good morning to the court my name is david met b i represent the apollo i'd like to discuss two main issues today the first one being how the allegations of understaffing at the defendant's facilities are tethered to a legal standard that's recognized the second issue i'd like to discuss is why the the district court's decision not to invoke the doctrine of equitable abstention with knocking abuse of discretion relates to the first issue that if the court would indulge me for a moment i'd like the court to imagine that this courtroom is a skilled nursing facility and we're all patients there and during a specific time period whether it's a day a week a month the facilities meeting the minimum numeric ratio of three point two nursing hours per patient day required by california health and safety code twelve seventy six point five but over that same time period some portion of the residents whether it be the gallery the court whatever over that time period those residents and needs are not being met by definition even though that skilled nursing facility meets the three point two minimum numeric ratio the facilities are understaffed and that's because by not meeting the needs of the residents it violates title twenty two seven two three to nine point one and by definition the facilities under staff under fifteen health and safety code fifty ninety nine point one each resident has a right to live in an adequately staffed facility forms and these m p s forms have sixty six categories called categories which set forth the needs of the residents and once you input that information into the m d s form it pops up a score telling you levels at the facility over that same time period then you compare the collective acuity with both staffing levels and you get whether the facility was staffed or understaff and our claims of understaffing are possible to meet the possibilities to a standard under the century aluminum case if there is to alternate explanations and that's what we have here either the facility meets the requirements of the law and it's adequately staffed or it fails to meet the requirements of the law and it's in that we set only two possible explanations in this century women case says in that instance facts that tend to exclude the possibility that the alternate explanation is true that here we need to exclude the facilities adequately staff and we've done that we've alleged based on the acuity the collective acuity that i just described set forth that's what yourself will do in your second amended complaint that's correct in addition we've alleged that during the residency of the name plaintiff at the facility that the management company siphoned away funds that are near market for adequate staffing to one of the biggest costs of the skilled nursing facilities labor costs and we've alleged that h c r manor care takes over a specific time period hundreds of thousands of dollars for no services provided that should have been earmarked for staffing we've specifically a website that the second  category of facts there's three main categories the second category facts which tend to exclude the possibility that the facilities are staffed adequately is the failure to meet the c m s guidelines now we don't allege in the second from any complaint that the c m s guidelines are required to be followed in every instance we just allege in the second amended complaint that in this instance based on the collective acuity of the residents the staff the third or how to goree of facts which tend to exclude the possibility that the facilities were adequately staff are the repeated deficiencies issued by the department of public health for inadequate care and violation of resident rights the fact that the facilities are repeatedly issue deficiencies for filing resident rights is a fact that tends to exclude the possibility that the facilities are adequately staffed so in a system that doesn't mean that the full tilt is what adequately would not adequately staff on particular occasion does it not the only occasion of your client's residence is standing alone no you are but it does support the possibility that it's understaffed not you have to show more than just basic it's almost like leaving fraud yes and believe we believe we've met that the standard is that if the court a reasonable court allegations of chronic understaffing and the fact that you've set out the state requirement let me let me have you focus a little more specifically on the district court's analysis that while plaintiff has generally alleged trends indicating understaffing at various periods of time there's no specific allegation that during plaintiff's short space any understaffing actually occurred what it just give me because i know your time is short the paragraphs and thirteen when the mr mccray was a resident of the fountain valley facility that based on the collective of human levels of the facility at the time that the facility was understaffed specifically after three tries after begin being given three tries appellant still couldn't plead the most basic fact that any litigant in federal court needs to plead which is an injury in fact that impacted to discussing standing one is paragraph forty and want to spare go forty eight the reason those are the two relevant paragraphs is they discuss the fountain valley facility which is the only facility in which he resided actually i'd add to that paragraph twenty paragraph twenty four mr mcrae alleges i entered into an agreement with the defendants on october tenth two thousand and thirteen paragraph forty if you notice in all of this a complaint that's the august allegation which again he has an agreement that he's alleging in october and so let's assume for purposes as we must taking it as true that he was there both in august and october so in the october residency there's no allegation relating to understaffing in the october residency as city aug residency that the court is focusing on the only allegation there is an allegation that the staffing exceeded the three point two minimum and what he says is that it didn't meet the quote expected numbers of c m s and that's not a understaffed during that period but you are if i can explain why that's not a factual allegation it's actually a legal conclusion as the court recognized the district court in each of its orders this theory of under staffing based on these c m s rating system are not an actionable theory of liability those do not a stablish understaffing they're not legal requirements but he's pleading them not as facts your honor he's pleading them as a legal requirement he says he has reliable is so lonely a purity level set forth in the statute which presumably sets a baseline for staffing requirements based on what the legislature has concluded so why isn't it sufficient as long as he is with in the pyramidal of the statute that steam s numbers and so therefore i've got a claim he's tying it specifically to the cutie levels of the patients who were there with him at the time that he was a resident so to me those sound like factual allegations actually i respectfully disagree judge you in the us are not factual allegations because he doesn't say anything about the residence it's just a conclusion it's just like saying there's a breach of contract there's a breach of contract you have to plead some facts about that and there aren't any facts mr med b s argument and i think their whole position is really a legal brief this is how we think staffing should be determined and frankly we don't disagree we say with the staffing levels were when his client  resident at the nursing home didn't he say that in the second i'm in the complaint he doesn't say it for october but he does say it for august when he claims he was there as well and we know from his state court complaint that the focus was a residency an eleven day residency in oct twenty thirteen but we do have this one sentence that says in august and he states that in august the staffing numbers were four point two  nursing hour for patient day and he says that the reason that's inadequate and the sole basis for that inadequacy is it didn't meet the requirements that c m s quote expected in other words that c m s required that is behalf of mr mccray and it isn't difficult for mr mcrae to state as a matter of fact i claim the staffing levels were insufficient and they were insufficient because they affected me and they affected me in the narrowly in limited circumstances with certain requirements that have to be made so under era i question as to whether the california acquittal abstention even applies in federal court at all well there's a question of abstention and there's also a question in a long line of california cases that we talk about starting with the harris forces capital advisors california supreme court case that says outside of the context of equitable abstention when courts are being asked to sort of legislate and outcome and gauging economic policy making they should refrain from doing that they should not do that it's similar to the concept acquittal extension but it's separate and apart from equitable extension so it's recognized in cases like harris which we cite also the california grocers case that says the court shouldn't go in and do what essentially mr mcrae is asking them to do which is to craft a new staffing standard that the state is actually refused to do and that the federal government has refused to do they haven't set the kind of standards that mr mccray is saying ha allegations about specific problems and harms that occurred to them as a result of the understaffing understand absolutely they have a claim we don't disagree with that legal position what we disagree with  the factual allegations in the absence of a factual basis of course there can be an elder abuse cl claim which is as you pointed out your questions to mr med be require nine be specificity so no they aren't under ninety you know sort of general allegations that the facility was monica understaffed understaffing things like that are way below a nine b standard and it's a personal standard in a class case that's that's the issue we're looking at right now what is alleged and there are no allegations itself even recognize that and it's an order relating to the first amendment complaint when it stated nothing in the text of the regulations indicates that if a nursing home fulfills the minimum level of three point two nursing hours and necessarily has an adequate number of personnel to carry out the functions of the facility that's up the first volume of the excerpt at page twenty six the district court then backtracked and reversed its position relating to the second the complaint as i explained earlier the legal standard is meeting the needs of the residents under title twenty two seven two three to nine point one and california health and safety code twelve seventy six point six five and if they don't violation of the resident rights under the health and safety code fifteen ninety nine point one california health and safety code section fourteen thirty b provides a private right of action for violation of resident rights as set forth in title twenty two section seven two five two seven which incorporates health and safety code fifteen ninety nine point one fifty nine and nine point one provides the resident right each resident to live language of fifteen ninety nine point one it's adequately staffed facility it's in the aggregate it doesn't mean it doesn't say that the individual resident didn't require it didn't receive an adequate amount of staff or every day that that resident was a resident of the facility it says the right to live in an adequately staffed facility and we specifically alleged that that's determined on a composite aggregate basis as it relates to abstention just expanding on what's in our brief under the california doctrine if there is no alternate alternative means for redress then the doctrine cannot be applied and here we have that it's clear of action it can't force the facility to make true representation it can't order a facility not to conceal facts so without this court action the