Mar. 26, 2021); Winn v. California Post Acute LLC, No. 21-cv-02854, 2021 WL 1292507, at *1 (C.D. Cal. Apr. 6, 2021) (appeal filed May 7, 2021). In each of these cases, the district court found that it lacked subject matter jurisdiction and remanded the case to state court. Defendants argue that these courts too narrowly interpret the PREP Act and misconstrue Congress's and HHS's intent. Opp'n at 19, Docket No. 23.

A. Complete Preemption

The Supreme Court “has recognized . . . an ‘independent corollary to the well-pleaded complaint rule known as the complete pre-emption doctrine.' ” Retail Prop. Tr. v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 947 (9th Cir. 2014) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425 (1987)). The complete preemption “doctrine posits that there are some federal statutes that have such ‘extraordinary pre-emptive power' that they ‘convert[ ] an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.' ” Retail Prop. Tr., 768 F.3d at 947 (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987)). “Complete preemption refers to the situation in which federal law not only preempts a state-law cause of action, but also substitutes an exclusive federal cause of action in its place.” Hansen v. Grp. Health Coop., 902 F.3d 1051, 1057 (9th Cir. 2018) (citations omitted). “Thus, a state claim may be removed to federal court . . . when a federal statute wholly displaces the state-law cause of...