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1 Guy B. Wallace – 176151 Sarah Colby – 194475
2 Jennifer A. Uhrowczik – 302212 SCHNEIDER WALLACE
3 COTTRELL KONECKY WOTKYNS LLP
4 2000 Powell Street, Suite 1400 Emeryville, California 94608
5 Telephone: (415) 421-7100 Facsimile: (415) 421-7105
6

Gay Crosthwait Grunfeld – 121944 Benjamin Bien-Kahn – 267933 Christopher D. Hu – 293052 ROSEN BIEN GALVAN & GRUNFELD LLP 50 Fremont Street, 19th Floor San Francisco, California 94105-2235 Telephone: (415) 433-6830 Facsimile: (415) 433-7104

7 Kathryn A. Stebner – 121088 Kelly Knapp – 252013
8 STEBNER AND ASSOCIATES 870 Market Street, Suite 1212
9 San Francisco, California 94102 Telephone: (415) 362-9800
10 Facsimile: (415) 362-9801

11 Attorneys for Plaintiffs and the Proposed Classes

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION

14

15 PATRICIA EIDLER, by and through her Guardian Ad Litem, CHRISTOPHER
16 WILLIAM EIDLER; STACIA STINER; MARY-CATHERINE JONES, by and through
17 her Guardian Ad Litem, KELLY CLAPPER; HELEN CARLSON, by and through her
18 Guardian Ad Litem, JOAN CARLSON; BONITA HAGER; and LAWRENCE
19 QUINLAN, by and through his Guardian Ad Litem, LORESIA VALLETTE; on their own
20 behalves and on behalf of others similarly situated,
21
Plaintiffs, 22
v. 23
BROOKDALE SENIOR LIVING, INC.; 24 BROOKDALE SENIOR LIVING
COMMUNITIES, INC.; and DOES 1 through 25 100,

Case No. 17-cv-03962-JD
CLASS ACTION
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES
1. Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12101 et seq.)
2. Unruh Civil Rights Act (Cal. Civ. Code §§ 51 et seq.)
3. Consumer Legal Remedies Act (Cal. Civ. Code §§ 1750 et seq.)
4. Elder Financial Abuse (Cal. Welf. & Inst. Code §§ 15610.30)
5. Unlawful, Unfair and Fraudulent Business Practices (Cal. Bus. & Prof. Code §§ 17200 et seq.)

26

Defendants.

27

28
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES
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INTRODUCTION 1

2

1. Plaintiffs and the proposed Classes bring this action for declaratory and injunctive

3 relief and damages to stop the unlawful and fraudulent practices of Brookdale Senior Living, Inc.

4 and Brookdale Senior Living Communities, Inc. (“BROOKDALE” or “Defendants”).

5

2. Plaintiffs are elderly or dependent individuals living in California who have

6 significant care needs and disabilities. Plaintiffs and their families were overwhelmed by and

7 required assistance with their activities of daily living including, but not limited to, assistance with

8 managing and taking medication; housekeeping; laundry; dressing; bathing; toileting; hygiene;

9 food preparation; and transportation. Plaintiffs and their families and the classes they seek to

10 represent either chose a BROOKDALE facility or chose to stay in a facility purchased by

11 BROOKDALE because they believed BROOKDALE’s repeated promises to provide the care and

12 assistance that would allow them to age with dignity. Instead, Plaintiffs, their family members,

13 and the proposed class members have all encountered in BROOKDALE a system of understaffed

14 assisted living facilities that fails to consistently provide even the most basic level of promised

15 care.

16

3. Defendant BROOKDALE has engaged in a policy and practice of violating Title

17 III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101 et seq.,

18 accompanying regulations, and the Unruh Civil Rights Act (“Unruh Act”), California Civil Code

19 §§ 51 et seq. Among other things, Defendant has violated the ADA by failing to make its assisted

20 living facilities readily accessible to and usable by persons with disabilities. Defendants’ assisted

21 living facilities are characterized by multiple, pervasive physical access barriers that limit or deny

22 full and equal access to persons with disabilities.

23

4. Moreover, Defendant has failed to make reasonable modifications to its policies,

24 practices and procedures that are necessary for persons with disabilities to have full and equal

25 access to and enjoyment of the services, goods, facilities, privileges, advantages and

26 accommodations provided by BROOKDALE’s facilities. Defendants’ goods, services, facilities,

27 privileges, advantages, or accommodations include providing assistance with activities of daily

28

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1 living (assistance with eating, housekeeping and laundry, bathing, grooming, dressing, toileting,

2 personal hygiene, provision of nutritious meals), medication management (ordering and storage of

3 medications, assistance taking medications), social and recreational activities (group exercise,

4 games, movies, scenic drives, happy hours and social mixers, and assistance with arrangements for

5 utilization of local resources), and transportation to and coordination of off-site services. Plaintiffs

6 have specifically requested that Defendant BROOKDALE make reasonable modifications to its

7 staffing policies, practices and procedures for its assisted living facilities in order to ensure that

8 there is staffing in sufficient numbers and with adequate training to provide timely and effective

9 assistance and care to residents with disabilities. Despite the fact that such modifications are

10 necessary to ensure that residents with disabilities receive full and equal access to and enjoyment

11 of Defendants’ goods, services, facilities, privileges, advantages, or accommodations, and despite

12 the fact that such modifications will not result in any fundamental alteration to BROOKDALE’s

13 public accommodations, Defendant has refused to do so.

14

5. In addition, Defendant has violated the ADA by failing and refusing to provide

15 residents with mobility disabilities with full and equal access to and enjoyment of its

16 transportation services. Further, Defendant has discriminated against residents with disabilities by

17 failing to provide them with an emergency evacuation plan that is designed for and reasonably

18 calculated to ensure the prompt and effective evacuation of persons with disabilities in the event of

19 emergency.

20

6. Defendant BROOKDALE has also engaged in a policy and practice of violating the

21 Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code §§ 1750 et seq., committing Elder

22 Financial Abuse, Cal. Welf. & Inst. Code § 15610.30, and Unlawful, Unfair and Fraudulent

23 Business Practices (“UCL”), Cal. Bus. & Prof. Code §§ 17200 et seq. Defendants promise to

24 provide the elderly and disabled the “quality of life they’ve earned,” but Defendants instead

25 engage in a scheme to defraud seniors, persons with disabilities, and their family members. In

26 order to induce the elderly and disabled to move into and stay at its California assisted living

27 facilities, BROOKDALE makes misrepresentations and misleading statements and conceals

28

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1 material facts about the quality and availability of care available at BROOKDALE. Reasonable

2 consumers are misled to believe, and reasonably expect, that BROOKDALE determines each

3 resident’s needs and staffs each facility accordingly to deliver personalized care to meet those

4 needs. Instead, BROOKDALE systemically understaffs its facilities, cuts caregiver hours, and

5 fails to train workers, all to boost its profitability, while the residents in BROOKDALE’s care are

6 forced to endure increasingly expensive monthly charges and worsening care. The results of

7 BROOKDALE’s callous and profit-driven approach are devastating: as multiple reports by state

8 regulators confirm, residents are left without assistance for hours after falling, they are given the

9 wrong medications, they are denied clean clothing, showers, and nutritious food, and they are left

10 in their own waste for long periods of time.

11

7. On any given day, residents of BROOKDALE’s many California facilities live

12 with a substantial risk that they will not receive the care and services they have paid for and that

13 they need. Scores of family and resident council meetings and hundreds of communications to

14 BROOKDALE management have failed to rectify these problems, leaving Plaintiffs and the class

15 no choice but to seek redress in this Court.

16

8. This lawsuit seeks to end this systemic discrimination against persons with

17 disabilities by requiring Defendant to provide them with full and equal access to and enjoyment of

18 BROOKDALE’s facilities, services, goods, privileges, advantages and accommodations. This

19 action seeks to require that Defendants staff their facilities with a sufficient number of adequately

20 trained staff to ensure that residents with disabilities are provided with full and equal access to and

21 enjoyment of the services specified in BROOKDALE’s own resident assessments. In addition,

22 this action seeks to require that Defendants provide assistive living facilities that are readily

23 accessible to and usable by persons with disabilities as required by the ADA. Further, Plaintiffs

24 seek injunctive relief requiring Defendants to provide full and equal access to and enjoyment of

25 Defendants’ transportation services and activities. Plaintiffs also seek injunctive relief requiring

26 Defendants to provide adequate emergency planning and evacuation procedures for residents with

27 disabilities. With respect to the CLRA, the UCL and the Elder Financial Abuse statute, this action

28

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1 seeks to require Defendant to disclose to prospective and current residents, their family members

2 or responsible parties, and the class that BROOKDALE’s existing staffing policies and procedures

3 preclude it from providing its residents with all the care and services they have been promised and

4 are paying for. Further, this action seeks to enjoin BROOKDALE from charging residents or their

5 responsible parties monthly fees based on their Personal Service Plans until BROOKDALE

6 implements staffing policies and procedures that enable it to deliver those services on a consistent

7 basis.

8

9. Plaintiffs have no adequate remedy at law and, unless BROOKDALE is

9 preliminarily and permanently enjoined, Plaintiffs will continue to suffer irreparable harm as a

10 result of being denied full and equal access to and enjoyment of BROOKDALE’s goods, services,

11 facilities, privileges, advantages, and/or accommodations. Plaintiffs seek declaratory and

12 injunctive relief and statutory and actual damages as set forth below against BROOKDALE for its

13 policy and practice of denying Plaintiffs full and equal access to and enjoyment of its services and

14 facilities and violating the ADA and its accompanying regulations, the Unruh Act, the CLRA,

15 committing Elder Financial Abuse, and engaging in Unlawful, Unfair and Fraudulent Business

16 Practices. Plaintiffs also seek recovery of reasonable attorneys’ fees, costs and litigation expenses

17 under federal and state law.

18

EXHAUSTION OF PRE-LAWSUIT PROCEDURES FOR STATE LAW CLAIMS

19

10. By letter dated June 2, 2017, Plaintiffs notified Defendants of Plaintiffs’ intent to

20 file suit against it based on violations of the Consumer Legal Remedies Act, as required by

21 California Civil Code § 1782. BROOKDALE received the letter on June 6, 2017. More than 30

22 days have passed since BROOKDALE’s receipt, and BROOKDALE has not corrected or

23 remedied the violations alleged in the notice and herein.

24

11. Though they were not required to do so, Plaintiffs also notified BROOKDALE of

25 its multiple violations of Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 1201 et

26 seq., the Unruh Civil Rights Act, California’s elder financial abuse law, and California’s Unfair

27 Competition Law.

28

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JURISDICTION 1

2

12. This Court has subject matter jurisdiction of this action pursuant to

3 28 U.S.C. §§ 1331, 1343(a)(3)-(4). The Americans with Disabilities Act, 42 U.S.C. §§ 12101 et

4 seq., presents federal questions and confers jurisdiction on this Court over Plaintiffs’ claims

5 regardless of the amount in controversy. This Court also has subject matter jurisdiction of this

6 action pursuant to 28 U.S.C. § 1332(d)(2)(A) because this is a class action in which the proposed

7 class includes at least 100 members, the amount in controversy exceeds $5,000,000, exclusive of

8 interests and costs, and at least one putative class member is a citizen of a state different from one

9 of the defendants. Plaintiffs seek damages in the amount of a minimum $9,000 per class member

10 and believe that the class consists of over 5,000 persons, making the amount in controversy well in

11 excess of $5,000,000. BROOKDALE is a Delaware corporation with its principal place of

12 business in Tennessee, making it a citizen of both Delaware and Tennessee, and each of the named

13 Plaintiffs are citizens of the State of California. Pursuant to 28 U.S.C. § 1367, this Court has

14 supplemental jurisdiction over Plaintiffs’ pendent claims under California law.

15

13. Defendants are subject to personal jurisdiction in this Court because Defendants

16 have sufficient minimum contacts in California, or otherwise intentionally avail themselves of the

17 California market through ownership and/or management of assisted living facilities located in

18 California, derivation of substantial revenues from California, and other activities, so as to render

19 the exercise of jurisdiction over Defendants by the California courts consistent with the traditional

20 notions of fair play and substantial justice.

21

VENUE

22

14. Venue is proper in the Northern District of California pursuant to 28 U.S.C.

23 § 1391(b), because the acts upon which this action is based occurred in part in this District within

24 the counties of Alameda, Contra Costa, Lake, Monterey, Napa, San Mateo, Santa Clara, and

25 Sonoma.

26

27

28

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1

15. A substantial part of the events or omissions which gave rise to Plaintiffs’ claims

2 arose in the County of Sonoma and thus, pursuant to Civil Local Rules 3-2(c) and (d), assignment

3 to the San Francisco Division of the District Court for the Northern District of California is proper.

4

THE PARTIES

5

16. Plaintiff PATRICIA EIDLER is a qualified person with disabilities within the

6 meaning of the ADA and the Unruh Civil Rights Act. She is also a dependent adult and an elder

7 pursuant to Cal. Welf. & Inst. Code §§ 15610.23 and 15610.27; a senior citizen and a disabled

8 person pursuant to Cal. Civ. Code §§ 1761(f), 1761(g); and a consumer pursuant to Cal. Civ. Code

9 § 1761(d). PATRICIA EIDLER is 82 years old. She needs assistance with the following

10 activities of daily living: housekeeping, laundry, dressing, bathing, managing medications,

11 transportation, and preparing nutritious meals. She uses a walker and a wheelchair for mobility.

12 PATRICIA EIDLER is and has been a resident of BROOKDALE San Ramon since approximately

13 April 2013. She is a resident of Contra Costa County in the State of California. CHRISTOPHER

14 WILLIAM EIDLER (“CHRIS EIDLER”) is her son and holds power of attorney. Simultaneous

15 with the filing of this complaint, Plaintiffs are filing an application for the appointment of CHRIS

16 EIDLER as PATRICIA EIDLER’s guardian ad litem for the purposes of prosecuting this lawsuit.

17

17. Plaintiff STACIA STINER is a qualified person with disabilities within the

18 meaning of the ADA and the Unruh Civil Rights Act. She is also a dependent adult pursuant to

19 Cal. Welf. & Inst. Code § 15610.23; a disabled person pursuant to Cal. Civ. Code § 1761(g); and a

20 consumer pursuant to Cal. Civ. Code § 1761(d). She needs assistance with the following activities

21 of daily living: housekeeping, laundry, dressing, bathing, managing medications, toileting, and

22 transportation. She uses a wheelchair for mobility. STACIA STINER has been a resident of

23 BROOKDALE San Ramon since approximately February 2016. She is a resident of Contra Costa

24 County in the State of California.

25

18. Plaintiff MARY-CATHERINE JONES is a qualified person with disabilities within

26 the meaning of the ADA and the Unruh Civil Rights Act. She is also a dependent adult and an

27 elder pursuant to Cal. Welf. & Inst. Code §§ 15610.23 and 15610.27; a senior citizen and a

28

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1 disabled person pursuant to Cal. Civ. Code §§ 1761(f), 1761(g); and a consumer pursuant to Cal.

2 Civ. Code § 1761(d). MARY-CATHERINE JONES is 78 years old. She has been diagnosed with

3 cognitive impairments and needs assistance with the following activities of daily living: bathing,

4 dressing, managing medications, housekeeping, laundry, and food preparation. MARY-

5 CATHERINE JONES is and has been a resident of BROOKDALE Fountaingrove since

6 approximately January 2013. She is a resident of Sonoma County in the State of California.

7 KELLY CLAPPER is MARY-CATHERINE JONES’s daughter and has had her power of

8 attorney since October 2005. Simultaneous with the filing of this lawsuit, Plaintiffs are filing a

9 motion for the appointment of KELLY CLAPPER as the guardian ad litem of MARY-

10 CATHERINE JONES for the purposes of prosecuting this lawsuit.

11

19. Plaintiff HELEN CARLSON is a qualified person with disabilities within the

12 meaning of the ADA and the Unruh Civil Rights Act. She is also a dependent adult and an elder

13 pursuant to Cal. Welf. & Inst. Code §§ 15610.23 and 15610.27; a senior citizen and a disabled

14 person pursuant to Cal. Civ. Code §§ 1761(f), 1761(g); and a consumer pursuant to Cal. Civ. Code

15 § 1761(d). HELEN CARLSON is 93 years old. She needs assistance with the following activities

16 of daily living: managing medications, transferring, toileting, bathing, dressing, grooming,

17 transportation, food preparation and meal setup, housekeeping, and laundry. She uses a

18 wheelchair for mobility. HELEN CARLSON is and has been a resident of BROOKDALE

19 Fountaingrove since approximately October 2011. She is a resident of Sonoma County in the

20 State of California. JOAN CARLSON is HELEN CARLSON’s daughter-in-law and has had her

21 power of attorney since December 2006. Simultaneous with the filing of this lawsuit, Plaintiffs

22 are filing a motion for the appointment of JOAN CARLSON as the guardian ad litem of HELEN

23 CARLSON for the purposes of prosecuting this lawsuit.

24

20. Plaintiff BONITA HAGER is a qualified person with disabilities within the

25 meaning of the ADA and the Unruh Civil Rights Act. She is also a dependent adult and an elder

26 pursuant to Cal. Welf. & Inst. Code §§ 15610.23 and 15610.27; a senior citizen and a disabled

27 person pursuant to Cal. Civ. Code §§ 1761(f), 1761(g); and a consumer pursuant to Cal. Civ. Code

28

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1 § 1761(d). BONITA HAGER is 65 years old. She needs assistance with the following activities

2 of daily living: housekeeping, laundry, toileting, dressing, bathing, pushing her wheelchair,

3 transportation, and preparing nutritious meals. She uses a wheelchair for mobility. BONITA

4 HAGER is and has been a resident of BROOKDALE San Ramon since approximately May 2013.

5 She is a resident of Contra Costa County in the State of California.

6

21. Plaintiff LAWRENCE QUINLAN is a qualified person with disabilities within the

7 meaning of the ADA and the Unruh Civil Rights Act. He is also a dependent adult and an elder

8 pursuant to Cal. Welf. & Inst. Code §§ 15610.23 and 15610.27; a senior citizen and a disabled

9 person pursuant to Cal. Civ. Code §§ 1761(f), 1761(g); and a consumer pursuant to Cal. Civ. Code

10 § 1761(d). LAWRENCE QUINLAN is 87 years old. He uses a wheelchair for mobility and has

11 dementia. LAWRENCE QUINLAN stayed at the facility at BROOKDALE Hemet for respite on

12 several occasions between 2013 and 2015. He became a long-term resident of the assisted living

13 at BROOKDALE Hemet on approximately September 13, 2015 and left the facility on or about

14 April 30, 2017. He is a currently a resident of an unrelated assisted living facility in Riverside

15 County in the State of California. LORESIA VALLETTE is LAWRENCE QUINLAN’S

16 granddaughter and shares power of attorney with Mr. QUINLAN’s son, Phillip Quinlan. Ms.

17 VALLETTE has filed an application to be appointed Mr. QUINLAN’s guardian ad litem for the

18 purposes of prosecuting this lawsuit.

19

22. Defendant BROOKDALE SENIOR LIVING, INC. is a corporation organized

20 under the laws of the State of Delaware with its principal place of business in Brentwood,

21 Tennessee.

22

23. Defendant BROOKDALE SENIOR LIVING COMMUNITIES, INC. is a

23 corporation organized under the laws of the State of Delaware with its principal place of business

24 in Brentwood, Tennessee.

25

24. BROOKDALE SENIOR LIVING, INC. and BROOKDALE SENIOR LIVING

26 COMMUNITIES, INC. will be referred to collectively as “BROOKDALE” or “Defendants.”

27 BROOKDALE owns, manages, and/or operates approximately eighty-nine (89) assisted living

28

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1 facilities throughout California. It is the largest chain of senior living facilities in California and in

2 the United States.

3

25. Defendants DOES 1-100 are sued herein under fictitious names because Plaintiffs

4 do not presently know their true names and capacities. Plaintiffs will seek leave to amend this

5 Complaint to allege their true names and capacities when such are discovered. Plaintiffs allege

6 that each of these Defendants was responsible in some capacity for the events alleged herein, or is

7 a necessary party for obtaining appropriate relief. Plaintiffs are informed and believe and thereon

8 allege that in carrying out each of the acts and violations alleged in this Complaint, each

9 Defendant acted as an agent, principal, and/or representative for each other Defendant.

10

FACTUAL ALLEGATIONS

11

26. BROOKDALE is the largest provider of assisted living for senior citizens and

12 persons with disabilities in the nation and has the largest number of assisted living facility

13 residents within the state of California. On information and belief, Plaintiffs allege that there are

14 more than 5,000 residents in Defendants’ eighty-nine facilities in California.

15

27. Assisted living facilities, also called Residential Care Facilities for the Elderly

16 (“RCFEs”), offer room, board and daily assistance for seniors and persons with disabilities in

17 certain activities of daily living (“ADLs”), such as preparing meals, shopping, transportation,

18 preparing and taking medication, housekeeping, laundry, bathing, toileting, grooming, dressing,

19 and others.

20

28. Assisted living facilities are intended to provide a level of care appropriate for

21 those who are unable to live by themselves, but who do not have medical conditions requiring

22 more extensive nursing care.

23

29. In recent years, BROOKDALE has increasingly been accepting and retaining more

24 residents with conditions and care needs that were once handled almost exclusively in skilled

25 nursing facilities. This has allowed it to increase not only the potential resident pool but also the

26 amounts of money charged to residents and/or their family members.

27

28

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1

30. At BROOKDALE facilities, residents are charged a base rate, which includes

2 room, board, and basic maintenance, housekeeping, laundry, dining services, planned social and

3 recreational programs, scheduled transportation services, staffing 24 hours a day, observation and

4 consultation, and assistance with access to outside services. BROOKDALE uses its resident

5 assessment system to assess each resident before admission and then again periodically throughout

6 residency and/or whenever there is a change of the resident’s condition. By performing these

7 assessments, BROOKDALE determines what additional services a resident needs, such as

8 assistance with ADLs, and develops a Personal Service Plan for the resident. Each additional

9 need, or service, is assigned a monthly Personal Service Rate, which is added onto the resident’s

10 base rate. The more personal services determined by BROOKDALE to be needed by a resident,

11 the more money BROOKDALE charges that resident.

12

31. Every month, BROOKDALE sends each resident or his or her legal representative

13 an invoice for services that BROOKDALE represents it will provide in the following month.

14 These invoices reflect the monthly rate for the Basic Services set forth in BROOKDALE’s

15 standard residency agreements, the Personal Service Rate that is based on each resident’s Personal

16 Service Plan, and any adjustments. On information and belief, these monthly invoices range from

17 approximately $4,000 to $10,000 per person per month.

18

32. On information and belief, as of January 1, 2016, BROOKDALE increased the

19 Basic Service Rate and Personal Service Rate for residents in its California facilities by roughly

20 6%, and as of January 1, 2017, it raised these rates again by approximately 7%. In standard form

21 letters sent to residents attempting to explain these steep rate increases, BROOKDALE attributed

22 them to increases in “the operating costs of your community,” including costs for “utility usage,

23 insurance, supplies, and food.” But in fact the Consumer Price Index for the Bay Area rose only

24 3.4% between approximately January 1, 2016 and December 31, 2016.

25 \\\

26 \\\

27 \\\

28

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BROOKDALE FAILS TO PROVIDE FULL AND EQUAL ACCESS TO AND

1

ENJOYMENT OF ITS FACILITIES AND SERVICES TO PERSONS WITH

DISABILITIES IN VIOLATION OF THE ADA

2

AND THE UNRUH CIVIL RIGHTS ACT

3

Physical Access Violations

4

33. BROOKDALE has violated Title III of the ADA and the Unruh Civil Rights Act

5 by failing to provide full and equal access to its facilities and services. Rooms occupied by

6 persons with mobility disabilities at the BROOKDALE San Ramon, Windsor, and likely other

7 facilities, do not meet federal or state accessibility standards. Under Title III, fifty percent of the

8 residential rooms in long-term care facilities must meet the requirements of the 1991 ADAAG or

9 the 2010 ADA Standards. BROOKDALE’s facilities do not meet these standards.

10

34. There is a pattern of physical access barriers in BROOKDALE facilities, as

11 described below:

12

a. Wheelchair users are placed in rooms that do not have sufficient turning

13

space in the bathrooms or the bedroom area. This means that they often

14

cannot even use their bathroom unless they are able to transfer out of their

15

wheelchair and enter without it. Those who can enter in their wheelchair

16

usually do not have enough space to transfer safely onto the toilet or into

17

the shower or to use the sink or vanity space. Some residents have given up

18

on using their inaccessible toilet and must rely on adult briefs and

19

caregiving staff to clean them.

20

b. There is no clearance for wheelchairs under the sinks and/or the sinks are

21

too high for a wheelchair user to reach them, preventing residents from

22

using them.

23

c. The grab bars that do exist in the bathrooms are not compliant with

24

applicable access standards, and there are no roll-in showers. Both of these

25

barriers are safety hazards, increasing the likelihood of falls. They also

26

prevent most persons with mobility disabilities from bathing as

27

independently as possible. Some wheelchair users have stopped using their

28

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1

showers altogether and instead take sponge baths, hardly an adequate

2

substitute.

3

d. There are barriers to using the outdoor space for the residents’ rooms,

4

including hard-to-open sliding doors, a lip at the threshold of the door, and

5

insufficient space to accommodate a wheelchair. This prevents persons

6

with mobility disabilities from using their outdoor space as persons without

7

disabilities can.

8

e. The closets do not have accessible hanging and storage space, in that they

9

are placed out of the reach of a wheelchair user. This prevents persons with

10

mobility disabilities from accessing their clothing and other personal items,

11

forcing them to rely on others for assistance.

12

f. Kitchen countertops and sinks are too high for a wheelchair user to access,

13

preventing those residents from fully using their kitchens.

14

35. These physical access barriers, which residents live with on a daily basis, prevent

15 them from having full and equal access to their rooms as required by law.

16

Understaffing

17

36. BROOKDALE does not schedule or provide sufficient numbers of trained staff to

18 provide promised services and meet the needs of its residents. Plaintiffs allege on information and

19 belief that BROOKDALE staffs its facilities based on predetermined labor budgets and desired

20 profit margins. Pursuant to Defendants’ corporate policies and procedures, the executive directors

21 who manage individual BROOKDALE facilities must request permission from Defendants’

22 corporate headquarters to deviate from these pre-determined budgets. Executive directors have a

23 disincentive to request increased labor budgets for their facilities because they are not eligible for

24 bonuses unless they meet earnings targets set by Defendants’ corporate headquarters.

25

37. Reports issued by California Department of Social Services’ Community Care

26 Licensing Division (“Community Care Licensing”), the state agency that regulates assisted living

27 facilities, indicate that inadequate staffing pervades Defendants’ California facilities. For instance,

28

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1 Community Care Licensing recently issued a citation to BROOKDALE Corona after a licensing

2 inspector found “that there are not enough staff present” and observed five residents sitting

3 unsupervised in the dining room and 19 residents in the activity room with only one staff member

4 present. In March 2017, Community Care Licensing cited a BROOKDALE facility in Santa Cruz

5 County after a licensing inspector found that the facility did not have an adequate amount of staff

6 to meet residents’ needs. In June 2016, BROOKDALE Oceanside received a citation because it

7 had only two caregivers on duty during daytime hours in the assisted living part of its facility.

8

38. Plaintiffs allege on information and belief that BROOKDALE uses pre-determined

9 staffing schedules at its facilities and does not change these schedules or the number of staff hours

10 worked when the facility has more residents or residents with greater needs. Community Care

11 Licensing records demonstrate the inadequacy of Defendants’ staffing to meet even the most basic

12 needs of residents. For instance, a personnel report that BROOKDALE filed with Community

13 Care Licensing in February 2017 indicates that BROOKDALE Fountaingrove, a facility in

14 Sonoma County, is understaffed for the night shift from 10:00 p.m. to 6:00 a.m. That schedule

15 lists only four resident caregivers assigned to the night shift, three of whom work only three days a

16 week, with the result that in many instances there are as few as one resident caregiver on duty

17 during the night shift to care for approximately 100 residents on three floors. Moreover, the

18 official numbers of caregivers on duty is often quite deceptive, as BROOKDALE frequently pulls

19 caregivers from their responsibilities in order to perform other tasks, such as serving meals in the

20 dining room.

21

39. As a direct result of Defendants’ discriminatory staffing practices, residents with

22 disabilities have not received or run a substantial risk of not receiving the personal services,

23 emergency and evacuation response, dining services, housekeeping and laundry services,

24 transportation, and activities for which they are paying and that are necessary for full and equal

25 enjoyment of Defendants’ goods, services, facilities, benefits, advantages and accommodations.

26

Impact of Understaffing on Personal Services

27

40. The lack of sufficient numbers of trained staff at BROOKDALE means that

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1 residents with disabilities who need and pay for assistance with bathing, dressing, brushing their

2 teeth, toileting, incontinence care, and other hygiene assistance do not receive it on a routine basis.

3 Scheduled showers are routinely skipped by staff who do not have time to bathe residents. Staff

4 often leave residents unattended on the toilet because another resident has activated their call

5 pendant, and there is no one else available to respond. Residents have been left on their bed

6 undressed by staff called away to attend to other residents in need.

7

41. Residents who need assistance getting to the bathroom often wait for long periods

8 of time for staff to respond to their call pendants. Because they must wait so long for assistance,

9 some residents have given up using the toilet altogether, instead relying on adult briefs and a

10 caregiver to clean and change them when they have time. Incontinent residents often wait for

11 thirty minutes or more for a staff member to help them change out of soiled briefs, raising the risk

12 of urinary tract infections and decubitus ulcers. For example, an inspector from Community Care

13 Licensing found in May 2016 that BROOKDALE San Pablo had insufficient staff to meet the

14 residents’ needs, noting that “[i]ndividuals requiring incontinence care are not always changed in a

15 timely manner.” In November 2016, a licensing inspector found that even though a resident at

16 BROOKDALE Cherry Hills was paying for regular incontinence checks, she was left lying on the

17 floor for an extended amount of time after a fall because staff failed to check on her. In March of

18 2017, a licensing inspector cited BROOKDALE Palm Springs for not providing a resident with

19 those basic and personal care services—assistance with showering, dressing, transportation and

20 medication—that the resident needed and for which the facility was being paid.

21

42. Insufficient staffing has also caused and continues to cause errors in medication

22 administration, including providing the wrong dosage or the wrong medication, untimely or

23 missed doses, and/or a failure to implement physicians’ orders. Community Care Licensing has

24 documented several recent examples from BROOKDALE’s Sonoma County facilities that

25 illustrate the broader problem. Community Care Licensing records show that the agency cited

26 BROOKDALE Chanate five times on consecutive visits between October 28, 2015 and October

27 13, 2016 for failing to give residents their prescribed medications. At BROOKDALE Windsor, a

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1 resident recently received a double dose of medication because the nurse who administered the

2 first dose failed to document that it had been given. On a different occasion, staff gave a resident

3 at BROOKDALE Windsor a medication that had been prescribed for a different resident.

4 Meanwhile, at BROOKDALE Rohnert Park, licensing inspectors found that staff were not

5 properly trained on storing and administering residents’ medication, leading to a narcotic pill that

6 went missing in August 2016 and staff’s failure to administer medications in October 2016.

7 Numerous other reports issued by Community Care Licensing confirm that problems with

8 medication administration pervade Defendants’ facilities throughout California. For example,

9 Community Care Licensing cited BROOKDALE Palm Springs when 20 residents missed their

10 medication doses on December 24, 2016 because there was no med tech on duty.

11

43. BROOKDALE’s understaffing creates many dangerous situations for residents.

12 Among those are an increase in elopements from facilities by persons with cognitive impairments,

13 because the facilities do not hire staff in sufficient numbers or with the training necessary to

14 monitor residents and prevent escapes. For example, BROOKDALE Oceanside was cited in April

15 and September of 2016 for relying on delayed egress systems to compensate for insufficient

16 staffing, resulting in resident elopements. An informal conference was held by Community Care

17 Licensing with BROOKDALE Oceanside management in December 2016 as a result of the

18 elopements and other compliance failures. Subsequently, on April 26, 2017, BROOKDALE staff

19 failed to monitor residents on an outing, and one wandered away for approximately an hour.

20

Impact of Understaffing on Pendant Call Systems and Medical Emergencies

21

44. BROOKDALE’S failure to staff sufficiently results in caregivers’ inability to

22 respond promptly to call pendants, if at all. BROOKDALE has represented that residents who

23 wear a call pendant, and pay a monthly fee for this service, may push a button to alert staff if they

24 have an emergency, and staff will immediately respond to provide assistance. Residents with

25 disabilities rely heavily on these call pendants for assistance with basic tasks and activities of daily

26 living, as well as for emergencies. However, the call pendants do not notify staff of the resident’s

27 location should they not be in their room. A BROOKDALE San Ramon resident fell and hit his

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1 head on the pavement in the facility parking lot and pressed his pendant. No one responded.

2 Bleeding profusely from his head, he used his mobile phone to call the front desk. The son of

3 another resident, a fire chief with emergency response training, found the resident in the parking

4 lot just as BROOKDALE’s bookkeeper and maintenance director responded to the resident’s

5 telephone call. Because those employees have no caregiver or emergency response training, they

6 would not even touch the resident. The fire chief had to call 911 and administer first aid while

7 waiting.

8

45. Moreover, contrary to Defendants’ representations, staff do not immediately

9 respond when residents use their call pendants. For instance, a resident in the BROOKDALE

10 Paso Robles facility pushed her emergency pendant after falling in her room and waited 22 hours

11 on the floor with broken bones until staff finally found her. A resident at BROOKDALE

12 Fountaingrove fell, injured her head, pressed her call pendant, and waited thirty minutes bleeding

13 profusely from her head before staff arrived. She died 10 days later. In January 2017, a former

14 resident of BROOKDALE Fountaingrove waited three hours for staff to respond to a call.

15 BROOKDALE’s policy and practice of not maintaining its call pendant system properly and of

16 not providing sufficient staff to respond to call pendants deprives residents with disabilities of full

17 and equal enjoyment of its goods, services, facilities, and benefits.

18

46. Community Care Licensing records indicate lengthy emergency response times at

19 Defendants’ facilities throughout California. For example, in February 2017 a licensing inspector

20 found that staff at BROOKDALE Riverside routinely took over 10 minutes to respond to

21 emergency pendant calls, and on one occasion took 36 minutes to respond. At BROOKDALE

22 Orangevale, a licensing inspector tested an emergency call pendant during a January 2017 visit

23 and found that it took over 45 minutes for facility staff to respond. At BROOKDALE North

24 Tarzana, a review of the facility’s records revealed numerous response times of over 30 minutes,

25 including multiple response times of over an hour. A licensing inspector who tested emergency

26 pull cords at BROOKDALE Chatsworth found that it took staff 24 minutes to respond during a

27 June 2016 inspection; during another visit, the inspector found that it took staff 30 minutes to

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1 respond, and that they did so only after the inspector alerted the facility administrators. At

2 BROOKDALE Oceanside, an inspector found that as of April and May 2016, there were times

3 when staff did not answer residents’ calls for 15 to 45 minutes. The inspector’s report noted that

4 there were only two direct caregivers on duty during the day and evening shifts at the facility,

5 which has a capacity of 186 residents, and that those caregivers were responsible for numerous

6 tasks in addition to answering emergency calls on two floors. Community Care Licensing cited

7 BROOKDALE Fountaingrove at the end of March 2017 after a review of the pendant system

8 report revealed many instances of extremely lengthy response times, noting in particular a pendant

9 pressed at 5:23 p.m. which was not answered for over 39 minutes and a pendant set off at 5:45

10 p.m. to which staff did not respond for one hour and 27 minutes.

11

47. Even when Defendants’ staff do respond within a reasonable amount of time to a

12 request for assistance, the response is often inadequate. In one case, staff at BROOKDALE

13 Fountaingrove failed to notify a resident’s family after the resident had a fall and was sent to the

14 emergency room. Staff also failed to send identifying information or documents with the resident,

15 as required by Defendants’ policies and procedures. As a result, the resident was listed as a Jane

16 Doe until the next morning. A doctor at the hospital told the resident’s daughter that he would

17 have operated on the resident shortly after she was admitted, but had to wait until the next

18 morning because he had no family contact numbers to call. The Community Care Licensing

19 inspector who investigated this incident noted that she observed insufficient staffing at

20 BROOKDALE Fountaingrove to ensure that the facility’s own policies and procedures were being

21 followed. On another occasion, a BROOKDALE Fountaingrove resident pressed the call button

22 on her pendant because she could tell she was going to have terrible diarrhea. While she waited

23 for a response, the resident headed for the toilet, but by the time she got there, she had already

24 soiled herself and her nightgown. Although a caregiver responded to the pendant call, when the

25 caregiver looked in the bathroom and saw the resident sitting on the toilet, she left without

26 providing assistance and never returned. The resident screamed for help and pressed the

27 emergency button next to the toilet, but no one responded until roughly an hour later, when a new

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1 set of caregivers started their shifts.

2

48. Residents must resort to calling 911 for assistance when staff fail to promptly

3 respond to their call pendants. For example, public records kept by the Rincon Valley & Windsor

4 Fire Protection Districts revealed that in a one-year period from June 2016 through May 2017, the

5 agency responded to 83 emergency calls from 907 Adele Drive, the address of BROOKDALE

6 Windsor. Community Care Licensing records indicate that this facility has a capacity of 80, but

7 often has fewer than 70 residents, suggesting that BROOKDALE Windsor residents averaged well

8 over one 911 call per person over the past year. Many of these calls were classified as “medical

9 assists,” meaning the Rincon Valley & Windsor Fire Protection Districts provided assistance to

10 another group or agency that had primary responsibility for medical care, such as assisting with

11 moving a heavy patient. Several of these 911 calls were classified as instances where a member of

12 the public called the fire protection districts for routine help, such as assisting a person in returning

13 to a bed or chair, with no transport or medical treatment given.

14

49. In other cases, Defendants’ staff failed to monitor residents’ health status as

15 promised, placing residents in danger and distress in situations where the resident was not able to

16 call for help. At BROOKDALE Fountaingrove, one resident was left in her wheelchair all night

17 because she requires staff assistance to get in and out of her wheelchair, but staff failed to help her

18 into bed and never checked on her during the night. In another case, a resident at BROOKDALE

19 Scotts Valley fell in his apartment and went without food or water for 24 to 30 hours because staff

20 failed to check on him. The resident was taken to a hospital, where doctors diagnosed him with

21 dehydration and rhabdomyolysis, a condition in which damaged skeletal muscle tissue breaks

22 down and the damaged muscle cells are released into the bloodstream, causing further injury. At

23 BROOKDALE Riverside, a resident fell while outside and suffered severe sunburns because staff

24 failed to regularly check on him. In November 2016, Community Care Licensing issued a citation

25 to BROOKDALE Hemet based on an incident in which staff left a resident with a known risk of

26 falling unattended in a dining room chair. The resident fell and hit his head, requiring ten stitches.

27 Just three days later, Defendants’ staff again left the resident unattended, and he fell and re-injured

28

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1 his head. The licensing inspector noted that this resident had additional staff supervision as part of

2 his care plan, but that BROOKDALE Hemet lacked sufficient staff to meet the resident’s needs.

3

50. Because Defendants’ staff are stretched so thin responding to emergency calls and

4 attending to their other duties, they have attempted to dissuade residents from calling for

5 assistance. Residents have been told by overworked caregivers to use their call buttons “only in

6 an emergency,” despite the fact that, short of screaming for help, this is the only way to alert

7 caregivers that they need the assistance for which they are paying BROOKDALE. In many

8 instances, residents feel bad for overworked caregivers and attempt to perform tasks on their own,

9 despite paying BROOKDALE for these services. This has led to residents’ falling or otherwise

10 injuring themselves.

11

Impact of Understaffing on Dining Services

12

51. BROOKDALE’s policy and practice of understaffing has resulted in its cutting

13 staffing hours and eliminating positions in dining services. As a result, residents wait for long

14 periods of time to be served. Some residents give up in frustration. Food is often served cold, and

15 residents do not dare to make a special request, for fear that the wait will be extreme. Moreover,

16 the quality of the food has so deteriorated that it is in many cases nearly inedible. Fresh

17 ingredients are rare, meat of poor quality is hidden under sauces, and both residents and licensing

18 inspectors have encountered food beyond its expiration date. The understaffing also prevents staff

19 from maintaining a clean and hygienic dining area.

20

52. At BROOKDALE San Ramon, the hours of serving staff were cut, and servers

21 have left as a result, leaving the dining department severely understaffed. At breakfast, there is

22 often one server for 80 people. On at least one day during June 2017, there were no servers in the

23 dining room for breakfast, and the activities director was cleaning the tables while the chef both

24 cooked and served meals. At BROOKDALE Windsor, licensing inspectors found a single staff

25 member working morning shifts in the dining room, with dirty dishes and food droppings strewn

26 about because no other staff members were available to clean up. BROOKDALE Riverside

27 received a Community Care Licensing citation after investigators found that food was served cold

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1 and residents had to wait an unreasonable amount of time for food to be served. The investigator

2 attributed this problem to understaffing, noting in her report that “[i]t was revealed there is not

3 enough servers for the number of residents in the dining room at one time.” On a recent visit to

4 BROOKDALE Corona, the licensing inspector found five residents sitting in the dining room

5 without supervision, and noted that caregivers were expected to serve lunch, clean the dining room

6 after meals, and sweep the floors in the dining room in addition to their other duties. The same

7 inspector found uncovered and dried-out ham and cheese sandwiches in the refrigerator and

8 unrefrigerated cartons of strawberry milk in a cupboard.

9

53. The long waits and substandard meals in the dining room mean that some residents

10 either purchase their own food or often forgo meals altogether, despite the fact that residents are

11 paying BROOKDALE for three meals per day and snacks. Residents’ nutrition needs are not

12 being met, and to the extent that they look forward to meals as a pleasant social experience, they

13 are being deprived of that benefit as well. Residents have made numerous complaints to

14 Defendants about the dining service, individually and through the family and resident councils.

15 For example, the Resident Council at BROOKDALE San Ramon has been complaining about the

16 problems in dining services for at least two years. Yet residents have seen no durable

17 improvements. There may be temporary improvements from time to time, but the overall trend is

18 actually downward.

19

Impact of Understaffing on Housekeeping and Laundry

20

54. BROOKDALE’s policy and practice of understaffing extends to housekeeping and

21 laundry services. For example, on information and belief, BROOKDALE San Ramon currently

22 only one housekeeper to clean approximately 80 rooms. As a result, the maintenance director

23 must also clean rooms and consequently has less time to perform maintenance duties. Residents’

24 rooms have been left in deplorable and often unsanitary conditions, including toilet seats and

25 showers covered in feces and rooms which smell strongly of urine.

26

55. BROOKDALE routinely fails to wash residents’ personal belongings and bed

27 linens. Even when BROOKDALE’s staff take these items for laundering, residents’ clothes and

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1 linens are often lost, or they are given back other residents’ clothing or linen instead of their own.

2 Residents are left in dirty and malodorous clothing. For example, Loresia Vallette, the

3 granddaughter of former BROOKDALE Hemet resident LAWRENCE QUINLAN observed that

4 her grandfather’s clothes were never washed, and that staff continued to dress him in the same pair

5 of urine-stained pants. Some residents or their family members have despaired of waiting and

6 begun to perform these services on their own, despite BROOKDALE’s promise to provide them

7 as part of their base rate.

8

Discrimination in Transportation/Activities

9

56. Due to chronic understaffing at Defendants’ facilities, promised transportation

10 services and activities are often sporadic or nonexistent. Many residents rely on BROOKDALE

11 for transportation to medical and lab appointments, church, grocery shopping, banking and other

12 activities. Additionally, they expected and would enjoy both on- and off-site activities. Yet they

13 do not receive these services on a regular basis, if at all. Scheduled activities—such as poker,

14 bingo and movies—are frequently cancelled, and BROOKDALE regularly fails to provide the

15 promised transportation services to its residents. Residents are often told about cancellations at

16 the last minute for shuttles to planned events, such as church services. The lack of staffing at

17 BROOKDALE San Ramon means that its activities director must fulfill multiple duties. In

18 addition to her expected duties, she often works in the dining room serving food or cleaning and at

19 the front desk as a receptionist. She is also the only driver for facility-provided transportation. On

20 several occasions, residents of BROOKDALE San Ramon have been left waiting outside a

21 medical office or a church because BROOKDALE staff forgot to pick them up and had to rely on

22 others to take them back to the facility.

23

57. Additionally, BROOKDALE has implemented policies and practices regarding its

24 provision of transportation services that discriminate against persons with mobility disabilities.

25 Residents at BROOKDALE San Ramon who use wheelchairs must be able to transfer from their

26 chairs to a seat in the bus, despite the existence of a wheelchair lift and a system for securing

27 wheelchairs in at least one of BROOKDALE San Ramon’s buses. Making this transfer is

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1 impossible and/or unsafe for many wheelchair users. The facility also requires wheelchair users to

2 arrange for a family member or an outside care attendant to accompany them on any off-site

3 activity, which deters many wheelchair users from participating and imposes a surcharge on those

4 who do. The facility also limits the number of wheelchair users for each off-site trip to two. At

5 BROOKDALE Fountaingrove, wheelchair users are limited to two off-site trips per month. At

6 least one wheelchair user at BROOKDALE San Ramon was told that she could not participate in

7 regular Saturday trips to the grocery store and shopping, because the driver “couldn’t handle her.”

8

Emergency Evacuation Procedures

9

58. BROOKDALE has emergency and evacuation policies and procedures in place for

10 at least some of its facilities, but these policies and procedures do not take into account the needs

11 of persons with disabilities, or if they do, Defendants have not informed the residents. Residents

12 with disabilities have been told to wait in their rooms for someone to come, and although the

13 facilities have emergency drills, staff have not demonstrated for residents what will happen in the

14 event of an actual emergency.

15

59. Plaintiffs are informed and believe, and on that basis allege, that these practices

16 have been and are an official policy and practice by which Defendants operate their businesses

17 and/or services.

18

60. Defendants’ failure and refusal to provide equal services to persons with disabilities

19 is humiliating and degrading to and creates a serious safety risk for the members of the proposed

20 class of persons with disabilities.

21

61. Defendants are responsible for their illegal operations and discriminatory policies

22 and practices as described herein. BROOKDALE residents, their family members, and staff

23 members have raised these issues repeatedly with members of BROOKDALE management to no

24 avail.

25

62. Defendants have been notified of the civil rights violations described herein, but

26 have refused to provide necessary reasonable modifications to its staffing policies, practices and

27 procedures to provide residents with disabilities full and equal enjoyment of its goods, services,

28

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1 facilities, activities, benefits and accommodations and to comply with the requirements of the

2 ADA and the Unruh Civil Rights Act as alleged herein.

3
BROOKDALE MISREPRESENTS, MAKES MISLEADING STATEMENTS, AND 4 CONCEALS MATERIAL FACTS ABOUT THE QUALITY AND AVAILABILITY OF
CARE IT PROVIDES TO ALL RESIDENTS 5

6

63. As a result of Defendants’ corporate policies and practices, BROOKDALE subjects

7 all residents, regardless of disability, to a substantial risk that they will not receive the care and

8 services they require and have paid for on any given day, as described in Paragraphs 34-58.

9 BROOKDALE lures residents to move into or stay at its facilities by misrepresenting in various

10 corporate written materials that it will provide the basic, personal, and therapeutic services each

11 resident needs based on individualized assessments performed by BROOKDALE staff, and by

12 failing to disclose and concealing that it cannot provide the promised services to all residents

13 because its facilities are chronically understaffed.

14

Standardized Residency Agreements

15

64. In order to move in to one of BROOKDALE’s California facilities, residents must

16 sign one of Defendants’ standardized Residency Agreements. In its standardized Residency

17 Agreement, BROOKDALE represents to residents prior to move-in and throughout their residency

18 that it will provide them with a standard set of basic services, additional personal services

19 identified in the Personal Service Plan, and any select and therapeutic services for which the

20 resident chooses to pay. At the time of signing the Residency Agreement, residents or their

21 responsible parties are required to confirm that they have reviewed and understood the document.

22

65. In Section I.A of its standardized Residency Agreement, BROOKDALE

23 affirmatively represents to prospective residents that “[i]n order to provide you with care,

24 supervision and assistance with instrumental activities of daily living in order to meet your needs,

25 we will provide you with the following Basic Services”: accommodations, including a residential

26 suite and use of common areas; three meals a day plus snacks 24 hours a day; basic utilities; “light

27 housekeeping once a week”; weekly laundry service of the resident’s “personal belongings and

28

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1 bed linens”; “planned social and recreational programs”; transportation services; and staffing by

2 “Community associates … available 24 hours a day, seven days a week.” Section I.A further

3 represents that BROOKDALE will observe the resident’s “health status to identify social and

4 health care needs” and “will consult with you regarding social and health-related issues.” In

5 addition, BROOKDALE represents in Section I.A of its standardized Residency Agreement that

6 “[w]e will provide personal services that are included as part of the personal service assessment.”

7

66. In Section I.B of its standardized Residency Agreement, BROOKDALE represents

8 that “[p]rior to moving in and periodically throughout your residency, we will use a personal

9 service assessment to determine the personal services you require. The personal service

10 assessment will be used to develop your Personal Service Plan.”

11

67. Defendants’ standardized price schedule for personal care services is attached to

12 the standardized Residency Agreement. This price schedule includes a variety of personal

13 services, such as staff assistance with ordering, storing, and taking medication; staff assistance

14 with eating, dressing, bathing, using the toilet, and other activities of daily living; escort and

15 mobility assistance to get around Defendants’ facilities; and help taking care of residents’ pets.

16 This price schedule lists the monthly costs of each service and details how Defendants’ caregivers

17 and other staff will provide the services. For instance, a resident may require and agree to pay for

18 “[s]taff attention while you administer your insulin injections”; “additional staff involvement” for

19 residents who are reluctant to accept care; and bathroom assistance such as “reminders to get to

20 the bathroom,” “pulling up and down pants, handling toilet paper, wiping, changing protective

21 undergarments and getting onto and off of toilet,” as well as “weight-bearing or balance assistance

22 from one associate” for residents “unable to stand independently while using the bathroom.”

23

68. BROOKDALE repeats these representations in the Personal Service Plan that it

24 prepares for each resident before the resident moves in and updates periodically throughout his or

25 her residency. The Personal Service Plan lists the types of staff assistance that the resident

26 requires and has agreed to pay for, along with the monthly fee for each. For example, the Personal

27 Service Plan for one former resident states that Defendants’ staff will “[p]rovide physical

28

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1 assistance to and from the dining room and/or community activities as needed” for a monthly fee

2 of $273. Standardized language in the Personal Service Plan states that “[t]he Personal Service

3 Assessment and the Physician Plan of Care are used to determine the personal services that you

4 require at move-in and periodically throughout your residency. The Personal Service Assessment

5 will be used to develop your Personal Service Plan.”

6

69. Pursuant to Sections I.B and III.F of its standardized Residency Agreement, “[t]he

7 results of the assessment, our method for evaluating your personal care needs, and the cost of

8 providing the additional personal services (the ‘Personal Service Rate’) will be shared with you,”

9 and a change in the Personal Service Plan be offered or required “when we determine additional

10 services are requested or required” and after 60 days’ written notice has been provided.

11

70. In Section I.C of its standardized Residency Agreement, BROOKDALE represents

12 that it will make “Select Services and Therapeutic Services … available to you at your request,”

13 but that the fees for these services are not included in the rates residents pay for basic services and

14 personal services. Defendants’ standardized Residency Agreement incorporates by reference a

15 standardized price list which features prices for the select and therapeutic services that Defendants

16 make available, many of which consist of staff assistance with the resident’s activities of daily

17 living. For example, residents may elect to pay for tray service in their rooms for up to three

18 meals a day or for additional laundry and housekeeping services beyond what is provided in the

19 basic service rate.

20

71. Every month, BROOKDALE sends each resident or his or her legal representative

21 an invoice for services that the company represents it will provide the following month. These

22 invoices list the monthly rate for basic services, the Personal Service Rate that is based on each

23 resident’s Personal Service Plan, and any rate adjustments.

24 \\\

25

72. BROOKDALE repeats these representations in the letters it periodically sends all

26 residents informing them of increases in the rates they owe for basic services, personal services,

27 and select and therapeutic services. Using standardized language, Defendants’ rate increase letters

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1 notify the resident of changes to his or her monthly rates for these services, which BROOKDALE

2 attributes to increases in the cost of “providing the services you desire and depend upon.”

3 Defendants’ Communications Regarding the Merger and New Assessment System
4

5

73. In early 2014, Emeritus Senior Living (“Emeritus”), at the time a major chain of

6 senior living facilities, sent residents a standardized letter informing them of the merger between

7 BROOKDALE and Emeritus. The letter promised that residents would not be impacted by the

8 change but would “receive the same excellent care and service you expect at your community”

9 and would “continue to enjoy all the amenities of your community.” It further stated the merger

10 would create a “senior living company offering the most comprehensive set of senior care

11 solutions” with a commitment to “customer-focused cultures and a commitment to continuous

12 improvement and innovation.” Rather than inform residents that the merger would result in even

13 lower staffing levels and poorly trained staff, the letter promised a continuum of care with likely

14 improvements.

15

74. In or about October 2015, BROOKDALE sent residents a standardized letter

16 informing them of an upgrade to its community assessment and care planning system effective

17 December 1, 2015. The upgrade would involve a conversion to a “new personal service system”

18 which would “enhance our ability to match your needs and preferences with the right services at

19 the right time.” The letter promised “benefits from enhancements,” which included, inter alia,

20 “[p]ersonalized service planning and care systems.”

21

75. Based on these representations, Plaintiffs, and the putative class members

22 reasonably expected that the merger would result in improvements in care, or at the very least,

23 would not result in a decline in services. Additionally, they reasonably expected that the

24 conversion to the new assessment and care planning system would result in improved delivery of

25 basic services, personal services, and select and therapeutic services for which they were paying.

26 \\\

27 \\\

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Defendants’ Marketing Materials 1

2

76. Defendants’ public website, www.brookdaleliving.com, prominently features

3 online marketing materials directed at prospective residents. In a section of its website entitled

4 “What is Assisted Living?”, BROOKDALE claims that its “assisted living communities have staff

5 and programs in place that support and assist residents with daily living and basic care in a

6 homelike or apartment setting. Residents receive three meals a day, recreational and social

7 activities, housekeeping, linen service, apartment maintenance and transportation. That means

8 your loved one gets all the benefits of retired life, without the hassle of daily chores.”

9

77. Defendants’ online marketing materials also tout the personalized services that its

10 assisted living facilities provide. The company’s website explains that “[o]ur trained caregivers

11 provide attention and assistance with medication support, bathing, dressing, cooking and other

12 tasks throughout the day. Our staff will also coordinate services with outside healthcare providers

13 and monitor residents to ensure they are healthy so your loved one gets the care they need while

14 enjoying the quality of life they’ve earned.”

15

78. Defendants’ online marketing materials promise a “Culinary Arts” program that

16 uses “only the freshest meat, seafood, produce, herbs, and spices.”

17

79. Defendants’ online marketing materials further represent that “[a]t Brookdale, we

18 believe in delivering senior care that’s tailored to you and your loved one based on those unique

19 needs and desires. That’s why we provide a variety of options. This personalized approach

20 ensures that you and your family get exactly what you need without paying for what you don’t.”

21 \\\

22

80. BROOKDALE represents to prospective and current residents that it tailors its

23 services to residents’ personal needs. According to Defendants’ representations, the process

24 begins with an individualized assessment, which BROOKDALE uses to produce a Personal

25 Service Plan for each resident. The Personal Service Plan includes a list of services for which the

26 resident pays a monthly fee. Defendants’ affirmative representations give rise to a reasonable

27 expectation on the part of the reasonable consumer that BROOKDALE will determine and then

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1 provide the amount of caregiver and other staff time that is necessary to provide the personal

2 services for which residents are paying.

3

81. BROOKDALE makes similar representations in the standardized marketing folder

4 it distributes to prospective and incoming residents. In this marketing folder, BROOKDALE

5 represents that at its facilities, “Carefully selected and trained associates do more than assist with

6 activities of daily living such as dressing, bathing and dispending of medications; they implement

7 custom care plans designed to meet the individual needs of each resident … It all begins with a

8 Personal Service Assessment. We take the time to listen to our residents so that we understand

9 how to establish clinical, dining and program support that works for them in a meaningful way.

10 We recognize their individual needs and preferences and respond to them accordingly. So,

11 whether it’s a scented lotion, a unique snack, a favorite recipe or a lifelong interest, we integrate

12 everything we learn to create a truly individualized living experience.” Elsewhere in this

13 marketing folder, BROOKDALE represents that it “provide[s] customized care solutions to meet

14 residents’ unique needs and complement their vision for all the places they would still like their

15 lives to go. From our trained staff to our wide variety of amenities and activities, we strive to

16 offer personalized care and exceptional service at competitive and affordable rates. Fees for care

17 and services are based on each resident’s needs and preferences, as determined by the Living

18 Accommodation selected and their Personal Service Plan … This provides customer value because

19 our residents only pay for what they need and want.” (Emphasis in original). BROKDALE’s

20 marketing folder also promises an industry-leading dining services program that “continue[s] to

21 satisfy the preferences and nutritional needs of residents with dining choices that offer mealtime

22 fulfillment while meeting dietary requirements.”

23

82. Based on all of Defendants’ representations, Plaintiffs, the putative class members,

24 and the general consuming public reasonably expect that BROOKDALE will ensure adequate

25 staffing to perform the services promised to residents, including by providing sufficient levels of

26 qualified and adequately trained staff to perform the services identified in each resident’s Personal

27 Service Plan.

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1 Defendants’ Failures to Disclose
2

3

83. Contrary to Defendants’ representations regarding its provision of services,

4 BROOKDALE has a corporate policy and practice of staffing its facilities according to a system

5 that ensures all BROOKDALE residents run the continuing risk of not receiving the services for

6 which they are paying, of not having their care needs met, and of suffering injury from the lack of

7 care.

8

84. In addition to the Community Care Licensing records described in Paragraphs 35-

9 36, 39-41, 44-47, and 50, current and former residents of BROOKDALE facilities confirm that

10 Defendants’ staffing levels do not change when updates to personal service assessments show that

11 residents require additional personal services. BROOKDALE has in many cases modified

12 residents’ Personal Service Plans—and raised monthly personal service fees accordingly—even

13 though BROOKDALE failed to conduct an updated personal service assessment, failed to provide

14 residents or their legal representatives with the results and method of the assessment, and/or failed

15 to provide 60 days’ written notice. Despite paying higher fees as a result of these changes to their

16 Personal Service Plans, residents and their families have observed that neither the services

17 provided nor staffing levels increased and, in many cases, decreased.

18

85. Caregivers have informed residents that although they would like to work a 40-

19 hour week, but BROOKDALE allows certain caregivers to work only 24 hours in a week.

20 Residents and their family members have also observed that BROOKDALE fails to ensure that all

21 staff members receive necessary training. At BROOKDALE Fountaingrove, the facility’s interim

22 executive director admitted to residents’ families that BROOKDALE has insufficient staff to meet

23 residents’ needs.

24

BROOKDALE’S MISREPRESENTATIONS AND

25

CONCEALED FACTS WERE MATERIAL

26

27

86. BROOKDALE’s misrepresentations and the facts it conceals are material to the

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1 reasonable consumer. An important and significant factor in choosing to move oneself or one’s

2 relative to a BROOKDALE facility, to stay there after the facility was purchased by

3 BROOKDALE, and/or to continue to agree to pay the amounts charged by BROOKDALE is the

4 provision of staffing that is necessary to provide the services its residents need and for which the

5 residents are paying.

6

87. BROOKDALE’s misrepresentations, misleading statements and omissions

7 regarding its provision of staffing are material to prospective residents and their family members.

8 Assurances that a facility will provide the amount of staffing necessary to provide basic services

9 and meet the personal service needs of residents based on BROOKDALE’s own assessments is a

10 substantial factor (and indeed often the most important factor) in deciding to enter a certain

11 facility. The named Plaintiffs would not have, and the members of the putative class would in all

12 reasonable probability not have, entered BROOKDALE’s facilities, or stayed at these facilities

13 after BROOKDALE purchased them from other companies, or they would have insisted on paying

14 a lower price, if they had known that, although BROOKDALE would charge them based on the

15 staffing associated with their Personal Service Plans, BROOKDALE did not and does not provide

16 adequate staffing to carry out the services identified in residents’ Personal Service Plans, nor does

17 it provide adequate staffing to perform basic services and select and therapeutic services.

18

88. This is true even for residents who currently are nearly independent. These

19 residents chose an assisted living facility as opposed to an independent living community or

20 remaining at home because they wish to “age in place.” They may not currently need significant

21 assistance with the activities of daily living initially, but they will become more dependent as they

22 age and do not want to move again when that happens. Moreover, even the most independent

23 residents depend on the basic services that BROOKDALE promised them, such as food, laundry,

24 and housekeeping. A key factor for these residents in selecting BROOKDALE is that the facility

25 will provide the staffing that BROOKDALE itself has determined is necessary to meet their

26 assessed needs, both now and as those needs increase.

27

89. BROOKDALE has a duty to disclose that its staffing policies and procedures

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1 preclude it from consistently providing basic services, personal services, and select and therapeutic

2 services, because of, among other things, the substantial safety risk to current and future residents

3 from BROOKDALE’s conduct.

4

90. The non-disclosure is material because, among other things, BROOKDALE knows

5 that its conduct risks the safety of its residents. In addition to individual complaints made by

6 residents and family members, family and resident councils send regular correspondence to

7 Executive Directors of BROOKDALE facilities, as well as regional and national mangers

8 regarding the problems outlined above. In the case of BROOKDALE San Ramon and

9 BROOKDALE Fountaingrove, local and regional management employees have attended

10 numerous meetings of the Family and Resident Councils and have made unfulfilled promises to

11 address the concerns outlined above. Moreover, Community Care Licensing has conducted

12 numerous licensing inspections which are delivered to BROOKDALE executives and managers of

13 California facilities describing the failure of various facilities to meet state laws and regulations.

14

91. BROOKDALE is fully aware of the facts alleged above. Yet, BROOKDALE has

15 failed to disclose and actively concealed from residents, prospective residents and their family

16 members the true facts about how staffing provided at BROOKDALE’s California facilities.

17

Barriers to Moving Out

18

92. BROOKDALE’s misrepresentations, misleading statements, and material

19 omissions affect not only the decision of residents to enter the facility but also the decision to stay

20 at a BROOKDALE facility.

21 \\\

22

93. In choosing assisted living in general and a BROOKDALE facility in particular, the

23 resident forgoes other options such as their former home, an independent living community, or

24 other facilities. Once in a facility, there are significant physical, emotional and other burdens for

25 the residents that are triggered if they terminate residency, including impacts such as “transfer

26 trauma.” BROOKDALE knows and relies on this fact. As BROOKDALE notes on its website

27 “[a]s a resident’s health needs increase, they may transition from one level to the next—all within

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1 the same community. This provides a permanent link to friends and families for them by assuring

2 they remain in a single location.”

3

94. BROOKDALE puts great effort into increasing and maintaining building

4 occupancy to the detriment of their current and future residents. When residents or their family

5 members complain about staffing and/or conditions at a BROOKDALE facility, on information

6 and belief, employees are instructed to reassure them that things will improve and that the incident

7 or incidents are temporary snags. For example, the Family Council of BROOKDALE

8 Fountaingrove has been meeting every month for many months to address the inadequate staffing,

9 slow response times to call buttons, and other health and safety issues faced by the Fountaingrove

10 residents. At most meetings, BROOKDALE representatives, including Vice President of

11 Regional Operations Sharyl Ronan and Interim Executive Director Dan Devine, appear, listen to

12 the numerous complaints, and assure those present that they are looking into the problems and all

13 will be well. Notwithstanding these claims, members of the Family Council report little to no

14 changes or action items undertaken by BROOKDALE staff after these meetings.

15

95. Similarly, residents and family members at BROOKDALE San Ramon hold

16 monthly Family Council and Resident Council meetings and have informed facility management,

17 as well as Rick Flynn, District Director of Operations, Executive Director Steve Millard,

18 Associate Executive Director Shawn Cull, and former Acting Director Bill Grady of the problems

19 described above. In January 2017, Mr. Flynn, Mr. Grady and Mr. Cull attended a Family Council

20 meeting at which family members and residents demanded answers to their questions about

21 understaffing, poorly trained staff, undelivered services, food and dining deficiencies, cancelled

22 activities, and problems with call pendants. They were reassured at the meeting and subsequently

23 told by email correspondence that BROOKDALE was working “diligently” on solutions and had

24 reached out to the District Vice President of Operations Sheila Garner, who would be helping to

25 resolve the problems. BROOKDALE also represented that management had “made progress in

26 our hiring process for clinical and dining,” and was monitoring the call pendant system and

27 providing additional training to staff. Since that time, BROOKDALE announced the hiring of

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1 additional employees but concealed from residents that it was simultaneously cutting the hours of

2 its current employees, cuts which have led to significant staff turnover. Residents and family

3 members report that the problems described above have in fact worsened.

4

96. Such reassurances from BROOKDALE are common when residents and family

5 members raise concerns about the quality of care and services they are receiving. On information

6 and belief, Regional Vice Presidents and Executive Directors are instructed to minimize potential

7 move-outs. Executive Directors are regularly told by upper management to do everything they

8 can to “save” the move-out.

9

97. BROOKDALE thereby unjustly continues to profit from the original fraud by

10 perpetuating the misrepresentations, misleading statements, and failures to disclose.

11 NAMED PLAINTIFFS’ EXPERIENCES IN BROOKDALE FACILITIES
12 Patricia Eidler
13

14

98. PATRICIA EIDLER has been a resident at BROOKDALE San Ramon since

15 approximately April 27, 2013. When Ms. EIDLER moved into the facility, it was owned and

16 operated by Merrill Gardens LLC (“Merrill Gardens”) and was known as Merrill Gardens at San

17 Ramon. Prior to move-in, Ms. EIDLER, through her son and power-of-attorney, CHRIS EIDLER,

18 read, reviewed, and signed a standardized residency agreement with Merrill Gardens. In this

19 agreement, Merrill Gardens promised to provide Ms. EIDLER with “standard services” that are

20 substantially similar to the basic services enumerated in Defendants’ standardized residency

21 agreement. Merrill Gardens also agreed to provide Ms. EIDLER with assisted living services for

22 her needs as determined by a pre-admission interview and assessment. The agreement stated that

23 Merrill Gardens would “continue to monitor your needs and periodically reassess the services

24 being provided. … Assessments may result in changes in the level of care you receive, as well as

25 the associated assisted living fee.” The agreement also provided that any change in the amount or

26 frequency of assisted living services would result in an immediate increase in the assisted living

27 charges.

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1

99. PATRICIA EIDLER, through her son and power-of-attorney, CHRIS EIDLER,

2 read and reasonably understood Merrill Gardens’ representations in the residency agreement as

3 statements that it used resident assessments to determine its residents’ needs and provide staffing

4 levels necessary to meet those needs. Ms. EIDLER also reasonably understood and expected that

5 Merrill Gardens would staff the facility in a manner that would allow it to consistently provide the

6 services that Merrill Gardens had promised and that Ms. EIDLER would be paying for.

7 Ms. EIDLER also reasonably understood and expected that Merrill Gardens would regularly

8 assess Ms. EIDLER to ascertain any changes in her care needs and provide that care immediately

9 in exchange for an immediate increase in her assisted living charges, which she understood to be

10 necessary because of the increased staffing cost associated with providing those services to her.

11 Ms. EIDLER, through her son and power-of-attorney, CHRIS EIDLER, read and signed the

12 agreement acknowledging that she had reviewed and understood all of the terms contained in the

13 agreement. Ms. EIDLER, through her son and power-of-attorney, CHRIS EIDLER, read and

14 relied on the representations in the residency agreement in making the decision to enter Merrill

15 Gardens at San Ramon; she did so with the reasonable expectation that she would age in place and

16 that as her needs increased, the facility would be able to provide increased services and

17 corresponding caregiver time to meet those needs.

18

100. While the facility was operated by Merrill Gardens, Ms. EIDLER received better

19 care. However, it was subsequently purchased by Emeritus, and shortly thereafter became

20 BROOKDALE San Ramon, following the Emeritus-BROOKDALE merger. In or about April

21 2014, CHRIS EIDLER received and read a letter from Emeritus informing residents about the

22 merger between BROOKDALE and Emeritus. The letter promised that residents would not be

23 impacted by the change but would “receive the same excellent care and service you expect at your

24 community” and would “continue to enjoy all the amenities of your community.” It further stated

25 the merger would create a “senior living company offering the most comprehensive set of senior

26 care solutions” with a commitment to “consumer-focused cultures and a commitment to

27 continuous improvement and innovation.”

28

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1

101. CHRIS EIDLER, as his mother’s power of attorney and legal representative, read

2 the letter and reasonably understood and expected that the care Ms. EIDLER received would be no

3 worse than the care she had received under Merrill Gardens, and possibly improve.

4 BROOKDALE did not inform the EIDLERS nor did they have any reason to believe that

5 BROOKDALE would not staff the facility with sufficient staff in numbers and training to provide

6 the services for which Ms. EIDLER and the other residents were paying.

7

102. In or about November 2015, Mr. EIDLER, as power of attorney for his mother,

8 received new contract paperwork from BROOKDALE, entitled “AMENDMENT TO

9 CONTINUING CARE RESIDENCE AND SERVICES AGREEMENT,” purporting to amend the

10 residency agreement that Ms. EIDLER had signed with Merrill Gardens. The “Schedule of

11 Services and Rates” replaced references to “standard services” and “assisted living services” with

12 the terms “basic service rate” and “personal service rate.”

13

103. Ms. EIDLER, through her legal representative and power of attorney CHRIS

14 EIDLER, read and reasonably understood BROOKDALE’s representations—as well as Merrill

15 Gardens’ representations in the agreement that was assigned to BROOKDALE—as statements

16 that BROOKDALE would perform assessments to determine needed services and staff

17 BROOKDALE San Ramon in a manner that would allow it to consistently provide the services

18 that BROOKDALE promised and that Ms. EIDLER was paying for. Ms. EIDLER, through

19 CHRIS EIDLER, read and relied on these representations in making the decision to stay at the

20 facility despite the change in ownership. At no time has BROOKDALE informed Ms. EIDLER or

21 her son CHRIS EIDLER that its corporate policy and procedure of providing pre-determined

22 staffing at its facilities precludes BROOKDALE from providing the care and services residents

23 have been promised and places all residents at a substantial risk that they will not receive the care

24 and services they have paid for on any given day.

25

104. Had BROOKDALE disclosed this material fact, Mr. EIDLER would have begun

26 looking for a new place for his mother and/or not agreed to pay the amounts BROOKDALE

27 charged.

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1

105. Ms. EIDLER uses a walker and/or wheelchair for mobility. In addition to her basic

2 services, Ms. EIDLER pays to receive assistance with her medication and with bathing. Due to

3 understaffing at BROOKDALE San Ramon, Ms. EIDLER often waits 30 minutes or more for a

4 response to her call pendant. When staff do arrive, they are clearly rushed, and Ms. EIDLER feels

5 guilty about seeking their assistance when they are overworked. Consequently, instead of using

6 her call pendant, she performs some of the basic and personal care services for which she pays

7 BROOKDALE on her own or with the help of other residents, posing a safety risk.

8

106. Ms. EIDLER and her family members have witnessed carelessness with

9 medications caused by overworked staff. On at least two occasions, Ms. EIDLER has found

10 medication that did not belong to her in her room. Just this month, BROOKDALE staff was

11 unable to locate a bottle of eye medication prescribed to another resident for two days, because it

12 had left the medication in Ms. EIDLER’s room. On information and belief, Plaintiffs allege that

13 the other resident did not receive her eye medication during that time.

14

107. On or about July 10, 2017, Ms. EIDLER was informed that her pain medication

15 had been stolen from the facility. Despite numerous requests that BROOKDALE contact Ms.

16 EIDLER’s family regarding issues relating to her medication, the facility did not contact the

17 family, who learned of the burglary from Ms. EIDLER. When her daughter-in-law, Sharon Eidler,

18 asked the facility’s acting Executive Director, Shawn Cull, about the incident, he explained that

19 the staff believed that Ms. EIDLER’s medication and that of other residents was stolen during the

20 overnight shift (“NOC Shift”) from July 9 to 10, 2017. When Sharon Eidler asked Mr. Cull which

21 employees were on duty during that shift, he told her that there were only two employees on duty

22 to respond to all residents at the facility. The facility has an occupancy of between approximately

23 70 to 80 residents. Because no one was immediately available at the facility to pick up refills, Ms.

24 EIDLER did not receive her pain medication until later that evening and was extremely anxious

25 until that time. Another resident’s family was not informed of the theft until almost 6 p.m., after

26 the resident’s physician’s offices had closed and the family could not obtain a refill. That resident

27 was given an inadequate substitute pain medication in the evening, which was distressing to the

28

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1 resident and her family members, who had to reassure and calm her. The following day, although

2 BROOKDALE was notified that the refill was ready for pick-up at 10 a.m., the resident told her

3 family that she did not receive her prescribed pain medication until 4 p.m.

4

108. BROOKDALE’s staff, policies, and practices have deterred Ms. EIDLER from

5 attending Defendants’ off-site activities with her walker. Ms. EIDLER would like to participate in

6 the “Monday lunches” where residents are taken off-site for lunch at nice restaurants. However,

7 Ms. EIDLER has a hard time climbing the steps of the bus with her walker. When she has

8 attended in the past, BROOKDALE staff were very impatient with Ms. EIDLER and made her

9 feel as if her walker was a nuisance and that she should not bring it with her.

10

109. BROOKDALE’s discriminatory policies and practices have also deterred

11 Ms. Eidler from attending off-site activities with her wheelchair. BROOKDALE posted a sign in

12 BROOKDALE San Ramon stating its official policy that wheelchair users must be accompanied

13 by a family member or private caregiver and must be able to transfer from their wheelchair to a

14 bus seat. Moreover, BROOKDALE San Ramon buses are fully equipped to handle only two

15 wheelchairs, and the staff tasked with assisting residents on these outings are unable or unwilling

16 to operate the wheelchair harnesses. Ms. EIDLER requires assistance transferring from her

17 wheelchair and operating the harnesses, and does not wish to burden her family members or pay

18 for a private caregiver, on top of the fees she already pays BROOKDALE, to attend off-site

19 activities with her. As a result of BROOKDALE’S discriminatory policies and practices,

20 Ms. EIDLER has stopped participating in Defendants’ off-site activities and will continue to be so

21 deterred unless and until BROOKDALE changes its discriminatory policies and practices.

22

110. Ms. EIDLER has been instructed to keep her legs elevated as much as possible to

23 reduce the effects of edema. Understaffing in the dining services department means that she often

24 remain in the dining room for approximately two hours for each meal, something she cannot

25 afford to do given her condition. In addition to long wait times to place her orders and receive her

26 food, Ms. EIDLER frequently receives food she did not order and/or cold food. Ms. EIDLER

27 used to enjoy eating lunch and dinner in the dining room. However, the chronic understaffing and

28

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1 poor quality of food has deterred her from doing so. She has instead increased her budget for food

2 purchased outside the facility. When she does eat at the facility, she chooses the simplest

3 offerings, such as eggs for lunch or a grilled cheese sandwich for dinner, because the food quality

4 is so poor.

5 Stacia Stiner
6

7

111. STACIA STINER has been a resident at BROOKDALE San Ramon since

8 approximately February 13, 2016. On or about February 12, 2016, STACIA STINER’s mother,

9 Rita Stiner, read, reviewed, and signed an agreement with BROOKDALE as STACIA STINER’s

10 legal representative and power of attorney. As part of this “RESIDENCY AGREEMENT”,

11 BROOKDALE stated that “[i]n order to provide you with care, supervision and assistance with

12 instrumental activities of daily living in order to meet your needs, we will provide you with the

13 following Basic Services, which are included in the Basic Service Rate,” which included, among

14 other things, the room, three daily meals and snacks on demand, weekly room cleaning, weekly

15 laundry and linen service, planned activities, transportation, observation, and the availability of

16 staff “24 hours a day, seven days a week.” This standard residency agreement also stated that:

17

[p]rior to moving in and periodically throughout your residency, we will use a

18

personal service assessment to determine the personal services you require. The

personal service assessment will be used to develop your Personal Service Plan.

19

The results of the assessment, our method for evaluating your personal care needs,

and the cost of providing the additional personal services (the “Personal Service

20

Rate”) will be shared with you.

21

22 The Personal Service Plan lists the types of staff assistance that Ms. STINER requires and has

23 agreed to pay for, along with the monthly fee for each type of staff assistance. In addition,

24 Ms. STINER’s mother Rita Stiner has received and reviewed, as enclosures to BROOKDALE’s

25 rate increase letters, a personal service schedule and list of select and therapeutic services. These

26 documents describe a variety of available services, list the monthly or per-occurrence fee for each

27 service, and detail how BROOKDALE’s caregivers or other staff will provide the service. Every

28

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1 month, BROOKDALE sends Ms. STINER, through Rita Stiner, an invoice for services that the

2 company impliedly represents it will provide in the following month. These invoices list the

3 monthly rate for the basic services set forth in BROOKDALE’s standardized residency

4 agreements, the Personal Service Rate that is based on Ms. STINER’s Personal Service Plan, and

5 any rate adjustments.

6

112. Ms. STINER, through her legal representative and power of attorney, Rita Stiner,

7 read and reasonably understood BROOKDALE’s representations as statements that

8 BROOKDALE would perform assessments to determine needed services and staff BROOKDALE

9 San Ramon in a manner that would allow it to consistently provide the services that

10 BROOKDALE promised and Ms. STINER was paying for. Ms. STINER, through Rita Stiner,

11 relied on these representations in making the decision to enter BROOKDALE San Ramon.

12 BROOKDALE did not disclose to STACIA or Rita STINER at any time prior to her admission

13 nor has it disclosed since that time that its corporate policy and procedure of providing pre-

14 determined staffing at its facilities precludes BROOKDALE from providing the care and services

15 residents have been promised and places all residents at a substantial risk that they will not receive

16 the care and services they have paid for on any given day. If BROOKDALE had disclosed this

17 material fact to STACIA and/or Rita STINER, STACIA STINER would have looked for another

18 facility for STACIA and would not have agreed to pay the rates charged by BROOKDALE.

19

113. Beginning in October 2016, BROOKDALE initiated increases in Ms. STINER’s

20 basic service and personal service rates. Ms. STINER and her mother Rita Stiner have been

21 unable to decipher the changes in Ms. STINER’s bills. On or about October of 24, 2016, Rita

22 Stiner received a letter from BROOKDALE’s Executive Director informer her that Ms. STINER’s

23 basic service rate would increase from $3,205 to $3,429 per month and that her personal service

24 rate would increase by approximately 6%. During an in-person meeting in January of 2017,

25 BROOKDALE staff told Rita Stiner that Ms. STINER’s personal service rates would rise as

26 follows: the monthly medication management fee would rise from $567 to $631; the monthly fee

27 for staff assistance with dressing and grooming tasks would rise from $454 to 505; the monthly

28

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1 fee for assistance with two showers per week would rise from $113 to $631 per week (a

2 significant increase because STACIA STINER was purportedly requiring more than the allotted

3 20 minutes of caregiver time per shower); and the monthly fee for assistance with toileting would

4 increase from $397 to $442. Rita Stiner has had conversations with Shawn Cull, the acting

5 Executive Director, during which he told her that BROOKDALE would not charge the full

6 amount of the increases listed above. Despite numerous communications with Mr. Cull and the

7 billing department, the monthly bills remain confusing and BROOKDALE has sent Rita Stiner

8 notices of late payment and even a “30-DAY FINAL DEMAND TO PAY” in December 2016,

9 stating that “[i]n order to provide the care our residents expect and deserve and at the same time

10 support the professional staff we employ, it’s imperative that we receive our monthly rent and any

11 additional charges in a timely fashion.”

12

114. Although Ms. STINER is a wheelchair user, BROOKDALE has not provided her

13 with a room that has any physical access features. It does not have sufficient turning space in the

14 bathroom area, making it difficult for Ms. STINER to enter the bathroom and impossible for

15 Ms. STINER to turn around in the bathroom. The bathroom does not have a roll-in shower, and

16 the grab bars do not comply with applicable access standards, preventing her from bathing

17 independently and creating a serious safety hazard. Ms. STINER cannot reach most of the

18 hanging or the storage space in her closet and therefore cannot access her clothing or other

19 personal items without assistance from others. Ms. STINER’s room has a balcony, but a two-inch

20 lip leading out to the balcony and insufficient turning space once outside makes it inaccessible to

21 Ms. STINER. She once tried to enter and exit the balcony by herself, but has not attempted to do

22 so since because the experience scared her. The complete lack of accessible features in

23 Ms. STINER’s room prevents her from being as independent as possible and causes her to rely on

24 personal assistance from BROOKDALE staff. In fact, Ms. STINER is charged more than $400

25 per month for toilet assistance because “resident is unable to use the bathroom on their own.”

26 BROOKDALE charges Ms. STINER an elevated rate of $631 for two showers per week because,

27 according to BROOKDALE management, she requires more than the allotted 20 minutes per

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1 shower. Compounding this problem is BROOKDALE’s understaffing in care services, which

2 means that Ms. STINER must wait to accomplish most of her activities of daily living, if at all.

3 This puts Ms. STINER in humiliating, frustrating and hazardous situations on a daily basis.

4

115. Despite paying approximately $600 per month for BROOKDALE to “order and

5 coordinate medications between family, health care providers and pharmacy,” Rita Stiner must

6 pick up medication for her daughter at least once per week, frequently with only one-day notice

7 from BROOKDALE. Rita Stiner also does the majority of her daughter’s laundry because

8 BROOKDALE frequently loses her clothing or returns the wrong clothing to her.

9

116. Understaffing in the dining services department means that Ms. STINER has had to

10 wait up to 45 minutes just to order breakfast.

11

117. On some days, there is only one caregiver available in the mornings, causing

12 Ms. STINER to wait anywhere from 10 minutes to one hour for assistance getting dressed. At

13 night, Ms. STINER requires assistance if she needs to use the toilet. She waits anywhere from 10

14 minutes to an hour for staff to respond and will occasionally have to urinate in her bed when

15 assistance takes too long to arrive. She frequently resorts to using her mobile phone to call the

16 outside line when staff do not respond to her call pendant. Due to short-staffing, caregivers often

17 attempt to leave Ms. STINER in the middle of assisting her with bathing or toileting because they

18 must respond to call pendants from other residents or because they left another resident on the

19 commode to respond to Ms. STINER.

20

118. Ms. STINER enjoys getting out of the facility and participating in off-site

21 activities. However, BROOKDALE requires that, because she is a wheelchair user, she be

22 accompanied by a family member or a private personal caregiver. Although she has been able to

23 participate in scenic drives or lunches by herself, Ms. STINER had to pay approximately $180 for

24 a personal assistant to participate in a trip to a casino in Cache Creek in approximately August

25 2016. She would like to return to Cache Creek on a future BROOKDALE outing, but is deterred

26 by BROOKDALE’s discriminatory policy. Outings are also frequently limited to two wheelchair

27 users per outing on a first come, first served basis.

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1

119. In case of fire and other emergencies, BROOKDALE staff has told Ms. STINER to

2 remain in her room until they come and get her. However, staff members have not come to get

3 Ms. STINER when fire alarms go off at the facility, nor have they given her any additional

4 instructions about how they would assist her in exiting the facility.

5 Mary-Catherine Jones
6

7

120. MARY-CATHERINE JONES has been a resident at BROOKDALE Fountaingrove

8 in Santa Rosa since approximately January 2013. When Ms. JONES moved into the facility, it

9 was owned and operated by Emeritus and was known as Emeritus at Santa Rosa. Prior to move-

10 in, KELLY CLAPPER, acting as Ms. JONES’s legal representative and power of attorney, signed

11 a standardized residency agreement with Emeritus. In this agreement, Emeritus promised to

12 provide a list of “core services” that are substantially similar to the basic services enumerated in

13 Defendants’ standardized residency agreement. Emeritus also agreed to “perform a

14 comprehensive Resident Evaluation prior to your admission in the Community, regularly

15 thereafter, and as your condition warrants, in order to determine the level of Personal Care

16 Services that you need. We will develop your Service Plan, based on your Resident Evaluation,

17 that describes how we will provide these services. You will receive services appropriate to your

18 individual needs, as described in your Service Plan.” The agreement reserved Emeritus’s right to

19 assign the agreement to any successor-in-interest selected by Emeritus.

20

121. In 2014, BROOKDALE merged with Emeritus, and Emeritus at Santa Rosa

21 became BROOKDALE Fountaingrove. Plaintiffs are informed and believe, and on that basis

22 allege, that Emeritus assigned its residency agreements with existing residents to BROOKDALE,

23 and that BROOKDALE assumed any liability arising from those agreements. In or about

24 February 2014, KELLY CLAPPER received and read a letter from Emeritus informing residents

25 about the merger between BROOKDALE and Emeritus. The letter promised that residents would

26 not be impacted by the change but would “receive the same excellent care and service you expect

27 at your community” and would “continue to enjoy all the amenities of your community.” It

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1 further stated the merger would create a “senior living company offering the most comprehensive

2 set of senior care solutions” with a commitment to “consumer-focused cultures and a commitment

3 to continuous improvement and innovation.”

4

122. KELLY CLAPPER, as her mother’s power of attorney and legal representative,

5 read the letter and reasonably understood that the care Ms. JONES received would be no worse

6 than the care she had received under Emeritus, and possibly improve. BROOKDALE did not

7 inform Ms. JONES or Ms. CLAPPER nor did they have any reason to believe that BROOKDALE

8 would not staff the facility with sufficient staff in numbers and training to provide the services for

9 which Ms. JONES and the other residents were paying.

10

123. On November 18, 2015, KELLY CLAPPER read, reviewed, and signed an

11 agreement with BROOKDALE as Ms. JONES’s legal representative and power of attorney. This

12 agreement, entitled “AMENDMENT TO CONTINUING CARE RESIDENCE AND SERVICES

13 AGREEMENT,” amended the residency agreement that Ms. JONES signed with Emeritus and

14 that was assigned to BROOKDALE after the merger with Emeritus. Pursuant to this amendment,

15 references to “core services” and “personal care services” were replaced with the terms “basic

16 services” and “personal services,” and Emeritus’s price schedules for various services were

17 replaced with BROOKDALE’s standardized personal services price schedule and lists of select

18 and therapeutic services. The parties agreed that except as otherwise amended, the terms of the

19 prior residency agreement would remain in full force and effect.

20

124. BROOKDALE has also prepared and periodically updated a Personal Service Plan

21 for Ms. JONES. Ms. JONES’s Personal Service Plan lists the types of staff assistance that

22 Ms. JONES requires and has agreed to pay for, along with the monthly fee for each type of staff

23 assistance. In addition, Ms. JONES has received and reviewed, as enclosures to BROOKDALE’s

24 rate increase letters, a personal service schedule and list of select and therapeutic services. These

25 documents describe a variety of available services, list the monthly or per-occurrence fee for each

26 service, and detail how BROOKDALE’s caregivers or other staff will provide the service. Every

27 month, BROOKDALE sends Ms. JONES, through KELLY CLAPPER, an invoice for services

28

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1 that the company impliedly represents it will provide in the following month. These invoices list

2 the monthly rate for the basic services set forth in BROOKDALE’s standardized residency

3 agreements, the Personal Service Rate that is based on Ms. Jones’s Personal Service Plan, and any

4 rate adjustments.

5

125. Ms. JONES, through her legal representative and power of attorney KELLY

6 CLAPPER, read and reasonably understood BROOKDALE’s representations—as well as

7 Emeritus’s representations in the agreement that was assigned to BROOKDALE and expressly

8 incorporated into BROOKDALE’s November 18, 2015 agreement with Ms. JONES—as

9 statements that BROOKDALE would perform assessments to determine needed services and staff

10 BROOKDALE Fountaingrove in a manner that would allow it to consistently provide the services

11 that BROOKDALE promised and Ms. JONES was paying for. Ms. JONES, through KELLY

12 CLAPPER, read and relied on these representations in making the decision to remain at the

13 facility despite the change in ownership.

14

126. BROOKDALE currently charges Ms. JONES a basic service rate of $3,790 per

15 month, plus a personal service rate of $2,436 per month, minus a loyalty credit. Ms. JONES’s

16 personal service rate includes, among other things, a $580 monthly fee for BROOKDALE’s

17 providing “attention and/or assistance with taking medications[] … [and] [a]ssist[ing] with

18 medication storage,” a $116 monthly fee for staff assistance with the “setup, selection, or laying

19 out of clothes or grooming toiletries,” a $116 monthly fee for staff assistance with showering, a

20 $348 monthly fee for staff assistance to “accomplish and/or participate in daily routines due to

21 memory loss or cognitive impairment,” a $460 monthly fee due to Ms. JONES’s “demonstrated

22 reluctance to accept care related to showering or bathing assistance,” a $290 monthly fee for

23 “demonstrating anxious, disruptive or obsessive behavior,” a $58 monthly fee because the

24 “resident smokes,” and a $464 monthly fee for “pet care assistance.”

25

127. Although Ms. JONES’s Personal Service Plan includes a monthly fee for staff

26 assistance with medications, BROOKDALE’s staff have regularly failed to provide that service as

27 promised. In May 2016, Ms. JONES’s doctor changed her blood pressure medication. The doctor

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1 sent BROOKDALE Fountaingrove the instructions for administering the new medication, and

2 Ms. JONES’s daughter, Drue Rostel, personally dropped off the medication at BROOKDALE

3 Fountaingrove, alerting staff to be on the lookout for the new doctor’s orders. However, staff at

4 BROOKDALE Fountaingrove failed to give Ms. JONES the new medication. When Ms. Rostel

5 visited BROOKDALE Fountaingrove several days after dropping off the new medication, staff

6 told her they had no idea that there had been a change, and they could not locate the new

7 medication. Staff also failed to log Ms. JONES’s blood pressure as requested by her doctor. As a

8 result of these errors, Ms. JONES’s doctor had to cancel an appointment that had been scheduled

9 to review Ms. JONES’s health status and the effectiveness of the new medication. Ms. Rostel and

10 Ms. CLAPPER filed a complaint with Community Care Licensing, which investigated the

11 incident, found that the complaint was substantiated, and issued a citation to BROOKDALE. Just

12 two months later, BROOKDALE’s staff again failed to follow medication instructions sent by

13 Ms. JONES’s doctor.

14

128. Notwithstanding the high fees paid for medication monitoring, Plaintiff MARY-

15 CATHERINE JONES’ daughter recently discovered that Ms. JONES was taking an entire pill of

16 the anti-anxiety medication prescribed by her physicians—not a half-pill as the physician ordered.

17 This discovery was made two months after Ms. JONES began sleeping through lunch daily and

18 losing five pounds per month. Ms. JONES’s daughters were not informed of the medication error

19 or the excessive sleepiness for weeks.

20

129. Although Ms. JONES pays a monthly fee for staff assistance with showers and

21 dressing and grooming, Ms. Rostel and Ms. CLAPPER have observed that staff at BROOKDALE

22 Fountaingrove regularly fail to bathe or dress Ms. JONES. In addition, Ms. Rostel and

23 Ms. CLAPPER have observed that Ms. JONES’s laundry is almost never done, and that in one

24 period, staff went several weeks without laundering Ms. JONES’s clothes, even though weekly

25 laundry service is part of Ms. JONES’ monthly Basic Service Rate.

26

130. In October 2016, Ms. JONES’s Personal Service Plan was amended to add a

27 monthly fee for staff assistance with Ms. JONES’s pet dog, which included daily feeding, taking

28

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1 the dog on daily walks, and letting the dog outside to relieve himself multiple times per day.

2 However, over the course of several months, staff at BROOKDALE Fountaingrove failed to feed

3 the dog or take the dog outside to relieve himself. As a result, on several occasions Ms. Rostel

4 and/or Ms. CLAPPER found the dog unfed and Ms. JONES’ floor smeared with dog feces.

5

131. Ms. Rostel and Ms. CLAPPER complained about these problems numerous times

6 to managers at BROOKDALE Fountaingrove. Although BROOKDALE management has

7 repeatedly reassured Ms. Rostel and Ms. CLAPPER that BROOKDALE will address their

8 concerns, they have not seen any improvement. Since Ms. JONES has resided at BROOKDALE

9 Fountaingrove, BROOKDALE has never disclosed that its staffing policies and procedures

10 preclude it from providing its residents all of the care and services they have been promised and

11 places all residents at an inherent and substantial risk that they will not receive the care and

12 services they have paid for on any given day. Ms. JONES has not received the care

13 BROOKDALE promised her, and for which she pays significant fees each month.

14 Helen Carlson
15

16

132. HELEN CARLSON has been a resident at BROOKDALE Fountaingrove since

17 October 2011. When Ms. CARLSON moved into the facility, it was owned and operated by

18 Emeritus and was known as Emeritus at Santa Rosa. Prior to move-in, CARLSON’s daughter-in-

19 law JOAN CARLSON, acting as Ms. CARLSON’s legal representative and power of attorney,

20 read, reviewed, and signed a standardized residency agreement with Emeritus. In this agreement,

21 Emeritus promised to provide a list of “core services” that are substantially similar to the basic

22 services enumerated in Defendants’ standardized residency agreement. Emeritus also agreed to

23 “perform a comprehensive Resident Evaluation prior to your admission in the Community,

24 regularly thereafter, and as your condition warrants, in order to determine the level of Personal

25 Care Services that you need. We will develop your Service Plan, based on your Resident

26 Evaluation, that describes how we will provide these services. You will receive services

27 appropriate to your individual needs, as described in your Service Plan.” The agreement reserved

28

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1 Emeritus’s right to assign the agreement to any successor-in-interest selected by Emeritus.

2

133. Ms. CARLSON, through her legal representative and power of attorney JOAN

3 CARLSON, read and reasonably understood Emeritus’s representations in the residency

4 agreement as statements that Emeritus used its resident assessment system and results generated

5 by it to determine and provide staffing levels necessary to meet residents’ needs. Ms. CARLSON

6 also reasonably understood and expected that Emeritus would staff Emeritus at Santa Rosa in a

7 manner that would allow it to consistently provide the services that Emeritus promised and

8 Ms. CARLSON would be paying for. Ms. CARLSON, through JOAN CARLSON, read and

9 relied on the representations in the residency agreement in making the decision to enter Emeritus

10 at Santa Rosa. As Ms. CARLSON’s legal representative and power of attorney, JOAN

11 CARLSON read and signed the agreement acknowledging that she understood and agreed to all of

12 the terms contained in the agreement. In or about February 2014, JOAN CARLSON received and

13 read a letter from Emeritus informing residents about the merger between BROOKDALE and

14 Emeritus. The letter promised that residents would not be impacted by the change but would

15 “receive the same excellent care and service you expect at your community” and would “continue

16 to enjoy all the amenities of your community.” It further stated the merger would create a “senior

17 living company offering the most comprehensive set of senior care solutions” with a commitment

18 to “consumer-focused cultures and a commitment to continuous improvement and innovation.”

19

134. JOAN CARLSON, as her mother-in-law’s power of attorney and legal

20 representative, read the letter and reasonably understood that the care her mother-in-law received

21 would be no worse than the care she had received under Emeritus, and possibly improve.

22 BROOKDALE did not inform JOAN or HELEN CARLSON nor did they have any reason to

23 believe that BROOKDALE would not staff the facility with sufficient staff in numbers and

24 training to provide the services for which Ms. CARLSON and the other residents were paying.

25

135. In 2015, BROOKDALE merged with Emeritus, and Emeritus at Santa Rosa

26 became BROOKDALE Fountaingrove. Plaintiffs are informed and believe, and on that basis

27 allege, that Emeritus assigned its residency agreements with existing residents to BROOKDALE,

28

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1 and that BROOKDALE assumed any liability arising from those agreements.

2

136. On November 17, 2015, JOAN CARLSON read, reviewed, and signed an

3 agreement with BROOKDALE as Ms. CARLSON’s legal representative and power of attorney.

4 This agreement, entitled “AMENDMENT TO CONTINUING CARE RESIDENCE AND

5 SERVICES AGREEMENT,” amended the residency agreement that Ms. CARLSON signed with

6 Emeritus and that was assigned to BROOKDALE after the merger with Emeritus. Pursuant to this

7 amendment, references to “core services” and “personal care services” were replaced with the

8 terms “basic services” and “personal services,” and Emeritus’s price schedules for various services

9 were replaced with BROOKDALE’s standardized personal services price schedule and lists of

10 select and therapeutic services. The parties agreed that except as otherwise amended, the terms of

11 the prior residency agreement would remain in full force and effect.

12

137. BROOKDALE has also prepared and periodically updated a Personal Service Plan

13 for Ms. CARLSON. Ms. CARLSON’s Personal Service Plan lists the type of staff assistance that

14 Ms. CARLSON requires and has agreed to pay for, along with the monthly fee for each type of

15 staff assistance. In addition, Ms. CARLSON has received and reviewed as enclosures to

16 BROOKDALE’s rate increase letters a personal service price schedule and list of select and

17 therapeutic services. These documents describe a variety of available services, list the monthly or

18 per-occurrence fee for each service, and detail how BROOKDALE’s caregivers or other staff will

19 provide the service. Every month, BROOKDALE sends Ms. CARLSON, through JOAN

20 CARLSON, an invoice for services that the company impliedly represents it will provide in the

21 following month. These invoices list the monthly rate for the basic services set forth in

22 BROOKDALE’s standardized residency agreements, the Personal Service Rate that is based on

23 Ms. CARLSON’s Personal Service Plan, and any rate adjustments.

24

138. Ms. CARLSON, through her legal representative and power of attorney JOAN

25 CARLSON, read and reasonably understood BROOKDALE’s representations—as well as

26 Emeritus’s representations in the agreement that was assigned to BROOKDALE and expressly

27 incorporated into BROOKDALE’s November 17, 2015 agreement with Ms. CARLSON—as

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1 statements that BROOKDALE would perform assessments to determine needed services and staff

2 BROOKDALE Fountaingrove in a manner that would allow it to consistently provide the services

3 that BROOKDALE promised and that Ms. CARLSON was paying for. Ms. CARLSON, through

4 JOAN CARLSON, read and relied on these representations in making the decision to stay at the

5 facility despite the change in ownership.

6

139. BROOKDALE currently charges Ms. CARLSON a Basic Service Rate of $4,227

7 per month, plus a Personal Service Rate of $3,710 per month, minus a loyalty credit.

8 Ms. CARLSON’s Personal Service Rate includes, among other things, a $580 monthly fee for

9 staff assistance with ordering, storing, and taking medications; a $811 monthly fee for staff

10 assistance with dressing and grooming; a $927 monthly fee for staff assistance with using the

11 bathroom; a $522 monthly fee for staff assistance with accomplishing and/or participating in daily

12 routines due to memory loss or cognitive impairment; a $290 monthly fee for help going to and

13 from the dining room and/or community activities; and a $290 monthly fee for “additional staff

14 involvement because of demonstrating anxious, disruptive or obsessive behavior requiring

15 additional attention.” Ms. CARLSON also pays $100 per month for incontinence supplies, which

16 BROOKDALE represents its staff will order and stock.

17

140. Beginning in early 2016, JOAN CARLSON and her husband Ralph Carlson began

18 to observe a decline in the quality of care provided to Ms. CARLSON. On one occasion, JOAN

19 discovered that despite promising to fax certain paperwork to Ms. CARLSON’s primary care

20 physician in advance of a scheduled appointment, BROOKDALE’s staff never did so. In addition,

21 JOAN and Ralph CARLSON stopped receiving phone calls to notify them of Ms. CARLSON’s

22 injuries and other noteworthy incidents.

23

141. In June 2016, Ms. CARLSON was admitted to the hospital after falling while

24 attempting to get out of bed. BROOKDALE’s staff failed to call JOAN or Ralph CARLSON,

25 even though they are listed as Ms. CARLSON’s emergency contacts. As a result, Ms. CARLSON

26 spent several hours in the emergency room without a family member present, and she was charged

27 for ambulance transport back to BROOKDALE Fountaingrove because no family member was

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1 present to give her a ride.

2

142. In December 2016, Ms. CARLSON’s doctor took her off the blood thinner

3 Coumadin. Nonetheless, in January and February 2017, staff at BROOKDALE Fountaingrove

4 continued to order and stock Coumadin for Ms. CARLSON. BROOKDALE charged

5 Ms. CARLSON a monthly fee for staff assistance with ordering and storing medications, even

6 though BROOKDALE’s staff failed to adequately perform that service.

7

143. JOAN and Ralph CARLSON have also observed numerous failures by staff to

8 assist Ms. CARLSON with using the bathroom, even though Ms. CARLSON pays a monthly fee

9 for that service. In addition, even though Ms. CARLSON pays a monthly fee for staff to order and

10 stock incontinence products, she has often run out of such products because BROOKDALE’s staff

11 do not check whether supplies are running low or if orders need to be adjusted.

12

144. Ms. CARLSON is unable to use the bathroom sink and kitchenette sink in her suite

13 because they are installed at a height that makes them inaccessible for wheelchair users.

14 Ms. CARLSON requires glasses to see and dentures to eat, but BROOKDALE staff frequently

15 misplace or lose these assistive devices.

16

145. JOAN and Ralph CARLSON have complained to managers at BROOKDALE

17 Fountaingrove about these problems on numerous occasions. Although BROOKDALE

18 management has repeatedly reassured JOAN and Ralph CARLSON that BROOKDALE will

19 address their concerns, they have not seen any improvement. Since Ms. CARLSON has resided at

20 BROOKDALE Fountaingrove, BROOKDALE has never disclosed that its staffing policies and

21 procedures preclude it from providing its residents all of the care and services they have been

22 promised and places all residents in an inherent and substantial risk that they will not receive the

23 care and services they have paid for on any given day. Ms. CARLSON has not received the care

24 BROOKDALE promised her, and for which she pays significant fees each month.

25

Bonita Hager

26

146. BONITA HAGER has lived at BROOKDALE San Ramon since approximately

27 May 2013, when it was owned and operated by Merrill Gardens. Ms. HAGER had experienced

28

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1 several strokes and needed assistance with many of her activities of daily living. She visited the

2 facility with her daughter shortly before moving in. Due to her previous strokes, Ms. HAGER had

3 difficulty communicating at that time and relied on her ex-husband and power-of-attorney, Robert

4 Hager, to review and sign the residency agreement with Merrill Gardens. Prior to Ms. HAGER’s

5 move-in, Mr. Hager, read, reviewed, and signed a standardized Residency and Services

6 Agreement with Merrill Gardens on behalf of Ms. HAGER on April 16, 2013. In the agreement,

7 Merrill Gardens promised to provide Ms. HAGER with “standard services” that are substantially

8 similar to the basic services enumerated in Defendants’ standardized residency agreement. Merrill

9 Gardens also agreed to provide Ms. HAGER with assisted living services for her needs as

10 determined by a pre-admission interview and assessment. The agreement stated that Merrill

11 Gardens would “continue to monitor your needs and periodically reassess the services being

12 provided. … Assessments may result in changes in the level of care you receive, as well as the

13 associated assisted living fee.” The agreement also provided that any change in the amount or

14 frequency of assisted living services would result in an immediate increase in the assisted living

15 charges.

16

147. BONITA HAGER, through her power-of-attorney, Robert Hager, read and

17 reasonably understood Merrill Gardens’ representations in the residency agreement as statements

18 that it used resident assessments to determine its residents’ needs and provide staffing levels

19 necessary to meet those needs. Ms. HAGER also reasonably understood and expected that Merrill

20 Gardens would staff the facility in a manner that would allow it to consistently provide the

21 services that Merrill Gardens had promised and that Ms. HAGER would be paying for.

22 Ms. HAGER also reasonably understood and expected that Merrill Gardens would regularly assess

23 Ms. HAGER to ascertain any changes in her care needs and provide that care immediately in

24 exchange for an immediate increase in her assisted living charges, which she understood to be

25 necessary because of the increased staffing cost associated with providing those services to her.

26 Ms. HAGER, through her power-of-attorney, Robert Hager, read and signed the agreement

27 acknowledging that she had reviewed and understood all of the terms contained in the agreement.

28

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1 Ms. HAGER, through her power-of-attorney, Robert Hager, read and relied on the representations

2 in the residency agreement in making the decision to enter Merrill Gardens at San Ramon; she did

3 so with the reasonable expectation that she would age in place and that as her needs increased, the

4 facility would be able to provide increased services and corresponding caregiver time to meet

5 those needs.

6

148. Shortly after Ms. HAGER moved into the facility, she was presented with an

7 amended Exhibit I, Assisted Living Fees to the Residency and Services Agreement. The

8 document contained amended amounts to her Rent and Assisted Living (Level of Care 4) fees. It

9 stated that “if after appropriate consultation and evaluation, it is determined that the Resident’s

10 needs exceed the services provided under their designated level of care, or that the Resident

11 requires additional services, the Resident’s level of care may increase, or other services may be

12 added, and the charges for such increases in level of care or services will apply immediately.” Ms.

13 HAGER read the document and reasonably understood and expected that Merrill Gardens would

14 staff the facility in a manner that would allow it to consistently provide the services that Merrill

15 Gardens had promised and for which Ms. HAGER would be paying. Ms. HAGER also

16 reasonably understood and expected that Merrill Gardens would regularly assess Ms. HAGER to

17 ascertain any changes in her care needs and provide that care immediately in exchange for an

18 immediate increase in her assisted living charges, which she understood to be necessary because

19 of the increased staffing cost associated with providing those services to her.

20

149. Merrill Gardens San Ramon was subsequently purchased by Emeritus, which then

21 merged with BROOKDALE. In or about April 2014, Ms. HAGER received and read a letter from

22 Emeritus informing residents about the merger between BROOKDALE and Emeritus. The letter

23 promised that residents would not be impacted by the change but would “receive the same

24 excellent care and service you expect at your community” and would “continue to enjoy all the

25 amenities of your community.” It further stated the merger would create a “senior living company

26 offering the most comprehensive set of senior care solutions” with a commitment to “consumer-

27 focused cultures and a commitment to continuous improvement and innovation.” Ms. HAGER

28

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1 read the letter and reasonably understood and expected that the care she received would be no

2 worse than the care she had received under Merrill Gardens, and possibly improve.

3 BROOKDALE did not inform her nor did she have any reason to believe that BROOKDALE

4 would not staff the facility with sufficient staff in numbers and training to provide the services for

5 which she and the other residents were paying.

6

150. In October 2015, Defendant presented Ms. HAGER with her bi-annual resident re-

7 assessment. Ms. HAGER was assessed at Care Level 8 for a care charge of $2,800 per month.

8 The plan listed all of Ms. HAGER’s care needs and specified how Defendant would provide

9 assistance, through staff, to meet those needs. Ms. HAGER’s care point score from the

10 assessment was 79.5, which she understood to be correlated to the amount of time and type of staff

11 necessary to perform the services she required and for which she would pay BROOKDALE. The

12 agreement stated that the “Service Plan reflects the agreement between the community (‘we’) and

13 Bonita Hager (‘you,’ or ‘Resident’) . . . regarding: your identified needs and the services we will

14 provide or arrange to meet those needs. By signing below, the parties acknowledge that the

15 services set forth in this document are appropriate to meet your needs. We will periodically

16 review your Service Plan and modify it as needed to address your changing needs.” The document

17 was signed by Ms. HAGER and by a community representative on October 9, 2015. Ms. HAGER

18 read the document and reasonably understood and expected that BROOKDALE would staff the

19 facility in a manner that would allow it to consistently provide the services that BROOKDALE

20 had promised and for which Ms. HAGER would be paying.

21

151. Ms. HAGER read and reasonably understood BROOKDALE’s representations—as

22 well as Merrill Gardens’ representations in the agreement that was assigned to BROOKDALE—as

23 statements that BROOKDALE would perform assessments to determine needed services and staff

24 BROOKDALE San Ramon in a manner that would allow it to consistently provide the services

25 that BROOKDALE promised and for which Ms. HAGER was paying. Ms. HAGER read and

26 relied on these representations in making the decision to stay at the facility despite the change in

27 ownership and in agreeing to pay BROOKDALE’s monthly rates. At no time has BROOKDALE

28

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1 informed Ms. HAGER that its corporate policy and procedure of providing pre-determined

2 staffing at its facilities precludes BROOKDALE from providing the care and services residents

3 have been promised and places all residents at a substantial risk that they will not receive the care

4 and services they have paid for on any given day. Had BROOKDALE disclosed this material fact

5 to Ms. HAGER, she would have begun looking for a new place to live and/or not agreed to pay the

6 amounts charged by BROOKDALE.

7

152. Prior to BROOKDALE’s takeover of the facility, Ms. HAGER received better care.

8 Ms. HAGER uses a wheelchair for mobility. When she first entered assisted living, she was able

9 to build strength by using with her walker in the mornings with the standby assistance of Merrill

10 Gardens staff. At BROOKDALE, there is not enough staff to provide that standby assistance, so

11 Ms. HAGER cannot practice with her walker. As a result, her mobility and strength have

12 declined.

13

153. Although Ms. HAGER is a wheelchair user, BROOKDALE has not provided her

14 with a room that has any physical access features. The bathroom area is too small, with a general

15 lack of clear floor space, and the toilet is too low, making it difficult for Ms. HAGER to position

16 her wheelchair for toilet transfers. The bathroom does not have a roll-in shower, making it

17 inaccessible to her. The lavatory in the bathroom does not have knee clearance underneath the

18 sink, which prevents Ms. HAGER from rolling under it. Ms. HAGER would be able to use her

19 bathroom more independently if it were accessible. Ms. HAGER’s bedroom lacks an accessible

20 path of travel to both sides of her bed. Ms. HAGER cannot reach most of the hanging or the

21 storage space in her closet and therefore cannot access her clothing or other personal items without

22 assistance from others because the clothing rod has been hung too high. The kitchen and range are

23 both inaccessible. On the outside of the building, the blue parking spaces are not level and do not

24 comply with applicable access laws. The ramp leading to the lower part of the facility is too steep.

25 The complete lack of accessible features in Ms. HAGER’s room and in other parts of the facility

26 prevents her from being as independent as possible and causes her to rely on personal assistance

27 from BROOKDALE staff. Compounding this problem is BROOKDALE’s understaffing, which

28

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1 means that Ms. HAGER must wait to accomplish most of her activities of daily living, if at all.

2 This puts Ms. HAGER in humiliating, frustrating and hazardous situations on a daily basis.

3

154. Ms. HAGER currently pays an additional approximately $2,700 per month for

4 assistance with transferring, changing her dentures, pushing her wheelchair to and from the dining

5 room, showering, and incontinent care. Due to very low staffing levels, Ms. HAGER often has to

6 wait long periods of time for assistance with using the bathroom or transferring in and out of bed

7 after she pushes her call pendant button. There are currently approximately 80 residents at

8 BROOKDALE San Ramon. At night, there is typically only one caregiver on duty and one staff

9 member to provide medications. During the day, there are usually only two caregivers on duty for

10 all 80 residents. The range of wait times that Ms. HAGER experiences after pushing her call

11 pendant button is anywhere between 20 minutes to an hour and a half. Staff members have told

12 Ms. HAGER that the call pendant is only to be used in emergencies, but there is no other way for

13 her to reach a caregiver if she needs the assistance for which she pays BROOKDALE.

14

155. Despite paying extra for assistance with certain activities of daily living, some

15 caregivers refuse to change Ms. HAGER’s diapers when they are only wet. She has sometimes

16 gone an entire day without caregivers’ changing her briefs. As a result, Ms. HAGER has gotten

17 urinary tract infections. When Ms. HAGER complained to the BROOKDALE Health Services

18 Director about being left in wet briefs after using her call pendant to alert a caregiver, the Health

19 Director told Ms. HAGER that the call pendant should only be used for emergencies. In the

20 morning, Ms. HAGER needs extra time to get out of bed, but the caregivers become impatient and

21 sometimes leave to help other residents if she is taking too long. When caregivers take

22 Ms. HAGER to the bathroom, they rush and frequently leave her on the toilet so they can assist

23 other residents. Ms. HAGER is often left waiting for 45 minutes for a caregiver to return to help

24 her out of the bathroom. A single caregiver is usually not strong enough to assist Ms. HAGER in

25 getting out of her wheelchair, but one caregiver alone always responds to her call pendant,

26 meaning she must wait even longer for a second caregiver to arrive.

27

156. Ms. HAGER has fallen in her bathroom, out of her bed, and in her living room.

28

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1 Recently, Ms. HAGER fell forward while she was with a caregiver who was trying to help her

2 transfer from the toilet to her wheelchair. Ms. HAGER had to wait on the ground for a second

3 caregiver to come and help her up. When Ms. HAGER fell out of her bed at night and used her

4 call pendant to call for help, the caregiver who arrived refused to help her up. Instead, the

5 caregiver called 911 and waited for an EMT to arrive to help Ms. HAGER up off the floor. Ms.

6 HAGER needs assistance to steady her in the shower or in transferring out of her chair. She has

7 asked to hold onto a caregiver for support when getting out of the shower or her chair and has

8 been told by caregivers that they cannot help her.

9

157. On Saturdays, the BROOKDALE shuttle takes residents for local shopping at

10 Trader Joe’s, Costco or CVS, to the bank and other such locations. Although Ms. HAGER would

11 like to participate in such trips, BROOKDALE’s driver said that she cannot go because they

12 cannot handle her. Though there are currently between ten and twenty wheelchair users living at

13 BROOKDALE San Ramon, BROOKDALE will only transport two wheelchair users at a time, on

14 a first come, first served basis. BROOKDALE instituted a policy, displayed in writing on a card

15 in the lobby of BROOKDALE San Ramon, whereby staff will no longer assist wheelchair users to

16 transfer from their wheelchair to a seat in the shuttle. Ms. HAGER has vertigo, which makes it

17 difficult for her to stand or to transfer without assistance. As a result of this new policy, she has

18 been unable to participate in off-site activities for some months now. In addition, Ms. HAGER

19 needs someone to push her wheelchair when she goes on these sorts of off-site trips.

20 BROOKDALE has refused to assist her or other wheelchair users in that regard.

21

158. In case of fire and other emergencies, BROOKDALE staff has told Ms. HAGER to

22 remain in her room until they come and get her. Recently there was a fire alarm that went off in

23 the middle of the night. No staff member came to Ms. HAGER’s room. Ms. HAGER has not

24 been given any additional instructions.

25

159. The food quality and selection at BROOKDALE has steadily decreased. When the

26 facility was run by Merrill Gardens, residents regularly received fresh fruit, vegetables and meat.

27 Now the food is processed or frozen, and the meat is often too tough to eat. Ms. HAGER often

28

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1 waits for long periods of time to be served.

2

Lawrence Quinlan

3

160. LAWRENCE QUINLAN stayed at the facility at BROOKDALE Hemet for short-

4 term respite on several occasions between 2013 and 2015. On approximately September 13, 2015,

5 he was admitted to BROOKDALE Hemet as a long-term resident. Prior to his move-in, on or

6 about September 13, 2015, LAWRENCE QUINLAN’s son, Phillip Quinlan, read, reviewed, and

7 signed an agreement with BROOKDALE as LAWRENCE QUINLAN’s legal representative and

8 power of attorney. As part of this “RESIDENCY AGREEMENT,” BROOKDALE stated that

9 “[i]n order to provide you with care, supervision and assistance with instrumental activities of

10 daily living in order to meet your needs, we will provide you with the following Basic Services,

11 which are included in the Basic Service Rate.” These included, among other things, the room,

12 three daily meals and snacks on demand, weekly room cleaning, weekly laundry and linen service,

13 planned activities, transportation, observation, and the availability of staff “24 hours a day, seven

14 days a week.” This standard residency agreement also stated that:

15

[p]rior to moving in and periodically throughout your residency, we will use a

16

personal service assessment to determine the personal services you require. The

personal service assessment will be used to develop your Personal Service Plan.

17

The results of the assessment, our method for evaluating your personal care needs,

and the cost of providing the additional personal services (the “Personal Service

18

Rate”) will be shared with you.

19

20 The Personal Service Plan listed the types of staff assistance that Mr. QUINLAN required and had

21 agreed to pay for, along with the monthly fee for each type of staff assistance.

22

161. Mr. QUINLAN, through his legal representatives and power of attorneys,

23 LORESIA VALLETTE and Phillip Quinlan, read and reasonably understood BROOKDALE’s

24 representations as statements that BROOKDALE would perform assessments to determine needed

25 services and staff BROOKDALE Hemet in a manner that would allow it to consistently provide

26 the services that BROOKDALE promised and for which Mr. QUINLAN was paying. Mr.

27 QUINLAN, through LORESIA VALLETTE and Phillip Quinlan, relied on these representations

28

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1 in making the decision to enter BROOKDALE Hemet and to pay BROOKDALE the monthly fees

2 it charged him. BROOKDALE did not disclose to Mr. QUINLAN or his legal representatives at

3 any time prior to his admission nor has it disclosed since that time that its corporate policy and

4 procedure of providing pre-determined staffing at its facilities precludes BROOKDALE from

5 providing the care and services residents have been promised and places all residents at a

6 substantial risk that they will not receive the care and services they have paid for on any given

7 day. If BROOKDALE had disclosed this material fact to Mr. QUINLAN or his legal

8 representatives, they would have looked for another facility for Mr. QUINLAN and would not

9 have agreed to pay the rates charged by BROOKDALE.

10

162. Mr. QUINLAN is a wheelchair-user. He has right hemiparesis and aphasia due to

11 past strokes. He has mild dementia. During the time Mr. QUINLAN was a resident at

12 BROOKDALE Hemet, he required assistance with the following activities of daily living:

13 bathing, personal hygiene, dressing, laundry, housecleaning, taking medication, preparing meals,

14 toileting, and transfers to and from his wheelchair. During Mr. QUINLAN’s long-term stay at

15 BROOKDALE Hemet, he paid for but was not consistently provided that assistance.

16

163. Although he was paying for assistance with laundry, dressing and showering, Mr.

17 QUINLAN’s granddaughter and son noticed that he smelled horrible and wore dirty clothing.

18 When Ms. VALLETTE asked BROOKDALE staff why Mr. QUINLAN smelled so bad, they

19 blamed him for refusing to take a shower. BROOKDALE then raised Mr. QUINLAN’s monthly

20 personal care rate by $700, even though they were not giving him the promised showers, because

21 he was “resistant.” Ms. VALLETTE requested that BROOKDALE’s staff call her if Mr.

22 QUINLAN refused to shower or change his clothing so that she could speak with her grandfather

23 and try to convince him to cooperate with showering and changing his clothes. BROOKDALE

24 staff rarely called Ms. VALLETTE, but the facility continued to charge Mr. QUINLAN a

25 premium for showers and dressing assistance they were not providing.

26

164. Over time, BROOKDALE continued to increase Mr. QUINLAN’s monthly care

27 rates, blaming his resistance to care. Ms. VALLETTE accepted the care rate increases with the

28

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1 expectation that Mr. QUINLAN would actually receive the services for which BROOKDALE was

2 charging him. Despite the increased fees, BROOKDALE staff rarely provided the promised

3 assistance with showering, dressing or toileting to Mr. QUINLAN. Toward the end of Mr.

4 QUINLAN’s stay at BROOKDALE Hemet, the Executive Director told Ms. VALLETTE that

5 they would need to move Mr. QUINLAN to the memory care unit and take away his motorized

6 scooter in order to care for him. This would result in another increase in his monthly rate.

7 In April 2017, frustrated by BROOKDALE’s failure to provide the assistance her grandfather

8 needed and for which he was paying increasingly higher fees, Ms. VALLETTE told

9 BROOKDALE that Mr. QUINLAN would be moving out. Prior to the move-out date, Ms.

10 VALLETTE and Phillip Quinlan took Mr. QUINLAN to a physician’s office to get a tuberculosis

11 test. When he transferred out of his wheelchair, they saw that the seating pad was soaked with

12 urine and that the plastic was breaking down as a result. It was clear that neither the seating pad

13 nor Mr. QUINLAN had been washed for a very long time. Although Mr. QUINLAN’s move-out

14 date was scheduled for early May 2017, Ms. VALLETTE moved him out on April 30, 2017. Mr.

15 QUINLAN is a currently a resident of an unrelated assisted living facility in Riverside, California.

16 CLASS ALLEGATIONS
17

18

165. The named Plaintiffs bring this action on behalf of themselves and all persons

19 similarly situated and seek class certification pursuant to Federal Rule of Civil Procedure 23(b)(2)

20 and/or (b)(3) as set forth below.

21

166. Class Definitions.

22

Plaintiffs PATRICIA EIDLER, STACIA STINER, MARY-CATHERINE JONES,

23 HELEN CARLSON, BONITA HAGER, and LAWRENCE QUINLAN seek to represent the

24 following two classes:

25

a. RESIDENTS WITH DISABILITIES CLASS: All persons with disabilities

26

who use wheelchairs, scooters, canes or other mobility aids or who require

assistance with mobility or activities of daily living and who reside or have

27

resided at a residential care facility for the elderly located in California and

28

owned, operated and/or ma5n9aged by BROOKDALE during the CLASS

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PERIOD. 1

b. FALSE OR MISLEADING STATEMENTS CLASS: All persons who

2

resided or reside at one of the California assisted living facilities owned,

operated, and/or purchased by BROOKDALE during the CLASS PERIOD

3

and who contracted with BROOKDALE or another assisted living facility

for services for which BROOKDALE was paid money. 4

5

167. The CLASS PERIOD is defined as commencing three years prior to the filing of

6

this action for the RESIDENTS WITH DISABILITIES CLASS and four years prior to the filing

7

of this suit for the FALSE OR MISLEADING STATEMENTS CLASS.

8

168. Excluded from the above-referenced class are the officers, directors, and employees

9

of BROOKDALE, and any of Defendants’ shareholders or other persons who hold a financial

10

interest in BROOKDALE. Also excluded is any judge assigned to hear this case (or any spouse or

11

family member of any assigned judge), or any juror selected to hear this case.

12

169. This action is brought as a class action and may properly be so maintained pursuant

13

to Federal Rule of Civil Procedure 23 and applicable case law. In addition to declaratory and

14

injunctive relief, this action seeks class-wide damages pursuant to California Civil Code § 52(a) in

15

the amount of $4,000 per class member based on Defendants’ wrongful policy and practice of

16

failing to provide residents with disabilities with full and equal access to and enjoyment of its

17

services, goods, facilities, privileges, or advantages of BROOKDALE’s assisted living facilities as

18

alleged herein. It also seeks class-wide statutory and punitive damages based on Defendants’

19

misrepresentations, misleading statements, and material omissions, including $5,000 per class

20

member pursuant to California Civil Code § 1780(b). This action also seeks treble damages

21

pursuant to both California Civil Code § 52(a) and California Civil Code § 3345(b)(2) and (3).

22

This action does not seek recovery for personal injuries or emotional distress that may have been

23

caused by Defendants’ conduct alleged herein.

24

170. Ascertainability. Members of the proposed Class are identifiable and

25

ascertainable. BROOKDALE retains admission contracts, resident service plans, and billing

26

statements for all persons who currently reside or resided at BROOKDALE facilities during the

27

CLASS PERIOD.

28

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1

171. Impracticability of Joinder (Numerosity of the Class). The members of the

2 proposed class are so numerous that joinder of all such persons is impracticable and the

3 disposition of their claims in a class action is a benefit both to the parties and to this Court. On

4 information and belief, the number of persons in this case exceeds 5,000 persons. The number of

5 persons in the class and their identities and addresses may be ascertained from Defendants’

6 records.

7

172. Questions of Fact and Law Common to the Class. All members of the class

8 have been and continue to be denied their civil rights to full and equal access to, and use and

9 enjoyment of, the services and facilities operated by the BROOKDALE because of the violations

10 of disability nondiscrimination laws, the CLRA, and Elder Abuse laws alleged herein. There are

11 numerous questions of law and fact common to the class, including, but not limited to, the

12 following:

13

a. Whether BROOKDALE’s assisted living facilities are public

14

accommodations within the meaning of Title III of the ADA;

15

b. Whether BROOKDALE and its assisted living facilities are business

16

establishments within the meaning of the Unruh Civil Rights Act;

17

c. Whether BROOKDALE constructed or altered any of its assisted living

18

facilities after January 26, 1993;

19

d. Whether BROOKDALE’s facilities that were newly constructed or altered

20

between January 26, 1993 and March 15, 2012 comply with the

21

requirements of the Americans with Disabilities Act Accessibility

22

Guidelines;

23

e. Whether BROOKDALE constructed or altered any of its facilities after

24

March 15, 2012;

25

f. Whether BROOKDALE’s facilities that were constructed or altered after

26

March 15, 2012 comply with the 2010 ADA Standards for Accessible

27

Design;

28

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1

g. Whether BROOKDALE has removed physical access barriers where doing

2

so was readily achievable as required by Title III of the ADA;

3

h. Whether Plaintiffs are being denied full and equal access to and enjoyment

4

of BROOKDALE’s goods, services, facilities, privileges, advantages or

5

accommodations;

6

i. Whether Plaintiffs requested that BROOKDALE make reasonable

7

modifications in policies, practices and/or procedures by providing its

8

facilities with a sufficient number of adequately trained staff to ensure that

9

residents with disabilities receive full and equal access to and enjoyment of

10

the services specified in BROOKDALE’s own resident assessments;

11

j. Whether Plaintiffs’ requested modification in policies, practices or

12

procedures is reasonable;

13 \\\

14 \\\

15

k. Whether Plaintiffs’ requested modification in policies, practices or

16

procedures is necessary to ensure that residents with disabilities have full

17

and equal access to and enjoyment of BROOKDALE’s goods, services,

18

facilities, privileges, advantages and accommodations as required by Title

19

III of the ADA;

20

l. Whether BROOKDALE has provided Plaintiffs with full and equal access

21

to and enjoyment of its transportation services and activities as required by

22

Title III of the ADA;

23

m. Whether BROOKDALE has provided Plaintiffs with full and equal access

24

to and enjoyment of its services and facilities with respect to emergency

25

planning and emergency evacuation;

26

n. Whether BROOKDALE, by its actions and omissions alleged herein, has

27

engaged in a pattern and practice of discriminating against Plaintiffs and

28

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1

other residents with disabilities in violation of the ADA and the Unruh Civil

2

Rights Act;

3

o. Whether BROOKDALE has violated and continues to violate the Consumer

4

Legal Remedies Act, California Civil Code §§ 1750 et seq. by promising

5

residents that it will provide care and services including as identified by

6

resident assessments, when BROOKDALE knows that its corporate policy

7

and procedure of providing pre-determined staffing at its facilities precludes

8

BROOKDALE from providing the care and services residents have been

9

promised and places all residents at a substantial risk that they will not

10

receive the care and services they have paid for on any given day;

11

p. Whether BROOKDALE’s misrepresentations, misleading statements and

12

omissions regarding the staffing of its facilities as alleged herein were and

13

are material to the reasonable consumer;

14 \\\

15

q. Whether by making the misrepresentations, misleading statements and

16

material omissions alleged in this Complaint, BROOKDALE violated and

17

continues to violate California Business & Professions Code §§ 17200, et.

18

seq. (“UCL”);

19

r. Whether BROOKDALE had exclusive knowledge of material facts not

20

known or reasonably accessible to the Plaintiffs and the class;

21

s. Whether the Plaintiffs, the class, and the consuming public were likely to be

22

deceived by the foregoing concealment and omission;

23

t. Whether the Plaintiffs, the class, and the consuming public have a

24

reasonable expectation that BROOKDALE will provide staffing at its

25

facilities to meet the aggregate care needs of the residents at its facilities;

26

u. Whether BROOKDALE’s misrepresentations, its misleading statements, its

27

failures to disclose and its concealment of its true policies, procedures, and

28

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1

practices regarding how it staffs its facilities violated the CLRA and the

2

UCL;

3

v. Whether BROOKDALE has engaged and continues to engage in a pattern

4

and practice of unfair and deceptive conduct in connection with the

5

management, administration, and operation of its California assisted living

6

facilities;

7

w. Whether BROOKDALE has violated and continues to violate the UCL by

8

violating the CLRA, ADA, Unruh Civil Rights Act, and California Welfare

9

and Institutions Code § 15610.30 during the CLASS PERIOD;

10

x. Whether BROOKDALE has committed financial elder abuse under

11

California Welfare and Institutions Code § 15610.30 by taking, secreting,

12

appropriating, obtaining, and/or retaining money from elders and dependent

13

adults for a wrongful use and/or with the intent to defraud them;

14 \\\

15

y. Whether the Plaintiffs and the putative class members have been injured;

16

z. Whether the Plaintiffs and the members of the putative class are entitled to

17

damages, and the nature of such damages; and,

18

aa. Whether the Plaintiffs and the members of the putative class are entitled to

19

declaratory and/or injunctive relief, and the nature of such relief.

20

173. Typicality. The claims of the named Plaintiffs are typical of those of the proposed

21 classes. Plaintiffs’ claims are typical of the claims of the proposed classes in the following ways:

22 1) Plaintiffs are members of the proposed classes; 2) Plaintiffs’ claims arise from the same

23 uniform corporate policies, procedures, practices and course of conduct on the part of

24 BROOKDALE; 3) Plaintiffs’ claims are based on the same legal and remedial theories as those of

25 the proposed classes and involve similar factual circumstances; 4) the injuries suffered by the

26 named Plaintiffs are similar to the injuries suffered by the proposed class members; and 5) the

27 relief sought herein will benefit the named Plaintiffs and all class members alike.

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174. Adequacy. The named Plaintiffs will fairly and adequately represent the interests

2 of the classes. They have no interests adverse to the interests of other members of the class and

3 have retained counsel who are competent and experienced in litigating complex class actions,

4 including large-scale disability rights and senior care class action cases.

5

175. Predominance. With respect to Plaintiffs’ claims under the ADA, the Unruh Civil

6 Rights Act, the CLRA, the UCL, and the Elder Abuse Act, class certification is appropriate under

7 Federal Rule of Civil Procedure 23(b)(3) because questions of law or fact common to the class

8 members predominate over any questions affecting individual members of the putative classes.

9

176. Superiority. A class action is superior to other methods for the fair and efficient

10 adjudication of this controversy because, inter alia: 1) individual claims by the class members

11 would be impracticable because the costs of pursuit of such claims would far exceed what any

12 individual class member has at stake; 2) relatively little individual litigation has been commenced

13 over the controversies alleged in this Complaint and individual class members are unlikely to have

14 an interest in separately prosecuting and controlling individual actions; 3) the concentration of

15 litigation of these claims in one forum will achieve efficiency and promote judicial economy; 4)

16 the proposed classes are manageable, and no difficulties are likely to be encountered in the

17 management of this class action that would preclude its maintenance as a class action; 5) the

18 proposed class members are readily identifiable from Defendants’ own records; and 6) prosecution

19 of separate actions by individual members of the proposed class would create the risk of

20 inconsistent or varying adjudications with respect to individual members of the proposed classes

21 that would establish incompatible standards of conduct for BROOKDALE.

22

177. The Class Meets the Requirements of Federal Rule of Civil Procedure

23 23(b)(2). BROOKDALE has acted and refused to act on grounds generally applicable to the class,

24 making the declaratory and injunctive relief sought on behalf of the class as a whole appropriate.

25

FIRST CLAIM FOR RELIEF

26

(Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq.)

27

178. Plaintiffs incorporate by reference as though fully set forth herein the preceding

28

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1 paragraphs of this Complaint.

2

179. Congress enacted the ADA upon finding, among other things, that “society has

3 tended to isolate and segregate individuals with disabilities” and that such forms of discrimination

4 continue to be a “serious and pervasive social problem.” 42 U.S.C. § 12101(a) (2).

5

180. Congress explicitly stated that the purpose of the ADA is to provide “a clear and

6 comprehensive national mandate for the elimination of discrimination against individuals with

7 disabilities” and “clear, strong, consistent, enforceable standards addressing discrimination against

8 individuals with disabilities.” 42 U.S.C. § 12101(b) (1)-(2).

9

181. Title III of the ADA provides in pertinent part: “[N]o individual shall be

10 discriminated against on the basis of disability in the full and equal enjoyment of the goods,

11 services, facilities, privileges, advantages, or accommodations of any place of public

12 accommodation by any person who owns, leases, or leases to, or operates a place of public

13 accommodation.” 42 U.S.C. § 12182.

14

15

182. At all times relevant to this action, Plaintiffs PATRICIA EIDLER, STACIA

16 STINER, MARY-CATHERINE JONES, HELEN CARLSON, BONITA HAGER, and

17 LAWRENCE QUINLAN were and remain qualified individuals with disabilities within the

18 meaning of the ADA.

19

183. Defendants are each a “private entity,” as defined under 42 U.S.C. § 12181(6).

20 They own, operate and/or manage approximately 89 assisted living facilities in California. These

21 facilities are “public accommodations” pursuant to 42 U.S.C. § 12181(7). BROOKDALE is

22 subject to Title III of the ADA and its corresponding regulations.

23

184. As alleged above in greater detail, BROOKDALE has violated Title III of the ADA

24 in the following ways.

25 Failure to Provide Reasonable Modifications in Staffing Policies, Practices and Procedures
26

27

185. BROOKDALE has a policy and practice of staffing its assisted living facilities

28

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1 based on pre-set corporate labor budgets and profit margins without regard for residents’ needs.

2 BROOKDALE’s policy and practice of understaffing its assisted living facilities in order to

3 minimize its labor expenses and maximize its corporate profits has resulted in facilities that are

4 chronically understaffed, and in which skeletal levels of staffing make it commonplace for

5 residents with disabilities to go without the services, goods, facilities, privileges, advantages or

6 accommodations for which they have paid. For example, staff are often unavailable or unable to

7 assist residents with disabilities with activities of daily living including, inter alia, bathing,

8 showering, toileting, transferring, taking medications, dressing, dining, and housekeeping. In

9 addition, residents with disabilities are often denied full and equal access to and enjoyment of

10 social and recreational activities, as well as transportation to off-site locations for appointments

11 and other activities, because of the lack of a sufficient number of trained staff to assist residents

12 with disabilities to participate in these activities.

13

186. Plaintiffs have requested that BROOKDALE make reasonable modifications in

14 policies, practices, or procedures as required by Title III of the ADA. Plaintiffs have requested

15 that BROOKDALE provides its facilities with a sufficient number of adequately trained staff to

16 ensure that residents with disabilities are provided with full and equal access to and enjoyment of

17 the services specified in BROOKDALE’s own resident assessments. Among other things, and

18 without limitation, BROOKDALE should increase its level of trained staff in its assisted living

19 facilities such that residents with disabilities are not required to wait for more than five minutes

20 for a substantive response to their call pendants. A substantive response means actual action taken

21 to address the resident’s need, rather than a staff member passing by the resident’s room to say

22 that they will return later.

23

187. Such reasonable modifications in BROOKDALE’s policies, practices and

24 procedures are necessary to ensure that residents with disabilities receive full and equal access to

25 and enjoyment of BROOKDALE’s services, including assistance with, inter alia, bathing,

26 showering, toileting, transferring, taking medications, dressing, dining, and housekeeping. In

27 addition, such modifications are necessary to ensure that residents with disabilities have full and

28

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1 equal access to and enjoyment of BROOKDALE’s social and recreational activities, and

2 transportation to off-site locations for appointments and other activities. Unless and until

3 BROOKDALE makes this requested reasonable modification in policies, practices, or procedures,

4 residents with disabilities will continue to be denied full and equal access to and enjoyment of the

5 services, goods, facilities, privileges, advantages or accommodations that BROOKDALE claims

6 to provide to all of its residents, whether disabled or nondisabled.

7

188. Plaintiffs’ requested modification in policies, practices or procedures is eminently

8 reasonable in that BROOKDALE already charges residents with disabilities for, and residents with

9 disabilities pay to receive, the services specified in BROOKDALE’s own resident agreements and

10 resident assessments, including inter alia, assistance with activities of daily living such as

11 mobility, bathing, showering, toileting, transferring, taking medications, dressing, dining, and

12 housekeeping, as well as participating in BROOKDALE’s social and recreational activities

13 whether on-site or off-site.

14

189. The requested modification in policies, practices or procedures will not make any

15 alteration (much less a fundamental alteration) in the nature of BROOKDALE’s goods and

16 services. Rather, Plaintiffs merely seek to ensure that BROOKDALE provides a sufficient

17 number of adequately trained staff to provide its residents with mobility disabilities with full and

18 equal access to and enjoyment of the types of services and goods that BROOKDALE already

19 promises to provide to its residents in its normal course of business. Thus, the requested

20 reasonable modification in policy, practice or procedure would not change the nature or type of

21 services and goods that BROOKDALE sells to the public.

22

190. The requested reasonable modification would impose only a minimal burden on

23 BROOKDALE. Plaintiffs allege on information and belief that the staff who provide

24 BROOKDALE’s services are hourly employees who are paid an average of $10 to $14 per hour.

25 Increasing BROOKDALE’s skeletal night staffing and its minimal level of daytime staffing will

26 only result in a moderate increase in BROOKDALE’s labor budget. BROOKDALE will continue

27 to be able to realize substantial gross profits each year in the multibillion dollar range.

28

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1

191. Plaintiffs have repeatedly requested that BROOKDALE make reasonable

2 modifications in policies, practices, or procedures by increasing the number of trained staff that it

3 provides in its facilities. Notwithstanding the reasonableness and necessity of such modifications,

4 and notwithstanding the fact that BROOKDALE could significantly increase its staffing without

5 changing the nature of its services, goods, facilities, privileges, advantages or accommodations,

6 and could make such modifications without undue financial or administrative burdens,

7 BROOKDALE has failed and refused to make any such modifications.

8

Physical Access Barriers

9

192. Plaintiffs allege on information and belief that many of Defendants’ facilities were

10 designed and constructed after January 26, 1993, thus triggering access requirements under Title

11 III of the ADA. The ADA prohibits designing and constructing facilities for first occupancy after

12 January 26, 1993 that are not readily accessible to and usable by individuals with disabilities when

13 it was structurally practicable to do so. 42 U.S.C. § 12183(a)(1). BROOKDALE has violated the

14 ADA by designing and constructing their facilities in a manner that does not comply with federal

15 disability access design standards including the Americans with Disabilities Act Accessibility

16 Guidelines (“ADAAG”) even though it was structurally practicable to do so.

17

193. Plaintiffs allege on information and belief that Defendants’ facilities were altered

18 after January 26, 1993, thus triggering access requirements under Title III of the ADA. The ADA

19 prohibits altering facilities after January 26, 1993 in a manner that is not readily accessible to, and

20 usable by, individuals with disabilities when it was structurally practicable to do so. 42 U.S.C.

21 § 12183(a)(2). Here, Defendants violated the ADA by altering its assisted living facilities after

22 January 26, 1993 in a manner that did not comply with the ADAAG even though it was

23 structurally practicable to do so. Specifically, Defendants have failed to ensure that the areas of

24 alteration complied with the ADAAG, and that the path of travel to the areas of alteration

25 complied with the ADAAG.

26

194. The removal of each of the barriers complained of by Plaintiffs herein was at all

27 times “readily achievable” under the standards of §§ 12181 and 12182 of the ADA.

28

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1 BROOKDALE could have removed each of the barriers alleged herein without much difficulty or

2 expense within the meaning of Title III. Notwithstanding the foregoing, BROOKDALE failed and

3 refused to do so.

4

Transportation and Activities

5

195. BROOKDALE has violated Title III of the ADA by failing and refusing to provide

6 Plaintiffs with full and equal access to and enjoyment of its transportation services to off-site

7 activities and appointments. BROOKDALE has a policy and practice of limiting the number of

8 wheelchair users who may use transportation to off-site activities. This limitation is not imposed

9 on residents who do not use wheelchairs. In addition, BROOKDALE has required residents with

10 mobility disabilities to transfer from their wheelchairs into the seats in its shuttles, and has not

11 permitted residents to remain in their wheelchairs. BROOKDALE has done so despite the fact

12 that many residents with mobility disabilities have great difficulty in transferring from their

13 wheelchairs into the passenger seats in shuttles, and doing so is time consuming, physically

14 exhausting and sometimes dangerous. Further, on numerous occasions residents with mobility

15 disabilities have been completely denied access to medical appointments, and other off-site

16 appointments and activities, because BROOKDALE has failed to provide any accessible

17 transportation to those appointments and activities

18

Evacuation Procedures

19

196. BROOKDALE has failed to provide or communicate to its residents with

20 disabilities any specific or definitive emergency evacuation plan in the event of earthquake, fire or

21 other emergency. Defendants’ failure to do so constitutes a denial of full and equal access to and

22 enjoyment of the services and facilities provided by BROOKDALE in violation of Title III of the

23 ADA. Many of BROOKDALE’s residents with disabilities are unable to exit the building without

24 assistance from staff. While some residents have been advised to remain in their rooms in the

25 event of an emergency, in those instances in which an alarm has sounded, no one has come to their

26 rooms to assist them or to inform them as to whether there is an emergency or just a drill.

27

197. The acts and omissions alleged herein constitute violations of Title III of the

28

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1 Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12181 et seq., and the regulations

2 promulgated thereunder. Defendants’ discriminatory conduct alleged herein includes, inter alia:

3

a. Failing to provide residents with disabilities the opportunity to participate in

4

or benefit from BROOKDALE’s goods, services, facilities, privileges,

5

advantages, and/or accommodations at its assisted living facilities in

6

California, in violation of 42 U.S.C. § 12182(b)(1)(A)(i);

7

b. Failing to provide residents with disabilities the opportunity to participate in

8

or benefit from the goods, services, facilities, privileges, advantages and

9

accommodations that are equal to that afforded to individuals without

10

disabilities, in violation of 42 U.S.C. § 12182(b)(1)(A)(ii);

11

c. Failing to provide the goods, services, facilities, privileges, advantages, and

12

accommodations at its assisted living facilities in California to residents

13

with disabilities in the most integrated setting possible, in violation of 42

14

U.S.C. § 12182(b)(1)(B);

15

d. Utilizing standards, criteria and methods of administration that have the

16

effect of discriminating against residents on the basis of their disabilities, in

17

violation of 42 U.S.C. § 12182(b)(1)(D);

18

e. Imposing eligibility criteria that screen out or tend to screen out residents

19

with disabilities from fully and equally enjoying BROOKDALE’s assisted

20

living facilities’ goods, services, facilities, privileges, advantages, and/or

21

accommodations, in violation of 42 U.S.C. § 12182(b)(2)(A)(i);

22

f. Failing to make reasonable modifications in its policies, practices, and

23

procedures which are necessary for its residents with disabilities to enjoy

24

and access BROOKDALE’s assisted living facilities’ goods, services,

25

facilities, privileges, advantages and/or accommodations, in violation of in

26

violation of 42 U.S.C. § 12182(b)(2)(A)(ii);

27 \\\

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1

g. Failing to remove architectural barriers in those facilities constructed prior

2

to January 26, 1993 and not altered after that date where such removal is

3

readily achievable, in violation of 42 U.S.C. § 12182(b)(2)(A)(iv);

4

h. Failing to design and construct facilities first occupied after January 26,

5

1993 such that they are readily accessible and usable by persons with

6

disabilities, in violation of 42 U.S.C. § 12183(a)(1);

7

i. Performing alterations after January 26, 1993 that affect the usability of its

8

facilities or a part of its facilities, while failing to ensure that the altered

9

portions and the path of travel to those altered portions are readily

10

accessible to and usable by persons with disabilities, in violation of 42

11

U.S.C. § 12183(a)(2); and

12

j. Failing to operate BROOKDALE’s transportation services such that they

13

ensure a level of service to persons with disabilities that is equivalent to that

14

provided to persons without disabilities, in violation of 42 U.S.C.

15

§ 12182)(b)(2)(C)(i).

16

198. As a direct and proximate result of the aforementioned acts, Plaintiffs have

17 suffered, and continue to suffer irreparable harm including humiliation, hardship and anxiety due

18 to Defendants’ failure to provide full and equal access to and enjoyment of Defendants’ facilities,

19 services, goods, privileges, advantages and accommodations.

20

199. WHEREFORE Plaintiffs pray for judgment as set forth below, including

21 declaratory and injunctive relief as well as reasonable attorneys’ fees, costs and expenses incurred

22 in bringing this action.

23

SECOND CLAIM FOR RELIEF

24

(Unruh Civil Rights Act, California Civil Code §§ 51 et seq.)

25

200. Plaintiffs incorporate by reference as though fully set forth herein the preceding

26 paragraphs of this Complaint.

27

201. California Civil Code § 51(b) provides in pertinent part that “All persons within the

28

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1 jurisdiction of this state are free and equal, and no matter what their…disability or medical

2 condition are entitled to the full and equal accommodations, advantages, facilities, privileges, or

3 services in all business establishments of every kind whatsoever.”

4

202. Pursuant to California Civil Code § 51(f), a violation of the ADA also constitutes a

5 violation of California Civil Code §§ 51 et seq.

6

203. Defendants own, operate and/or manage business establishments within the

7 meaning of the Unruh Civil Rights Act. Defendants are each a public accommodation whose

8 services and facilities are open to the general public.

9 \\\

10 \\\

11 \\\

12

204. Defendants provide services, privileges, advantages and accommodations to the

13 general public. Defendants have failed and refused to provide Plaintiffs with full and equal access

14 to and enjoyment of the benefits of their goods, services, facilities, benefits, advantages, and

15 accommodations, and have done so by reason of Plaintiffs’ disabilities.

16

205. Defendants have discriminated against persons with disabilities in violation of

17 California Civil Code §§ 51 et seq. by failing to operate their facilities and services in full

18 compliance with the requirements of the ADA as set forth above.

19

206. Defendants, by their actions and inactions alleged in this Complaint, have directly

20 discriminated against persons with disabilities.

21

207. The actions of Defendants were and are in violation of the Unruh Civil Rights Act,

22 Cal. Civ. Code §§ 51 et seq. and therefore Plaintiffs are also entitled to injunctive relief and

23 reasonable attorneys’ fees, costs and expenses.

24

THIRD CLAIM FOR RELIEF

25

(Consumers Legal Remedies Act, Cal. Civ. Code §§ 1750 et seq.)

26

208. Plaintiffs incorporate by reference as though fully set forth herein the preceding

27 paragraphs of this Complaint.

28

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209. Plaintiffs and the members of the putative class are “consumer[s]” within the

2 meaning of California Civil Code § 1761(d). They are also “senior citizen[s]” and/or “[d]isabled

3 person[s]” within the meaning of California Civil Code § 1761(f) and (g).

4

210. Defendants are each a “person” as defined under California Civil Code § 1761(c).

5 The assisted living services that Defendants have promised to provide Plaintiffs are “[s]ervices”

6 within the meaning of the California Civil Code § 1761(b). The agreement by Defendants to

7 provide assisted living services in return for payment of monthly fees by each of the Plaintiffs

8 constitutes a “transaction” under California Civil Code § 1761(e).

9

211. In Defendants’ uniform resident contracts presented to prospective residents and

10 their family members, Defendants represented and continue to represent that BROOKDALE will

11 assess each resident and provide the basic services, personal services, and select and therapeutic

12 services it has determined are needed. That same representation is made in BROOKDALE’s re-

13 evaluation of residents, rate increase letters, letters regarding the merger, letters regarding the

14 conversion to a new personal assessment system, corporate website statements, invoices, and other

15 standardized corporate promotional materials. These uniform corporate representations are false

16 and misleading, and likely to deceive the reasonable consumer. As alleged herein, Plaintiffs and

17 the putative class members reasonably expected based on these representations that

18 BROOKDALE would provide sufficient levels of qualified and adequately trained staff at its

19 facilities to ensure that all residents receive the services they have been promised and for which

20 they are paying.

21

212. Contrary to its representations regarding the provision of basic services, personal

22 services, and select and therapeutic services, BROOKDALE knows that the policies and practices

23 it uses to staff its facilities—most notably, its policy and practice of using predetermined labor

24 budgets designed to meet corporate profit targets, goals, and margins without regard to residents’

25 needs—preclude it from providing its residents all of the care and services they have been

26 promised and places all residents at a substantial risk that they will not receive the care and

27 services they have paid for on any given day. BROOKDALE did not intend to provide and has no

28

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1 intention of providing sufficient levels of qualified and adequately trained staff at its facilities to

2 ensure that all residents receive these services. BROOKDALE does not disclose and conceals this

3 material fact from the residents, their family members, and the general public.

4

213. The named Plaintiffs, their family members and powers of attorney, the putative

5 class members, and reasonable consumers considered material BROOKDALE’s

6 misrepresentations and misleading statements that it will provide residents the basic services,

7 personal services, and select and therapeutic services they need and for which they are paying. If

8 the named Plaintiffs had known the true facts about BROOKDALE’s staffing policies and

9 procedures, they would not have agreed to enter or stay in a BROOKDALE facility or to place

10 their relatives in a BROOKDALE facility, or would have paid less money. If the putative class

11 members had known the true facts, they would in all reasonable probability not have agreed to

12 enter or remain in a BROOKDALE facility or to place their relatives in a BROOKDALE facility,

13 or would have paid less money to BROOKDALE.

14

214. The facts that BROOKDALE misrepresents, fails to disclose and actively conceals

15 are material and are likely to deceive the reasonable consumer. Reasonable consumers, including

16 the residents and their family members herein, consider of great importance the staffing levels

17 provided by the assisted living facility they select, and such consumers also attach great

18 importance to BROOKDALE’s claims regarding its provision of basic services, personal services,

19 and select and therapeutic services.

20

215. Residents and their family members would consider material BROOKDALE’s

21 uniform corporate policy and procedure of basing its staffing on fixed budgets and profit margins

22 pursuant to staffing policies and procedures that are inadequate to meet residents’ needs, as

23 identified by BROOKDALE itself through periodic personal service assessments. Residents and

24 their family members could not reasonably have been expected to learn or discover these non-

25 disclosed facts, and in fact, BROOKDALE has affirmatively concealed them.

26

216. BROOKDALE has violated and continues to violate the Consumer Legal Remedies

27 Act, California Civil Code §§ 1750 et seq. (“CLRA”) in at least the following respects:

28

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1

a. In violation of § 1770(a)(5), BROOKDALE has misrepresented, failed to

2

disclose and concealed the true characteristics and/or quantities of services

3

provided at its facilities in California;

4

b. In violation of § 1770(a)(7), BROOKDALE has misrepresented, failed to

5

disclose and concealed the true standard, quality and/or grade of services

6

provided at its facilities in California;

7

c. In violation of § 1770(a)(9), in BROOKDALE’s standard resident

8

admission contracts and elsewhere, BROOKDALE has falsely advertised

9

that it will provide the assistance specified by each resident’s personal

10

service assessment and which corresponds to that resident’s Personal

11

Service Plan, knowing that BROOKDALE does not intend to provide the

12

services as advertised; and

13

d. In violation of § 1770(a)(14), BROOKDALE has represented that the

14

agreement signed by residents and/or their representatives, and under which

15

they pay their monthly rate, confers on residents the right to reside in a

16

facility that provides the basic services, personal services, and select and

17

therapeutic services that residents have been promised and are paying for,

18

when in fact, BROOKDALE knows that the policies and practices it uses to

19

staff its facilities preclude it from providing its residents all of the care and

20

services they have been promised and places all residents in an inherent and

21

substantial risk that they will not receive the care and services they have

22

paid for on any given day.

23

217. These misrepresentations, misleading statements, acts, practices, and omissions by

24 BROOKDALE are and were intended to induce and lure elderly and dependent adult residents and

25 their family members into agreeing to be admitted to BROOKDALE’s facilities and to pay

26 community and monthly fees.

27

218. BROOKDALE made the misrepresentations and misleading statements alleged

28

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1 herein through various uniform means of communication, including without limitation, the

2 admission agreement; subsequent agreements based on updated Personal Service Plans; letters to

3 residents regarding the merger between BROOKDALE and Emeritus, the implementation of

4 BROOKDALE’s new personal service system, and rate increases; standardized corporate

5 marketing and promotional materials; Defendants’ website; scripted sales presentations; invoices;

6 and other written corporate materials disseminated to the public in connection with Defendants’

7 services. These representations and misleading statements were made directly to the named

8 Plaintiffs, putative class members and their family members and/or representatives by

9 BROOKDALE in the uniform means of communication listed above.

10

219. BROOKDALE failed to disclose and concealed from Plaintiffs, the putative class

11 members, and their family members, that BROOKDALE uses predetermined labor budgets

12 designed to meet corporate profit targets, goals, and margins without regard to residents’ needs,

13 and; that these policies and practices preclude it from providing its residents all of the care and

14 services they have been promised and places all residents in an inherent and substantial risk that

15 they will not receive the care and services they have paid for on any given day; and that

16 BROOKDALE did not intend to provide and has no intention of providing sufficient qualified and

17 adequately trained staff at its facilities to ensure that all residents receive these services.

18

220. BROOKDALE has exclusive and superior knowledge of materials facts not known

19 to the named Plaintiffs, class members or the general public at the time of the subject transactions

20 and actively concealed those material facts.

21

221. BROOKDALE had exclusive and superior knowledge that its corporate policy and

22 procedure of providing pre-determined staffing at its facilities preclude BROOKDALE from

23 providing the care and services for which it charges its residents and places all residents at a

24 substantial risk that on any given day they will not receive the care and services for which they

25 have paid. BROOKDALE had exclusive and superior knowledge that its policies and procedures

26 for staffing its facilities pose a heightened health and safety risk to the named Plaintiffs and class

27 members. Defendants intentionally concealed, suppressed and/or failed to disclose the true facts

28

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1 with the intent to defraud the named Plaintiffs and putative class members. The named Plaintiffs

2 and putative class members did not know these material undisclosed facts and could not

3 reasonably have been expected to discover them.

4

222. As a direct and proximate result of Defendants’ conduct, Plaintiffs, the class

5 members, and members of the general public (including without limitation persons admitted to

6 and/or residing in the facilities, and their family members and/or representatives) have been

7 harmed and continue to be harmed. Among other things, they paid money to Defendants to enter

8 the facilities and/or for services that were not provided or that were substandard to those promised

9 by Defendants.

10

223. Plaintiffs sent BROOKDALE a notice to cure under California Civil Code

11 § 1782(a), which was received by BROOKDALE on June 6, 2017. More than 30 days have

12 passed since BROOKDALE’s receipt, and BROOKDALE has not corrected or remedied the

13 violations alleged in the notice and herein.

14

224. Accordingly, Plaintiffs and the class members are entitled to no less than $1,000 in

15 statutory damages pursuant to California Civil Code § 1780(a). Moreover, as senior citizens

16 and/or disabled persons, Plaintiffs and the class members are also entitled to statutory damages of

17 $5,000 per class member pursuant to California Civil Code § 1780(b), as well as actual damages

18 and restitution in an amount to be proven at trial.

19

225. Plaintiffs and each of the putative class members are seniors and/or disabled

20 persons as defined by California Civil Code § 1761(f) and (g). Plaintiffs and the putative class

21 members have each suffered substantial economic harm. Defendants knew that their conduct

22 negatively impacted seniors and disabled persons. Defendants’ conduct caused the named

23 Plaintiffs and the putative class members to lose property set aside for personal care and

24 maintenance and assets essential to their health and welfare. Further, Plaintiffs and the putative

25 class members are substantially more vulnerable than other members of the public to Defendants’

26 conduct because of their age, poor health, impaired understanding, restricted mobility and/or

27 disabilities.

28

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1

226. Plaintiffs additionally seek treble damages under California Civil Code § 3345,

2 punitive damages, reasonable attorneys’ fees and costs, and all other relief the Court deems just

3 and proper. Excluded from Plaintiffs’ request are damages related to any personal injuries,

4 emotional distress or wrongful death suffered by any member of the class.

5

227. Defendants’ conduct presents a continuing threat of substantial harm to the public

6 in that, among other things, Defendants continue to make misleading statements about and conceal

7 material facts about whether and how they provide basic, personal care, select and therapeutic

8 services at BROOKDALE facilities in California, as well as the fact that their staffing policies and

9 procedures preclude them from providing residents the services they have been promised. Despite

10 these misrepresentations, BROOKDALE continues to induce elderly and vulnerable citizens to

11 enter and remain in its facilities, which conduct irreparably harms Plaintiffs and the putative class.

12 Accordingly, Plaintiffs seek an injunction that requires that BROOKDALE immediately cease the

13 CLRA violations alleged herein regarding BROOKDALE’s misrepresentations, misleading

14 statements, and material omissions, and to enjoin it from continuing to engage in any such acts or

15 practices in the future. Specifically, Plaintiffs seek an injunction requiring BROOKDALE to

16 disclose to Plaintiffs, the putative class members and the consuming public that BROOKDALE’s

17 staffing policies and procedures preclude it from providing its residents the care and services they

18 have been promised and places all residents at an inherent and substantial risk that they will not

19 receive the care and services they have paid for on any given day. Plaintiffs also seek an

20 injunction prohibiting BROOKDALE from charging residents or their responsible parties monthly

21 fees based on their Personal Service Plans until BROOKDALE implements staffing policies and

22 procedures that enable it to deliver those services on a consistent basis.

23

228. WHEREFORE Plaintiffs pray for judgment as set forth below, including

24 declaratory and injunctive relief as well as reasonable attorneys’ fees, costs and expenses incurred

25 in bringing this action.

26 \\\

27 \\\

28

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1

FOURTH CLAIM FOR RELIEF

2

(Elder Financial Abuse, Cal. Welf. & Inst. Code § 15610.30)

3

229. Plaintiffs incorporate by reference as though fully set forth herein the preceding

4 paragraphs of this Complaint.

5

230. Plaintiffs and the putative class members are and at all times were “elders” as

6 defined under California Welfare & Institutions Code § 15610.27 and/or “dependent adults” as

7 defined under California Welfare & Institutions Code § 15610.23.

8 \\\

9

231. BROOKDALE represented to the named Plaintiffs, and/or their personal

10 representatives, and the putative class members, and/or their personal representatives, in standard

11 agreements, service updates, monthly invoices, and/or annual notification of rate increases that

12 BROOKDALE would provide care and assistance with activities of daily living, including but not

13 limited to staffing 24 hours a day, dining services, housekeeping, laundry, transportation, and

14 other basic services in exchange for community fees and monthly payments that it received from

15 the named Plaintiffs and the putative class members. However, BROOKDALE did not and has no

16 intention of providing sufficient levels of qualified and adequately trained staff at its facilities to

17 ensure that all residents receive these services. As a result, residents do not consistently receive all

18 of the basic services BROOKDALE has promised them and for which they are paying

19 BROOKDALE.

20

232. BROOKDALE further represented through these same corporate materials that

21 BROOKDALE would provide personal services, including but not limited to assistance with

22 bathing, toileting, grooming, dressing, transferring, and mobility, for additional monthly fees.

23 BROOKDALE represented that it will perform an assessment of each resident to identify needed

24 personal services and an individualized service plan to deliver those services. Yet BROOKDALE

25 did not intend to and does not provide adequate staffing for personal services at its facilities.

26 Rather, it has a policy and practice of providing pre-determined facility staffing that does not

27 change with increases in resident personal service needs. This policy and practice precludes

28

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1 BROOKDALE from providing facility residents with all of the personal service BROOKDALE

2 has promised them and for which they are paying BROOKDALE.

3

233. BROOKDALE further represented through these same corporate materials that

4 BROOKDALE would provide select and therapeutic services to residents, including but not

5 limited to emergency call pendants and associated service. However, BROOKDALE did not and

6 has no intention of providing sufficient levels of qualified and adequately trained staff at its

7 facilities to ensure that all residents receive these services. As a result, facility residents do not

8 consistently receive all of the select and therapeutic services BROOKDALE has promised them

9 and for which they are paying BROOKDALE.

10

234. BROOKDALE knew or should have known that such conduct would likely be

11 harmful to Plaintiffs and the putative class members.

12

235. BROOKDALE knew or should have known that Plaintiffs and the putative class

13 members had a right to the funds used to pay new resident community fees and monthly fees to

14 BROOKDALE.

15

236. As such, BROOKDALE took, secreted, appropriated, obtained and/or retained

16 money belonging to Plaintiffs and putative class members for a wrongful use and/or with the

17 intent to defraud.

18

237. BROOKDALE’s conduct was despicable, fraudulent, reckless, and carried out with

19 a willful and conscious disregard for the rights and safety of Plaintiffs and the members of the

20 putative class.

21

238. Plaintiffs and putative class members also seek compensatory damages, reasonable

22 attorneys’ fees, costs and expenses, punitive damages, treble damages pursuant to California Civil

23 Code § 3345, and all other remedies permitted by law. Plaintiffs do not seek certification of any

24 claims for damages related to any personal injuries, emotional distress, or wrongful death suffered

25 by any member of the class.

26

239. WHEREFORE Plaintiffs pray for judgment as set forth below, including

27 declaratory and injunctive relief as well as reasonable attorneys’ fees, costs and expenses incurred

28

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1 in bringing this action.

FIFTH CLAIM FOR RELIEF 2

(Unlawful, Unfair and Fraudulent Business Practices,

3

Cal. Bus. & Prof. Code §§ 17200 et seq.)

4

5

240. Plaintiffs incorporate by reference as though fully set forth herein the preceding

6 paragraphs of this Complaint.

7

241. BROOKDALE has engaged in unlawful business acts and practices. Such acts and

8 practices constitute unfair business practices in violation of California Business and Professions

9 Code §§ 17200 et seq.

10

242. In particular, Defendants have engaged in unlawful business acts and practices by

11 violating numerous laws, statutes and regulations including but not limited to:

12

a. Systematically and uniformly representing to the residents of its assisted

13

living facilities in California, family members, and the public that

14

Defendants will assess residents to determine their needs, and will provide

15

residents specified basic services, personal services, and select and

16

therapeutic services based on those needs, when in fact, Defendants use

17

staffing policies and procedures that preclude them from providing their

18

residents all of the care and services they have been promised and that

19

places all residents in an inherent and substantial risk that they will not

20

receive the care and services they have paid for on any given day, in

21

violation of California Business & Professions Code §§ 17500 et seq. and

22

California Civil Code §§ 1750 et seq.; and

23

b. Taking, secreting, appropriating, obtaining, and retaining the funds of elders

24

and dependent adults for a wrongful use and/or with the intent to defraud in

25

violation of California Welfare and Institutions Code § 15610.30.

26

243. By virtue of the conduct alleged herein, Defendants have also engaged in

27 fraudulent business practices. Members of the general public (including without limitation

28

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1 persons admitted to and/or residing in BROOKDALE’s California assisted living facilities during

2 the CLASS PERIOD, and their family members and/or representatives) have been and are likely

3 to be deceived by Defendants’ misrepresentations and failures to disclose as alleged herein.

4

244. The acts and practices of Defendants also constitute unfair business acts and

5 practices within the meaning of California Business & Professions Code §§ 17200 et seq., in that

6 the conduct alleged herein is immoral, unscrupulous, and contrary to public policy, and the

7 detriment and gravity of that conduct outweighs any benefits attributable to such conduct.

8

245. Defendants’ misrepresentations, misleading statements, acts, practices, and

9 omissions were intended to induce and lure elderly and dependent adult residents and their family

10 members into agreeing to be admitted to and remain at Defendants’ facilities and to pay a

11 community fee and monthly rates to live in an assisted living facility that features sufficient levels

12 of qualified and adequately trained staff to ensure that all residents receive the basic services,

13 personal services, and select and therapeutic services for which they are paying.

14

246. Defendants made these misrepresentations and misleading statements through

15 various uniform means of written corporate communications, including without limitation, the

16 standardized Residency Agreement; subsequent agreements based on re-assessments of the

17 resident; letters to residents regarding the merger between BROOKDALE and Emeritus,

18 Defendants’ conversion to a new personal service system, and rate increases; invoices, marketing

19 and promotional materials, Defendants’ corporate website and other materials disseminated to the

20 public from its corporate headquarters in connection with Defendants’ services. These

21 representations were made directly to the named Plaintiffs, class members, and their family

22 members and/or representatives by Defendants in the uniform means of communication listed

23 above.

24

247. BROOKDALE concealed from Plaintiffs, the putative class members, and their

25 family members that BROOKDALE’s staffing policies and procedures preclude it from providing

26 its residents all of the care and services they have been promised and places all residents at an

27 inherent and substantial risk that they will not receive the care and services they have paid for on

28

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1 any given day.

2

248. BROOKDALE had exclusive and superior knowledge of material facts not known

3 to named Plaintiffs, putative class members or the general public at the time of the subject

4 transactions and actively concealed these material facts.

5

249. BROOKDALE had exclusive and superior knowledge of its corporate policy and

6 procedure. Further, Plaintiffs allege on information and belief that Defendants’ officers, directors,

7 and managers knew that Defendants’ failure to provide adequate staffing posed a substantial

8 health and safety risk to the named Plaintiffs and class members. BROOKDALE intentionally

9 concealed, suppressed and/or failed to disclose the true facts with the intent to defraud the named

10 Plaintiffs and putative class members. The named Plaintiffs and the putative class members did

11 not know these material undisclosed facts and could not reasonably have been expected to

12 discover them.

13

250. As a direct and proximate result of Defendants’ conduct, Plaintiffs, the class

14 members, and members of the general public (including without limitation persons admitted to

15 and/or residing in the facilities, and their family members and/or representatives) have been

16 harmed and continue to be harmed. Among other things, they paid money to Defendants to enter

17 the facilities and for services that were not provided or that were substandard to those promised by

18 Defendants.

19

251. Plaintiffs seek an injunction that requires that Defendants immediately cease acts of

20 unlawful, unfair and fraudulent business acts or practices as alleged herein, and to enjoin

21 Defendants from continuing to engage in any such acts or practices in the future.

22

252. WHEREFORE Plaintiffs pray for judgment as set forth below, including

23 declaratory and injunctive relief as well as reasonable attorneys’ fees, costs and expenses incurred

24 in bringing this action.

25

ALLEGATIONS SUPPORTING DECLARATORY AND INJUNCTIVE RELIEF

26

253. Plaintiffs incorporate by reference as though fully set forth herein the preceding

27 paragraphs of this Complaint.

28

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1

254. Plaintiffs PATRICIA EIDLER, STACIA STINER, MARY-CATHERINE JONES,

2 HELEN CARLSON, and BONITA HAGER continue to live at a BROOKDALE assisted living

3 facility. Unless and until BROOKDALE brings its facilities into compliance with the

4 requirements of the ADA and applicable federal disability access design standards, the above-

5 named Plaintiffs will continue to be denied full and equal access to and enjoyment of

6 BROOKDALE’s facilities as a result of physical access barriers in violation of the ADA.

7 Moreover, unless and until Defendant BROOKDALE makes the requested reasonable

8 modification in policies, practices and procedures set forth above with respect to the staffing of its

9 facilities, Plaintiffs will continue to be denied full and equal access to and enjoyment of the

10 services, goods, facilities, privileges, advantages and accommodations provided to its residents by

11 BROOKDALE. In this regard, unless and until Defendants provide a sufficient number of

12 adequately trained staff at its facilities, residents will continue to suffer the denial and deprivation

13 of basic services that are necessary to daily living, including assistance with bathing, showering,

14 toileting, taking medications, transferring, dressing, dining, as well as cleaning and laundry

15 services. Further, residents with disabilities will continue to be denied full and equal access to on-

16 site and off-site social and recreational activities, and will be segregated and isolated in violation

17 of the ADA’s integration mandate.

18

255. In addition, unless and until Defendants comply with the ADA, Plaintiffs

19 PATRICIA EIDLER, STACIA STINER, MARY-CATHERINE JONES, HELEN CARLSON,

20 and BONITA HAGER will continue to suffer falls, and to be at risk of falls and/or serious

21 physical injuries, as a result of Defendants’ failure and refusal to provide full and equal access to

22 its facilities and services. In this regard, Defendants must be enjoined to provide facilities that

23 comply with applicable federal disability access standards, a sufficient number of staff who are

24 adequately trained to assist residents with disabilities to prevent falls and to assist them if a fall

25 takes place, and a functioning and effective pendant system so that residents can obtain prompt

26 and effective assistance when they have fallen and/or are at risk of other physical injuries.

27 Further, unless and until Defendants provide adequate emergency planning and evacuation

28

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1 procedures for residents with disabilities, Defendants will continue to place them at significant

2 risk of serious injury and death.

3

256. Further, unless and until Defendants provide residents with full and equal access to

4 enjoyment of its transportation services, residents with disabilities will continue to be excluded

5 from and denied access to off-site appointments and activities in violation of the ADA.

6

257. Finally, unless and until BROOKDALE ceases its false and/or misleading

7 statements regarding its services and discloses that its corporate staffing policies and practices

8 preclude it from providing its residents the care and services they have been promised and places

9 all residents at an inherent and substantial risk that they will not receive the care and services they

10 have paid for on any given day, residents, their family members, their representatives and the

11 general public will continue to be misled and will continue to expend very substantial sums of

12 money for services, goods and facilities that are not as represented, and Defendants will continue

13 to receive the benefits of their ill-gotten gains.

14

258. A present and actual controversy exists regarding the respective rights and

15 obligations of Plaintiffs and Defendants. Plaintiffs desire a judicial determination of their rights

16 and Defendants’ obligations in a declaration as to whether, and to what extent, the Defendants’

17 conduct violates applicable law.

18

259. Such a declaration is necessary and appropriate at this time in order that Plaintiffs

19 may ascertain their rights. Such a declaration is also necessary and appropriate to prevent further

20 harm or infringement of Plaintiffs’ rights.

21

260. Plaintiffs PATRICIA EIDLER, STACIA STINER, MARY-CATHERINE JONES,

22 HELEN CARLSON, and BONITA HAGER have no adequate remedy at law for the harm to them

23 arising from the conduct alleged herein. Unless and until Defendants are preliminarily and

24 permanently enjoined from engaging in such conduct, Plaintiffs will continue to suffer irreparable

25 harm as a result of Defendants’ violations of the ADA and the Unruh Act as alleged herein.

26

261. Plaintiffs PATRICIA EIDLER, STACIA STINER, MARY-CATHERINE JONES,

27 HELEN CARLSON, and BONITA HAGER are entitled to declaratory and injunctive relief

28

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1 pursuant to each of the laws under which this action is brought.

2

PRAYER FOR RELIEF

3

WHEREFORE, Plaintiffs respectfully pray that this Court:

4

1. Issue a declaratory judgment that Defendants’ failure to provide full and equal

5 access to and enjoyment of Defendants’ goods, services, facilities, benefits, advantages and

6 accommodations with nondisabled persons violates Plaintiffs’ rights the ADA, § 42 U.S.C. 12101

7 et seq., and the regulations promulgated thereunder, and also violates their civil rights under

8 California Civil Code §§ 51 et seq.;

9

2. Issue preliminary and permanent injunctions requiring Defendants to come into full

10 compliance with the requirements of the ADA and its implementing regulations;

11

3. Issue preliminary and permanent injunctions enjoining Defendants from violating

12 the Unruh Civil Rights Act in the operation of Defendants’ business establishments and/or public

13 accommodations with respect to its goods, services, facilities, advantages, benefits and

14 accommodations at its assisted living facilities in California;

15

4. Issue preliminary and permanent injunctions requiring that Defendants immediately

16 cease acts that constitute false advertising and violations of the Consumer Legal Remedies Act and

17 the Elder Financial Abuse statute as alleged herein with respect to Defendants’ misrepresentations,

18 misleading statements, and material omissions, and to enjoin Defendants from continuing to

19 engage in any such acts or practices in the future;

20

5. Issue preliminary and permanent injunctions requiring that BROOKDALE disclose

21 to Plaintiffs, the putative class members and the consuming public that its corporate staffing

22 policies and procedures preclude it from providing its residents the care and services they have

23 been promised and places all residents at an inherent and substantial risk that they will not receive

24 the care and services they have paid for on any given day, and prohibiting BROOKDALE from

25 charging fees based on the residents’ Personal Service Plans when BROOKDALE does not, in

26 fact, provide adequate staffing levels to perform the personal services identified in those plans;

27

6. For statutory damages pursuant to California Civil Code § 52(a);

28

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1

7. For statutory damages pursuant to California Civil Code § 1780(a) and (b);

2

8. For actual damages according to proof, excepting any damages for personal injury,

3 emotional distress and/or wrongful death suffered by the named Plaintiffs or any class member;

4

9. For restitution and any other monetary relief permitted by law;

5

10. For punitive damages;

6

11. For treble damages pursuant to California Civil Code §§ 52(a) and 3345;

7

12. For pre-judgment and post-judgment interest according to law;

8

13. Award to Plaintiffs all costs of this proceeding, including reasonable attorneys’ fees

9 costs and litigation expenses, as provided by law;

10

14. Issue any other preliminary and permanent injunctions the Court deems sufficient

11 to rectify the acts and omissions alleged herein; and,

12

15. For such other relief as the Court may deem just and proper.

13 14
DATED: August 25, 2017 15 16 17 18 19 DATED: August 25, 2017 20 21 22
DATED: August 25, 2017 23 24 25 26

Respectfully submitted,
SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS, LLP
By: /s/Guy B. Wallace Guy B. Wallace
ROSEN BIEN GALVAN & GRUNFELD LLP
By: /s/Gay Crosthwait Grunfeld Gay Crosthwait Grunfeld
STEBNER AND ASSOCIATES
By: /s/Kathryn A. Stebner Kathryn A. Stebner
Attorneys for Plaintiffs and the Proposed Classes

27

28

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1

DEMAND FOR JURY TRIAL

2

Plaintiffs demand a jury trial on all issues so triable.

3

4 5 DATED: August 25, 2017 6 7 8

Respectfully submitted,
SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS, LLP
By: /s/Guy B. Wallace Guy B. Wallace

9 DATED: August 25, 2017 10

ROSEN BIEN GALVAN & GRUNFELD LLP

11 12 13 DATED: August 25, 2017

By: /s/Gay Crosthwait Grunfeld Gay Crosthwait Grunfeld
STEBNER AND ASSOCIATES

14

By: /s/Kathryn A. Stebner

15

Kathryn A. Stebner

16

Attorneys for Plaintiffs and the Proposed Classes

17

18

19

20

21

22

23

24

25

26

27

28

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1

CERTIFICATE OF SERVICE

2

I hereby certify that I electronically filed the foregoing document with the Clerk of the

3 Court for the United States District Court, Northern District of California, by using the Court’s

4 CM/ECF system on August 25, 2017.

5

I certify that all participants in the case are registered CM/ECF users and that service will

6 be accomplished by the Court’s CM/ECF system.

7 8 Date: August 25, 2017 9 10 11 12 13 14

Respectfully Submitted,
/s/ Guy B. Wallace Guy B. Wallace (SBN 176151) SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 Emeryville, California 94608 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 gwallace@schneiderwallace.com
Attorneys for Plaintiffs and the Proposed Classes

15

16

17

18

19

20

21

22

23

24

25

26

27

28
CERTIFICATE OF SERVICE
Case No. 17-cv-03962-JD

 
 Case: 4:17-cv-03962-HSG As of: 04/13/2020 02:54 PM PDT 1 of 33
APPEAL,REFDIS,RELATE
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:17−cv−03962−HSG

Eidler et al v. Brookdale Senior Living, Inc. et al Assigned to: Judge Haywood S Gilliam, Jr Referred to: Magistrate Judge Laurel Beeler Relate Case Case: 4:13−cv−03962−HSG
Case in other court: 9th Circuit, 19−15334 Cause: 42:12101 Americans w/ Disabilities Act (ADA)
Plaintiff

Date Filed: 07/13/2017 Jury Demand: Plaintiff Nature of Suit: 446 American with Disabilities − Other Jurisdiction: Federal Question

Patricia Eidler by and through her Guardian Ad Litem TERMINATED: 03/09/2018

represented by Benjamin Joseph Bien−Kahn Rosen Bien Galvan and Grunfeld LLP 101 Mission Street, Sixth Floor San Francisco, CA 94105 415−433−6830 Email: bbien−kahn@rbgg.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher David Hu Rosen Bien Galvan and Grunfeld LLP 50 Fremont Street, 19th Floor San Francisco, CA 94105 415−433−6830 Fax: 415−433−7104 Email: chu@rbgg.com TERMINATED: 02/27/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian S Umpierre Stebner and Associates 870 Market Street Suite 1212 San Francisco, CA 94102 415−362−9800 Fax: 415−362−9801 Email: brian@stebnerassociates.com ATTORNEY TO BE NOTICED

Devin Whetstone Mauney Rosen Bien Galvan Grunfeld LLP 50 Fremont Street, 19th Floor San Francisco, CA 94105 415−433−6830 Fax: 415−433−7104 Email: dmauney@rbgg.com TERMINATED: 08/07/2018

Gay Crosthwait Grunfeld Rosen Bien Galvan and Grunfeld LLP 50 Fremont Street, 19th Floor San Francisco, CA 94105 415−433−6830 Fax: 415−433−7104 Email: ggrunfeld@rbgg.com ATTORNEY TO BE NOTICED

Kathryn Ann Stebner Stebner & Associates

Case: 4:17-cv-03962-HSG As of: 04/13/2020 02:54 PM PDT 2 of 33

Plaintiff
Christopher Eidler Gardian Ad Litem for Patricia Eidler TERMINATED: 03/09/2018

870 Market Street Suite 1212 San Francisco, CA 94105 (415) 362−9800 Fax: (415) 362−9801 Email: Kathryn@stebnerassociates.com ATTORNEY TO BE NOTICED
Kelly Jean Knapp Stebner and Associates 870 Market Street Suite 1212 San Francisco, CA 94102 4153629800 Fax: 4153629801 Email: kelly@stebnerassociates.com TERMINATED: 03/06/2018 ATTORNEY TO BE NOTICED
Guy Burton Wallace Schneider Wallace Cottrell Konecky Wotkyns LLP 2000 Powell Street Suite 1400 Emeryville, CA 94608 415−421−7100 Fax: 415−421−7105 Email: gwallace@schneiderwallace.com ATTORNEY TO BE NOTICED
Sarah S. Colby Stebner & Associates 870 Market St., Suite 1212 San Francisco, CA 94102 415−362−9800 Email: sarah@stebnerassociates.com ATTORNEY TO BE NOTICED
represented by Benjamin Joseph Bien−Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher David Hu (See above for address) TERMINATED: 02/27/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian S Umpierre (See above for address) ATTORNEY TO BE NOTICED
Devin Whetstone Mauney (See above for address) TERMINATED: 08/07/2018
Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Kathryn Ann Stebner (See above for address)

Case: 4:17-cv-03962-HSG As of: 04/13/2020 02:54 PM PDT 3 of 33

Plaintiff Stacia Stiner

ATTORNEY TO BE NOTICED
Kelly Jean Knapp (See above for address) TERMINATED: 03/06/2018 ATTORNEY TO BE NOTICED
Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Colby (See above for address) ATTORNEY TO BE NOTICED
represented by Benjamin Joseph Bien−Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher David Hu (See above for address) TERMINATED: 02/27/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian S Umpierre (See above for address) ATTORNEY TO BE NOTICED
Devin Whetstone Mauney (See above for address) TERMINATED: 08/07/2018
Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Jenny Snay Yelin Rosen Bien Galvan and Grunfeld LLP 101 Mission Street, 6th Floor San Francisco, CA 94105−1738 415−433−6830 Fax: 415−433−7104 Email: jyelin@rbgg.com ATTORNEY TO BE NOTICED
Kathryn Ann Stebner (See above for address) ATTORNEY TO BE NOTICED
Kelly Jean Knapp (See above for address) TERMINATED: 03/06/2018 ATTORNEY TO BE NOTICED
Mark T. Johnson Schneider Wallace Cottrell Konecky Wotkyns LLP 2000 Powell Street Suite 1400 Emeryville, CA 94608 415−421−7100

Case: 4:17-cv-03962-HSG As of: 04/13/2020 02:54 PM PDT 4 of 33

Plaintiff Mary−Catherine Jones by and through her Gardian Ad Litem TERMINATED: 03/09/2018
Plaintiff

Fax: 415−421−7105 Email: mjohnson@schneiderwallace.com ATTORNEY TO BE NOTICED
Travis C Close Schneider Wallace Cottrell Konecky Wotkyns LLP 2000 Powell Street, Suite 1400 Emeryville, CA 94608 415−421−7100 Email: tclose@schneiderwallace.com ATTORNEY TO BE NOTICED
Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Colby (See above for address) ATTORNEY TO BE NOTICED
represented by Benjamin Joseph Bien−Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher David Hu (See above for address) TERMINATED: 02/27/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian S Umpierre (See above for address) ATTORNEY TO BE NOTICED
Devin Whetstone Mauney (See above for address) TERMINATED: 08/07/2018
Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Kathryn Ann Stebner (See above for address) ATTORNEY TO BE NOTICED
Kelly Jean Knapp (See above for address) TERMINATED: 03/06/2018 ATTORNEY TO BE NOTICED
Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Colby (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 4:17-cv-03962-HSG As of: 04/13/2020 02:54 PM PDT 5 of 33

Kelly Clapper Guardian Ad Litem for Mary−Catherine Jones TERMINATED: 03/09/2018
Plaintiff Helen Carlson by and through her Guardian Ad Litem

Benjamin Joseph Bien−Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher David Hu (See above for address) TERMINATED: 02/27/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian S Umpierre (See above for address) ATTORNEY TO BE NOTICED
Devin Whetstone Mauney (See above for address) TERMINATED: 08/07/2018
Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Kathryn Ann Stebner (See above for address) ATTORNEY TO BE NOTICED
Kelly Jean Knapp (See above for address) TERMINATED: 03/06/2018 ATTORNEY TO BE NOTICED
Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Colby (See above for address) ATTORNEY TO BE NOTICED
represented by Benjamin Joseph Bien−Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher David Hu (See above for address) TERMINATED: 02/27/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian S Umpierre (See above for address) ATTORNEY TO BE NOTICED
Devin Whetstone Mauney (See above for address) TERMINATED: 08/07/2018
Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Case: 4:17-cv-03962-HSG As of: 04/13/2020 02:54 PM PDT 6 of 33

Plaintiff
Joan Carlson Guardian Ad Litem for Helen Carlson

Jenny Snay Yelin (See above for address) ATTORNEY TO BE NOTICED
Kathryn Ann Stebner (See above for address) ATTORNEY TO BE NOTICED
Kelly Jean Knapp (See above for address) TERMINATED: 03/06/2018 ATTORNEY TO BE NOTICED
Mark T. Johnson (See above for address) ATTORNEY TO BE NOTICED
Travis C Close (See above for address) ATTORNEY TO BE NOTICED
Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Colby (See above for address) ATTORNEY TO BE NOTICED
represented by Benjamin Joseph Bien−Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher David Hu (See above for address) TERMINATED: 02/27/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian S Umpierre (See above for address) ATTORNEY TO BE NOTICED
Devin Whetstone Mauney (See above for address) TERMINATED: 08/07/2018
Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Jenny Snay Yelin (See above for address) ATTORNEY TO BE NOTICED
Kathryn Ann Stebner (See above for address) ATTORNEY TO BE NOTICED
Kelly Jean Knapp (See above for address) TERMINATED: 03/06/2018

Case: 4:17-cv-03962-HSG As of: 04/13/2020 02:54 PM PDT 7 of 33

Plaintiff Lawrence Quinlan by and through his Guardian Ad Litem
Plaintiff Bonita Hager TERMINATED: 03/09/2018

ATTORNEY TO BE NOTICED
Mark T. Johnson (See above for address) ATTORNEY TO BE NOTICED
Travis C Close (See above for address) ATTORNEY TO BE NOTICED
Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Colby (See above for address) ATTORNEY TO BE NOTICED
represented by Benjamin Joseph Bien−Kahn (See above for address) ATTORNEY TO BE NOTICED
Brian S Umpierre (See above for address) ATTORNEY TO BE NOTICED
Devin Whetstone Mauney (See above for address) TERMINATED: 08/07/2018
Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Jenny Snay Yelin (See above for address) ATTORNEY TO BE NOTICED
Mark T. Johnson (See above for address) ATTORNEY TO BE NOTICED
Travis C Close (See above for address) ATTORNEY TO BE NOTICED
Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Colby (See above for address) ATTORNEY TO BE NOTICED
represented by Brian S Umpierre (See above for address) ATTORNEY TO BE NOTICED
Devin Whetstone Mauney (See above for address) TERMINATED: 08/07/2018 ATTORNEY TO BE NOTICED

Case: 4:17-cv-03962-HSG As of: 04/13/2020 02:54 PM PDT 8 of 33

Plaintiff Loresia Vallette Guardian Ad Litem for Lawrence Quinlan
Plaintiff Heather Fisher Guardian Ad Litem for Ralph Schmidt

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Kathryn Ann Stebner (See above for address) ATTORNEY TO BE NOTICED
Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED
represented by Benjamin Joseph Bien−Kahn (See above for address) ATTORNEY TO BE NOTICED
Brian S Umpierre (See above for address) ATTORNEY TO BE NOTICED
Devin Whetstone Mauney (See above for address) TERMINATED: 08/07/2018
Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Jenny Snay Yelin (See above for address) ATTORNEY TO BE NOTICED
Mark T. Johnson (See above for address) ATTORNEY TO BE NOTICED
Travis C Close (See above for address) ATTORNEY TO BE NOTICED
Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Colby (See above for address) ATTORNEY TO BE NOTICED
represented by Gay Crosthwait Grunfeld (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Joseph Bien−Kahn (See above for address) ATTORNEY TO BE NOTICED
Brian S Umpierre (See above for address) ATTORNEY TO BE NOTICED

Case: 4:17-cv-03962-HSG As of: 04/13/2020 02:54 PM PDT 9 of 33

Plaintiff Patricia Lindstrom as successor−in−interest to the Estate of Aurthur Lindstrom
Plaintiff Arthur Lindstrom

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED
Jenny Snay Yelin (See above for address) ATTORNEY TO BE NOTICED
Mark T. Johnson (See above for address) ATTORNEY TO BE NOTICED
Travis C Close (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Colby (See above for address) ATTORNEY TO BE NOTICED
represented by Gay Crosthwait Grunfeld (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Joseph Bien−Kahn (See above for address) ATTORNEY TO BE NOTICED
Brian S Umpierre (See above for address) ATTORNEY TO BE NOTICED
Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED
Jenny Snay Yelin (See above for address) ATTORNEY TO BE NOTICED
Mark T. Johnson (See above for address) ATTORNEY TO BE NOTICED
Travis C Close (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Colby (See above for address) ATTORNEY TO BE NOTICED
represented by Gay Crosthwait Grunfeld (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Joseph Bien−Kahn (See above for address) ATTORNEY TO BE NOTICED

Case: 4:17-cv-03962-HSG As of: 04/13/2020 02:54 PM PDT 10 of 33

Plaintiff Ralph Schmidt by and through his Guardian Ad Litem
Plaintiff Edward Boris by and through his Guardian Ad Litem

Brian S Umpierre (See above for address) ATTORNEY TO BE NOTICED
Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED
Jenny Snay Yelin (See above for address) ATTORNEY TO BE NOTICED
Mark T. Johnson (See above for address) ATTORNEY TO BE NOTICED
Travis C Close (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Colby (See above for address) ATTORNEY TO BE NOTICED
represented by Gay Crosthwait Grunfeld (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Joseph Bien−Kahn (See above for address) ATTORNEY TO BE NOTICED
Brian S Umpierre (See above for address) ATTORNEY TO BE NOTICED
Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED
Jenny Snay Yelin (See above for address) ATTORNEY TO BE NOTICED
Mark T. Johnson (See above for address) ATTORNEY TO BE NOTICED
Travis C Close (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Colby (See above for address) ATTORNEY TO BE NOTICED
represented by Gay Crosthwait Grunfeld (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:17-cv-03962-HSG As of: 04/13/2020 02:54 PM PDT 11 of 33

Plaintiff Michele Lytle Guardian Ad Litem for Edward Boris
Plaintiff Bernie Jestrabek−Hart

Benjamin Joseph Bien−Kahn (See above for address) ATTORNEY TO BE NOTICED
Brian S Umpierre (See above for address) ATTORNEY TO BE NOTICED
Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED
Jenny Snay Yelin (See above for address) ATTORNEY TO BE NOTICED
Mark T. Johnson (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Colby (See above for address) ATTORNEY TO BE NOTICED
represented by Gay Crosthwait Grunfeld (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Joseph Bien−Kahn (See above for address) ATTORNEY TO BE NOTICED
Brian S Umpierre (See above for address) ATTORNEY TO BE NOTICED
Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED
Jenny Snay Yelin (See above for address) ATTORNEY TO BE NOTICED
Mark T. Johnson (See above for address) ATTORNEY TO BE NOTICED
Travis C Close (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Colby (See above for address) ATTORNEY TO BE NOTICED
represented by Gay Crosthwait Grunfeld (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:17-cv-03962-HSG As of: 04/13/2020 02:54 PM PDT 12 of 33

Plaintiff Jeanette Algarme

Benjamin Joseph Bien−Kahn (See above for address) ATTORNEY TO BE NOTICED
Brian S Umpierre (See above for address) ATTORNEY TO BE NOTICED
Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED
Jenny Snay Yelin (See above for address) ATTORNEY TO BE NOTICED
Mark T. Johnson (See above for address) ATTORNEY TO BE NOTICED
Travis C Close (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Colby (See above for address) ATTORNEY TO BE NOTICED
represented by Guy Burton Wallace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian S Umpierre (See above for address) ATTORNEY TO BE NOTICED
Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Jenny Snay Yelin Rosen Bien Galvan & Grunfeld LLP 101 Mission Street, 6th Floor San Francisco, CA 94105−1738 415−433−6830 Fax: 415−433−7104 Email: jyelin@rbgg.com ATTORNEY TO BE NOTICED
Mark T. Johnson (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Brookdale Senior Living, Inc.

represented by Adam P. KohSweeney O'Melveny & Myers LLP Two Embarcadero Center 28th Floor San Francisco, CA 94111

Case: 4:17-cv-03962-HSG As of: 04/13/2020 02:54 PM PDT 13 of 33
415−984−8700 Fax: 415−984−8701 Email: akohsweeney@omm.com TERMINATED: 03/20/2020 LEAD ATTORNEY
Christopher Joseph Truxler Seyfarth Shaw LLP 400 Capitol Mall, Suite 2350 Sacramento, CA 95814−4428 916−448−0159 Fax: 916−558−4839 Email: CTruxler@Seyfarth.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey A. Barker OMelveny and Myers 1999 Avenue of the Stars Ste 700 Los Angeles, CA 90067−6035 310−553−6700 Email: jbarker@omm.com TERMINATED: 03/20/2020 LEAD ATTORNEY
Matthew David Powers O'Melveny & Myers LLP Two Embarcadero Center, 28th Floor San Francisco, CA 94111 415−984−8700 Fax: 415−984−8701 Email: mpowers@omm.com TERMINATED: 03/20/2020 LEAD ATTORNEY
Gerald L. Maatman , Jr. Seyfarth Shaw LLP 233 S. Wacker Drive, 8000 Chicago, IL 60606 (312) 460−5965 Email: gmaatman@seyfarth.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey A.N. Kopczynski O'Melveny and Myers LLP NY 3155, Times Square Tower 7 Times Square New York, NY 10036 212−728−5793 Email: jkopczynski@omm.com TERMINATED: 03/20/2020 PRO HAC VICE
Jennifer A Riley Seyfarth Shaw LLP 233 S. Wacker Drive Suite 8000 Chicago, IL 60606 312−460−5000 Fax: 312−460−7000 Email: jriley@seyfarth.com PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 4:17-cv-03962-HSG As of: 04/13/2020 02:54 PM PDT 14 of 33

Defendant
Brookdale Senior Living Communities, Inc.

Justin Taylor Curley Seyfarth Shaw LLP 560 Mission Street, 31st Floor San Francisco, CA 94105 415−397−2823 Fax: 415−397−8549 Email: jcurley@seyfarth.com ATTORNEY TO BE NOTICED
Mallory Ann Jensen O'Melveny and Myers LLP 2 Embarcadero Center 28th Floor San Francisco, CA 94111 415−984−8894 Email: mjensen@omm.com TERMINATED: 03/20/2020
Matthew A. Goodin Seyfarth Shaw LLP 560 Mission Street Ste 3100 San Francisco, CA 94105 (415) 732−1111 Fax: (415) 397−8549 Email: mgoodin@seyfarth.com ATTORNEY TO BE NOTICED
represented by Adam P. KohSweeney (See above for address) TERMINATED: 03/20/2020 LEAD ATTORNEY
Christopher Joseph Truxler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey A. Barker (See above for address) TERMINATED: 03/20/2020 LEAD ATTORNEY
Matthew David Powers (See above for address) TERMINATED: 03/20/2020 LEAD ATTORNEY
Gerald L. Maatman , Jr. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey A.N. Kopczynski (See above for address) TERMINATED: 03/20/2020 PRO HAC VICE
Jennifer A Riley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 4:17-cv-03962-HSG As of: 04/13/2020 02:54 PM PDT 15 of 33

Justin Taylor Curley (See above for address) ATTORNEY TO BE NOTICED
Mallory Ann Jensen (See above for address) TERMINATED: 03/20/2020
Matthew A. Goodin (See above for address) ATTORNEY TO BE NOTICED

Date Filed 07/13/2017
07/13/2017
07/14/2017
07/14/2017 07/14/2017 07/14/2017 07/17/2017 07/17/2017
07/17/2017 07/18/2017

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief and Damages against Brookdale Living Communities, Inc., Brookdale Senior Living, Inc. ( Filing fee $ 400, receipt number 0971−11545459.). Filed byHellen Carlson, Stacia Stiner, Carlson Joan, Christopher Eidler, Patricia Eidler, Mary−Catherine Jones, Kelly Clapper. (Attachments: # 1 Civil Cover Sheet)(Wallace, Guy) (Filed on 7/13/2017) (Entered: 07/13/2017)
2 MOTION to Appoint Guardian ad Litem filed by Hellen Carlson, Kelly Clapper, Christopher Eidler, Patricia Eidler, Carlson Joan, Mary−Catherine Jones, Stacia Stiner. (Attachments: # 1 Declaration of Christopher Eidler, # 2 Declaration of Joan Carlson, # 3 Declaration of Kelly Clapper)(Wallace, Guy) (Filed on 7/13/2017) (Entered: 07/13/2017)
3 Case assigned to Hon. James Donato.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. (vlk, COURT STAFF) (Filed on 7/14/2017) (Entered: 07/14/2017)
4 Proposed Order re 2 MOTION to Appoint Guardian ad Litem by Hellen Carlson, Kelly Clapper, Christopher Eidler, Patricia Eidler, Carlson Joan, Mary−Catherine Jones, Stacia Stiner. (Wallace, Guy) (Filed on 7/14/2017) (Entered: 07/14/2017)
5 Proposed Summons. (Wallace, Guy) (Filed on 7/14/2017) (Entered: 07/14/2017)
6 Proposed Summons. (Wallace, Guy) (Filed on 7/14/2017) (Entered: 07/14/2017)
7 NOTICE of Appearance by Kathryn Ann Stebner (Stebner, Kathryn) (Filed on 7/17/2017) (Entered: 07/17/2017)
8 Initial Case Management Scheduling Order for Cases Asserting Denial of Right of Access under Americans with Disabilities Act. This case is assigned to a judge who participates in the Cameras in the Courtroom Pilot Project. See General Order 65 and http://cand.uscourts.gov/cameras (Attachments: # 1 Notice of Eligibility for Video Recording)(hdjS, COURT STAFF) (Filed on 7/17/2017) (Entered: 07/17/2017)
9 Summons Issued as to Brookdale Living Communities, Inc. (Attachments: # 1 Summons)(hdjS, COURT STAFF) (Filed on 7/17/2017) (Entered: 07/17/2017)
10 NOTICE of Appearance by Gay Crosthwait Grunfeld , Benjamin Bien−Kahn and Christopher D. Hu (Grunfeld, Gay) (Filed on 7/18/2017) (Entered: 07/18/2017)

Case: 4:17-cv-03962-HSG As of: 04/13/2020 02:54 PM PDT 16 of 33

07/19/2017 07/26/2017 07/26/2017 08/07/2017 08/07/2017 08/07/2017 08/07/2017 08/07/2017
08/18/2017
08/25/2017
08/25/2017
09/22/2017
09/28/2017

11 NOTICE of Appearance by Kelly Jean Knapp (Knapp, Kelly) (Filed on 7/19/2017) (Entered: 07/19/2017)
12 SUMMONS Returned Executed by Hellen Carlson, Stacia Stiner, Carlson Joan, Christopher Eidler, Patricia Eidler, Mary−Catherine Jones, Kelly Clapper. Brookdale Senior Living, Inc. served on 7/18/2017, answer due 8/8/2017. (Colby, Sarah) (Filed on 7/26/2017) (Entered: 07/26/2017)
13 SUMMONS Returned Executed by Hellen Carlson, Stacia Stiner, Carlson Joan, Christopher Eidler, Patricia Eidler, Mary−Catherine Jones, Kelly Clapper. Brookdale Living Communities, Inc. served on 7/18/2017, answer due 8/8/2017. (Colby, Sarah) (Filed on 7/26/2017) (Entered: 07/26/2017)
14 NOTICE of Appearance by Matthew David Powers (Powers, Matthew) (Filed on 8/7/2017) (Entered: 08/07/2017)
15 NOTICE of Appearance by Jeffrey A. Barker (Barker, Jeffrey) (Filed on 8/7/2017) (Entered: 08/07/2017)
16 NOTICE of Appearance by Mallory Ann Jensen (Jensen, Mallory) (Filed on 8/7/2017) (Entered: 08/07/2017)
17 NOTICE of Appearance by Adam P. KohSweeney (KohSweeney, Adam) (Filed on 8/7/2017) (Entered: 08/07/2017)
18 STIPULATION re 1 Complaint, (Stipulation To Extend Time For Defendants Brookdale Senior Living, Inc. And Brookdale Senior Living Communities, Inc. To Respond to Plaintiffs' Complaint) filed by Brookdale Living Communities, Inc., Brookdale Senior Living, Inc.. (KohSweeney, Adam) (Filed on 8/7/2017) (Entered: 08/07/2017)
19 STIPULATION (Amended) to Extend Time for Defendants Brookdale Senior Living, Inc. and Brookdale Senior Living Communities, Inc. to Respond to Plaintiffs' Complaint filed by Hellen Carlson, Kelly Clapper, Christopher Eidler, Patricia Eidler, Carlson Joan, Mary−Catherine Jones, Stacia Stiner. (Wallace, Guy) (Filed on 8/18/2017) (Entered: 08/18/2017)
20 AMENDED COMPLAINT (First Amended Complaint for Declaratory and Injunctive Relief and Damages) against Brookdale Living Communities, Inc., Brookdale Senior Living, Inc.. Filed byHellen Carlson, Stacia Stiner, Carlson Joan, Christopher Eidler, Patricia Eidler, Mary−Catherine Jones, Kelly Clapper, Lawrence Quinlan, Bonita Hager, Loresia Vallette. (Wallace, Guy) (Filed on 8/25/2017) (Entered: 08/25/2017)
21 ADMINISTRATIVE MOTION for Appointment of Loresia Vallette as Guardian Ad Litem for Lawrence Quinlan filed by Hellen Carlson, Kelly Clapper, Christopher Eidler, Patricia Eidler, Bonita Hager, Carlson Joan, Mary−Catherine Jones, Lawrence Quinlan, Stacia Stiner, Loresia Vallette. Responses due by 8/29/2017. (Attachments: # 1 Declaration of Loresia Vallette, # 2 Proposed Order)(Wallace, Guy) (Filed on 8/25/2017) (Entered: 08/25/2017)
22 ORDER GRANTING MOTIONS FOR GUARDIAN AD LITEM APPOINTMENTS. Pursuant to plaintiffs' unopposed requests, Dkt. Nos. 2 & 21 , the Court makes the following guardian ad litem appointments under Federal Rule of Civil Procedure 17(c)(2): Christopher William Eidler for plaintiff Patricia Eidler; Kelly L. Clapper for plaintiff Mary−Catherine Jones; Joan Carlson for plaintiff Helen Carlson; and Loresia Vallette for plaintiff Lawrence Quinlan. Signed by Judge James Donato on 9/22/2017. (This is a text−only entry. There is no document associated with this entry.) (jdlc2S, COURT STAFF) (Filed on 9/22/2017) (Entered: 09/22/2017)
23 MOTION to Compel Arbitration filed by Brookdale Living Communities, Inc., Brookdale Senior Living, Inc.. Motion Hearing set for 11/2/2017 10:00 AM in Courtroom 11, 19th Floor, San Francisco before Judge James Donato. Responses due by 10/12/2017. Replies due by 10/19/2017. (Attachments: # 1 Declaration of Shawn Cull in Support of, # 2 Declaration of Ferdinand Augustus Buot Jr. in Support of, # 3 Declaration of Shelly Halleck in Support of, # 4 Proposed Order)(Barker, Jeffrey) (Filed on 9/28/2017) (Entered: 09/28/2017)

Case: 4:17-cv-03962-HSG As of: 04/13/2020 02:54 PM PDT 17 of 33

09/28/2017 09/28/2017 09/28/2017
10/02/2017 10/06/2017
10/12/2017 10/17/2017 11/09/2017 11/09/2017

24 MOTION to Dismiss (Notice of Motion and Motion of Defendants to Dismiss and/or Strike Portions of Plaintiffs' First Amended Complaint; Memorandum of Points and Authorities in Support thereof) filed by Brookdale Living Communities, Inc., Brookdale Senior Living, Inc.. Motion Hearing set for 11/2/2017 10:00 AM in Courtroom 11, 19th Floor, San Francisco before Judge James Donato. Responses due by 10/12/2017. Replies due by 10/19/2017. (Attachments: # 1 Proposed Order)(Barker, Jeffrey) (Filed on 9/28/2017) (Entered: 09/28/2017)
25 MOTION to Strike (Notice of Motion and Defendants' Motion to Strike Portions of First Amended Complaint; Memorandum of Points and Authorities in Support thereof) filed by Brookdale Living Communities, Inc., Brookdale Senior Living, Inc.. Motion Hearing set for 11/2/2017 10:00 AM in Courtroom 11, 19th Floor, San Francisco before Judge James Donato. Responses due by 10/12/2017. Replies due by 10/19/2017. (Attachments: # 1 Proposed Order)(Barker, Jeffrey) (Filed on 9/28/2017) (Entered: 09/28/2017)
26 Request for Judicial Notice re 25 MOTION to Strike (Notice of Motion and Defendants' Motion to Strike Portions of First Amended Complaint; Memorandum of Points and Authorities in Support thereof), 24 MOTION to Dismiss (Notice of Motion and Motion of Defendants to Dismiss and/or Strike Portions of Plaintiffs' First Amended Complaint; Memorandum of Points and Authorities in Support thereof), 23 MOTION to Compel Arbitration filed byBrookdale Living Communities, Inc., Brookdale Senior Living, Inc.. (Attachments: # 1 Exhibit A to Request for Judicial Notice, # 2 Proposed Order)(Related document(s) 25 , 24 , 23 ) (Barker, Jeffrey) (Filed on 9/28/2017) (Entered: 09/28/2017)
27 NOTICE of Appearance by Devin Whetstone Mauney (Mauney, Devin) (Filed on 10/2/2017) (Entered: 10/02/2017)
28 STIPULATION WITH PROPOSED ORDER re 25 MOTION to Strike (Notice of Motion and Defendants' Motion to Strike Portions of First Amended Complaint; Memorandum of Points and Authorities in Support thereof), 24 MOTION to Dismiss (Notice of Motion and Motion of Defendants to Dismiss and/or Strike Portions of Plaintiffs' First Amended Complaint; Memorandum of Points and Authorities in Support thereof), 23 MOTION to Compel Arbitration (Stipulation and [Proposed] Order Extending Time For Plaintiffs To Respond To Defendants' Motions And Setting Additional Dates) filed by Brookdale Living Communities, Inc., Brookdale Senior Living, Inc.. (Attachments: # 1 Declaration of Adam P. Kohsweeney In Support)(KohSweeney, Adam) (Filed on 10/6/2017) (Entered: 10/06/2017)
29 Order granting 28 stipulation to extend briefing schedule and continue hearing. For defendants' 23 motion to compel, 24 motion to dismiss and 25 motion to strike: Responses due by 11/9/2017. Replies due by 12/7/2017. Motion Hearing set for 12/21/2017 at 10:00 AM in Courtroom 11, 19th Floor, San Francisco. Signed by Judge James Donato on 10/12/2017. (jdlc2S, COURT STAFF) (Filed on 10/12/2017) (Entered: 10/12/2017)
30 Declaration of Jeffrey A. Barker in Support of 23 MOTION to Compel Arbitration (Supplemental Declaration of Jeffrey A. Barker in Support of Defendants Brookdale Senior Living Inc.'s and Brookdale Senior Living Communities, Inc.'s Motion to Compel Arbitration) filed byBrookdale Living Communities, Inc., Brookdale Senior Living, Inc.. (Related document(s) 23 ) (Barker, Jeffrey) (Filed on 10/17/2017) (Entered: 10/17/2017)
31 OPPOSITION/RESPONSE (re 23 MOTION to Compel Arbitration ) filed byHellen Carlson, Kelly Clapper, Christopher Eidler, Patricia Eidler, Bonita Hager, Carlson Joan, Mary−Catherine Jones, Lawrence Quinlan, Stacia Stiner, Loresia Vallette. (Attachments: # 1 Declaration Gay Grunfeld, # 2 Declaration Heather Fisher, # 3 Declaration Michele Lytle, # 4 Declaration Loresia Vallette, # 5 Proposed Order)(Grunfeld, Gay) (Filed on 11/9/2017) (Entered: 11/09/2017)
32 OPPOSITION/RESPONSE (re 25 MOTION to Strike (Notice of Motion and Defendants' Motion to Strike Portions of First Amended Complaint; Memorandum of Points and Authorities in Support thereof) ) filed byHellen Carlson, Kelly Clapper, Christopher Eidler, Patricia Eidler, Bonita Hager, Carlson Joan, Mary−Catherine Jones, Lawrence Quinlan, Stacia Stiner, Loresia Vallette. (Attachments: # 1 Proposed Order)(Wallace, Guy) (Filed on 11/9/2017) (Entered: 11/09/2017)

Case: 4:17-cv-03962-HSG As of: 04/13/2020 02:54 PM PDT 18 of 33

11/09/2017
12/07/2017 12/07/2017 12/07/2017 12/15/2017
02/15/2018 02/15/2018 02/22/2018 02/22/2018 02/22/2018 02/26/2018 03/01/2018 03/02/2018

33 OPPOSITION/RESPONSE (re 24 MOTION to Dismiss (Notice of Motion and Motion of Defendants to Dismiss and/or Strike Portions of Plaintiffs' First Amended Complaint; Memorandum of Points and Authorities in Support thereof) ) filed byHellen Carlson, Kelly Clapper, Christopher Eidler, Patricia Eidler, Bonita Hager, Carlson Joan, Mary−Catherine Jones, Lawrence Quinlan, Stacia Stiner, Loresia Vallette. (Attachments: # 1 Proposed Order)(Wallace, Guy) (Filed on 11/9/2017) (Entered: 11/09/2017)
34 REPLY (re 23 MOTION to Compel Arbitration ) filed byBrookdale Living Communities, Inc., Brookdale Senior Living, Inc.. (Attachments: # 1 Supplemental Declaration of Rebecca McIntyre)(Barker, Jeffrey) (Filed on 12/7/2017) (Entered: 12/07/2017)
35 REPLY (re 24 MOTION to Dismiss (Notice of Motion and Motion of Defendants to Dismiss and/or Strike Portions of Plaintiffs' First Amended Complaint; Memorandum of Points and Authorities in Support thereof) ) filed byBrookdale Living Communities, Inc., Brookdale Senior Living, Inc.. (Barker, Jeffrey) (Filed on 12/7/2017) (Entered: 12/07/2017)
36 REPLY (re 25 MOTION to Strike (Notice of Motion and Defendants' Motion to Strike Portions of First Amended Complaint; Memorandum of Points and Authorities in Support thereof) ) filed byBrookdale Living Communities, Inc., Brookdale Senior Living, Inc.. (Barker, Jeffrey) (Filed on 12/7/2017) (Entered: 12/07/2017)
37 ORDER. In light of the Court's trial schedule, the Court continues the hearing on defendants' 23 Motion to Compel Arbitration, 24 Motion to Dismiss, and 25 Motion to Strike to March 22, 2018 at 10:00 a.m. in Courtroom 11, 19th Floor, San Francisco. Signed by Judge James Donato on 12/15/2017. (This is a text−only entry generated by the court. There is no document associated with this entry.) (jdlc2S, COURT STAFF) (Filed on 12/15/2017) (Entered: 12/15/2017)
38 MOTION for Leave to File Second Amended Complaint filed by Hellen Carlson, Kelly Clapper, Christopher Eidler, Patricia Eidler, Bonita Hager, Carlson Joan, Mary−Catherine Jones, Lawrence Quinlan, Stacia Stiner, Loresia Vallette. (Attachments: # 1 Declaration Gay Crosthwait Grunfeld, # 2 Proposed Order)(Grunfeld, Gay) (Filed on 2/15/2018) (Entered: 02/15/2018)
Set/Reset Deadlines as to 38 MOTION for Leave to File Second Amended Complaint. Motion Hearing set for 3/22/2018 10:00 AM in San Francisco, Courtroom 11, 19th Floor before Judge James Donato. (lrcS, COURT STAFF) (Filed on 2/15/2018) (Entered: 02/20/2018)
39 NOTICE of Voluntary Dismissal Without Prejudice of Claims of Plaintiff Patricia Eidler by Christopher Eidler, Patricia Eidler (Mauney, Devin) (Filed on 2/22/2018) (Entered: 02/22/2018)
40 NOTICE of Voluntary Dismissal Without Prejudice of Claims of Plaintiff Bonita Hager by Bonita Hager (Mauney, Devin) (Filed on 2/22/2018) (Entered: 02/22/2018)
41 NOTICE of Voluntary Dismissal Without Prejudice of Claims of Plaintiff Mary−Catherine Jones by Kelly Clapper, Mary−Catherine Jones (Mauney, Devin) (Filed on 2/22/2018) (Entered: 02/22/2018)
42 NOTICE of Change In Counsel by Gay Crosthwait Grunfeld (Grunfeld, Gay) (Filed on 2/26/2018) (Entered: 02/26/2018)
43 OPPOSITION/RESPONSE (re 38 MOTION for Leave to File Second Amended Complaint ) filed byBrookdale Living Communities, Inc., Brookdale Senior Living, Inc.. (Attachments: # 1 Declaration of Jeffrey A. Barker in Support of)(Barker, Jeffrey) (Filed on 3/1/2018) (Entered: 03/01/2018)
44 CLERK'S NOTICE Continuing Motion Hearing. (This is a text−only entry generated by the court. There is no document associated with this entry.), Set/Reset Deadlines as to 24 MOTION to Dismiss (Notice of Motion and Motion of Defendants to Dismiss and/or Strike Portions of Plaintiffs' First Amended Complaint; Memorandum of Points and Authorities in Support thereof), 38 MOTION for Leave to File Second Amended Complaint, 23 MOTION to Compel Arbitration, 25 MOTION to Strike (Notice of Motion and Defendants' Motion to Strike Portions of First Amended Complaint;

Case: 4:17-cv-03962-HSG As of: 04/13/2020 02:54 PM PDT 19 of 33

03/06/2018 03/08/2018 03/16/2018 03/16/2018 03/16/2018 03/29/2018
03/29/2018 03/29/2018
03/29/2018
04/09/2018 04/16/2018 04/16/2018

Memorandum of Points and Authorities in Support thereof). Motion Hearing set for 3/15/2018 10:00 AM in San Francisco, Courtroom 11, 19th Floor before Judge James Donato. (lrcS, COURT STAFF) (Filed on 3/2/2018) (Entered: 03/02/2018)
45 NOTICE of Change In Counsel by Kathryn Ann Stebner (Stebner, Kathryn) (Filed on 3/6/2018) (Entered: 03/06/2018)
46 REPLY (re 38 MOTION for Leave to File Second Amended Complaint ) filed byHellen Carlson, Kelly Clapper, Christopher Eidler, Patricia Eidler, Bonita Hager, Carlson Joan, Mary−Catherine Jones, Lawrence Quinlan, Stacia Stiner, Loresia Vallette. (Grunfeld, Gay) (Filed on 3/8/2018) (Entered: 03/08/2018)
47 Minute Entry for proceedings held before Judge James Donato: Motion Hearing held on 3/15/2018. Total Time in Court: 7 minutes. Court Reporter: Pamela Batalo. Plaintiffs' amended pleading due by 3/29/2018. (jdlc2S, COURT STAFF) (Date Filed: 3/16/2018) (Entered: 03/16/2018)
48 TRANSCRIPT ORDER for proceedings held on 03/15/2018 before Judge James Donato by Brookdale Living Communities, Inc., Brookdale Senior Living, Inc., for Court Reporter Pam Batalo. (Jensen, Mallory) (Filed on 3/16/2018) (Entered: 03/16/2018)
49 Judicial Referral for Purpose of Determining Relationship of Cases re 13−3962−HSG. Signed by Judge James Donato on 3/16/2018. (jdlc2S, COURT STAFF) (Filed on 3/16/2018) (Entered: 03/16/2018)
50 Transcript of Proceedings held on 03/15/18, before Judge Donato. Court Reporter Pamela A. Batalo, telephone number pamela_batalo@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 48 Transcript Order ) Redaction Request due 4/19/2018. Redacted Transcript Deadline set for 4/30/2018. Release of Transcript Restriction set for 6/27/2018. (Related documents(s) 48 ) (Batalo, Pam) (Filed on 3/29/2018) (Entered: 03/29/2018)
51 TRANSCRIPT ORDER for proceedings held on 03/15/2018 before Judge James Donato by Hellen Carlson, Carlson Joan, Lawrence Quinlan, Stacia Stiner, Loresia Vallette, for Court Reporter Pam Batalo. (Grunfeld, Gay) (Filed on 3/29/2018) (Entered: 03/29/2018)
52 AMENDED COMPLAINT Second Amended Complaint for Declaratory and Injunctive Relief and Damages against Brookdale Living Communities, Inc., Brookdale Senior Living, Inc.. Filed byCarlson Joan, Hellen Carlson, Stacia Stiner, Lawrence Quinlan, Loresia Vallette, Heather Fisher, Patricia Lindstrom, Arthur Lindstrom, Ralph Schmidt, Edward Boris, Michele Lytle, Bernie Jestrabek−Hart. (Attachments: # 1 Exhibit A − Declaration of Patricia Lindstrom Pursuant to CCP Section 377.32)(Colby, Sarah) (Filed on 3/29/2018) (Entered: 03/29/2018)
53 MOTION to Appoint Guardian ad Litem for Edward Boris and Ralph Schmidt filed by Edward Boris, Hellen Carlson, Heather Fisher, Bernie Jestrabek−Hart, Carlson Joan, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette. (Attachments: # 1 Declaration Heather Fisher, # 2 Declaration Michele Lytle, # 3 Proposed Order)(Grunfeld, Gay) (Filed on 3/29/2018) (Entered: 03/29/2018)
54 STIPULATION Extending Time to Respond to Plaintiffs' Second Amended Complaint re 52 Amended Complaint filed by Brookdale Living Communities, Inc., Brookdale Senior Living, Inc.. (KohSweeney, Adam) (Filed on 4/9/2018) (Entered: 04/09/2018)
55 ORDER RELATING CASE to 13−cv−3962−HSG. Signed by Judge Haywood S. Gilliam, Jr. on 4/16/2018. (ndrS, COURT STAFF) (Filed on 4/16/2018) (Entered: 04/16/2018)
56 ORDER REASSIGNING CASE. Case reassigned to Judge Haywood S Gilliam, Jr for all further proceedings. Judge James Donato no longer assigned to the case. Signed by Executive Committee on 4/16/2018. (jmlS, COURT STAFF) (Filed on

Case: 4:17-cv-03962-HSG As of: 04/13/2020 02:54 PM PDT 20 of 33

04/17/2018 04/18/2018 04/19/2018 04/19/2018 04/19/2018 04/19/2018 04/20/2018 04/23/2018 04/24/2018
04/27/2018

4/16/2018) (Entered: 04/16/2018)
57 ADMINISTRATIVE MOTION Relief from Stipulation and to Compel Rule 26 Conference filed by Edward Boris, Hellen Carlson, Heather Fisher, Bernie Jestrabek−Hart, Carlson Joan, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette. Responses due by 4/23/2018. (Attachments: # 1 Declaration Gay Grunfeld in Support, # 2 Proposed Order)(Grunfeld, Gay) (Filed on 4/17/2018) (Entered: 04/17/2018)
Electronic filing error. Re: 57 ADMINISTRATIVE MOTION Relief from Stipulation and to Compel Rule 26 Conference filed by Patricia Lindstrom, Edward Boris, Michele Lytle, Loresia Vallette, Hellen Carlson, Stacia Stiner, Bernie Jestrabek−Hart, Carlson Joan, Arthur Lindstrom, Ralph Schmidt, Lawrence Quinlan, Heather Fisher. REMINDER TO COUNSEL: In the future, please be sure that the case number is correctly reflected on your documents as 4:17−cv−03962−HSG. (jjbS, COURT STAFF) (Filed on 4/18/2018) (Entered: 04/18/2018)
58 ORDER SETTING CASE MANAGEMENT CONFERENCE. Further Case Management Conference set for 4/24/2018 02:00 PM in Oakland, Courtroom 2, 4th Floor. (This is a text−only entry generated by the court. There is no document associated with this entry.) (hsglc2S, COURT STAFF) (Filed on 4/19/2018) (Entered: 04/19/2018)
59 Renewed MOTION to Compel Arbitration filed by Brookdale Living Communities, Inc., Brookdale Senior Living, Inc.. Motion Hearing set for 8/9/2018 02:00 PM in Oakland, Courtroom 2, 4th Floor before Judge Haywood S Gilliam Jr.. Responses due by 5/3/2018. Replies due by 5/10/2018. (Attachments: # 1 Proposed Order)(Barker, Jeffrey) (Filed on 4/19/2018) Modified on 4/20/2018 (cpS, COURT STAFF). (Entered: 04/19/2018)
60 MOTION to Dismiss and/or Strike Portions of Plaintiffs' Second Amended Complaint; Memorandum of Points and Authorities in Support Thereof filed by Brookdale Living Communities, Inc., Brookdale Senior Living, Inc.. Motion Hearing set for 8/9/2018 02:00 PM in Oakland, Courtroom 2, 4th Floor before Judge Haywood S Gilliam Jr.. Responses due by 5/3/2018. Replies due by 5/10/2018. (Attachments: # 1 Proposed Order)(Barker, Jeffrey) (Filed on 4/19/2018) Modified on 4/20/2018 (cpS, COURT STAFF). (Entered: 04/19/2018)
61 MOTION to Strike Portions of Second Amended Complaint; Memorandum of Points and Authorities in Support Thereof filed by Brookdale Living Communities, Inc., Brookdale Senior Living, Inc.. Motion Hearing set for 8/9/2018 02:00 PM in Oakland, Courtroom 2, 4th Floor before Judge Haywood S Gilliam Jr.. Responses due by 5/3/2018. Replies due by 5/10/2018. (Attachments: # 1 Proposed Order)(Barker, Jeffrey) (Filed on 4/19/2018) Modified on 4/20/2018 (cpS, COURT STAFF). (Entered: 04/19/2018)
Per Order dkt. # 58 . Set/Reset Hearing. Further Case Management Conference set for 4/24/2018 02:00 PM in Oakland, Courtroom 2, 4th Floor. (cpS, COURT STAFF) (Filed on 4/20/2018) (Entered: 04/20/2018)
62 OPPOSITION/RESPONSE (re 57 ADMINISTRATIVE MOTION Relief from Stipulation and to Compel Rule 26 Conference ) filed byBrookdale Living Communities, Inc., Brookdale Senior Living, Inc.. (Attachments: # 1 Proposed Order)(Barker, Jeffrey) (Filed on 4/23/2018) (Entered: 04/23/2018)
63 Minute Entry for proceedings held before Judge Haywood S. Gilliam, Jr.: Further Case Management Conference held on 4/24/2018. FTR Time: 2:06−2:16 (Diane Skillman assigned transcriber). Total Time in Court: 10 Minutes. Plaintiff Attorney: Sarah Colby; Guy Wallace; and Gay Grunfeld. Defendant Attorney: Jeffrey Barker; Mallory Jensen; and Matt Powers. Plaintiffs' administrative motion (docket no. 57 ) is submitted by the parties, and DENIED by the Court. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ndrS, COURT STAFF) (Date Filed: 4/24/2018) Modified on 5/1/2018 (napS, COURT STAFF). (Entered: 04/25/2018)
64 STIPULATION WITH PROPOSED ORDER Regarding Briefing Schedule on Defendants' Motions filed by Edward Boris, Hellen Carlson, Heather Fisher, Bernie

Case: 4:17-cv-03962-HSG As of: 04/13/2020 02:54 PM PDT 21 of 33

04/27/2018 04/30/2018 04/30/2018 04/30/2018 05/07/2018
05/08/2018 05/08/2018 05/17/2018
05/17/2018 05/17/2018 05/17/2018

Jestrabek−Hart, Carlson Joan, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette, Brookdale Senior Living, Inc., and Brookdale Living Communities, Inc. (Wallace, Guy) (Filed on 4/27/2018) Modified on 4/30/2018 (jjbS, COURT STAFF). (Entered: 04/27/2018)
65 TRANSCRIPT ORDER for proceedings held on 4/24/2018 before Judge Haywood S Gilliam, Jr by Brookdale Living Communities, Inc., Brookdale Senior Living, Inc., for Court Reporter FTR − Oakland. (Jensen, Mallory) (Filed on 4/27/2018) (Entered: 04/27/2018)
66 ORDER by Judge Haywood S. Gilliam, Jr. Granting 64 Stipulation Regarding Briefing Schedule on Defendants' Motions. (ndrS, COURT STAFF) (Filed on 4/30/2018) (Entered: 04/30/2018)
Reset Deadlines as to 59 MOTION to Compel Arbitration; 60 MOTION to Dismiss and/or Strike Portions of Plaintiffs' Second Amended Complaint; and 61 MOTION to Strike Portions of Second Amended Complaint Pursuant to Docket No. 66 : Responses due by 5/17/2018 and Replies due by 6/7/2018. (ndrS, COURT STAFF) (Filed on 4/30/2018) (Entered: 04/30/2018)
REMINDER TO COUNSEL: In the future, please be sure that the case number is correctly reflected as 4:17−cv−03962−HSG and that the Oakland Division is listed as court location. (jjbS, COURT STAFF) (Filed on 4/30/2018) (Entered: 04/30/2018)
67 ADMINISTRATIVE MOTION to Shorten Time for Hearing re 61 MOTION to Strike Portions of Second Amended Complaint, 59 MOTION to Compel Arbitration, 60 MOTION to Dismiss and/or Strike Portions of Plaintiffs' Second Amended Complaint filed by Edward Boris, Hellen Carlson, Heather Fisher, Bernie Jestrabek−Hart, Carlson Joan, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette. Responses due by 5/11/2018. (Attachments: # 1 Declaration Gay Crosthwait Grunfeld in Support, # 2 Proposed Order)(Grunfeld, Gay) (Filed on 5/7/2018) (Entered: 05/07/2018)
68 ORDER by Judge Haywood S. Gilliam, Jr. Granting 67 Administrative Motion to Shorten Time for Hearing re 61 MOTION to Strike Portions of Second Amended Complaint, 59 MOTION to Compel Arbitration, 60 MOTION to Dismiss and/or Strike Portions of Plaintiffs' Second Amended Complaint.(ndrS, COURT STAFF) (Filed on 5/8/2018) (Entered: 05/08/2018)
Reset Hearings as to Docket Nos. 59 , 60 and 61 Pursuant to Docket No. 68 : Motion Hearing set for 7/12/2018 02:00 PM in Oakland, Courtroom 2, 4th Floor before Judge Haywood S. Gilliam Jr. (ndrS, COURT STAFF) (Filed on 5/8/2018) (Entered: 05/08/2018)
69 OPPOSITION/RESPONSE (re 59 MOTION to Compel Arbitration ) filed byEdward Boris, Hellen Carlson, Heather Fisher, Bernie Jestrabek−Hart, Carlson Joan, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette. (Attachments: # 1 Declaration Joan Carlson, # 2 Declaration Loresia Vallette, # 3 Appendix)(Grunfeld, Gay) (Filed on 5/17/2018) (Entered: 05/17/2018)
70 OPPOSITION/RESPONSE (re 60 MOTION to Dismiss and/or Strike Portions of Plaintiffs' Second Amended Complaint ) filed byEdward Boris, Hellen Carlson, Heather Fisher, Bernie Jestrabek−Hart, Carlson Joan, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette. (Colby, Sarah) (Filed on 5/17/2018) (Entered: 05/17/2018)
71 OPPOSITION/RESPONSE (re 61 MOTION to Strike Portions of Second Amended Complaint ) filed byEdward Boris, Hellen Carlson, Heather Fisher, Bernie Jestrabek−Hart, Carlson Joan, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette. (Wallace, Guy) (Filed on 5/17/2018) (Entered: 05/17/2018)
72 Request for Judicial Notice filed byEdward Boris, Hellen Carlson, Heather Fisher, Bernie Jestrabek−Hart, Carlson Joan, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette. (Attachments: # 1 Proposed Order)(Wallace, Guy) (Filed on 5/17/2018) (Entered:

Case: 4:17-cv-03962-HSG As of: 04/13/2020 02:54 PM PDT 22 of 33

05/18/2018 05/31/2018
06/06/2018 06/07/2018 06/07/2018 06/07/2018 07/12/2018
08/07/2018 10/15/2018 11/29/2018

05/17/2018)
Electronic filing error. Re: 72 Request for Judicial Notice, filed by Patricia Lindstrom, Edward Boris, Michele Lytle, Loresia Vallette, Hellen Carlson, Stacia Stiner, B ernie Jestrabek−Hart, Carlson Joan, Arthur Lindstrom, Ralph Schmidt, Lawrence Quinlan, Heather Fisher. REMINDER TO COUNSEL: Please be sure that the Judge's name is reflected as Haywood S. Gilliam, Jr. on the signature line of all future proposed orders submitted. (jjbS, COURT STAFF) (Filed on 5/18/2018) (Entered: 05/18/2018)
73 Transcript of Proceedings held on April 24, 2018, before Judge Haywood S. Gilliam Jr.. Transcriber Diane E. Skillman, telephone number 925−899−2812, Diane_Skillman@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 65 Transcript Order ) Release of Transcript Restriction set for 8/29/2018. (Related documents(s) 65 ) (Skillman, Diane) (Filed on 5/31/2018) (Entered: 05/31/2018)
74 TRANSCRIPT ORDER for proceedings held on 04/24/2018 before Judge Haywood S Gilliam, Jr by Edward Boris, Hellen Carlson, Heather Fisher, Bernie Jestrabek−Hart, Carlson Joan, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette, for Court Reporter Diane Skillman. (Grunfeld, Gay) (Filed on 6/6/2018) (Entered: 06/06/2018)
75 REPLY in Support of Renewed 59 MOTION to Compel Arbitration filed byBrookdale Living Communities, Inc., Brookdale Senior Living, Inc. (Barker, Jeffrey) (Filed on 6/7/2018) Modified on 6/8/2018 (jjbS, COURT STAFF). (Entered: 06/07/2018)
76 REPLY in Support of 60 MOTION to Dismiss and/or Strike Portions of Plaintiffs' Second Amended Complaint filed byBrookdale Living Communities, Inc., Brookdale Senior Living, Inc.. (Barker, Jeffrey) (Filed on 6/7/2018) Modified on 6/8/2018 (jjbS, COURT STAFF). (Entered: 06/07/2018)
77 REPLY in Support of 61 MOTION to Strike Portions of Second Amended Complaint filed byBrookdale Living Communities, Inc., Brookdale Senior Living, Inc.. (Barker, Jeffrey) (Filed on 6/7/2018) Modified on 6/8/2018 (jjbS, COURT STAFF). (Entered: 06/07/2018)
78 Minute Entry for proceedings held before Judge Haywood S. Gilliam, Jr.: Motion Hearing held on 7/12/2018. Total Time in Court: 45 Minutes. Court Reporter: Diane Skillman. Plaintiff Attorney: Sarah Colby; Guy Grunfeld; Devin Mauney. Defendant Attorney: Mallory Jensen; Jeffrey Barker. Defendants' motions to compel, motion to dismiss and motion to strike (docket nos. 60 − 61 ) are argued and submitted by the parties, and taken under submission by the Court. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ndrS, COURT STAFF) (Date Filed: 7/12/2018) (Entered: 07/13/2018)
79 NOTICE of Substitution of Counsel by Jenny Snay Yelin (Yelin, Jenny) (Filed on 8/7/2018) (Entered: 08/07/2018)
80 NOTICE of Change of Address by Benjamin Joseph Bien−Kahn (Bien−Kahn, Benjamin) (Filed on 10/15/2018) (Entered: 10/15/2018)
81 ** * DISREGARD THIS ENTRY. DOCKETED IN INCORRECT CASE NUMBER***

01/16/2019

Minute Entry for proceedings held before Judge Yvonne Gonzalez Rogers: Telephone Conference held on 11/29/2018.Total Time in Court: 13 minutes (for both related cases). Court Reporter: NOT REPORTED. (fs, COURT STAFF) (Date Filed: 11/29/2018) Modified on 11/29/2018 (fs, COURT STAFF). (Entered: 11/29/2018)
82 NOTICE of Appearance by Travis C Close (Close, Travis) (Filed on 1/16/2019) (Entered: 01/16/2019)

Case: 4:17-cv-03962-HSG As of: 04/13/2020 02:54 PM PDT 23 of 33

01/17/2019 01/22/2019 01/25/2019 02/01/2019
02/05/2019 02/08/2019 02/12/2019
02/15/2019 02/22/2019 02/25/2019

83 ORDER by Judge Haywood S. Gilliam, Jr. Granting 53 Motion to Appoint Guardian ad Litem. (ndrS, COURT STAFF) (Filed on 1/17/2019) (Entered: 01/17/2019)
84 TRANSCRIPT ORDER for proceedings held on 07/12/2018 before Judge Haywood S Gilliam, Jr by Edward Boris, Hellen Carlson, Heather Fisher, Bernie Jestrabek−Hart, Carlson Joan, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette, for Court Reporter Diane Skillman. (Grunfeld, Gay) (Filed on 1/22/2019) (Entered: 01/22/2019)
85 ORDER by Judge Haywood S. Gilliam, Jr. DENYING DEFENDANTS 59 MOTION TO COMPEL ARBITRATION, GRANTING IN PART AND DENYING IN PART DEFENDANTS 60 MOTION TO DISMISS, AND DENYING DEFENDANTS 61 MOTION TO STRIKE. Amended Pleadings due by 2/15/2019; Case Management Statement due by 2/5/2019; Further Case Management Conference set for 2/12/2019 02:00 PM in Oakland, Courtroom 2, 4th Floor. (ndrS, COURT STAFF) (Filed on 1/25/2019) (Entered: 01/25/2019)
86 Transcript of Proceedings held on July 12, 2018, before Judge Haywood S. Gilliam. Court Reporter Diane E. Skillman, telephone number 925−899−2812, Diane_Skillman@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 84 Transcript Order, ) Release of Transcript Restriction set for 5/2/2019. (Related documents(s) 84 ) (Skillman, Diane) (Filed on 2/1/2019) (Entered: 02/01/2019)
87 JOINT CASE MANAGEMENT STATEMENT filed by Edward Boris, Hellen Carlson, Heather Fisher, Bernie Jestrabek−Hart, Carlson Joan, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette, Brookdale Senior Living, Inc., and Brookdale Living Communities, Inc. (Wallace, Guy) (Filed on 2/5/2019) Modified on 2/6/2019 (jjbS, COURT STAFF). (Entered: 02/05/2019)
88 NOTICE of Appearance by Mark T. Johnson (Johnson, Mark) (Filed on 2/8/2019) (Entered: 02/08/2019)
89 Minute Entry for proceedings held before Judge Haywood S. Gilliam, Jr.: Further Case Management Conference held on 2/12/2019. FTR Time: 2:27−2:51. Plaintiff Attorney: Gay Brunfeld and Gay Wallace. Defendant Attorney: Jeffrey Barker and Mallory Jensen. The parties are directed to meet and confer and e−file a stipulation and proposed order regarding a briefing schedule re request for certification for appeal. The parties proposed briefing schedule should only include the filing of the motion and an opposition. The Court advises the parties that the motion will be deemed submitted upon receipt of the final brief. Parties are directed to e−file by February 22nd their requested list of agreed−upon Magistrate Judges. The setting of case schedule is deferred at this time. (This is a text−only entry generated by the court. There is no document associated with this entry.)Transcriber is Diane Skillman. (ndrS, COURT STAFF) (Date Filed: 2/12/2019) Modified on 2/28/2019 (oh, COURT STAFF). (Entered: 02/13/2019)
90 AMENDED COMPLAINT (Third) against All Defendants. Filed byCarlson Joan, Bernie Jestrabek−Hart, Hellen Carlson, Patricia Lindstrom, Stacia Stiner, Heather Fisher, Lawrence Quinlan, Loresia Vallette, Edward Boris, Arthur Lindstrom, Ralph Schmidt, Michele Lytle. (Grunfeld, Gay) (Filed on 2/15/2019) (Entered: 02/15/2019)
91 Submission re 89 Minute Entry for Further Case Management Conference held on 2/12/2019 by Jeanette Algarme, Edward Boris, Helen Carlson, Joan Carlson, Heather Fisher, Bernie Jestrabek−Hart, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette. (Wallace, Guy) (Filed on 2/22/2019) Modified on 2/25/2019 (jjbS, COURT STAFF). (Entered: 02/22/2019)
92 STIPULATION WITH PROPOSED ORDER Setting Briefing Schedule for Request for Certification and Appeal filed by Brookdale Senior Living Communities, Inc.,

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02/25/2019 02/25/2019 02/26/2019 02/26/2019 02/26/2019
02/26/2019 02/26/2019 02/26/2019 02/26/2019 02/28/2019 02/28/2019 02/28/2019 03/04/2019

Brookdale Senior Living, Inc.. (Barker, Jeffrey) (Filed on 2/25/2019) (Entered: 02/25/2019)
93 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Brookdale Senior Living Communities, Inc., Brookdale Senior Living, Inc.. (Appeal fee of $505 receipt number 0971−13121584 paid.) (Barker, Jeffrey) (Filed on 2/25/2019) (Entered: 02/25/2019)
94 MOTION to Stay Proceedings Related to Plaintiffs Helen Carlson and Lawrence Quinlan's Claims Pending Appeal of Order Denying Motion to Compel Arbitration filed by Brookdale Senior Living Communities, Inc., Brookdale Senior Living, Inc.. Responses due by 3/11/2019. Replies due by 3/18/2019. (Attachments: # 1 Proposed Order)(Barker, Jeffrey) (Filed on 2/25/2019) (Entered: 02/25/2019)
95 ORDER by Judge Haywood S. Gilliam, Jr. Granting 92 Stipulation Setting Briefing Schedule for Request for Certification and Appeal. Motions due by 2/26/2019 and Responses due by 3/19/2019. (ndrS, COURT STAFF) (Filed on 2/26/2019) (Entered: 02/26/2019)
96 Representation Statement re 93 Notice of Appeal by Brookdale Senior Living Communities, Inc., Brookdale Senior Living, Inc. (Barker, Jeffrey) (Filed on 2/26/2019) Modified on 2/27/2019 (jjbS, COURT STAFF). (Entered: 02/26/2019)
97 CLERK'S NOTICE. Notice is hereby given that counsel must notice the 94 motion to stay proceedings for hearing. The briefing schedule remains in effect. Counsel is directed to check the Court's scheduling notes for the Court's next available hearing date. (This is a text−only entry generated by the court. There is no document associated with this entry.)(ndrS, COURT STAFF) (Filed on 2/26/2019) (Entered: 02/26/2019)
98 Renotice motion hearing re 94 MOTION to Stay Proceedings Related to Plaintiffs Helen Carlson and Lawrence Quinlan's Claims Pending Appeal of Order Denying Motion to Compel Arbitration filed by Brookdale Senior Living Communities, Inc., Brookdale Senior Living, Inc. (Related document(s) 94 ) (Barker, Jeffrey) (Filed on 2/26/2019) Modified on 2/27/2019 (jjbS, COURT STAFF). (Entered: 02/26/2019)
99 MOTION to Certify Order for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) and Motion to Stay ; Memorandum of Points and Authorities in Support Thereof filed by Brookdale Senior Living Communities, Inc., Brookdale Senior Living, Inc.. Responses due by 3/19/2019. (Attachments: # 1 Proposed Order)(Barker, Jeffrey) (Filed on 2/26/2019) (Entered: 02/26/2019)
Set Hearing as to 94 MOTION to Stay Pursuant to Docket No. 98 : Motion Hearing set for 5/30/2019 02:00 PM in Oakland, Courtroom 2, 4th Floor before Judge Haywood S. Gilliam Jr. (ndrS, COURT STAFF) (Filed on 2/26/2019) (Entered: 02/27/2019)
100 USCA Case Number 19−15334 for the 9th Circuit for 93 Notice of Appeal filed by Brookdale Senior Living Communities, Inc., Brookdale Senior Living, Inc.. (cpS, COURT STAFF) (Filed on 2/26/2019) (Entered: 02/27/2019)
101 TRANSCRIPT ORDER for proceedings held on February 12, 2019 before Judge Haywood S Gilliam, Jr by Brookdale Senior Living Communities, Inc., Brookdale Senior Living, Inc., for Court Reporter FTR − Oakland. (Jensen, Mallory) (Filed on 2/28/2019) (Entered: 02/28/2019)
102 STIPULATION Extending Time for Defendants to Respond to Plaintiffs' Third Amended Complaint filed by Brookdale Senior Living Communities, Inc., Brookdale Senior Living, Inc. and All Plaintiffs. (Barker, Jeffrey) (Filed on 2/28/2019) Modified on 3/1/2019 (jjbS, COURT STAFF). (Entered: 02/28/2019)
103 TRANSCRIPT ORDER for proceedings held on 2/12/2019 before Judge Haywood S Gilliam, Jr by Jeanette Algarme, Edward Boris, Helen Carlson, Joan Carlson, Heather Fisher, Bernie Jestrabek−Hart, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette, for Court Reporter FTR − Oakland. (Wallace, Guy) (Filed on 2/28/2019) (Entered: 02/28/2019)
104 Transcript of Proceedings held on February 12, 2019, before Judge Haywood S. Gilliam. Transcriber Diane E. Skillman, telephone number 925−899−2812,

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03/06/2019
03/07/2019 03/08/2019 03/08/2019

Diane_Skillman@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 101 Transcript Order ) Release of Transcript Restriction set for 6/3/2019. (Related documents(s) 101 ) (Skillman, Diane) (Filed on 3/4/2019) (Entered: 03/04/2019)
105 ADMINISTRATIVE MOTION Compel Rule 26(f) Conference filed by Jeanette Algarme, Edward Boris, Helen Carlson, Joan Carlson, Heather Fisher, Bernie Jestrabek−Hart, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette. Responses due by 3/11/2019. (Attachments: # 1 Declaration Gay Crosthwait Grunfeld, # 2 Proposed Order)(Grunfeld, Gay) (Filed on 3/6/2019) (Entered: 03/06/2019)
106 ORDER by Hon. Haywood S. Gilliam, Jr. REFERRING CASE to Magistrate Judge Beeler for discovery purposes. (hsglc2S, COURT STAFF) (Filed on 3/7/2019) (Entered: 03/07/2019)
107 CLERK'S NOTICE SETTING CASE MANAGEMENT CONFERENCE: Case Management Conference set for 3/14/2019 at 9:30 AM in San Francisco, Courtroom B, 15th Floor. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 3/8/2019) (Entered: 03/08/2019)
108 ORDER. The district judge referred all discovery matters to the undersigned. In the attached order, the court refers the parties to the discovery dispute procedures in its standing order. Signed by Judge Laurel Beeler on March 8, 2019.

03/08/2019
03/08/2019 03/11/2019 03/11/2019 03/12/2019 03/13/2019

(Attachments: # 1 Standing Order)(lblc3S, COURT STAFF) (Filed on 3/8/2019) (Entered: 03/08/2019)
109 ORDER by Hon. Haywood S. Gilliam, Jr. DENYING 105 Plaintiffs Administrative Motion to Compel Rule 26(f) Conference, in light of 106 Order referring the case to Magistrate Judge Beeler for discovery proceedings. The parties will be advised of the date, time, and place of the next appearance by notice from Judge Beeler. (This is a text−only entry generated by the court. There is no document associated with this entry.) (hsglc2S, COURT STAFF) (Filed on 3/8/2019) (Entered: 03/08/2019)
110 Defendants' ANSWER to 90 Amended Complaint (Third) byBrookdale Senior Living Communities, Inc., Brookdale Senior Living, Inc. (Barker, Jeffrey) (Filed on 3/8/2019) Modified on 3/11/2019 (jjbS, COURT STAFF). (Entered: 03/08/2019)
Set/Reset Hearing. Discovery Hearing set for 3/14/2019 at 9:30 AM in San Francisco, Courtroom B, 15th Floor before Magistrate Judge Laurel Beeler. (ejkS, COURT STAFF) (Filed on 3/11/2019) (Entered: 03/11/2019)
111 OPPOSITION/RESPONSE (re 94 MOTION to Stay Proceedings Related to Plaintiffs Helen Carlson and Lawrence Quinlan's Claims Pending Appeal of Order Denying Motion to Compel Arbitration ) filed byJeanette Algarme, Edward Boris, Helen Carlson, Joan Carlson, Heather Fisher, Bernie Jestrabek−Hart, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette. (Yelin, Jenny) (Filed on 3/11/2019) (Entered: 03/11/2019)
112 STIPULATION WITH PROPOSED ORDER re Briefing Schedule for Request for Certification for Appeal filed by Edward Boris, Helen Carlson, Joan Carlson, Heather Fisher, Bernie Jestrabek−Hart, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette, Brookdale Senior Living, Inc., and Brookdale Senior Living Communities, Inc. (Wallace, Guy) (Filed on 3/12/2019) Modified on 3/13/2019 (jjbS, COURT STAFF). (Entered: 03/12/2019)
113 ORDER by Judge Haywood S. Gilliam, Jr. Granting 112 Stipulation Briefing Schedule for Request for Certification for Appeal. (ndrS, COURT STAFF) (Filed on 3/13/2019) (Entered: 03/13/2019)

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03/14/2019 114 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Discovery Hearing held on 3/14/2019. Court to issue order.

Total Time in Court: 22 minutes. FTR Time: 9:50−10:03, 11:14−11:23.

03/14/2019 03/14/2019 03/14/2019

Plaintiffs' Attorneys: Mark Johnson, Gay Grunfeld and Guy Wallace. Defendants' Attorneys: Jeffrey Barker and Matthew Powers. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Date Filed: 3/14/2019) (Entered: 03/14/2019)
115 PDF with attached Audio File. Court Date & Time [ 3/14/2019 9:50:20 AM ]. File Size [ 6472 KB ]. Run Time [ 00:13:29 ]. (courtspeak). (Entered: 03/14/2019)
116 PDF with attached Audio File. Court Date & Time [ 3/14/2019 11:14:45 AM ]. File Size [ 4176 KB ]. Run Time [ 00:08:42 ]. (courtspeak). (Entered: 03/14/2019)
117 CASE−MANAGEMENT ORDER WITH DISCOVERY PLAN.

The attached order memorializes some of the issues discussed at the March 14, 2019 case−management conference.

03/18/2019 03/20/2019 03/25/2019
03/25/2019 03/26/2019 03/27/2019 04/01/2019 04/08/2019

(Beeler, Laurel) (Filed on 3/14/2019) (Entered: 03/14/2019)
118 REPLY (re 94 MOTION to Stay Proceedings Related to Plaintiffs Helen Carlson and Lawrence Quinlan's Claims Pending Appeal of Order Denying Motion to Compel Arbitration ) filed byBrookdale Senior Living Communities, Inc., Brookdale Senior Living, Inc.. (Barker, Jeffrey) (Filed on 3/18/2019) (Entered: 03/18/2019)
119 Declaration of Michele Lytle pursuant to Cal. Code Civ. Proc. 377.32 by Jeanette Algarme, Edward Boris, Helen Carlson, Joan Carlson, Heather Fisher, Bernie Jestrabek−Hart, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette. (Yelin, Jenny) (Filed on 3/20/2019) Modified on 3/21/2019 (jjbS, COURT STAFF). (Entered: 03/20/2019)
120 OPPOSITION/RESPONSE (re 99 MOTION to Certify Order for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) and Motion to Stay ; Memorandum of Points and Authorities in Support Thereof ) filed byEdward Boris, Helen Carlson, Joan Carlson, Heather Fisher, Bernie Jestrabek−Hart, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette. (Attachments: # 1 Declaration of Guy B. Wallace)(Wallace, Guy) (Filed on 3/25/2019) (Entered: 03/25/2019)
121 Request for Judicial Notice re 120 Opposition/Response to Motion,, filed byEdward Boris, Helen Carlson, Joan Carlson, Heather Fisher, Bernie Jestrabek−Hart, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette. (Attachments: # 1 Proposed Order)(Related document(s) 120 ) (Wallace, Guy) (Filed on 3/25/2019) (Entered: 03/25/2019)
122 TRANSCRIPT ORDER for proceedings held on 07/12/2018 before Judge Haywood S Gilliam, Jr by Brookdale Senior Living Communities, Inc., Brookdale Senior Living, Inc., for Court Reporter Diane Skillman. (Jensen, Mallory) (Filed on 3/26/2019) (Entered: 03/26/2019)
123 Transcript Designation Form for proceedings held on 07/12/2018 before Judge Haywood S. Gilliam, Jr, (Barker, Jeffrey) (Filed on 3/27/2019) (Entered: 03/27/2019)
124 DECLARATION of Ralph Carlson Pursuant to CCP § 377.32 by Jeanette Algarme, Edward Boris, Helen Carlson, Joan Carlson, Bernie Jestrabek−Hart, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette. (Yelin, Jenny) (Filed on 4/1/2019) Modified on 4/2/2019 (jjbS, COURT STAFF). (Entered: 04/01/2019)
125 NOTICE of Change of Address for Sarah Colby by Guy Burton Wallace (Wallace, Guy) (Filed on 4/8/2019) Modified on 4/9/2019 (jjbS, COURT STAFF). (Entered: 04/08/2019)

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05/02/2019 05/02/2019 05/28/2019 05/29/2019 06/05/2019 06/19/2019 07/01/2019
07/02/2019 07/09/2019 07/10/2019 07/11/2019 07/16/2019

126 PROPOSED STIPULATED PROTECTIVE ORDER filed by Helen Carlson, Joan Carlson, Stacia Stiner, Lawrence Quinlan, Loresia Vallette, Edward Boris, Michele Lytle, Ralph Schmidt, Heather Fisher, Patricia Lindstrom, Bernie Jestrabek−Hart, Broodale Senior Living, Inc., Brookdale Senior Living Communities, Inc.(Johnson, Mark) (Filed on 5/2/2019) Modified on 5/3/2019 (jjbS, COURT STAFF). (Entered: 05/02/2019)
127 Order by Magistrate Judge Laurel Beeler granting 126 Stipulated Protective Order. (ejkS, COURT STAFF) (Filed on 5/2/2019) (Entered: 05/02/2019)
128 CLERK'S NOTICE. Notice is hereby given that the Court takes the pending 94 motion to stay filings under submission. The hearing previously scheduled for May 30, 2019 at 2:00 p.m. is vacated. The Court will issue a written order. (This is a text−only entry generated by the court. There is no document associated with this entry.)(ndrS, COURT STAFF) (Filed on 5/28/2019) (Entered: 05/28/2019)
129 MOTION for leave to appear in Pro Hac Vice as to Jeffrey A. N. Kopczynski ( Filing fee $ 310, receipt number 0971−13389284.) filed by Brookdale Senior Living Communities, Inc., Brookdale Senior Living, Inc.. (Attachments: # 1 Certificate of Good Standing)(Kopczynski, Jeffrey) (Filed on 5/29/2019) Modified on 5/30/2019 (cpS, COURT STAFF). (Entered: 05/29/2019)
130 ORDER by Judge Haywood S. Gilliam, Jr. DENYING DEFENDANTS 94 MOTION TO STAY AND 99 MOTION TO CERTIFY FOR INTERLOCUTORY APPEAL. Case Management Statement due by 7/9/2019 and Further Case Management Conference set for 7/16/2019 02:00 PM in Oakland, Courtroom 2, 4th Floor. (ndrS, COURT STAFF) (Filed on 6/5/2019) (Entered: 06/05/2019)
131 ORDER by Judge Haywood S. Gilliam, Jr. Granting 129 Motion for Pro Hac Vice as to Jeffrey A. N. Kopczynski. (ndrS, COURT STAFF) (Filed on 6/19/2019) (Entered: 06/19/2019)
132 STIPULATION WITH PROPOSED ORDER On Schedule re Motion to Compel filed by Jeanette Algarme, Edward Boris, Helen Carlson, Joan Carlson, Kelly Clapper, Christopher Eidler, Patricia Eidler, Heather Fisher, Bonita Hager, Bernie Jestrabek−Hart, Mary−Catherine Jones, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette, Brookdale Senior Living Inc, et al. (Wallace, Guy) (Filed on 7/1/2019) Modified on 7/2/2019 (cpS, COURT STAFF). (Entered: 07/01/2019)
133 Order by Magistrate Judge Laurel Beeler granting 132 Stipulation on Schedule re Motion to Compel. Defendants to provide Plaintiffs with their portion of the joint letter by 7/8/2019 at 1:00 PM and the parties are to file the joint letter and any attachments with the court on 7/10/2019. (ejkS, COURT STAFF) (Filed on 7/2/2019) (Entered: 07/02/2019)
134 FURTHER JOINT CASE MANAGEMENT STATEMENT filed by Brookdale Senior Living Communities, Inc., Brookdale Senior Living, Inc., and Plaintiffs. (Barker, Jeffrey) (Filed on 7/9/2019) Modified on 7/10/2019 (jjbS, COURT STAFF). (Entered: 07/09/2019)
135 Joint Discovery Letter Brief filed by Jeanette Algarme, Edward Boris, Helen Carlson, Joan Carlson, Kelly Clapper, Christopher Eidler, Patricia Eidler, Heather Fisher, Bonita Hager, Bernie Jestrabek−Hart, Mary−Catherine Jones, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Wallace, Guy) (Filed on 7/10/2019) (Entered: 07/10/2019)
136 CLERK'S NOTICE SETTING DISCOVERY HEARING: Discovery Hearing set for 7/18/2019 at 9:30 AM in San Francisco, Courtroom B, 15th Floor before Magistrate Judge Laurel Beeler. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 7/11/2019) (Entered: 07/11/2019)
137 Minute Entry for proceedings held before Judge Haywood S. Gilliam, Jr.: Further Case Management Conference held on 7/16/2019. FTR Time: 2:12−2:18. Plaintiff Attorney: Mark Johnson; Guy Wallace; Gay Grunfeld. Defendant

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07/16/2019 07/17/2019 07/17/2019 07/18/2019 07/18/2019 07/18/2019 07/19/2019 07/25/2019

Attorney: Mallory Jensen; Jeffrey Barker. The parties are in agreement with the Court issuing a scheduling order through class certification. Written scheduling order to issue. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ndrS, COURT STAFF) (Date Filed: 7/16/2019) (Entered: 07/16/2019)
138 STIPULATION WITH PROPOSED ORDER Regarding Motion to Compel Schedule filed by Jeanette Algarme, Edward Boris, Helen Carlson, Joan Carlson, Heather Fisher, Bernie Jestrabek−Hart, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette, Brookdale Senior Living, Inc., Brookdale Senior Living Communities, Inc. (Grunfeld, Gay) (Filed on 7/16/2019) Modified on 7/17/2019 (jjbS, COURT STAFF). (Entered: 07/16/2019)
139 Order by Magistrate Judge Laurel Beeler granting 138 Stipulation re: Motion to Compel Schedule. (ejkS, COURT STAFF) (Filed on 7/17/2019) (Entered: 07/17/2019)
140 SCHEDULING ORDER: Motions due by 4/24/2020; Responses due by 5/29/2020; Replies due by 6/30/2020 and Motion Hearing set for 7/30/2020 02:00 PM in Oakland, Courtroom 2, 4th Floor before Judge Haywood S. Gilliam Jr.Signed by Judge Haywood S. Gilliam, Jr. on 7/17/2019. (ndrS, COURT STAFF) (Filed on 7/17/2019) (Entered: 07/17/2019)
141 PLEASE DISREGARD CLERK'S NOTICE RESETTING DISCOVERY HEARING: Discovery Hearing previously set for 7/18/2019 is reset to 7/25/2019 at 9:30 AM in San Francisco, Courtroom B, 15th Floor before Magistrate Judge Laurel Beeler. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 7/18/2019) Modified on 7/18/2019 (ejkS, COURT STAFF). (Entered: 07/18/2019)
142 CLERK'S NOTICE SETTING DISCOVERY HEARING: Discovery Hearing set for 7/18/2019 09:30 AM in San Francisco, Courtroom B, 15th Floor before Magistrate Judge Laurel Beeler. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 7/18/2019) (Entered: 07/18/2019)
143 CLERK'S NOTICE SETTING DISCOVERY HEARING: Discovery Hearing set for 7/25/2019 at 9:30 AM in San Francisco, Courtroom B, 15th Floor before Magistrate Judge Laurel Beeler. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 7/18/2019) (Entered: 07/18/2019)
144 Joint Discovery Letter Brief filed by Jeanette Algarme, Edward Boris, Helen Carlson, Joan Carlson, Heather Fisher, Bernie Jestrabek−Hart, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette. (Grunfeld, Gay) (Filed on 7/19/2019) (Entered: 07/19/2019)
145 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Discovery Hearing held on 7/25/2019. Court to issue order.

Total Time in Court: 35 minutes. FTR Time: 10:50−11:25.

07/25/2019 07/25/2019

Plaintiffs' Attorneys: Guy Wallace and Mark Johnson. Defendants' Attorneys: Jeffrey Barker, Jeffrey Kopczynski and Mallory Jensen. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Date Filed: 7/25/2019) Modified on 7/26/2019: Matter transcribed by Joan Columbini. (rjdS, COURT STAFF). (Entered: 07/25/2019)
146 PDF with attached Audio File. Court Date & Time [ 7/25/2019 10:50:05 AM ]. File Size [ 16888 KB ]. Run Time [ 00:35:11 ]. (courtspeak). (Entered: 07/25/2019)
147 ORDER by Judge Laurel Beeler addressing 135 Discovery Letter Brief and 144 Discovery Letter Brief.

(lblc3S, COURT STAFF) (Filed on 7/25/2019) (Entered: 07/25/2019)

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07/25/2019 07/29/2019
07/30/2019 09/11/2019 09/12/2019 09/13/2019 10/22/2019 10/29/2019 01/08/2020 01/08/2020
02/01/2020

148 TRANSCRIPT ORDER for proceedings held on July 25, 2019 before Magistrate Judge Laurel Beeler by Brookdale Senior Living Communities, Inc., Brookdale Senior Living, Inc., for Court Reporter FTR − San Francisco. (Powers, Matthew) (Filed on 7/25/2019) (Entered: 07/25/2019)
149 Transcript of Proceedings held on July 25, 2019, before Judge Laurel Beeler. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, telephone number (510) 367−3043, joan.columbini.csr@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 148 Transcript Order, ) Redaction Request due 8/19/2019. Redacted Transcript Deadline set for 8/29/2019. Release of Transcript Restriction set for 10/28/2019. (Related documents(s) 148 ) (Columbini, Joan) (Filed on 7/29/2019) (Entered: 07/29/2019)
150 TRANSCRIPT ORDER for proceedings held on 07/25/2019 before Magistrate Judge Laurel Beeler by Edward Boris, Helen Carlson, Joan Carlson, Heather Fisher, Bernie Jestrabek−Hart, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette, for Court Reporter Joan Columbini. (Wallace, Guy) (Filed on 7/30/2019) (Entered: 07/30/2019)
151 STIPULATION WITH PROPOSED ORDER Re: Production of Brookdale Resident Contact Information filed by Brookdale Senior Living Communities, Inc., Brookdale Senior Living, Inc., Stacia Stiner, Helen Carlson, Lawrence Quinlan, Loresia Vallette, Edward Boris, Michele Lytle, Ralph Schmidt, Patricia Lindstrom, Arthur Lindstrom, Bernie Jestrabek−Hart, Jeanette Algarme, and Joan Carlson. (Barker, Jeffrey) (Filed on 9/11/2019) Modified on 9/12/2019 (jjbS, COURT STAFF). (Entered: 09/11/2019)
152 Order by Magistrate Judge Laurel Beeler granting 151 Stipulation re: Production of Brookdale Resident Contact Information. (ejkS, COURT STAFF) (Filed on 9/12/2019) (Entered: 09/12/2019)
153 STIPULATION WITH PROPOSED ORDER Regarding Accessibility Inspections filed by Jeanette Algarme, Edward Boris, Helen Carlson, Joan Carlson, Heather Fisher, Bernie Jestrabek−Hart, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette, Brookdale Senior Living, Inc., and Brookdale Senior Living Communities, Inc. (Johnson, Mark) (Filed on 9/13/2019) Modified on 9/16/2019 (jjbS, COURT STAFF). (Entered: 09/13/2019)
154 Order by Magistrate Judge Laurel Beeler granting 153 Stipulation Regarding Accessibility Inspections. (ejkS, COURT STAFF) (Filed on 10/22/2019) (Entered: 10/22/2019)
155 NOTICE of Appearance by Brian S Umpierre (Umpierre, Brian) (Filed on 10/29/2019) (Entered: 10/29/2019)
156 STIPULATION WITH PROPOSED ORDER On Schedule re Motion for Class Certification filed by Stacia Stiner, Brookdale Senior Living, Inc., and Brookdale Senior Living Communities, Inc. (Wallace, Guy) (Filed on 1/8/2020) Modified on 1/8/2020 (jjbS, COURT STAFF). (Entered: 01/08/2020)
Electronic filing error. REMINDER TO COUNSEL: Proposed Order missing suffix to Judge's Name. Counsel need not re−file document, but should reference Hon. Judge Haywo od S. Gilliam, Jr. in future filings if they wish to include reference to Judge's full assignment reference. This is a text only docket entry. There is no document associated with this entry. Re: 156 STIPULATION WITH PROPOSED ORDER On Schedule re Motion for Class Certification filed by Brookdale Senior Living Communities, Inc., Brookdale Senior Living, Inc., Stacia Stiner (jjbS, COURT STAFF) (Filed on 1/8/2020) (Entered: 01/08/2020)
157 ORDER by Hon. Haywood S. Gilliam, Jr. SETTING a telephonic conference for February 4, 2020 at 3:00 p.m. to discuss 156 the parties' stipulation on the schedule. The Court understands that Mr. Guy Wallace is presently on leave, and would appreciate it if Ms. Gay Grunfeld could appear at the telephonic for Plaintiffs. Counsel shall contact CourtCall at (866) 582−6878 to make arrangements for the telephonic appearance. (This is a text−only entry generated

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02/01/2020 02/04/2020 02/04/2020 02/04/2020
02/07/2020 02/13/2020 02/21/2020 02/21/2020 02/27/2020

by the court. There is no document associated with this entry.) (hsglc2S, COURT STAFF) (Filed on 2/1/2020) (Entered: 02/01/2020)
Set Hearing, See Docket No. 157 : Telephone Conference set for 2/4/2020 03:00 PM in Oakland, Chambers before Judge Haywood S. Gilliam Jr. (ndrS, COURT STAFF) (Filed on 2/1/2020) (Entered: 02/03/2020)
158 NOTICE of Appearance of Guy B. Wallace by CourtCall by Stacia Stiner re 157 Order,, (Wallace, Guy) (Filed on 2/4/2020) Modified on 2/5/2020 (jjbS, COURT STAFF). (Entered: 02/04/2020)
159 NOTICE of CourtCall Appearance by Gay Grunfeld by Jeanette Algarme, Edward Boris, Helen Carlson, Joan Carlson, Heather Fisher, Bernie Jestrabek−Hart, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette re Set/Reset Hearings (Grunfeld, Gay) (Filed on 2/4/2020) Modified on 2/5/2020 (jjbS, COURT STAFF). (Entered: 02/04/2020)
160 Minute Entry for proceedings held before Judge Haywood S. Gilliam, Jr.: Telephone Conference held on 2/4/2020. Total Time in Court: 17 Minutes. Not Reported. Plaintiff Attorney: Gay Grunfeld and Guy Wallace both all appearing via courtcall. Defendant Attorney: Jeffrey Baker; William Buffaloe and Matt Powers all appearing via courtcall. The Court will hold the stipulation and proposed order extending the schedule for class certification briefing (docket no. 156) in abeyance. The parties should contact Magistrate Judge Beeler regarding holding a discovery conference. Prior to any discovery conference, the parties should meet and confer and determine (1) any discovery issues that they may resolve without bringing to Judge Beelers attention; and (2) any discovery issues that require Judge Beelers assistance. Based on Judge Beelers assessment on the discovery issues and the amount of time needed to complete discovery, the Court will determine what, if any, extension is necessary. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ndrS, COURT STAFF) (Date Filed: 2/4/2020) (Entered: 02/05/2020)
161 CLERK'S NOTICE SETTING DISCOVERY HEARING: Discovery Hearing set for 2/27/2020 at 9:30 AM in San Francisco, Courtroom B, 15th Floor before Magistrate Judge Laurel Beeler. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 2/7/2020) (Entered: 02/07/2020)
162 Joint Discovery Letter Brief with Exhibit A filed by Jeanette Algarme, Edward Boris, Helen Carlson, Joan Carlson, Heather Fisher, Bernie Jestrabek−Hart, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette. (Attachments: # 1 Declaration Jeffrey A.N. Kopczynski in Support of Defs Opposition to Pltfs Motion to Compel)(Grunfeld, Gay) (Filed on 2/13/2020) (Entered: 02/13/2020)
163 Joint Statement Regarding Discovery Issues by Jeanette Algarme, Edward Boris, Helen Carlson, Joan Carlson, Heather Fisher, Bernie Jestrabek−Hart, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette., Brookdale Senior Living, Inc., and Brookdale Senior Living Communities, Inc. (Wallace, Guy) (Filed on 2/21/2020) Modified on 2/24/2020 (jjbS, COURT STAFF). (Entered: 02/21/2020)
164 Declaration of Jeffrey A. N. Kopczynski in Support of 163 Statement, filed byBrookdale Senior Living Communities, Inc., Brookdale Senior Living, Inc.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Related document(s) 163 ) (Kopczynski, Jeffrey) (Filed on 2/21/2020) (Entered: 02/21/2020)
165 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Discovery Hearing held on 2/27/2020. Matter is argued, submitted and taken under submission. Court to issue order.

Total Time in Court: 38 minutes. FTR Time: 11:47−12:25.

Plaintiffs' Attorneys: Guy Wallace, Gay Grunfeld and Mark Johnson. Defendants' Attorneys: Matthew Powers and Jeffrey Kopczynski.

Case: 4:17-cv-03962-HSG As of: 04/13/2020 02:54 PM PDT 31 of 33

02/28/2020

(This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Date Filed: 2/27/2020) Modified on 3/5/2020: Matter transcribed by Tara (Bauer) Jauregui (ECHO Reporting). (rjdS, COURT STAFF). (Entered: 02/27/2020)
166 DISCOVERY ORDER.

In the attached order, the court addresses the discovery dispute in the discovery letter brief at ECF No. 162 and summarizes the discussion at the February 27, 2020 discovery hearing, where the parties worked through the timing of their discovery productions and settled on a reasonable schedule (with the court's participation) for the contemplated class−certification motion. The parties will submit a stipulation and proposed scheduling order, which will settle the current stipulation and proposed order at ECF No. 156.

03/04/2020 03/04/2020 03/05/2020 03/06/2020
03/10/2020 03/10/2020

(Beeler, Laurel) (Filed on 2/28/2020) (Entered: 02/28/2020)
167 TRANSCRIPT ORDER for proceedings held on 02/27/2020 before Magistrate Judge Laurel Beeler by Jeanette Algarme, Edward Boris, Helen Carlson, Joan Carlson, Bernie Jestrabek−Hart, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette, for Court Reporter FTR − San Francisco. (Wallace, Guy) (Filed on 3/4/2020) (Entered: 03/04/2020)
168 TRANSCRIPT ORDER for proceedings held on February 27, 2020 before Magistrate Judge Laurel Beeler by Brookdale Senior Living Communities, Inc., Brookdale Senior Living, Inc., for Court Reporter FTR − San Francisco. (Powers, Matthew) (Filed on 3/4/2020) (Entered: 03/04/2020)
Electronic filing error. REMINDER TO COUNSEL: Counsel is instructed that all future filings shall bear the initials HSG immediately after the case number Re: 168 T ranscript Order, filed by Brookdale Senior Living Communities, Inc., Brookdale Senior Living, Inc., 167 Transcript Order, filed by Helen Carlson, Patricia Lindstrom, Edward Boris, Michele Lytle, Loresia Vallette, Jeanette Algarme, Joan Carlson, Stacia Stiner, Bernie Jestrabek−Hart, Lawrence Quinlan, Ralph Schmidt, Arthur Lindstrom (jjbS, COURT STAFF) (Filed on 3/5/2020) (Entered: 03/05/2020)
169 STIPULATION WITH PROPOSED ORDER ON SCHEDULE RE MOTION FOR CLASS CERTIFICATION: RECOMMENDATION OF MAGISTRATE JUDGE BEELER RE SAME filed by Jeanette Algarme, Edward Boris, Helen Carlson, Joan Carlson, Bernie Jestrabek−Hart, Mary−Catherine Jones, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette, Brookdale Senior Living Communities, Inc., Brookdale Senior Living, Inc.. (Wallace, Guy) (Filed on 3/6/2020) Modified on 3/9/2020 (jlmS, COURT STAFF). (Entered: 03/06/2020)
170 ORDER by Judge Haywood S. Gilliam, Jr. Granting 169 Stipulation ON SCHEDULE RE MOTION FOR CLASS CERTIFICATION: RECOMMENDATION OF MAGISTRATE JUDGE BEELER RE SAME. Motions due by 11/20/2020; Responses due by 1/21/2021; Replies due by 3/5/2021 and Motion Hearing set for 4/8/2021 02:00 PM in Oakland, Courtroom 2, 4th Floor before Judge Haywood S. Gilliam Jr.(ndrS, COURT STAFF) (Filed on 3/10/2020) (Entered: 03/10/2020)
171 Transcript of Proceedings of the official sound recording held on 02/27/20, before Magistrate Judge Laurel Beeler. FTR/Transcriber Echo Reporting, Inc., telephone number (858) 453−7590. Tape Number: FTR 11:47 − 12:25. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 167 Transcript Order, ) Redaction Request due 3/31/2020. Redacted Transcript Deadline set for 4/10/2020. Release of Transcript Restriction set for 6/8/2020. (Related documents(s) 167 ) (tgj, COURT STAFF) (Filed on 3/10/2020) (Entered: 03/10/2020)

Case: 4:17-cv-03962-HSG As of: 04/13/2020 02:54 PM PDT 32 of 33

03/11/2020
03/12/2020
03/16/2020 03/19/2020 03/20/2020 03/20/2020 03/20/2020 03/20/2020 03/27/2020 03/27/2020

172 Joint Discovery Letter Brief re PSS and Kronos Data and Documents filed by Jeanette Algarme, Edward Boris, Helen Carlson, Joan Carlson, Heather Fisher, Bernie Jestrabek−Hart, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette, Brookdale Senior Living Communities, Inc., Brookdale Senior Living, Inc.. (Attachments: # 1 Exhibit Plaintiffs' Exhibits A−1 to A−5 to Letter Brief re PSS and Kronos Data, # 2 Exhibit Plaintiffs' Exhibit B to Letter Brief re PSS and Kronos Data, # 3 Exhibit Plaintiffs' Exhibit C to Letter Brief re PSS and Kronos Data, # 4 Exhibit Plaintiffs' Exhibit D to Letter Brief re PSS and Kronos Data, # 5 Exhibit Defendants' Exhibit A to Letter Brief re PSS and Kronos Data)(Johnson, Mark) (Filed on 3/11/2020) Modified on 3/12/2020 (jlmS, COURT STAFF). (Entered: 03/11/2020)
173 Joint Discovery Letter Brief re ESI filed by Jeanette Algarme, Edward Boris, Helen Carlson, Joan Carlson, Heather Fisher, Bernie Jestrabek−Hart, Arthur Lindstrom, Patricia Lindstrom, Michele Lytle, Lawrence Quinlan, Ralph Schmidt, Stacia Stiner, Loresia Vallette, Brookdale Senior Living Communities, Inc., Brookdale Senior Living, Inc.. (Attachments: # 1 Exhibit Plaintiffs' Exhibit A to Letter Brief re ESI, # 2 Exhibit Plaintiffs' Exhibit B to Letter Brief re ESI, # 3 Exhibit Plaintiffs' Exhibit C to Letter Brief re ESI, # 4 Exhibit Plaintiffs' Exhibit D to Letter Brief re ESI, # 5 Exhibit Plaintiffs' Exhibit E to Letter Brief re ESI, # 6 Exhibit Plaintiffs' Exhibit F to Letter Brief re ESI, # 7 Exhibit Plaintiffs' Exhibit G to Letter Brief re ESI, # 8 Exhibit Plaintiffs' Exhibit H to Letter Brief re ESI, # 9 Exhibit Plaintiffs' Exhibit I to Letter Brief re ESI, # 10 Exhibit Defendants' Exhibit A to Letter Brief re ESI)(Johnson, Mark) (Filed on 3/12/2020) Modified on 3/13/2020 (jlmS, COURT STAFF). (Entered: 03/12/2020)
174 ORDER: by Judge Laurel Beeler denying 172 Discovery Letter Brief; denying 173 Discovery Letter Brief without prejudice. The court orders the parties to meet and confer after Brookdale provides their anticipated response this week. If the parties cant agree to a production schedule, then they can file another joint letter brief outlining their proposed schedules, and the court will decide. (lblc3S, COURT STAFF) (Filed on 3/16/2020) (Entered: 03/16/2020)
175 Defendants' Notice of Change in Counsel by Christopher Joseph Truxler. (Truxler, Christopher) (Filed on 3/19/2020) Modified on 3/20/2020 (cjlS, COURT STAFF). (Entered: 03/19/2020)
Electronic filing error. Incorrect event used. [err101] The Proper Event is a Motion. This filing will not be processed by the clerks office. Please re−file in its entirety Re: 175 Notice of Change In Counsel filed by Brookdale Senior Living Communities, Inc., Brookdale Senior Living, Inc. (cjlS, COURT STAFF) (Filed on 3/20/2020) (Entered: 03/20/2020)
176 MOTION to Substitute Attorney filed by Brookdale Senior Living Communities, Inc., Brookdale Senior Living, Inc.. (Truxler, Christopher) (Filed on 3/20/2020) (Entered: 03/20/2020)
177 Order finding as moot 156 Stipulation, in light of 170 , entered by Judge Haywood S Gilliam, Jr. (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 03/20/2020)
178 ORDER by Judge Haywood S. Gilliam, Jr. Granting 176 DEFENDANTS NOTICE OF CHANGE INCOUNSEL. Attorney Adam P. KohSweeney; Jeffrey A.N. Kopczynski; Matthew David Powers; Jeffrey A. Barker and Mallory Ann Jensen terminated. (ndrS, COURT STAFF) (Filed on 3/20/2020) (Entered: 03/20/2020)
179 MOTION for leave to appear in Pro Hac Vice for Gerald L. Maatman, Jr. (Filing fee $ 310, receipt number 0971−14321398) filed by Brookdale Senior Living Communities, Inc., Brookdale Senior Living, Inc. (Maatman, Gerald) (Filed on 3/27/2020) Modified on 3/30/2020 (cjlS, COURT STAFF). (Entered: 03/27/2020)
180 MOTION for leave to appear in Pro Hac Vice for Jennifer A. Riley (Filing fee $ 310, receipt number 0971−14321502) filed by Brookdale Senior Living Communities, Inc., Brookdale Senior Living, Inc. (Riley, Jennifer) (Filed on 3/27/2020) Modified on 3/30/2020 (cjlS, COURT STAFF). (Entered: 03/27/2020)

Case: 4:17-cv-03962-HSG As of: 04/13/2020 02:54 PM PDT 33 of 33

03/30/2020 03/30/2020 04/10/2020
04/10/2020

181 NOTICE of Appearance by Justin Taylor Curley (Curley, Justin) (Filed on 3/30/2020) (Entered: 03/30/2020)
182 NOTICE of Appearance by Matthew A. Goodin (Goodin, Matthew) (Filed on 3/30/2020) (Entered: 03/30/2020)
183 ORDER by Judge Haywood S. Gilliam, Jr. Granting 179 Motion for Pro Hac Vice for Gerald L. Maatman, Jr. (ndrS, COURT STAFF) (Filed on 4/10/2020) (Entered: 04/10/2020)
184 ORDER by Judge Haywood S. Gilliam, Jr. Granting 180 Motion for Pro Hac Vice for Jennifer A. Riley. (ndrS, COURT STAFF) (Filed on 4/10/2020) (Entered: 04/10/2020)

 
 Case 4:17-cv-03962-HSG Document 52 Filed 03/29/18 Page 1 of 100

1 Guy B. Wallace – 176151 Sarah Colby – 194475
2 SCHNEIDER WALLACE COTTRELL KONECKY
3 WOTKYNS LLP 2000 Powell Street, Suite 1400
4 Emeryville, California 94608 Telephone: (415) 421-7100
5 Facsimile: (415) 421-7105

Gay Crosthwait Grunfeld – 121944 Benjamin Bien-Kahn – 267933 Devin Mauney – 294634 ROSEN BIEN GALVAN & GRUNFELD LLP 50 Fremont Street, 19th Floor San Francisco, California 94105-2235 Telephone: (415) 433-6830 Facsimile: (415) 433-7104

6
Kathryn A. Stebner – 121088 7 George Kawamoto – 280358
STEBNER AND ASSOCIATES 8 870 Market Street, Suite 1212
San Francisco, California 94102 9 Telephone: (415) 362-9800
Facsimile: (415) 362-9801 10
Attorneys for Plaintiffs and the Proposed Classes 11
UNITED STATES DISTRICT COURT 12
NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION 13

14
STACIA STINER; HELEN CARLSON, by 15 and through her Guardian Ad Litem, JOAN
CARLSON; LAWRENCE QUINLAN, by and 16 through his Guardian Ad Litem, LORESIA
VALLETTE; EDWARD BORIS, by and 17 through his Guardian Ad Litem, MICHELE
LYTLE; RALPH SCHMIDT, by and through 18 his Guardian Ad Litem, HEATHER FISHER;
PATRICIA LINDSTROM, as successor-in19 interest to the Estate of ARTHUR
LINDSTROM; and BERNIE JESTRABEK20 HART; on their own behalves and on behalf of
others similarly situated, 21
Plaintiffs, 22
v. 23
BROOKDALE SENIOR LIVING, INC.; 24 BROOKDALE SENIOR LIVING
COMMUNITIES, INC.; and DOES 1 through 25 100,

Case No. 17-cv-03962-JD
CLASS ACTION
SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES
1. Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12101 et seq.)
2. Unruh Civil Rights Act (Cal. Civ. Code §§ 51 et seq.)
3. Consumer Legal Remedies Act (Cal. Civ. Code §§ 1750 et seq.)
4. Elder Financial Abuse (Cal. Welf. & Inst. Code §§ 15610.30)
5. Unlawful, Unfair and Fraudulent Business Practices (Cal. Bus. & Prof. Code §§ 17200 et seq.)

26

Defendants.

27

28

SECOND AMENDED COMPLAINT FOR DECL. AND INJ. RELIEF AND DAMAGES - Case No. 17-cv-03962-JD

Case 4:17-cv-03962-HSG Document 52 Filed 03/29/18 Page 2 of 100

INTRODUCTION 1

2

1. Plaintiffs and the proposed Classes bring this action for declaratory and

3 injunctive relief and damages to stop the unlawful and fraudulent practices of Brookdale Senior

4 Living, Inc. and Brookdale Senior Living Communities, Inc. (“BROOKDALE” or

5 “Defendants”).

6

2. Plaintiffs are elderly or dependent individuals living in California who have

7 significant care needs and disabilities. Plaintiffs and their families were overwhelmed by and

8 required assistance with their activities of daily living including, but not limited to, assistance

9 with managing and taking medication, housekeeping, laundry, dressing, bathing, toileting,

10 hygiene, food preparation, and transportation. Plaintiffs and their families and the classes they

11 seek to represent either chose a BROOKDALE facility or chose to stay in a facility purchased by

12 BROOKDALE because they believed BROOKDALE’s repeated promises to provide the care

13 and assistance that would allow them to age with dignity. Instead, Plaintiffs, their family

14 members, and the proposed class members have all encountered in BROOKDALE a system of

15 understaffed assisted living facilities that fails to consistently provide even the most basic level

16 of promised care.

17

3. Defendant BROOKDALE has engaged in a policy and practice of violating Title

18 III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101 et seq.,

19 accompanying regulations, and the Unruh Civil Rights Act (“Unruh Act”), California Civil Code

20 §§ 51 et seq. Among other things, Defendant has violated the ADA by failing to make its

21 assisted living facilities readily accessible to and usable by persons with disabilities even though

22 both the ADA and the Unruh Act impose affirmative duties upon Defendants to make their

23 assisted living facilities accessible. As set forth below, Defendants have a policy and practice of

24 leaving physical access barriers in place in their newly constructed, altered and/or existing

25 facilities in violation of the ADA and the Unruh Act. Defendants have failed to perform new

26 construction and alterations in compliance with applicable federal and state disability access

27 standards, including but not limited to the 1991 Americans with Disabilities Act Accessibility

28 Guidelines (“ADAAG”) and the 2010 ADA Standards for Accessible Design, and have failed to
1
SECOND AMENDED COMPLAINT FOR DECL. AND INJ. RELIEF AND DAMAGES - Case No. 17-cv-03962-JD

Case 4:17-cv-03962-HSG Document 52 Filed 03/29/18 Page 3 of 100

1 evaluate their newly constructed and/or altered assisted living facilities to identify and remediate

2 non-compliant and inaccessible construction and alterations therein. Defendants have also failed

3 and refused to identify and remove physical access barriers from their existing assisted living

4 facilities where such barrier removal was readily achievable within the meaning of the ADA. As

5 a result of Defendants’ corporate policies and practices regarding disability access, Defendants’

6 assisted living facilities are characterized by multiple, pervasive physical access barriers that

7 limit or deny full and equal access to persons with disabilities.

8

4. Moreover, Defendant has failed to make reasonable modifications to its policies,

9 practices and procedures that are necessary for persons with disabilities to have full and equal

10 access to and enjoyment of the services, goods, facilities, privileges, advantages and

11 accommodations provided by BROOKDALE’s facilities. Defendants’ goods, services,

12 facilities, privileges, advantages, and/or accommodations include providing assistance with

13 activities of daily living (assistance with eating, housekeeping and laundry, bathing, grooming,

14 dressing, toileting, personal hygiene, provision of nutritious meals), medication management

15 (ordering and storage of medications, assistance taking medications), social and recreational

16 activities (group exercise, games, movies, scenic drives, happy hours and social mixers, and

17 assistance with arrangements for utilization of local resources), and transportation to and

18 coordination of off-site services. Plaintiffs have specifically requested that Defendant

19 BROOKDALE make reasonable modifications to its staffing policies, practices and procedures

20 for its assisted living facilities in order to ensure that there is staffing in sufficient numbers and

21 with adequate training to provide timely and effective assistance and care to residents with

22 disabilities. Despite the fact that such modifications are necessary to ensure that residents with

23 disabilities receive full and equal access to and enjoyment of Defendants’ goods, services,

24 facilities, privileges, advantages, and/or accommodations, and despite the fact that such

25 modifications will not result in any fundamental alteration to BROOKDALE’s public

26 accommodations, Defendant has refused to do so.

27

5. In addition, Defendant has violated the ADA by failing and refusing to provide

28 residents with mobility disabilities with full and equal access to and enjoyment of its
2
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Case 4:17-cv-03962-HSG Document 52 Filed 03/29/18 Page 4 of 100

1 transportation services. Further, Defendant has discriminated against residents with disabilities

2 by failing to provide them with an emergency evacuation plan that is designed for and

3 reasonably calculated to ensure the prompt and effective evacuation of persons with disabilities

4 in the event of emergency.

5

6. Defendant BROOKDALE has also engaged in a policy and practice of violating

6 the Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code §§ 1750 et seq., committing Elder

7 Financial Abuse, Cal. Welf. & Inst. Code § 15610.30, and Unlawful, Unfair and Fraudulent

8 Business Practices (“UCL”), Cal. Bus. & Prof. Code §§ 17200 et seq. Defendants promise to

9 provide the elderly and disabled the “quality of life they’ve earned,” but Defendants instead

10 engage in a scheme to defraud seniors, persons with disabilities, and their family members. In

11 order to induce the elderly and disabled to move into and stay at its California assisted living

12 facilities, BROOKDALE makes misrepresentations and misleading statements and conceals

13 material facts about the quality and availability of care available at BROOKDALE. Reasonable

14 consumers are misled to believe, and reasonably expect, that BROOKDALE determines each

15 resident’s needs and staffs each facility accordingly to deliver personalized care to meet those

16 needs. Instead, BROOKDALE systemically understaffs its facilities, cuts caregiver hours, and

17 fails to train workers, all to boost its profitability, while the residents in BROOKDALE’s care

18 are forced to endure increasingly expensive monthly charges and worsening care. The results of

19 BROOKDALE’s callous and profit-driven approach are devastating: as multiple reports by state

20 regulators confirm, residents are left without assistance for hours after falling, they are given the

21 wrong medications, they are denied clean clothing, showers, and nutritious food, and they are

22 left in their own waste for long periods of time.

23

7. On any given day, residents of BROOKDALE’s many California facilities live

24 with a substantial risk that they will not receive the care and services they have paid for and that

25 they need. Scores of family and resident council meetings and hundreds of communications to

26 BROOKDALE management have failed to rectify these problems, leaving Plaintiffs and the

27 class no choice but to seek redress in this Court.

28

8. This lawsuit seeks to end this systemic discrimination against persons with

3
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Case 4:17-cv-03962-HSG Document 52 Filed 03/29/18 Page 5 of 100

1 disabilities by requiring Defendant to provide them with full and equal access to and enjoyment

2 of BROOKDALE’s facilities, services, goods, privileges, advantages and accommodations.

3 This action seeks to require that Defendants staff their facilities with a sufficient number of

4 adequately trained staff to ensure that residents with disabilities are provided with full and equal

5 access to and enjoyment of the services specified in BROOKDALE’s own resident assessments.

6 In addition, this action seeks to require that Defendants provide assistive living facilities that are

7 readily accessible to and usable by persons with disabilities as required by the ADA. Further,

8 Plaintiffs seek injunctive relief requiring Defendants to provide full and equal access to and

9 enjoyment of Defendants’ transportation services and activities. Plaintiffs also seek injunctive

10 relief requiring Defendants to provide adequate emergency planning and evacuation procedures

11 for residents with disabilities. With respect to the CLRA, the UCL and the Elder Financial

12 Abuse statute, this action seeks to require Defendant to disclose to prospective and current

13 residents, their family members or responsible parties, and the class that BROOKDALE’s

14 existing staffing policies and procedures preclude it from providing its residents with all the care

15 and services they have been promised and are paying for. Further, this action seeks to enjoin

16 BROOKDALE from charging residents or their responsible parties monthly fees based on their

17 Personal Service Plans until BROOKDALE implements staffing policies and procedures that

18 enable it to deliver those services on a consistent basis.

19

9. Plaintiffs have no adequate remedy at law and, unless BROOKDALE is

20 preliminarily and permanently enjoined, Plaintiffs will continue to suffer irreparable harm as a

21 result of being denied full and equal access to and enjoyment of BROOKDALE’s goods,

22 services, facilities, privileges, advantages, and/or accommodations. Plaintiffs seek declaratory

23 and injunctive relief and statutory and actual damages as set forth below against BROOKDALE

24 for its policy and practice of denying Plaintiffs full and equal access to and enjoyment of its

25 services and facilities and violating the ADA and its accompanying regulations, the Unruh Act,

26 and the CLRA, for committing Elder Financial Abuse, and for engaging in Unlawful, Unfair and

27 Fraudulent Business Practices. Plaintiffs also seek recovery of reasonable attorneys’ fees, costs

28 and litigation expenses under federal and state law.
4
SECOND AMENDED COMPLAINT FOR DECL. AND INJ. RELIEF AND DAMAGES - Case No. 17-cv-03962-JD

Case 4:17-cv-03962-HSG Document 52 Filed 03/29/18 Page 6 of 100

1

EXHAUSTION OF PRE-LAWSUIT PROCEDURES FOR STATE LAW CLAIMS

2

10. By letter dated June 2, 2017, Plaintiffs notified Defendants of Plaintiffs’ intent to

3 file suit against it based on violations of the Consumer Legal Remedies Act, as required by

4 California Civil Code § 1782. BROOKDALE received the letter on June 6, 2017. More than 30

5 days have passed since BROOKDALE’s receipt, and BROOKDALE has not corrected or

6 remedied the violations alleged in the notice and herein.

7

11. Though they were not required to do so, Plaintiffs also notified BROOKDALE of

8 its multiple violations of Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 1201 et

9 seq., the Unruh Civil Rights Act, California’s elder financial abuse law, and California’s Unfair

10 Competition Law. 11

JURISDICTION

12

12. This Court has subject matter jurisdiction of this action pursuant to

13 28 U.S.C. §§ 1331, 1343(a)(3)-(4). The Americans with Disabilities Act, 42 U.S.C. §§ 12101 et

14 seq., presents federal questions and confers jurisdiction on this Court over Plaintiffs’ claims

15 regardless of the amount in controversy. This Court also has subject matter jurisdiction of this

16 action pursuant to 28 U.S.C. § 1332(d)(2)(A) because this is a class action in which the proposed

17 class includes at least 100 members, the amount in controversy exceeds $5,000,000, exclusive of

18 interests and costs, and at least one putative class member is a citizen of a state different from

19 one of the defendants. Plaintiffs seek damages in the amount of a minimum $9,000 per class

20 member and believe that the class consists of over 5,000 persons, making the amount in

21 controversy well in excess of $5,000,000. BROOKDALE is a Delaware corporation with its

22 principal place of business in Tennessee, making it a citizen of both Delaware and Tennessee,

23 and each of the named Plaintiffs are citizens of the State of California. Pursuant to 28 U.S.C.

24 § 1367, this Court has supplemental jurisdiction over Plaintiffs’ pendent claims under California

25 law.

26

13. Defendants are subject to personal jurisdiction in this Court because Defendants

27 have sufficient minimum contacts in California, or otherwise intentionally avail themselves of

28 the California market through ownership and/or management of assisted living facilities located
5
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Case 4:17-cv-03962-HSG Document 52 Filed 03/29/18 Page 7 of 100

1 in California, derivation of substantial revenues from California, and other activities, so as to

2 render the exercise of jurisdiction over Defendants by the California courts consistent with the

3 traditional notions of fair play and substantial justice.

4

VENUE

5

14. Venue is proper in the Northern District of California pursuant to 28 U.S.C.

6 § 1391(b), because the acts upon which this action is based occurred in part in this District

7 within the counties of Alameda, Contra Costa, Lake, Monterey, Napa, San Mateo, Santa Clara,

8 Santa Cruz, and Sonoma.

9

15. A substantial part of the events or omissions which gave rise to Plaintiffs’ claims

10 arose in the County of Sonoma and thus, pursuant to Civil Local Rules 3-2(c) and (d),

11 assignment to the San Francisco Division of the District Court for the Northern District of

12 California is proper.

13

THE PARTIES

14

16. Plaintiff STACIA STINER is a qualified person with disabilities within the

15 meaning of the ADA and the Unruh Civil Rights Act. She is also a dependent adult pursuant to

16 Cal. Welf. & Inst. Code § 15610.23; a disabled person pursuant to Cal. Civ. Code § 1761(g); and

17 a consumer pursuant to Cal. Civ. Code § 1761(d). She needs assistance with the following

18 activities of daily living: housekeeping, laundry, dressing, bathing, managing medications,

19 toileting, and transportation. She uses a wheelchair for mobility. STACIA STINER has been a

20 resident of BROOKDALE San Ramon since approximately February 2016. She is a resident of

21 Contra Costa County in the State of California.

22

17. Plaintiff HELEN CARLSON is a qualified person with disabilities within the

23 meaning of the ADA and the Unruh Civil Rights Act. She is also an elder pursuant to Cal.

24 Welf. & Inst. Code § 15610.27; a senior citizen and a disabled person pursuant to Cal. Civ. Code

25 §§ 1761(f), 1761(g); and a consumer pursuant to Cal. Civ. Code § 1761(d). HELEN CARLSON

26 is 93 years old. She needs assistance with the following activities of daily living: managing

27 medications, transferring, toileting, bathing, dressing, grooming, transportation, food preparation

28 and meal setup, housekeeping, and laundry. She uses a wheelchair for mobility. HELEN
6
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1 CARLSON is and has been a resident of BROOKDALE Fountaingrove since approximately

2 October 2011. She is a resident of Sonoma County in the State of California. JOAN

3 CARLSON is HELEN CARLSON’s daughter-in-law and has had her power of attorney since

4 December 2006. This Court appointed JOAN CARLSON as the guardian ad litem of HELEN

5 CARLSON for the purposes of prosecuting this lawsuit on September 22, 2017.

6

18. Plaintiff LAWRENCE QUINLAN is a qualified person with disabilities within

7 the meaning of the ADA and the Unruh Civil Rights Act. He is also an elder pursuant to Cal.

8 Welf. & Inst. Code § 15610.27; a senior citizen and a disabled person pursuant to Cal. Civ. Code

9 §§ 1761(f), 1761(g); and a consumer pursuant to Cal. Civ. Code § 1761(d). LAWRENCE

10 QUINLAN is 87 years old. He uses a wheelchair for mobility and has dementia. LAWRENCE

11 QUINLAN stayed at the facility at BROOKDALE Hemet for respite on several occasions

12 between 2013 and 2015. He became a long-term resident of the assisted living at

13 BROOKDALE Hemet on approximately September 13, 2015 and left the facility on or about

14 April 30, 2017. He is a currently a resident of an unrelated assisted living facility in Riverside

15 County in the State of California. LORESIA VALLETTE is LAWRENCE QUINLAN’S

16 granddaughter. Since January 25, 2016, she and her uncle Phillip Quinlan—who is Mr.

17 QUINLAN’s son—have shared power of attorney for Mr. QUINLAN. On September 22, 2017,

18 this Court appointed Ms. VALLETTE as Mr. QUINLAN’s guardian ad litem for the purposes of

19 prosecuting this lawsuit.

20

19. Plaintiff EDWARD BORIS is a qualified person with disabilities within the

21 meaning of the ADA and the Unruh Civil Rights Act. He is also an elder pursuant to Cal. Welf.

22 & Inst. Code § 15610.27; a senior citizen and a disabled person pursuant to Cal. Civ. Code §§

23 1761(f), 1761(g); and a consumer pursuant to Cal. Civ. Code § 1761(d). EDWARD BORIS is 86

24 years old. He was an assisted living resident at BROOKDALE Fountaingrove from September

25 2015 through July 2016. He is currently a resident of the skilled nursing facility at

26 BROOKDALE Fountaingrove. During his time as an assisted living resident at BROOKDALE

27 Fountaingrove, EDWARD BORIS used a walker and wheelchair. He is a resident of Sonoma

28 County in the State of California. MICHELE LYTLE is EDWARD BORIS’s daughter. Ms.
7
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1 LYTLE has held Mr. BORIS’s power of attorney since 2011 and has taken action on his behalf

2 as his attorney in fact since 2015. Simultaneous with the filing of this Second Amended

3 Complaint, Plaintiffs are filing a motion for the appointment of MICHELE LYTLE as the

4 guardian ad litem of EDWARD BORIS for the purposes of prosecuting this lawsuit.

5

20. Plaintiff PATRICIA “PAT” LINDSTROM is the wife of ARTHUR “ART”

6 LINDSTROM. ART LINDSTROM died on February 23, 2018, and PAT LINDSTROM is his

7 successor-in-interest. A successor-in-interest declaration is attached as Exhibit A to this

8 complaint. At all times relevant to this complaint, Mr. LINDSTROM was a qualified person

9 with disabilities within the meaning of the ADA and the Unruh Civil Rights Act. He was also

10 an elder pursuant to Cal. Welf. & Inst. Code § 15610.27; a senior citizen and disabled person

11 pursuant to Cal. Civ. Code §§ 1761(f), 1761(g); and a consumer pursuant to Cal. Civ. Code §

12 1761(d). Mr. LINDSTROM was 83 years old when he died. He suffered from diabetes, kidney

13 failure, heart disease, sleep apnea, and incontinence; used a cane to walk; and experienced

14 dementia-related cognitive impairment, including general memory loss, difficulty remembering

15 words, and difficulty speaking when under pressure. He needed assistance with the following

16 activities of daily living: bathing, shaving, administration of medication, dressing, laundry, and

17 preparing nutritious meals. He was a resident of BROOKDALE Scotts Valley from

18 approximately November 2015 until his death. PAT LINDSTROM is a resident of Santa Cruz

19 County in the State of California.

20

21. Plaintiff RALPH SCHMIDT is a qualified person with disabilities within the

21 meaning of the ADA and the Unruh Civil Rights Act. He is also a dependent adult pursuant to

22 Cal. Welf. & Inst. Code § 15610.23; a disabled person pursuant to Cal. Civ. Code § 1761(g); and

23 a consumer pursuant to Cal. Civ. Code § 1761(d). RALPH SCHMIDT is 53 years old, is blind,

24 and has significant cognitive impairments, including short-term memory loss. Both his

25 blindness and cognitive impairments are the result of a traumatic brain injury suffered more than

26 20 years ago. Mr. SCHMIDT has a court-appointed conservator who manages his financial,

27 medical, and legal affairs. He needs assistance with the following activities of daily living:

28 housekeeping, laundry, navigating when outside of his dwelling, preparing nutritious meals, and
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1 transportation. Mr. SCHMIDT was an assisted living resident at the facility currently known as

2 BROOKDALE Tracy from approximately September 2011 through October 30, 2017. He

3 currently resides at an assisted living facility not affiliated with BROOKDALE and is a resident

4 of Stanislaus County in the State of California. HEATHER FISHER is a professional fiduciary

5 and has held a license from the California Professional Fiduciaries Bureau since March 14,

6 2014. On August 17, 2017, the Superior Court of San Joaquin County appointed Ms. FISHER

7 to serve as conservator for RALPH SCHMIDT, replacing Mary F. Gallagher who had been Mr.

8 SCHMIDT’s conservator since approximately November 2011. Simultaneous with the filing of

9 this Second Amended Complaint, Plaintiffs are filing a motion for the appointment of

10 HEATHER FISHER as the guardian ad litem of RALPH SCHMIDT for the purposes of

11 prosecuting this lawsuit.

12

22. Plaintiff BERNIE JESTRABEK-HART is a qualified person with disabilities

13 within the meaning of the ADA and the Unruh Civil Rights Act. She is also an elder pursuant to

14 Cal. Welf. & Inst. Code § 15610.27; a senior citizen and disabled person pursuant to Cal. Civ.

15 Code §§ 1761(f), 1761(g); and a consumer pursuant to Cal. Civ. Code § 1761(d). BERNIE

16 JESTRABEK-HART is 72 years old. She needs assistance with the following activities of daily

17 living: dressing, bathing, food preparation, and transportation. She uses an electric wheelchair

18 and cane for mobility. BERNIE JESTRABEK-HART has been a resident of BROOKDALE

19 Scotts Valley since approximately October 2015. She is a resident of Santa Cruz County in the

20 State of California.

21

23. Defendant BROOKDALE SENIOR LIVING, INC. is a corporation organized

22 under the laws of the State of Delaware with its principal place of business in Brentwood,

23 Tennessee. Defendant BROOKDALE SENIOR LIVING COMMUNITIES, INC. is a

24 corporation organized under the laws of the State of Delaware with its principal place of

25 business in Brentwood, Tennessee. BROOKDALE SENIOR LIVING, INC. and BROOKDALE

26 SENIOR LIVING COMMUNITIES, INC. will be referred to collectively as “BROOKDALE”

27 or “Defendants.” BROOKDALE owns, manages, and/or operates approximately eighty-nine

28 (89) assisted living facilities throughout California. It is the largest chain of senior living
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1 facilities in California and the United States. BROOKDALE’s operations are centralized,

2 hierarchical and standardized, and all of BROOKDALE’s assisted living facilities in California

3 use the same uniform corporate policies, practices and procedures. These corporate policies,

4 practices and procedures control all aspects of the operations, staffing and staff training in its

5 assisted living facilities. All of BROOKDALE’s assisted living facilities in California are

6 required to follow the uniform policies, practices and procedures established by

7 BROOKDALE’s corporate headquarters.

8

24. BROOKDALE’s unlawful conduct as alleged herein has been widespread,

9 repeated, and consistent at each of its locations. The operations of BROOKDALE’s assisted

10 living facilities in California are standardized, if not identical. BROOKDALE’s conduct, as

11 alleged herein, was and is part of a statewide plan, practice, course of conduct and scheme, and

12 affects all of the residents of BROOKDALE’s assisted living facilities.

13

25. Defendants DOES 1-100 are sued herein under fictitious names because Plaintiffs

14 do not presently know their true names and capacities. Plaintiffs will seek leave to amend this

15 Complaint to allege their true names and capacities when such are discovered. Plaintiffs allege

16 that each of these Defendants was responsible in some capacity for the events alleged herein, or

17 is a necessary party for obtaining appropriate relief. Plaintiffs are informed and believe and

18 thereon allege that in carrying out each of the acts and violations alleged in this Complaint, each

19 Defendant acted as an agent, principal, and/or representative for each other Defendant.

20

FACTUAL ALLEGATIONS

21

26. BROOKDALE is the largest provider of assisted living for senior citizens and

22 persons with disabilities in the nation and has the largest number of assisted living facility

23 residents within the state of California. On information and belief, Plaintiffs allege that there are

24 more than 5,000 residents in Defendants’ eighty-nine facilities in California.

25

27. Assisted living facilities, also called Residential Care Facilities for the Elderly

26 (“RCFEs”), offer room, board and daily assistance for seniors and persons with disabilities in

27 certain activities of daily living (“ADLs”), such as preparing meals, shopping, transportation,

28 preparing and taking medication, housekeeping, laundry, bathing, toileting, grooming, dressing,
10
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1 and others.

2

28. Assisted living facilities are intended to provide a level of care appropriate for

3 those who are unable to live by themselves, but who do not have medical conditions requiring

4 more extensive nursing care.

5

29. In recent years, BROOKDALE has increasingly been accepting and retaining

6 more residents with conditions and care needs that were once handled almost exclusively in

7 skilled nursing facilities. This has allowed it to increase not only the potential resident pool but

8 also the amounts of money charged to residents and/or their family members.

9

30. At BROOKDALE facilities, residents are charged a base rate, which includes

10 room, board, basic maintenance, housekeeping, laundry, dining services, planned social and

11 recreational programs, scheduled transportation services, staffing 24 hours a day, observation

12 and consultation, and assistance with access to outside services. BROOKDALE uses its resident

13 assessment system to assess each resident before admission and then again periodically

14 throughout residency and/or whenever there is a change of the resident’s condition. By

15 performing these assessments, BROOKDALE determines what additional services a resident

16 needs, such as assistance with ADLs, and develops a Personal Service Plan for the resident.

17 Each additional need, or service, is assigned a monthly Personal Service Rate, which is added

18 onto the resident’s base rate. The more personal services determined by BROOKDALE to be

19 needed by a resident, the more money BROOKDALE charges that resident.

20

31. Every month, BROOKDALE sends each resident or his or her responsible party

21 an invoice for services that BROOKDALE represents it will provide in the following month.

22 These invoices reflect the monthly rate for the Basic Services set forth in BROOKDALE’s

23 standard residency agreements, the Personal Service Rate that is based on each resident’s

24 Personal Service Plan, and any adjustments. On information and belief, these monthly invoices

25 range from approximately $4,000 to $10,000 per person per month.

26

32. On information and belief, as of January 1, 2016, BROOKDALE increased the

27 Basic Service Rate and Personal Service Rate for residents in its California facilities by roughly

28 6%, and as of January 1, 2017, it raised these rates again by approximately 7%. In standard
11
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1 form letters sent to residents attempting to explain these steep rate increases, BROOKDALE

2 attributed them to increases in “the operating costs of your community,” including costs for

3 “utility usage, insurance, supplies, and food.” But in fact the Consumer Price Index for the Bay

4 Area rose only 3.4% between approximately January 1, 2016 and December 31, 2016.

5

BROOKDALE FAILS TO PROVIDE FULL AND EQUAL ACCESS TO AND

6

ENJOYMENT OF ITS FACILITIES AND SERVICES TO PERSONS WITH

DISABILITIES IN VIOLATION OF THE ADA

7

AND THE UNRUH CIVIL RIGHTS ACT

8

Physical Access Violations

9

33. BROOKDALE has violated Title III of the ADA and the Unruh Civil Rights Act

10 by failing to provide full and equal access to its facilities and services. Rooms occupied by

11 persons with mobility disabilities and common areas at the BROOKDALE San Ramon,

12 Windsor, Fountaingrove, Scotts Valley, and likely other facilities, do not meet federal or state

13 accessibility standards. Under Title III, fifty percent of the residential rooms in long-term care

14 facilities must meet the requirements of the 1991 ADAAG or the 2010 ADA Standards.

15 BROOKDALE’s facilities do not meet these standards.

16

34. There is a pattern of physical access barriers in BROOKDALE facilities, as

17 described below:

18

a. Wheelchair users are placed in rooms that do not have sufficient turning

19

space in the bathrooms or the bedroom area. This means that they often

20

cannot even use their bathroom unless they are able to transfer out of their

21

wheelchair and enter without it. Those who can enter in their wheelchair

22

usually do not have enough space to transfer safely onto the toilet or into

23

the shower or to use the sink or vanity space. Some residents have given up

24

on using their inaccessible toilet and must rely on adult briefs and

25

caregiving staff to clean them.

26

b. There is no clearance for wheelchairs under the sinks and/or the sinks are

27

too high for a wheelchair user to reach them, preventing residents from

28

using them.

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1

c. The grab bars that do exist in the bathrooms are not compliant with

2

applicable access standards, and there are no roll-in showers. Both of these

3

barriers are safety hazards, increasing the likelihood of falls. They also

4

prevent most persons with mobility disabilities from bathing as

5

independently as possible. Some wheelchair users have stopped using their

6

showers altogether and instead take sponge baths, hardly an adequate

7

substitute.

8

d. There are barriers to using the outdoor space for the residents’ rooms,

9

including hard-to-open sliding doors, a lip at the threshold of the door, and

10

insufficient space to accommodate a wheelchair. This prevents persons

11

with mobility disabilities from using their outdoor space as persons without

12

disabilities can.

13

e. The closets do not have accessible hanging and storage space, in that they

14

are placed out of the reach of a wheelchair user. This prevents persons with

15

mobility disabilities from accessing their clothing and other personal items,

16

forcing them to rely on others for assistance.

17

f. Kitchen countertops and sinks are too high for a wheelchair user to access,

18

preventing those residents from fully using their kitchens.

19

g. Heavy doors in common areas cannot be used independently by and pose a

20

safety risk to many persons with disabilities.

21

35. These physical access barriers, which residents live with on a daily basis, prevent

22 them from having full and equal access to their rooms as required by law.

23

Understaffing

24

36. BROOKDALE does not schedule or provide sufficient numbers of trained staff to

25 deliver promised services and meet the needs of its residents. Plaintiffs allege on information

26 and belief that BROOKDALE staffs its facilities based on predetermined labor budgets and

27 desired profit margins. Pursuant to Defendants’ corporate policies and procedures, the executive

28 directors who manage individual BROOKDALE facilities must request permission from
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1 Defendants’ corporate headquarters to deviate from these pre-determined budgets. Executive

2 directors have a disincentive to request increased labor budgets for their facilities because they

3 are not eligible for bonuses unless they meet earnings targets set by Defendants’ corporate

4 headquarters. As a result of Defendants’ corporate policies, practices and procedures

5 BROOKDALE’s assisted living facilities are inadequately staffed.

6

37. Reports issued by California Department of Social Services’ Community Care

7 Licensing Division (“Community Care Licensing”), the state agency that regulates assisted

8 living facilities, indicate that inadequate staffing pervades Defendants’ California facilities. For

9 instance, Community Care Licensing recently issued a citation to BROOKDALE Corona after a

10 licensing inspector found “that there are not enough staff present” and observed five residents

11 sitting unsupervised in the dining room and 19 residents in the activity room with only one staff

12 member present. In March 2017, Community Care Licensing cited a BROOKDALE facility in

13 Santa Cruz County after a licensing inspector found that the facility did not have an adequate

14 amount of staff to meet residents’ needs. In June 2016, BROOKDALE Oceanside received a

15 citation because it had only two caregivers on duty during daytime hours in the assisted living

16 part of its facility.

17

38. Plaintiffs allege on information and belief that BROOKDALE uses pre-

18 determined staffing schedules at its facilities and does not change these schedules or the number

19 of staff hours worked when the facility has more residents or residents with greater needs.

20 Community Care Licensing records demonstrate the inadequacy of Defendants’ staffing to meet

21 even the most basic needs of residents. For instance, a personnel report that BROOKDALE

22 filed with Community Care Licensing in February 2017 indicates that BROOKDALE

23 Fountaingrove, a facility in Sonoma County, is understaffed for the night shift from 10:00 p.m.

24 to 6:00 a.m. That schedule lists only four resident caregivers assigned to the night shift, three of

25 whom work only three days a week, with the result that in many instances there are as few as

26 one resident caregiver on duty during the night shift to care for approximately 100 residents on

27 three floors. Moreover, the official numbers of caregivers on duty is often quite deceptive, as

28 BROOKDALE frequently pulls caregivers from their responsibilities in order to perform other
14
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1 tasks, such as serving meals in the dining room.

2

39. As a direct result of Defendants’ discriminatory staffing practices, residents with

3 disabilities have not received or run a substantial risk of not receiving the personal services,

4 emergency and evacuation response, dining services, housekeeping and laundry services,

5 transportation, and activities for which they are paying and that are necessary for full and equal

6 enjoyment of Defendants’ goods, services, facilities, benefits, advantages and accommodations.

7

Impact of Understaffing on Personal Services

8

40. The lack of sufficient numbers of trained staff at BROOKDALE means that

9 residents with disabilities who need and pay for assistance with bathing, dressing, brushing their

10 teeth, toileting, incontinence care, and other hygiene assistance do not receive it on a routine

11 basis. Scheduled showers are routinely skipped by staff who do not have time to bathe residents.

12 Staff often leave residents unattended on the toilet because another resident has activated their

13 call pendant, and there is no one else available to respond. Residents have been left on their bed

14 undressed by staff called away to attend to other residents in need.

15

41. Residents who need assistance getting to the bathroom often wait for long periods

16 of time for staff to respond to their call pendants. Because they must wait so long for assistance,

17 some residents have given up using the toilet altogether, instead relying on adult briefs and a

18 caregiver to clean and change them when they have time. Incontinent residents often wait for

19 thirty minutes or more for a staff member to help them change out of soiled briefs, raising the

20 risk of urinary tract infections and decubitus ulcers. For example, an inspector from Community

21 Care Licensing found in May 2016 that BROOKDALE San Pablo had insufficient staff to meet

22 the residents’ needs, noting that “[i]ndividuals requiring incontinence care are not always

23 changed in a timely manner.” In November 2016, a licensing inspector found that even though a

24 resident at BROOKDALE Cherry Hills was paying for regular incontinence checks, she was left

25 lying on the floor for an extended amount of time after a fall because staff failed to check on her.

26 In March of 2017, a licensing inspector cited BROOKDALE Palm Springs for not providing a

27 resident with those basic and personal care services—assistance with showering, dressing,

28 transportation and medication—that the resident needed and for which the facility was being
15
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1 paid.

2

42. Insufficient staffing has also caused and continues to cause errors in medication

3 administration, including providing the wrong dosage or the wrong medication, untimely or

4 missed doses, and/or a failure to implement physicians’ orders. Community Care Licensing has

5 documented several recent examples from BROOKDALE’s Sonoma County facilities that

6 illustrate the broader problem. Community Care Licensing records show that the agency cited

7 BROOKDALE Chanate five times on consecutive visits between October 28, 2015 and October

8 13, 2016 for failing to give residents their prescribed medications. At BROOKDALE Windsor,

9 a resident recently received a double dose of medication because the nurse who administered the

10 first dose failed to document that it had been given. On a different occasion, staff gave a

11 resident at BROOKDALE Windsor a medication that had been prescribed for a different

12 resident. Meanwhile, at BROOKDALE Rohnert Park, licensing inspectors found that staff were

13 not properly trained on storing and administering residents’ medication, leading to a narcotic pill

14 that went missing in August 2016 and staff’s failure to administer medications in October 2016.

15 Numerous other reports issued by Community Care Licensing confirm that problems with

16 medication administration pervade Defendants’ facilities throughout California. For example,

17 Community Care Licensing cited BROOKDALE Palm Springs when 20 residents missed their

18 medication doses on December 24, 2016 because there was no med tech on duty. At

19 BROOKDALE San Ramon, someone stole a number of residents’ medication from the facility

20 during the overnight shift (“NOC SHIFT”) between July 9 and 10, 2017. The facility did not

21 inform all of the residents’ family members of the theft. When one resident’s daughter-in-law,

22 who learned about the theft from the resident, asked the facility’s acting Executive Director,

23 Shawn Cull, which employees were on duty during the NOC shift, he told her that there were

24 only two employees on duty to respond to all residents at the facility. The facility has an

25 occupancy of between approximately 70 to 80 residents. Because no one was immediately

26 available at the facility to pick up refills, at least one resident did not receive her pain medication

27 until later that evening and was extremely anxious until that time. Another resident’s family was

28 not informed of the theft until almost 6 p.m., after the resident’s physician’s offices had closed
16
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1 and the family could not obtain a refill. That resident was given an inadequate substitute pain

2 medication in the evening, which was distressing to the resident and her family members, who

3 had to reassure and calm her. The following day, although BROOKDALE was notified that the

4 refill was ready for pick-up at 10 a.m., the resident told her family that she did not receive her

5 prescribed pain medication until 4 p.m.

6

43. BROOKDALE’s understaffing creates many dangerous situations for residents.

7 Among those are an increase in elopements from facilities by persons with cognitive

8 impairments, because the facilities do not hire staff in sufficient numbers or with the training

9 necessary to monitor residents and prevent escapes. For example, BROOKDALE Oceanside

10 was cited in April and September of 2016 for relying on delayed egress systems to compensate

11 for insufficient staffing, resulting in resident elopements. An informal conference was held by

12 Community Care Licensing with BROOKDALE Oceanside management in December 2016 as a

13 result of the elopements and other compliance failures. Subsequently, on April 26, 2017,

14 BROOKDALE staff failed to monitor residents on an outing, and one wandered away for

15 approximately an hour.

16

Impact of Understaffing on Pendant Call Systems and Medical Emergencies

17

44. BROOKDALE’S failure to staff sufficiently results in caregivers’ inability to

18 respond promptly to call pendants, if at all. BROOKDALE has represented that residents who

19 wear a call pendant, and pay a monthly fee for this service, may push a button to alert staff if

20 they have an emergency, and staff will immediately respond to provide assistance. Residents

21 with disabilities rely heavily on these call pendants for assistance with basic tasks and activities

22 of daily living, as well as for emergencies. However, the call pendants do not notify staff of the

23 resident’s location should they not be in their room. In or about late 2016, a BROOKDALE San

24 Ramon resident fell and hit his head on the pavement in the facility parking lot and pressed his

25 pendant. No one responded. Bleeding profusely from his head, he used his mobile phone to call

26 the front desk. The son of another resident, a fire chief with emergency response training, found

27 the resident in the parking lot just as BROOKDALE’s bookkeeper and maintenance director

28 responded to the resident’s telephone call. Because those employees have no caregiver or
17
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1 emergency response training, they would not even touch the resident. The fire chief had to call

2 911 and administer first aid while waiting.

3

45. Moreover, contrary to Defendants’ representations, staff do not immediately

4 respond when residents use their call pendants. For instance, in November 2016, a resident in

5 the BROOKDALE Paso Robles facility pushed her emergency pendant after falling in her room

6 and waited 22 hours on the floor with broken bones until staff finally found her. That same

7 month, a resident at the BROOKDALE Fountaingrove fell, injured her head, pressed her call

8 pendant, and waited thirty minutes bleeding profusely from her head before staff arrived. She

9 died 10 days later. In January 2017, a former resident of BROOKDALE Fountaingrove waited

10 three hours for staff to respond to a call. BROOKDALE’s policy and practice of not

11 maintaining its call pendant system properly and of not providing sufficient staff to respond to

12 call pendants deprives residents with disabilities of full and equal enjoyment of its goods,

13 services, facilities, and benefits.

14

46. Community Care Licensing records indicate lengthy emergency response times at

15 Defendants’ facilities throughout California. For example, in February 2017 a licensing

16 inspector found that staff at BROOKDALE Riverside routinely took over 10 minutes to respond

17 to emergency pendant calls, and on one occasion took 36 minutes to respond. At

18 BROOKDALE Orangevale, a licensing inspector tested an emergency call pendant during a

19 January 2017 visit and found that it took over 45 minutes for facility staff to respond. At

20 BROOKDALE North Tarzana, a review of the facility’s records revealed numerous response

21 times of over 30 minutes, including multiple response times of over an hour. A licensing

22 inspector who tested emergency pull cords at BROOKDALE Chatsworth found that it took staff

23 24 minutes to respond during a June 2016 inspection; during another visit, the inspector found

24 that it took staff 30 minutes to respond, and that they did so only after the inspector alerted the

25 facility administrators. At BROOKDALE Oceanside, an inspector found that as of April and

26 May 2016, there were times when staff did not answer residents’ calls for 15 to 45 minutes. The

27 inspector’s report noted that there were only two direct caregivers on duty during the day and

28 evening shifts at the facility, which has a capacity of 186 residents, and that those caregivers
18
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1 were responsible for numerous tasks in addition to answering emergency calls on two floors.

2 Community Care Licensing cited BROOKDALE Fountaingrove at the end of March 2017 after

3 a review of the pendant system report revealed many instances of extremely lengthy response

4 times, noting in particular a pendant pressed at 5:23 p.m. which was not answered for over 39

5 minutes and a pendant set off at 5:45 p.m. to which staff did not respond for one hour and 27

6 minutes.

7

47. Even when Defendants’ staff do respond within a reasonable amount of time to a

8 request for assistance, the response is often inadequate. In one case, staff at BROOKDALE

9 Fountaingrove failed to notify a resident’s family after the resident had a fall and was sent to the

10 emergency room. Staff also failed to send identifying information or documents with the

11 resident, as required by Defendants’ policies and procedures. As a result, the resident was listed

12 as a Jane Doe until the next morning. A doctor at the hospital told the resident’s daughter that

13 he would have operated on the resident shortly after she was admitted, but had to wait until the

14 next morning because he had no family contact numbers to call. The Community Care

15 Licensing inspector who investigated this incident noted that she observed insufficient staffing at

16 BROOKDALE Fountaingrove to ensure that the facility’s own policies and procedures were

17 being followed. On another occasion, a BROOKDALE Fountaingrove resident pressed the call

18 button on her pendant because she could tell she was going to have terrible diarrhea. While she

19 waited for a response, the resident headed for the toilet, but by the time she got there, she had

20 already soiled herself and her nightgown. Although a caregiver responded to the pendant call,

21 when the caregiver looked in the bathroom and saw the resident sitting on the toilet, she left

22 without providing assistance and never returned. The resident screamed for help and pressed the

23 emergency button next to the toilet, but no one responded until roughly an hour later, when a

24 new set of caregivers started their shifts.

25

48. Residents must resort to calling 911 for assistance when staff fail to promptly

26 respond to their call pendants. For example, public records kept by the Rincon Valley &

27 Windsor Fire Protection Districts revealed that in a one-year period from June 2016 through

28 May 2017, the agency responded to 83 emergency calls from 907 Adele Drive, the address of
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1 BROOKDALE Windsor. Community Care Licensing records indicate that this facility has a

2 capacity of 80, but often has fewer than 70 residents, suggesting that BROOKDALE Windsor

3 residents averaged well over one 911 call per person over the past year. Many of these calls

4 were classified as “medical assists,” meaning the Rincon Valley & Windsor Fire Protection

5 Districts provided assistance to another group or agency that had primary responsibility for

6 medical care, such as assisting with moving a heavy patient. Several of these 911 calls were

7 classified as instances where a member of the public called the fire protection districts for

8 routine help, such as assisting a person in returning to a bed or chair, with no transport or

9 medical treatment given.

10

49. In other cases, Defendants’ staff failed to monitor residents’ health status as

11 promised, placing residents in danger and distress in situations where the resident was not able

12 to call for help. At BROOKDALE Fountaingrove, one resident was left in her wheelchair all

13 night because she requires staff assistance to get in and out of her wheelchair, but staff failed to

14 help her into bed and never checked on her during the night. In another case, a resident at

15 BROOKDALE Scotts Valley fell in his apartment and went without food or water for 24 to 30

16 hours because staff failed to check on him. The resident was taken to a hospital, where doctors

17 diagnosed him with dehydration and rhabdomyolysis, a condition in which damaged skeletal

18 muscle tissue breaks down and the damaged muscle cells are released into the bloodstream,

19 causing further injury. At BROOKDALE Riverside, a resident fell while outside and suffered

20 severe sunburns because staff failed to regularly check on him. In November 2016, Community

21 Care Licensing issued a citation to BROOKDALE Hemet based on an incident in which staff

22 left a resident with a known risk of falling unattended in a dining room chair. The resident fell

23 and hit his head, requiring ten stitches. Just three days later, Defendants’ staff again left the

24 resident unattended, and he fell and re-injured his head. The licensing inspector noted that this

25 resident had additional staff supervision as part of his care plan, but that BROOKDALE Hemet

26 lacked sufficient staff to meet the resident’s needs.

27

50. Because Defendants’ staff are stretched so thin responding to emergency calls

28 and attending to their other duties, they have attempted to dissuade residents from calling for
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1 assistance. Residents have been told by overworked caregivers to use their call buttons “only in

2 an emergency,” despite the fact that, short of screaming for help, this is the only way to alert

3 caregivers that they need the assistance for which they are paying BROOKDALE. In many

4 instances, residents feel bad for overworked caregivers and attempt to perform tasks on their

5 own, despite paying BROOKDALE for these services. This has led to residents’ falling or

6 otherwise injuring themselves.

7

Impact of Understaffing on Dining Services

8

51. BROOKDALE’s policy and practice of understaffing has resulted in its cutting

9 staffing hours and eliminating positions in dining services. As a result, residents wait for long

10 periods of time to be served. Some residents give up in frustration. Food is often served cold,

11 and residents do not dare to make a special request, for fear that the wait will be extreme.

12 Moreover, the quality of the food has so deteriorated that it is in many cases nearly inedible.

13 Fresh ingredients are rare, meat of poor quality is hidden under sauces, and both residents and

14 licensing inspectors have encountered food beyond its expiration date. The understaffing also

15 prevents staff from maintaining a clean and hygienic dining area.

16

52. At BROOKDALE San Ramon, the hours of serving staff were cut, and servers

17 have left as a result, leaving the dining department severely understaffed. At breakfast, there is

18 often one server for 80 people. On at least one day during June 2017, there were no servers in

19 the dining room for breakfast, and the activities director was cleaning the tables while the chef

20 both cooked and served meals. At BROOKDALE Windsor, licensing inspectors found a single

21 staff member working morning shifts in the dining room, with dirty dishes and food droppings

22 strewn about because no other staff members were available to clean up. BROOKDALE

23 Riverside received a Community Care Licensing citation after investigators found that food was

24 served cold and residents had to wait an unreasonable amount of time for food to be served. The

25 investigator attributed this problem to understaffing, noting in her report that “[i]t was revealed

26 there is not enough servers for the number of residents in the dining room at one time.” On a

27 recent visit to BROOKDALE Corona, the licensing inspector found five residents sitting in the

28 dining room without supervision, and noted that caregivers were expected to serve lunch, clean
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1 the dining room after meals, and sweep the floors in the dining room in addition to their other

2 duties. The same inspector found uncovered and dried-out ham and cheese sandwiches in the

3 refrigerator and unrefrigerated cartons of strawberry milk in a cupboard.

4

53. The long waits and substandard meals in the dining room mean that some

5 residents either purchase their own food or often forgo meals altogether, despite the fact that

6 residents are paying BROOKDALE for three meals per day and snacks. Residents’ nutrition

7 needs are not being met, and to the extent that they look forward to meals as a pleasant social

8 experience, they are being deprived of that benefit as well. Residents have made numerous

9 complaints to Defendants about the dining service, individually and through the family and

10 resident councils. For example, the Resident Council at BROOKDALE San Ramon has been

11 complaining about the problems in dining services for over two years. Yet residents have seen

12 no durable improvements. There may be temporary improvements from time to time, but the

13 overall trend is actually downward.

14

Impact of Understaffing on Housekeeping and Laundry

15

54. BROOKDALE’s policy and practice of understaffing extends to housekeeping

16 and laundry services. For example, on information and belief, BROOKDALE San Ramon went

17 for many months with only one housekeeper to clean approximately 80 rooms. As a result, the

18 maintenance director and the executive director also had to clean rooms and consequently had

19 less time to perform maintenance and administrative duties. Residents’ rooms have been left in

20 deplorable and often unsanitary conditions, including toilet seats and showers covered in feces

21 and rooms which smell strongly of urine.

22

55. BROOKDALE routinely fails to wash residents’ personal belongings and bed

23 linens. Even when BROOKDALE’s staff take these items for laundering, residents’ clothes and

24 linens are often lost, or they are given back other residents’ clothing or linen instead of their

25 own. Residents are left in dirty and malodorous clothing. For example, Loresia Vallette, the

26 granddaughter of former BROOKDALE Hemet resident LAWRENCE QUINLAN observed that

27 her grandfather’s clothes were never washed, and that staff continued to dress him in the same

28 pair of urine-stained pants. Some residents or their family members have despaired of waiting
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1 and begun to perform these services on their own, despite BROOKDALE’s promise to provide

2 them as part of their base rate.

3

Discrimination in Transportation/Activities

4

56. Due to chronic understaffing at Defendants’ facilities, promised transportation

5 services and activities are often sporadic or nonexistent. Many residents rely on BROOKDALE

6 for transportation to medical and lab appointments, church, grocery shopping, banking and other

7 activities. Additionally, they expected and would enjoy both on- and off-site activities. Yet they

8 do not receive these services on a regular basis, if at all. Scheduled activities—such as poker,

9 bingo and movies—are frequently cancelled, and BROOKDALE regularly fails to provide the

10 promised transportation services to its residents. Residents are often told about cancellations at

11 the last minute for shuttles to planned events, such as church services. The lack of staffing at

12 BROOKDALE San Ramon means that its activities director must fulfill multiple duties. In

13 addition to her expected duties, she often works in the dining room serving food or cleaning and

14 at the front desk as a receptionist. She is frequently the only driver for facility-provided

15 transportation. On several occasions, residents of BROOKDALE San Ramon have been left

16 waiting outside a medical office or a church because BROOKDALE staff forgot to pick them up

17 and had to rely on others to take them back to the facility.

18

57. Additionally, BROOKDALE has implemented policies and practices regarding

19 its provision of transportation services that discriminate against persons with mobility

20 disabilities. Residents at BROOKDALE San Ramon who use wheelchairs must be able to

21 transfer from their chairs to a seat in the bus, despite the existence of a wheelchair lift and a

22 system for securing wheelchairs in at least one of BROOKDALE San Ramon’s buses. Making

23 this transfer is impossible and/or unsafe for many wheelchair users. The facility also requires

24 wheelchair users to arrange for a family member or an outside care attendant to accompany them

25 on any off-site activity, which deters many wheelchair users from participating and imposes a

26 surcharge on those who do. The facility also limits the number of wheelchair users for each off-

27 site trip to two. At BROOKDALE Fountaingrove, wheelchair users are limited to two off-site

28 trips per month. At least one wheelchair user at BROOKDALE San Ramon was told that she
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1 could not participate in regular Saturday trips to the grocery store and shopping, because the

2 driver “couldn’t handle her.”

3

Emergency Evacuation Procedures

4

58. BROOKDALE has emergency and evacuation policies and procedures in place

5 for at least some of its facilities, but these policies and procedures do not take into account the

6 needs of persons with disabilities, or if they do, Defendants have not informed the residents.

7 Residents with disabilities have been told to wait in their rooms for someone to come, and

8 although the facilities have emergency drills, staff have not demonstrated for residents what will

9 happen in the event of an actual emergency.

10

59. Plaintiffs are informed and believe, and on that basis allege, that these practices

11 have been and are an official policy and practice by which Defendants operate their businesses

12 and/or services.

13

60. Defendants’ failure and refusal to provide equal services to persons with

14 disabilities is humiliating and degrading to and creates a serious safety risk for the members of

15 the proposed class of persons with disabilities.

16

61. Defendants are responsible for their illegal operations and discriminatory policies

17 and practices as described herein. BROOKDALE residents, their family members, and staff

18 members have raised these issues repeatedly with members of BROOKDALE management to

19 no avail.

20

62. Defendants have been notified of the civil rights violations described herein, but

21 have refused to provide necessary reasonable modifications to its staffing policies, practices and

22 procedures to provide residents with disabilities full and equal enjoyment of their goods,

23 services, facilities, activities, benefits and accommodations and to comply with the requirements

24 of the ADA and the Unruh Civil Rights Act .

25

Retaliation Against Family and Resident Councils and Their Members

26

63. Plaintiff filed their original complaint on July 13, 2017. They filed a First

27 Amended Complaint on August 25, 2017. Since that time, BROOKDALE has retaliated against

28 Plaintiffs and members of the family or resident council in at least two of the facilities in which
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1 the named Plaintiffs reside.

2

64. Pursuant to Cal. Health & Safety Code § 1569.158(a), residential care facilities

3 may not prohibit the formation of a family council. California law also requires that the facility

4 provide a meeting space for the family council, as well as a prominent, visible space for family

5 council announcements, such as meeting notices, minutes, and newsletters. Cal. H&S Code §

6 1569.158(d). Moreover, a facility must respond in writing to any written concerns or

7 recommendations submitted by the family council within 14 days. Cal. H&S Code §

8 1569.158(f).

9

65. California law also prohibits assisted living facilities from willfully interfering

10 with the “formation, maintenance, or promotion of a family council.” Cal. H&S Code §

11 1569.158(i). The law defines “willful interference” as including “discrimination or retaliation in

12 any way against an individual as a result of his or her participation in a family council, refusal to

13 publicize family council meetings or provide appropriate space for meetings or postings as

14 required . . ., or failure to respond to written requests by a family council in a timely manner.

15 Cal. H&S Code § 1569.158(i).

16

66. At the BROOKDALE San Ramon facility, the executive director has stopped

17 responding to many of the written inquiries from the family council. On July 26, 2017, the

18 executive director of BROOKDALE San Ramon, Shawn Cull, informed the family council by

19 email that he would not respond to the family council’s inquiries because of the lawsuit. Despite

20 a letter from Plaintiffs’ counsel to BROOKDALE’s counsel on August 17, 2017, informing

21 them of Brookdale’s obligations under the Health & Safety Code, the executive director has

22 continued to refuse to provide substantive responses to many of the family council’s inquiries.

23 On February 2, 2018, Mr. Cull responded to a request by family council and residents that he

24 address all of their questions by stating, “Unfortunately, due to a lawsuit, some questions I am

25 unable to answer.”

26

67. On or about February 2, 2018, a family council board member, Sharon Eidler,

27 posted family council flyers announcing an upcoming meeting in public announcement spots

28 near the facility elevators and on the residents’ doors. Two hours later, she discovered that
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1 someone had removed the flyers placed near the elevators. The flyers posted on the resident

2 doors had been turned over and covered with a facility questionnaire. When questioned by Ms.

3 Eidler, Mr. Cull admitted to tampering with the flyers. When Ms. Eidler told Mr. Cull he could

4 not tamper with family council announcements, Mr. Cull ordered Ms. Eidler to leave the facility

5 and then called the police to come and remove her. After arriving at the facility and speaking

6 with witnesses, the police neither arrested Ms. Eidler nor did they ask her to leave the facility.

7

68. Pursuant to Cal. Health & Safety Code § 1569.157(a), residential care facilities

8 must assist the residents in establishing and maintaining a resident council. Moreover, a facility

9 must respond in writing to any written concerns or recommendations submitted by the resident

10 council within 14 days. Cal. H&S Code § 1569.157(c).

11

69. California law also prohibits assisted living facilities from willfully interfering

12 with the “formation, maintenance, or promotion of a resident council.” Cal. H&S Code §

13 1569.157(g). The law defines “willful interference” as including “discrimination or retaliation

14 in any way against an individual as a result of his or her participation in a resident council,

15 refusal to publicize resident council meetings or provide appropriate space for either meetings or

16 a bulletin board, or failure to respond to written requests by the resident council in a timely

17 manner.” Cal. H&S Code § 1569.157(g).

18

70. BROOKDALE has not responded in writing to at least four letters sent to its

19 corporate offices by Ms. JESTRABEK-HART in her capacity as chair of the BROOKDALE

20 Scotts Valley residents’ council. The letters addressed the lack of adequate staffing, facility

21 maintenance concerns, the lack of emergency signals in the laundry rooms, common room doors

22 that are difficult to open, and the high price of meals for visitors. The executive director at the

23 Scotts Valley facility responded to one of the letters orally, but BROOKDALE has not

24 responded in writing to any of the above-mentioned letters, in violation of Cal. H&S Code§

25 1569.157(c) and (g) .

26

27

28
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BROOKDALE MISREPRESENTS, MAKES MISLEADING STATEMENTS, AND 1 CONCEALS MATERIAL FACTS ABOUT THE QUALITY AND AVAILABILITY OF
CARE IT PROVIDES TO ALL RESIDENTS 2

3

71. As a result of Defendants’ corporate policies and practices, BROOKDALE

4 subjects all residents, regardless of disability, to a substantial risk that they will not receive the

5 care and services they require and have paid for on any given day, as described in Paragraphs

6 36-60. BROOKDALE lures residents to move into or stay at its facilities by misrepresenting in

7 various corporate written materials that it will provide the basic, personal, and therapeutic

8 services each resident needs based on individualized assessments performed by BROOKDALE

9 staff, and by failing to disclose and concealing that it cannot provide the promised services to all

10 residents because its facilities are chronically understaffed.

11

Standardized Residency Agreements

12

72. In order to move in to one of BROOKDALE’s California facilities, residents

13 must sign one of Defendants’ standardized Residency Agreements. In its standardized

14 Residency Agreement, BROOKDALE represents to residents prior to move-in and throughout

15 their residency that it will provide them with a standard set of basic services, additional personal

16 services identified in the Personal Service Plan, and any select and therapeutic services for

17 which the resident chooses to pay. At the time of signing the Residency Agreement, residents or

18 their responsible parties are required to confirm that they have reviewed and understand the

19 document.

20

73. In Section I.A of its standardized Residency Agreement, BROOKDALE

21 affirmatively represents to prospective residents that “[i]n order to provide you with care,

22 supervision and assistance with instrumental activities of daily living in order to meet your

23 needs, we will provide you with the following Basic Services”: accommodations, including a

24 residential suite and use of common areas; three meals a day plus snacks 24 hours a day; basic

25 utilities; “light housekeeping once a week”; weekly laundry service of the resident’s “personal

26 belongings and bed linens”; “planned social and recreational programs”; transportation services;

27 and staffing by “Community associates … available 24 hours a day, seven days a week.”

28 Section I.A further represents that BROOKDALE will observe the resident’s “health status to
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1 identify social and health care needs” and “will consult with you regarding social and health-

2 related issues.” In addition, BROOKDALE represents in Section I.A of its standardized

3 Residency Agreement that “[w]e will provide personal services that are included as part of the

4 personal service assessment.”

5

74. In Section I.B of its standardized Residency Agreement, BROOKDALE

6 represents that “[p]rior to moving in and periodically throughout your residency, we will use a

7 personal service assessment to determine the personal services you require. The personal

8 service assessment will be used to develop your Personal Service Plan.”

9

75. Defendants’ standardized price schedule for personal care services is attached to

10 the standardized Residency Agreement. This price schedule includes a variety of personal

11 services, such as staff assistance with ordering, storing, and taking medication; staff assistance

12 with eating, dressing, bathing, using the toilet, and other activities of daily living; escort and

13 mobility assistance to get around Defendants’ facilities; and help taking care of residents’ pets.

14 This price schedule lists the monthly costs of each service and details how Defendants’

15 caregivers and other staff will provide the services. For instance, a resident may require and

16 agree to pay for “[s]taff attention while you administer your insulin injections”; “additional staff

17 involvement” for residents who are reluctant to accept care; and bathroom assistance such as

18 “reminders to get to the bathroom,” “pulling up and down pants, handling toilet paper, wiping,

19 changing protective undergarments and getting onto and off of toilet,” as well as “weight-

20 bearing or balance assistance from one associate” for residents “unable to stand independently

21 while using the bathroom.”

22

76. BROOKDALE repeats these representations in the Personal Service Plan that it

23 prepares for each resident before the resident moves in and updates periodically throughout his

24 or her residency. The Personal Service Plan lists the types of staff assistance that the resident

25 requires and has agreed to pay for, along with the monthly fee for each. For example, the

26 Personal Service Plan for one former resident states that Defendants’ staff will “[p]rovide

27 physical assistance to and from the dining room and/or community activities as needed” for a

28 monthly fee of $273. Standardized language in the Personal Service Plan states that “[t]he
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1 Personal Service Assessment and the Physician Plan of Care are used to determine the personal

2 services that you require at move-in and periodically throughout your residency. The Personal

3 Service Assessment will be used to develop your Personal Service Plan.”

4

77. Pursuant to Sections I.B and III.F of its standardized Residency Agreement,

5 “[t]he results of the assessment, our method for evaluating your personal care needs, and the cost

6 of providing the additional personal services (the ‘Personal Service Rate’) will be shared with

7 you,” and a change in the Personal Service Plan be offered or required “when we determine

8 additional services are requested or required” and after 60 days’ written notice has been

9 provided.

10

78. In Section I.C of its standardized Residency Agreement, BROOKDALE

11 represents that it will make “Select Services and Therapeutic Services … available to you at

12 your request,” but that the fees for these services are not included in the rates residents pay for

13 basic services and personal services. Defendants’ standardized Residency Agreement

14 incorporates by reference a standardized price list which features prices for the select and

15 therapeutic services that Defendants make available, many of which consist of staff assistance

16 with the resident’s activities of daily living. For example, residents may elect to pay for tray

17 service in their rooms for up to three meals a day or for additional laundry and housekeeping

18 services beyond what is provided in the basic service rate.

19

79. Every month, BROOKDALE sends each resident or his or her responsible party

20 an invoice for services that the company represents it will provide the following month. These

21 invoices list the monthly rate for basic services, the Personal Service Rate that is based on each

22 resident’s Personal Service Plan, and any rate adjustments.

23

80. BROOKDALE repeats these representations in the letters it periodically sends all

24 residents informing them of increases in the rates they owe for basic services, personal services,

25 and select and therapeutic services. Using standardized language, Defendants’ rate increase

26 letters notify the resident of changes to his or her monthly rates for these services, which

27 BROOKDALE attributes to increases in the cost of “providing the services you desire and

28 depend upon.”
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Defendants’ Communications Regarding the Merger and New Assessment System 1

2

81. In early 2014, Emeritus Senior Living (“Emeritus”), at the time a major chain of

3 senior living facilities, sent residents a standardized letter informing them of the merger between

4 BROOKDALE and Emeritus. The letter promised that residents would not be impacted by the

5 change but would “receive the same excellent care and service you expect at your community”

6 and would “continue to enjoy all the amenities of your community.” It further stated the merger

7 would create a “senior living company offering the most comprehensive set of senior care

8 solutions” with a commitment to “customer-focused cultures and a commitment to continuous

9 improvement and innovation.” Rather than inform residents that the merger would result in

10 even lower staffing levels and poorly trained staff, the letter promised a continuum of care with

11 likely improvements.

12

82. In or about October 2015, BROOKDALE sent residents a standardized letter

13 informing them of an upgrade to its community assessment and care planning system effective

14 December 1, 2015. The upgrade would involve a conversion to a “new personal service system”

15 which would “enhance our ability to match your needs and preferences with the right services at

16 the right time.” The letter promised “benefits from enhancements,” which included, inter alia,

17 “[p]ersonalized service planning and care systems.”

18

83. Based on these representations, Plaintiffs, and the putative class members

19 reasonably expected that the merger would result in improvements in care, or at the very least,

20 would not result in a decline in services. Additionally, they reasonably expected that the

21 conversion to the new assessment and care planning system would result in improved delivery of

22 basic services, personal services, and select and therapeutic services for which they were paying.

23

Defendants’ Marketing Materials

24

84. Defendants’ public website, www.brookdale.com, prominently features online

25 marketing materials directed at prospective residents. In a section of its website entitled “What

26 is Assisted Living?”, BROOKDALE claims that its “assisted living communities have staff and

27 programs in place that support and assist residents with daily living and basic care in a homelike

28 or apartment setting. Residents receive three meals a day, recreational and social activities,
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1 housekeeping, linen service, apartment maintenance and transportation. That means your loved

2 one gets all the benefits of retired life, without the hassle of daily chores.”

3

85. Defendants’ online marketing materials also tout the personalized services that its

4 assisted living facilities provide. The company’s website explains that “[o]ur trained caregivers

5 provide attention and assistance with medication support, bathing, dressing, cooking and other

6 tasks throughout the day. Our staff will also coordinate services with outside healthcare

7 providers and monitor residents to ensure they are healthy. So your loved one gets the care they

8 need while enjoying the quality of life they’ve earned.”

9

86. Defendants’ online marketing materials promise a “Culinary Arts” program that

10 uses “only the freshest meat, seafood, produce, herbs and spices.”

11

87. Defendants’ online marketing materials further represent that “[a]t Brookdale, we

12 believe in delivering senior care that’s tailored to you and your loved one based on those unique

13 needs and desires. That’s why we provide a variety of options. This personalized approach

14 ensures that you and your family get exactly what you need without paying for what you don’t.”

15

88. BROOKDALE represents to prospective and current residents that it tailors its

16 services to residents’ personal needs. According to Defendants’ representations, the process

17 begins with an individualized assessment, which BROOKDALE uses to produce a Personal

18 Service Plan for each resident. The Personal Service Plan includes a list of services for which

19 the resident pays a monthly fee. Defendants’ affirmative representations give rise to a

20 reasonable expectation on the part of the reasonable consumer that BROOKDALE will

21 determine and then provide the amount of caregiver and other staff time that is necessary to

22 provide the personal services for which residents are paying.

23

89. BROOKDALE makes similar representations in the standardized marketing

24 folder it distributes to prospective and incoming residents. In this marketing folder,

25 BROOKDALE represents that at its facilities, “Carefully selected and trained associates do more

26 than assist with activities of daily living such as dressing, bathing and dispensing of

27 medications; they implement custom care plans designed to meet the individual needs of each

28 resident … It all begins with a Personal Service Assessment. We take the time to listen to our
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1 residents so that we understand how to establish clinical, dining and program support that works

2 for them in a meaningful way. We recognize their individual needs and preferences and respond

3 to them accordingly. So, whether it’s a scented lotion, a unique snack, a favorite recipe or a

4 lifelong interest, we integrate everything we learn to create a truly individualized living

5 experience.” Elsewhere in this marketing folder, BROOKDALE represents that it “provide[s]

6 customized care solutions to meet residents’ unique needs and complement their vision for all

7 the places they would still like their lives to go. From our trained staff to our wide variety of

8 amenities and activities, we strive to offer personalized care and exceptional service at

9 competitive and affordable rates. Fees for care and services are based on each resident’s needs

10 and preferences, as determined by the Living Accommodation selected and their Personal

11 Service Plan … This provides customer value because our residents only pay for what they

12 need and want.” (Emphasis in original). BROOKDALE’s marketing folder also promises an

13 industry-leading dining services program that “continue[s] to satisfy the preferences and

14 nutritional needs of residents with dining choices that offer mealtime fulfillment while meeting

15 dietary requirements.”

16

90. Based on all of Defendants’ representations, Plaintiffs, the putative class

17 members, and the general consuming public reasonably expect that BROOKDALE will ensure

18 adequate staffing to perform the services promised to residents, including by providing sufficient

19 levels of qualified and adequately trained staff to perform the services identified in each

20 resident’s Personal Service Plan.

21

Defendants’ Failures to Disclose

22

91. Contrary to Defendants’ representations regarding its provision of services,

23 BROOKDALE has a corporate policy and practice of staffing its facilities according to a system

24 that ensures all BROOKDALE residents run the continuing risk of not receiving the services for

25 which they are paying, of not having their care needs met, and of suffering injury from the lack

26 of care.

27

92. In addition to the Community Care Licensing records described in Paragraphs 37-

28 38, 41-43, 46-49 and 52, current and former residents of BROOKDALE facilities confirm that
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1 Defendants’ staffing levels do not change when updates to personal service assessments show

2 that residents require additional personal services. BROOKDALE has in many cases modified

3 residents’ Personal Service Plans—and raised monthly personal service fees accordingly—even

4 though BROOKDALE failed to conduct an updated personal service assessment, failed to

5 provide residents or their responsible parties with the results and method of the assessment,

6 and/or failed to provide 60 days’ written notice. Despite paying higher fees as a result of these

7 changes to their Personal Service Plans, residents and their families have observed that neither

8 the services provided nor staffing levels increased and, in many cases, decreased.

9

93. Caregivers have informed residents that they would like to work a 40-hour week,

10 but BROOKDALE allows certain caregivers to work only 24 hours in a week. Residents and

11 their family members have also observed that BROOKDALE fails to ensure that all staff

12 members receive necessary training. At BROOKDALE Fountaingrove, the facility’s interim

13 executive director admitted to residents’ families that BROOKDALE has insufficient staff to

14 meet residents’ needs.

15

BROOKDALE’S MISREPRESENTATIONS AND

16

CONCEALED FACTS WERE MATERIAL

17

18

94. BROOKDALE’s misrepresentations and the facts it conceals are material to the

19 reasonable consumer. An important and significant factor in choosing to move oneself or one’s

20 relative to a BROOKDALE facility, to stay there after the facility was purchased by

21 BROOKDALE, and/or to continue to agree to pay the amounts charged by BROOKDALE is the

22 provision of staffing that is necessary to provide the services its residents need and for which the

23 residents are paying.

24

95. BROOKDALE’s misrepresentations, misleading statements and omissions

25 regarding its provision of staffing are material to prospective residents and their family

26 members. Assurances that a facility will provide the amount of staffing necessary to provide

27 basic services and meet the personal service needs of residents based on BROOKDALE’s own

28 assessments is a substantial factor (and indeed often the most important factor) in deciding to
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1 enter a certain facility. The named Plaintiffs would not have, and the members of the putative

2 class would in all reasonable probability not have, entered BROOKDALE’s facilities or stayed

3 at these facilities after BROOKDALE purchased them from other companies, or they would

4 have insisted on paying a lower price, if they had known that, although BROOKDALE would

5 charge them based on the staffing associated with their Personal Service Plans, BROOKDALE

6 did not and does not provide adequate staffing to carry out the services identified in residents’

7 Personal Service Plans, nor does it provide adequate staffing to perform basic services and select

8 and therapeutic services.

9

96. This is true even for residents who currently are nearly independent. These

10 residents chose an assisted living facility as opposed to an independent living community or

11 remaining at home because they wish to “age in place.” They may not need significant

12 assistance with the activities of daily living initially, but they will become more dependent as

13 they age and do not want to move again when that happens. Moreover, even the most

14 independent residents depend on the basic services that BROOKDALE promised them, such as

15 food, laundry, and housekeeping. A key factor for these residents in selecting BROOKDALE is

16 that the facility will provide the staffing that BROOKDALE itself has determined is necessary to

17 meet their assessed needs, both now and as those needs increase.

18

97. BROOKDALE has a duty to disclose that its staffing policies and procedures

19 preclude it from consistently providing basic services, personal services, and select and

20 therapeutic services, because of, among other things, the substantial safety risk to current and

21 future residents from BROOKDALE’s conduct.

22

98. The non-disclosure is material because, among other things, BROOKDALE

23 knows that its conduct risks the safety of its residents. In addition to individual complaints made

24 by residents and family members, family and resident councils send regular correspondence to

25 Executive Directors of BROOKDALE facilities, as well as regional and national mangers

26 regarding the problems outlined above. In the case of BROOKDALE San Ramon and

27 BROOKDALE Fountaingrove, local and regional management employees have attended

28 numerous meetings of the Family and Resident Councils and have made unfulfilled promises to
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1 address the concerns outlined above. Moreover, Community Care Licensing has conducted

2 numerous licensing inspections which are delivered to BROOKDALE executives and managers

3 of California facilities, describing the failure of various facilities to meet state laws and

4 regulations.

5

99. BROOKDALE is fully aware of the facts alleged above. Yet, BROOKDALE has

6 failed to disclose and actively concealed from residents, prospective residents and their family

7 members the true facts about how staffing is provided at BROOKDALE’s California facilities.

8

Barriers to Moving Out

9

100. BROOKDALE’s misrepresentations, misleading statements, and material

10 omissions affect not only the decision of residents to enter the facility but also the decision to

11 stay at a BROOKDALE facility.

12

101. In choosing assisted living in general and a BROOKDALE facility in particular,

13 the resident forgoes other options such as their former home, an independent living community,

14 or other facilities. Once in a facility, there are significant physical, emotional and other burdens

15 for the residents that are triggered if they terminate residency, including impacts such as

16 “transfer trauma.” BROOKDALE knows and relies on this fact. As BROOKDALE notes on its

17 website “[a]s a resident’s health needs increase, they may transition from one level to the next—

18 all within the same community. This provides a permanent link to friends and families for them

19 by assuring they remain in a single location.”

20

102. BROOKDALE puts great effort into increasing and maintaining building

21 occupancy to the detriment of their current and future residents. Plaintiffs allege on information

22 and belief that when residents or their family members complain about staffing and/or

23 conditions at a BROOKDALE facility, employees are instructed to reassure them that things will

24 improve and that the incident or incidents are temporary snags. For example, the Family

25 Council of BROOKDALE Fountaingrove has been meeting every month for many months to

26 address the inadequate staffing, slow response times to call buttons, and other health and safety

27 issues faced by the Fountaingrove residents. BROOKDALE representatives, including Vice

28 President of Regional Operations Sharyl Ronan and Interim Executive Director Dan Devine,
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1 have appeared at many meetings, listened to the numerous complaints, and assured those present

2 that they are looking into the problems and all will be well. Notwithstanding these claims,

3 members of the Family Council report little to no changes or action items undertaken by

4 BROOKDALE staff after these meetings.

5

103. Similarly, residents and family members at BROOKDALE San Ramon hold

6 monthly Family Council and Resident Council meetings and have informed facility

7 management, as well as Rick Flynn, District Director of Operations, former Executive Director

8 Steve Millard, Executive Director Shawn Cull, and former Acting Director Bill Grady of the

9 problems described above. In January 2017, Mr. Flynn, Mr. Grady and Mr. Cull attended a

10 Family Council meeting at which family members and residents demanded answers to their

11 questions about understaffing, poorly trained staff, undelivered services, food and dining

12 deficiencies, cancelled activities, and problems with call pendants. They were reassured at the

13 meeting and subsequently told by email correspondence that BROOKDALE was working

14 “diligently” on solutions and had reached out to the District Vice President of Operations Sheila

15 Garner, who would be helping to resolve the problems. BROOKDALE also represented that

16 management had “made progress in our hiring process for clinical and dining,” and was

17 monitoring the call pendant system and providing additional training to staff. Since that time,

18 BROOKDALE announced the hiring of additional employees but concealed from residents that

19 it was simultaneously cutting the hours of its current employees, cuts which have led to

20 significant staff turnover. Residents and family members report that the problems described

21 above have in fact worsened.

22

104. Such reassurances from BROOKDALE are common when residents and family

23 members raise concerns about the quality of care and services they are receiving. On

24 information and belief, Regional Vice Presidents and Executive Directors are instructed to

25 minimize potential move-outs. Executive Directors are regularly told by upper management to

26 do everything they can to “save” the move-out.

27

105. BROOKDALE thereby unjustly continues to profit from the original fraud by

28 perpetuating the misrepresentations, misleading statements, and failures to disclose.
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NAMED PLAINTIFFS’ EXPERIENCES IN BROOKDALE FACILITIES 1
Stacia Stiner 2

3

106. STACIA STINER has been a resident at BROOKDALE San Ramon since

4 approximately February 13, 2016. On or about February 12, 2016, STACIA STINER’s mother,

5 Rita Stiner, read, reviewed, and signed an agreement with BROOKDALE as STACIA

6 STINER’s legal representative and power of attorney. As part of this “RESIDENCY

7 AGREEMENT”, BROOKDALE stated that “[i]n order to provide you with care, supervision

8 and assistance with instrumental activities of daily living in order to meet your needs, we will

9 provide you with the following Basic Services, which are included in the Basic Service Rate,”

10 which included, among other things, the room, three daily meals and snacks on demand, weekly

11 room cleaning, weekly laundry and linen service, planned activities, transportation, observation,

12 and the availability of staff “24 hours a day, seven days a week.” This standard residency

13 agreement also stated that:

14

[p]rior to moving in and periodically throughout your residency, we will use a personal

15

service assessment to determine the personal services you require. The personal service

16

assessment will be used to develop your Personal Service Plan. The results of the

17

assessment, our method for evaluating your personal care needs, and the cost of

18

providing the additional personal services (the “Personal Service Rate”) will be shared

19

with you.

20 The Personal Service Plan lists the types of staff assistance that Ms. STINER requires

21 and has agreed to pay for, along with the monthly fee for each type of staff assistance. In

22 addition, Ms. STINER’s mother Rita Stiner has received and reviewed, as enclosures to

23 BROOKDALE’s rate increase letters, a personal service schedule and list of select and

24 therapeutic services. These documents describe a variety of available services, list the

25 monthly or per-occurrence fee for each service, and detail how BROOKDALE’s

26 caregivers or other staff will provide the service. Every month, BROOKDALE sends

27 Ms. STINER, through Rita Stiner, an invoice for services that the company impliedly

28 represents it will provide in the following month. These invoices list the monthly rate for
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1 the basic services set forth in BROOKDALE’s standardized residency agreements, the

2 Personal Service Rate that is based on Ms. STINER’s Personal Service Plan, and any rate

3 adjustments.

4

107. Ms. STINER, through her legal representative and power of attorney, Rita Stiner,

5 read and reasonably understood BROOKDALE’s representations as statements that

6 BROOKDALE would perform assessments to determine needed services and staff

7 BROOKDALE San Ramon in a manner that would allow it to consistently provide the services

8 that BROOKDALE promised and Ms. STINER was paying for. Ms. STINER, through Rita

9 Stiner, relied on these representations in making the decision to enter BROOKDALE San

10 Ramon. BROOKDALE did not disclose to STACIA or Rita STINER at any time prior to her

11 admission nor has it disclosed since that time that its corporate policy and procedure of

12 providing pre-determined staffing at its facilities precludes BROOKDALE from providing the

13 care and services residents have been promised and places all residents at a substantial risk that

14 they will not receive the care and services they have paid for on any given day. If

15 BROOKDALE had disclosed this material fact to STACIA and/or Rita STINER prior to or early

16 in Ms. STINER’s residency, RITA STINER would have looked for another facility for STACIA

17 or would have told BROOKDALE that her daughter would not agree to pay the rates charged by

18 BROOKDALE.

19

108. Beginning in October 2016, BROOKDALE initiated increases in Ms. STINER’s

20 basic service and personal service rates. Ms. STINER and her mother Rita Stiner have been

21 unable to decipher the changes in Ms. STINER’s bills. On or about October of 24, 2016, Rita

22 Stiner received a letter from BROOKDALE’s Executive Director informing her that

23 Ms. STINER’s basic service rate would increase from $3,205 to $3,429 per month and that her

24 personal service rate would increase by approximately 6%. During an in-person meeting in

25 January of 2017, BROOKDALE staff told Rita Stiner that Ms. STINER’s personal service rates

26 would rise as follows: the monthly medication management fee would rise from $567 to $631;

27 the monthly fee for staff assistance with dressing and grooming tasks would rise from $454 to

28 $505; the monthly fee for assistance with two showers per week would rise from $113 to $631
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1 per week (a significant increase because STACIA STINER was purportedly requiring more than

2 the allotted 20 minutes of caregiver time per shower); and the monthly fee for assistance with

3 toileting would increase from $397 to $442. Rita Stiner had conversations with Shawn Cull, the

4 acting Executive Director, during which he told her that BROOKDALE would not charge the

5 full amount of the increases listed above. Despite numerous communications with Mr. Cull and

6 the billing department, the monthly bills remain confusing and BROOKDALE has sent Rita

7 Stiner notices of late payment and even a “30-DAY FINAL DEMAND TO PAY” in December

8 2016, stating that “[i]n order to provide the care our residents expect and deserve and at the same

9 time support the professional staff we employ, it’s imperative that we receive our monthly rent

10 and any additional charges in a timely fashion.” Brookdale subsequently withdrew the demand,

11 but the bills remain confusing, and every time there is an increase in Ms. STINER’s monthly

12 rates, the rate on Ms. STINER’s bills does not correspond to the information given to her or her

13 mother by Mr. Cull about the increase.

14

109. Although Ms. STINER is a wheelchair user, BROOKDALE has not provided her

15 with a room that has any physical access features. It does not have sufficient turning space in

16 the bathroom area, making it difficult for Ms. STINER to enter the bathroom in her wheelchair

17 and impossible for Ms. STINER to turn around in the bathroom. The bathroom does not have a

18 roll-in shower, and the grab bars do not comply with applicable access standards, preventing her

19 from bathing independently and creating a serious safety hazard. Ms. STINER cannot reach

20 most of the hanging or the storage space in her closet and therefore cannot access her clothing or

21 other personal items without assistance from others. Ms. STINER’s room has a balcony, but a

22 two-inch lip leading out to the balcony and insufficient turning space once outside makes it

23 inaccessible to Ms. STINER. She once tried to enter and exit the balcony by herself, but has not

24 attempted to do so since because the experience scared her. The complete lack of accessible

25 features in Ms. STINER’s room prevents her from being as independent as possible and causes

26 her to rely on personal assistance from BROOKDALE staff. In fact, Ms. STINER is charged

27 more than $400 per month for toilet assistance because “resident is unable to use the bathroom

28 on their own.” BROOKDALE charges Ms. STINER an elevated rate of over $600 for two
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1 showers per week because, according to BROOKDALE management, she requires more than

2 the allotted 20 minutes per shower. Compounding this problem is BROOKDALE’s

3 understaffing in care services, which means that Ms. STINER must wait to accomplish most of

4 her activities of daily living, if at all. This puts Ms. STINER in humiliating, frustrating and

5 hazardous situations on a daily basis.

6

110. Despite STACIA STINER’s paying approximately $600 per month for

7 BROOKDALE to “order and coordinate medications between family, health care providers and

8 pharmacy,” Rita Stiner must pick up medication for her daughter at least once per week,

9 frequently with only one-day notice from BROOKDALE. Rita Stiner also does the majority of

10 her daughter’s laundry because BROOKDALE frequently loses her clothing or returns the

11 wrong clothing to her.

12

111. Understaffing in the dining services department means that Ms. STINER has had

13 to wait up to 45 minutes just to order breakfast.

14

112. On some days, there is only one caregiver available in the mornings, causing

15 Ms. STINER to wait anywhere from 10 minutes to one hour for assistance getting dressed. At

16 night, Ms. STINER requires assistance if she needs to use the toilet. She waits anywhere from

17 10 minutes to an hour for staff to respond and will occasionally have to urinate in her bed when

18 assistance takes too long to arrive. She frequently resorts to using her mobile phone to call the

19 outside line when staff do not respond to her call pendant. Due to short-staffing, caregivers

20 often attempt to leave Ms. STINER in the middle of assisting her with bathing or toileting

21 because they must respond to call pendants from other residents or because they left another

22 resident on the commode to respond to Ms. STINER. Ms. STINER objects and insists that the

23 caregivers finish assisting her before they leave, but she knows that other residents are too afraid

24 to speak up for themselves and are often stranded by caregivers.

25

113. Ms. STINER enjoys getting out of the facility and participating in off-site

26 activities. However, BROOKDALE requires that, because she is a wheelchair user, she be

27 accompanied by a family member or a private personal caregiver. Although she has been able to

28 participate in scenic drives or lunches by herself, Ms. STINER had to pay approximately $180
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1 for a personal assistant to participate in a trip to a casino in Cache Creek in approximately

2 August 2016. Ms. STINER enjoys outings to the casino, but BROOKDALE still requires that

3 she take her mother or a private caregiver on those trips. Outings are also limited to two

4 wheelchair users per outing on a first come, first served basis. If Ms. STINER does not sign up

5 immediately, she will lose her ability to participate on a particular outing. This is true of other

6 wheelchair users in the facility.

7

114. In case of fire and other emergencies, BROOKDALE staff has told Ms. STINER

8 to remain in her room until they come and get her. However, staff members have not come to

9 get Ms. STINER when fire alarms go off at the facility, nor have they given her any additional

10 instructions about how they would assist her in exiting the facility.

11

Helen Carlson

12

115. HELEN CARLSON has been a resident at BROOKDALE Fountaingrove since

13 October 2011. When Ms. CARLSON moved into the facility, it was owned and operated by

14 Emeritus and was known as Emeritus at Santa Rosa. Prior to move-in, CARLSON’s daughter-

15 in-law JOAN CARLSON, acting as Ms. CARLSON’s legal representative and power of

16 attorney, read, reviewed, and signed a standardized residency agreement with Emeritus. In this

17 agreement, Emeritus promised to provide a list of “core services” that are substantially similar to

18 the basic services enumerated in Defendants’ standardized residency agreement. Emeritus also

19 agreed to “perform a comprehensive Resident Evaluation prior to your admission in the

20 Community, regularly thereafter, and as your condition warrants, in order to determine the level

21 of Personal Care Services that you need. We will develop your Service Plan, based on your

22 Resident Evaluation, that describes how we will provide these services. You will receive

23 services appropriate to your individual needs, as described in your Service Plan.” The

24 agreement reserved Emeritus’s right to assign the agreement to any successor-in-interest selected

25 by Emeritus.

26

116. Ms. CARLSON, through her legal representative and power of attorney JOAN

27 CARLSON, read and reasonably understood Emeritus’s representations in the residency

28 agreement as statements that Emeritus used its resident assessment system and results generated
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1 by it to determine and provide staffing levels necessary to meet residents’ needs.

2 Ms. CARLSON also reasonably understood and expected that Emeritus would staff Emeritus at

3 Santa Rosa in a manner that would allow it to consistently provide the services that Emeritus

4 promised and Ms. CARLSON would be paying for. Ms. CARLSON, through JOAN

5 CARLSON, read and relied on the representations in the residency agreement in making the

6 decision to enter Emeritus at Santa Rosa. As Ms. CARLSON’s legal representative and power

7 of attorney, JOAN CARLSON read and signed the agreement acknowledging that she

8 understood and agreed to all of the terms contained in the agreement. In or about February

9 2014, JOAN CARLSON received and read a letter from Emeritus informing residents about the

10 merger between BROOKDALE and Emeritus. The letter promised that residents would not be

11 impacted by the change but would “receive the same excellent care and service you expect at

12 your community” and would “continue to enjoy all the amenities of your community.” It further

13 stated the merger would create a “senior living company offering the most comprehensive set of

14 senior care solutions” with a commitment to “consumer-focused cultures and a commitment to

15 continuous improvement and innovation.”

16

117. JOAN CARLSON, as her mother-in-law’s power of attorney and legal

17 representative, read the letter and reasonably understood that the care her mother-in-law received

18 would be no worse than the care she had received under Emeritus, and possibly improve.

19 BROOKDALE did not inform JOAN or HELEN CARLSON nor did they have any reason to

20 believe that BROOKDALE would not staff the facility with sufficient staff in numbers and

21 training to provide the services for which Ms. CARLSON and the other residents were paying.

22

118. In 2015, BROOKDALE merged with Emeritus, and Emeritus at Santa Rosa

23 became BROOKDALE Fountaingrove. Plaintiffs are informed and believe, and on that basis

24 allege, that Emeritus assigned its residency agreements with existing residents to

25 BROOKDALE, and that BROOKDALE assumed any liability arising from those agreements.

26

119. On November 17, 2015, JOAN CARLSON read, reviewed, and signed an

27 agreement with BROOKDALE as Ms. CARLSON’s legal representative and power of attorney.

28 This agreement, entitled “AMENDMENT TO CONTINUING CARE RESIDENCE AND
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1 SERVICES AGREEMENT,” amended the residency agreement that Ms. CARLSON signed

2 with Emeritus and that was assigned to BROOKDALE after the merger with Emeritus. Pursuant

3 to this amendment, references to “core services” and “personal care services” were replaced with

4 the terms “basic services” and “personal services,” and Emeritus’s price schedules for various

5 services were replaced with BROOKDALE’s standardized personal services price schedule and

6 lists of select and therapeutic services. The parties agreed that except as otherwise amended, the

7 terms of the prior residency agreement would remain in full force and effect.

8

120. BROOKDALE has also prepared and periodically updated a Personal Service

9 Plan for Ms. CARLSON. Ms. CARLSON’s Personal Service Plan lists the type of staff

10 assistance that Ms. CARLSON requires and has agreed to pay for, along with the monthly fee

11 for each type of staff assistance. In addition, Ms. CARLSON has received and reviewed as

12 enclosures to BROOKDALE’s rate increase letters a personal service price schedule and list of

13 select and therapeutic services. These documents describe a variety of available services, list the

14 monthly or per-occurrence fee for each service, and detail how BROOKDALE’s caregivers or

15 other staff will provide the service. Every month, BROOKDALE sends Ms. CARLSON,

16 through JOAN CARLSON, an invoice for services that the company impliedly represents it will

17 provide in the following month. These invoices list the monthly rate for the basic services set

18 forth in BROOKDALE’s standardized residency agreements, the Personal Service Rate that is

19 based on Ms. CARLSON’s Personal Service Plan, and any rate adjustments.

20

121. Ms. CARLSON, through her legal representative and power of attorney JOAN

21 CARLSON, read and reasonably understood BROOKDALE’s representations—as well as

22 Emeritus’s representations in the agreement that was assigned to BROOKDALE and expressly

23 incorporated into BROOKDALE’s November 17, 2015 agreement with Ms. CARLSON—as

24 statements that BROOKDALE would perform assessments to determine needed services and

25 staff BROOKDALE Fountaingrove in a manner that would allow it to consistently provide the

26 services that BROOKDALE promised and that Ms. CARLSON was paying for.

27 Ms. CARLSON, through JOAN CARLSON, read and relied on these representations in making

28 the decision to stay at the facility despite the change in ownership.
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1

122. In December 2017, BROOKDALE told JOAN CARLSON that Ms. CARLSON

2 would need to move into the memory care section of BROOKDALE Fountaingrove. When Ms.

3 CARLSON moved, BROOKDALE presented JOAN CARLSON with a new RESIDENCY

4 AGREEMENT. On or about December 18, 2017, JOAN CARLSON read, reviewed, and signed

5 an agreement with BROOKDALE as Ms. CARLSON’s legal representative and power of

6 attorney. As part of this RESIDENCY AGREEMENT, BROOKDALE stated that “[i]n order to

7 provide you with care, supervision and assistance with instrumental activities of daily living in

8 order to meet your needs, we will provide you with the following Basic Services, which are

9 included in the Basic Service Rate,” which included, among other things, the room, three daily

10 meals and snacks on demand, weekly room cleaning, weekly laundry and linen service, planned

11 activities, transportation, observation, and the availability of staff “24 hours a day, seven days a

12 week.” This standard residency agreement also stated that:

13

[p]rior to moving in and periodically throughout your residency, we will use a

14

personal service assessment to determine the personal services you require. The

15

personal service assessment will be used to develop your Personal Service Plan.

16

The results of the assessment, our method for evaluating your personal care needs,

17

and the cost of providing the additional personal services (the “Personal Service

18

Rate”) will be shared with you.

19 The Personal Service Plan lists the types of staff assistance that Ms. CARLSON requires and has

20 agreed to pay for, along with the monthly fee for each type of staff assistance. In addition,

21 JOAN CARLSON has received and reviewed, as enclosures to BROOKDALE’s rate increase

22 letters, a personal service schedule and list of select and therapeutic services. These documents

23 describe a variety of available services, list the monthly or per-occurrence fee for each service,

24 and detail how BROOKDALE’s caregivers or other staff will provide the service.

25

123. Ms. CARLSON, through her legal representative and power of attorney, JOAN

26 CARLSON, read and reasonably understood BROOKDALE’s representations as statements that

27 BROOKDALE would perform assessments to determine needed services and staff

28 BROOKDALE Fountaingrove in a manner that would allow it to consistently provide the
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1 services and supervision that BROOKDALE promised she would receive in their memory care

2 unit and for which Ms. CARLSON was paying. Ms. CARLSON, through JOAN CARLSON,

3 relied on these representations in making the decision to move into the memory care unit of

4 BROOKDALE Fountaingrove. BROOKDALE has never disclosed to Ms. CARLSON or JOAN

5 CARLSON that its corporate policy and procedure of providing pre-determined staffing at its

6 facilities precludes BROOKDALE from providing the supervision, care and services residents

7 have been promised and places all residents at a substantial risk that they will not receive the

8 care and services they have paid for on any given day.

9

124. BROOKDALE currently charges Ms. CARLSON a Basic Service Rate of $5,290

10 per month, plus a Personal Service Rate of $4,173 per month and a Select and Therapeutic

11 Services rate of $105 per month, minus a loyalty credit of $529 per month. Ms. CARLSON’s

12 Personal Service Rate includes, among other things, a $580 monthly fee for staff assistance with

13 ordering, storing, and taking medications; a $811 monthly fee for staff assistance with dressing

14 and grooming; a $637 monthly fee for assistance with her oxygen and respiratory equipment; a

15 $1,507 monthly fee for help setting up, cleaning and assistance with nebulizer treatments; a $116

16 monthly fee for staff assistance with showering; a $927 monthly fee for staff assistance with

17 using the bathroom; a $522 monthly fee for staff assistance with accomplishing and/or

18 participating in daily routines due to memory loss or cognitive impairment; a $290 monthly fee

19 for help going to and from the dining room and/or community activities; and a $290 monthly fee

20 for “additional staff involvement because of demonstrating anxious, disruptive or obsessive

21 behavior requiring additional attention.” Ms. CARLSON also pays $100 per month for

22 incontinence supplies, which BROOKDALE represents its staff will order and stock.

23

125. Beginning in early 2016, JOAN CARLSON and her husband Ralph Carlson

24 began to observe a decline in the quality of care provided to Ms. CARLSON. On one occasion,

25 JOAN discovered that despite promising to fax certain paperwork to Ms. CARLSON’s primary

26 care physician in advance of a scheduled appointment, BROOKDALE’s staff never did so. In

27 addition, JOAN and Ralph CARLSON stopped receiving phone calls to notify them of

28 Ms. CARLSON’s injuries and other noteworthy incidents.
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1

126. In June 2016, Ms. CARLSON was admitted to the hospital after falling while

2 attempting to get out of bed. BROOKDALE’s staff failed to call JOAN or Ralph CARLSON,

3 even though they are listed as Ms. CARLSON’s emergency contacts. As a result,

4 Ms. CARLSON spent several hours in the emergency room without a family member present,

5 and she was charged for ambulance transport back to BROOKDALE Fountaingrove because no

6 family member was present to give her a ride.

7

127. In December 2016, Ms. CARLSON’s doctor took her off the blood thinner

8 Coumadin. Nonetheless, in January and February 2017, staff at BROOKDALE Fountaingrove

9 continued to order and stock Coumadin for Ms. CARLSON. BROOKDALE charged

10 Ms. CARLSON a monthly fee for staff assistance with ordering and storing medications, even

11 though BROOKDALE’s staff failed to adequately perform that service.

12

128. JOAN and Ralph CARLSON have also observed numerous failures by staff to

13 assist Ms. CARLSON with using the bathroom, even though Ms. CARLSON pays a monthly fee

14 for that service. In addition, even though Ms. CARLSON pays a monthly fee for staff to order

15 and stock incontinence products, she has often run out of such products because

16 BROOKDALE’s staff do not check whether supplies are running low or if orders need to be

17 adjusted.

18

129. Ms. CARLSON was unable to use the bathroom sink and kitchenette sink in her

19 previous suite because they are installed at a height that makes them inaccessible for wheelchair

20 users. Ms. CARLSON requires glasses to see and dentures to eat, but BROOKDALE staff

21 frequently misplace or lose these assistive devices.

22

130. JOAN and Ralph CARLSON have complained to managers at BROOKDALE

23 Fountaingrove about these problems on numerous occasions. Although BROOKDALE

24 management repeatedly reassured JOAN and Ralph CARLSON that BROOKDALE would

25 address their concerns, they did not see any improvement when Ms. CARLSON resided in

26 assisted living. Since Ms. CARLSON has resided at BROOKDALE Fountaingrove,

27 BROOKDALE has never disclosed that its staffing policies and procedures preclude it from

28 providing its residents all of the care and services they have been promised and places all
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1 residents at an inherent and substantial risk that they will not receive the care and services they

2 have paid for on any given day. If BROOKDALE had disclosed this material fact to JOAN

3 CARLSON early in Ms. CARLSON’s residency, she would have looked for another facility for

4 Ms. CARLSON and would have told BROOKDALE that Ms. CARLSON would not agree to

5 pay the rates charged by BROOKDALE.

6

131. In December 2017, BROOKDALE told JOAN and Ralph CARLSON that

7 HELEN CARLSON needed to move to memory care, and that she would receive additional

8 supervision and care if she moved to the memory care unit and paid additional

9 fees. BROOKDALE told them that if they did not move Ms. CARLSON into memory care at

10 BROOKDALE Fountaingrove, Ms. CARLSON would have to move out of Fountaingrove

11 entirely, and gave JOAN CARLSON only a little over a week to decide. Because of the short

12 time frame, JOAN CARLSON was unable to investigate whether there were comparable

13 facilities in the area that might have accepted Ms. CARLSON. JOAN CARLSON ultimately

14 felt she had no choice but to move Ms. CARLSON into the memory care unit at BROOKDALE

15 Fountaingrove. Her decision was based on BROOKDALE’s representations about additional

16 supervision and care, her fear that Ms. CARLSON would suffer severe trauma if she were to be

17 transferred to an entirely new facility, and the lack of time to investigate other options. In the

18 memory care unit, just as in assisted living, Ms. CARLSON is housed in a room with multiple

19 inaccessible features, including a sink, toilet, and closet that are not wheelchair-accessible.

20

Lawrence Quinlan

21

132. LAWRENCE QUINLAN stayed at the facility at BROOKDALE Hemet for

22 short-term respite on several occasions between 2013 and 2015. On approximately July 14,

23 2015, he was admitted to BROOKDALE Hemet for a “respite stay” following a hospitalization

24 and rehabilitation for a broken leg. On July 10, 2015, BROOKDALE gave his granddaughter,

25 LORESIA VALLETTE, a Residency Agreement for LAWRENCE QUINLAN. Ms.

26 VALLETTE read, reviewed, and signed the agreement with BROOKDALE on behalf of

27 LAWRENCE QUINLAN. BROOKDALE did not ask LAWRENCE QUINLAN whether he

28 could sign the document or whether LORESIA VALLETTE held Power of Attorney for him.
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1 BROOKDALE did not ask Ms. VALLETTE for documentation showing that she had the legal

2 authority to sign the Residency Agreement on behalf of LAWRENCE QUINLAN.

3

133. LAWRENCE QUINLAN left BROOKDALE Hemet for his home on or about

4 September 5, 2015. On September 13, 2015, he was re-admitted to BROOKDALE Hemet as a

5 long-term resident. Prior to LAWRENCE QUINLAN’s move-in, on or about September 13,

6 2015, BROOKDALE gave his son, Phillip Quinlan, a Residency Agreement for LAWRENCE

7 QUINLAN. Phillip Quinlan read, reviewed, and signed the agreement with BROOKDALE on

8 behalf of LAWRENCE QUINLAN. BROOKDALE did not ask LAWRENCE QUINLAN

9 whether he could sign the document or whether Phillip Quinlan held Power of Attorney for him.

10 BROOKDALE did not ask Phillip Quinlan for documentation showing that he had the legal

11 authority to sign the Residency Agreement on behalf of LAWRENCE QUINLAN. In fact, on

12 page 15 of the Residency Agreement, under his signature, Phillip Quinlan filled in the name and

13 contact information of his niece and LAWRENCE QUINLAN’s granddaughter, LORESIA

14 VALLETTE, under the section titled “LEGAL REPRESENTATIVE/RESPONSIBLE PARTY

15 ADDRESS.” In its Resident Information/Emergency Contact Sheet, BROOKDALE listed

16 LORESIA VALLETTE as Mr. QUINLAN’s “Legally Responsible Party” for both “Financial”

17 and “Health Care.”

18

134. As part of the “RESIDENCY AGREEMENT” provided first to Ms. VALLETTE

19 and then to Phillip Quinlan, BROOKDALE stated that “[i]n order to provide you with care,

20 supervision and assistance with instrumental activities of daily living in order to meet your

21 needs, we will provide you with the following Basic Services, which are included in the Basic

22 Service Rate.” These included, among other things, the room, three daily meals and snacks on

23 demand, weekly room cleaning, weekly laundry and linen service, planned activities,

24 transportation, observation, and the availability of staff “24 hours a day, seven days a week.”

25 This standard residency agreement also stated that:

26

[p]rior to moving in and periodically throughout your residency, we will use a

27

personal service assessment to determine the personal services you require. The

28

personal service assessment will be used to develop your Personal Service Plan.

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1

The results of the assessment, our method for evaluating your personal care

2

needs, and the cost of providing the additional personal services (the “Personal

3

Service Rate”) will be shared with you.

4 The Personal Service Plan listed the types of staff assistance that Mr. QUINLAN required and

5 had agreed to pay for, along with the monthly fee for each type of staff assistance.

6

135. Mr. QUINLAN’s son, Phillip Quinlan, and his granddaughter, LORESIA

7 VALLETTE, read the agreement on LAWRENCE QUINLAN’s behalf and reasonably

8 understood BROOKDALE’s representations as statements that BROOKDALE would perform

9 assessments to determine needed services and staff BROOKDALE Hemet in a manner that

10 would allow it to consistently provide the services that BROOKDALE promised and for which

11 Mr. QUINLAN was paying. Ms. VALLETTE and Phillip Quinlan relied on these

12 representations in making the decision to place Mr. QUINLAN at BROOKDALE Hemet and to

13 pay BROOKDALE the monthly fees from Mr. QUINLAN’s accounts. BROOKDALE did not

14 disclose to LAWRENCE QUINLAN, Phillip Quinlan, or LORESIA VALLETTE at any time

15 prior to his admission nor has it disclosed since that time that its corporate policy and procedure

16 of providing pre-determined staffing at its facilities precludes BROOKDALE from providing the

17 care and services residents have been promised and places all residents at a substantial risk that

18 they will not receive the care and services they have paid for on any given day. If

19 BROOKDALE had disclosed this material fact to LAWRENCE QUINLAN, Phillip Quinlan, or

20 LORESIA VALLETTE, they would have looked for another facility for Mr. QUINLAN and

21 would not have agreed to pay the rates charged by BROOKDALE from LAWRENCE

22 QUINLAN’s accounts.

23

136. Mr. QUINLAN is a wheelchair-user. He has right hemiparesis and aphasia due

24 to past strokes. He has mild dementia. During the time Mr. QUINLAN was a resident at

25 BROOKDALE Hemet, he required assistance with the following activities of daily living:

26 bathing, personal hygiene, dressing, laundry, housecleaning, taking medication, preparing meals,

27 toileting, and transfers to and from his wheelchair. During Mr. QUINLAN’s long-term stay at

28 BROOKDALE Hemet, he paid for but was not consistently provided that assistance.
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1

137. Although he was paying for assistance with laundry, dressing and showering, Mr.

2 QUINLAN’s granddaughter and son noticed that he smelled horrible and wore dirty clothing.

3 When Ms. VALLETTE asked BROOKDALE staff why Mr. QUINLAN smelled so bad, they

4 blamed him for refusing to take a shower. BROOKDALE then raised Mr. QUINLAN’s monthly

5 personal care rate by $700, even though they were not giving him the promised showers,

6 because he was “resistant.” Ms. VALLETTE requested that BROOKDALE’s staff call her if

7 Mr. QUINLAN refused to shower or change his clothing so that she could speak with her

8 grandfather and try to convince him to cooperate. BROOKDALE staff rarely called Ms.

9 VALLETTE, but the facility continued to charge Mr. QUINLAN a premium for showers and

10 dressing assistance they were not providing.

11

138. Over time, BROOKDALE continued to increase Mr. QUINLAN’s monthly care

12 rates, blaming his resistance to care. Ms. VALLETTE accepted the care rate increases with the

13 expectation that Mr. QUINLAN would actually receive the services for which BROOKDALE

14 was charging him. Despite the increased fees, BROOKDALE staff rarely provided the promised

15 assistance with showering, dressing or toileting to Mr. QUINLAN. Toward the end of Mr.

16 QUINLAN’s stay at BROOKDALE Hemet, the Executive Director told Ms. VALLETTE that

17 they would need to move Mr. QUINLAN to the memory care unit and take away his motorized

18 scooter in order to care for him. This would result in another increase in his monthly rate. In

19 April 2017, frustrated by BROOKDALE’s failure to provide the assistance her grandfather

20 needed and for which he was paying increasingly higher fees, Ms. VALLETTE told

21 BROOKDALE that Mr. QUINLAN would be moving out. Prior to the move-out date, Ms.

22 VALLETTE and Phillip Quinlan took Mr. QUINLAN to a physician’s office to get a

23 tuberculosis test. When he transferred out of his wheelchair, they saw that the seating pad was

24 soaked with urine and that the plastic was breaking down as a result. It was clear that neither the

25 seating pad nor Mr. QUINLAN had been washed for a very long time. Although Mr.

26 QUINLAN’s move-out date was scheduled for early May 2017, Ms. VALLETTE moved him

27 out on April 30, 2017. Mr. QUINLAN is a currently a resident of an unrelated assisted living

28 facility in Riverside, California.
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1

Edward Boris

2

139. EDWARD BORIS was a resident at BROOKDALE Fountaingrove’s assisted

3 living facility from approximately September 10, 2015 to approximately July 21, 2016. On or

4 about September 10, 2015, EDWARD BORIS’s daughter MICHELE LYTLE, read, reviewed,

5 and signed a “RESIDENCY AGREEMENT” with BROOKDALE as EDWARD BORIS’s legal

6 representative and power of attorney. As part of this “RESIDENCY AGREEMENT,”

7 BROOKDALE stated that “[i]n order to provide you with care, supervision and assistance with

8 instrumental activities of daily living in order to meet your needs, we will provide you with the

9 following Basic Services, which are included in the Basic Service Rate.” These included,

10 among other things, the room, three daily meals, planned activities, transportation, and the

11 availability of staff “24 hours a day, seven days a week.” This standard residency agreement

12 also stated that:

13

[p]rior to moving in and periodically throughout your residency, we will use a personal

14

service assessment to determine the personal services you require. The personal service

15

assessment will be used to develop your Personal Service Plan. The results of the

16

assessment, our method for evaluating your personal care needs, and the cost of providing

17

the additional personal service (the “Personal Service Rate”) will be shared with you.

18

140. Among the personal services Mr. BORIS required and agreed to pay for were

19 catheter care, changing, and emptying; toileting assistance; assistance going to and from the

20 dining room and other activities; medication administration; pharmacy services, including

21 medication pick-up; assistance bathing; and application of topical anti-fungal medication. On

22 top of a $4,545 monthly Basic Service Rate, BROOKDALE charged Mr. BORIS a $2,697

23 monthly personal service fee. In addition to the residency agreement’s promises of adequate

24 care and service provision, Ms. LYTLE received and reviewed a variety of rate increase letters

25 and invoices that listed the fees for services BROOKDALE agreed its caregivers and other staff

26 would provide to Mr. BORIS. Mr. BORIS, through his legal representative and power of

27 attorney, MICHELE LYTLE, read and reasonably understood BROOKDALE’s representations

28 as statements that BROOKDALE would perform assessments to determine needed services and
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1 staff BROOKDALE Fountaingrove in a manner that would allow it to consistently provide the

2 services that BROOKDALE promised and for which Mr. BORIS was paying. Mr. BORIS,

3 through MICHELE LYTLE, relied on these representations in making the decision to enter

4 BROOKDALE Fountaingrove and to pay BROOKDALE the monthly fees it charged him.

5

141. BROOKDALE did not disclose to Mr. BORIS or his legal representative at any

6 time prior to his admission nor has it disclosed since that time that its corporate policy and

7 procedure of providing pre-determined staffing at its facilities precludes BROOKDALE from

8 providing the care and services residents have been promised and places all residents at a

9 substantial risk that they will not receive the care and services they have paid for on any given

10 day. If BROOKDALE had disclosed this material fact to Mr. BORIS or his legal representative

11 prior to or early in his residency, they would have looked for another facility for Mr. BORIS and

12 would not have agreed to pay the rates charged by BROOKDALE.

13

142. BROOKDALE staff failed to regularly monitor Mr. BORIS’s catheter, even

14 though Mr. BORIS required and paid for that service. On one occasion in May 2016, Mr.

15 BORIS’s catheter overflowed, disconnected, and spilled urine all over his room. On July 20,

16 2016, Mr. BORIS’s catheter developed a blockage, but BROOKDALE’s staff failed to identify

17 or address the problem for about 24 hours. Mr. BORIS’s girlfriend, who visited Mr. BORIS at

18 BROOKDALE Fountaingrove on the evening of July 20, noticed blood in the catheter bag and

19 reported it to BROOKDALE’s staff. Staff came to Mr. BORIS’s room, but they were rushed,

20 failed to identify the blockage, and did nothing to assist Mr. BORIS. Instead, they told Mr.

21 BORIS’s girlfriend not to worry. The next day, Mr. BORIS was in extreme pain; there was still

22 a blockage and very little urine appeared in the catheter bag. Mr. BORIS’s condition continued

23 to deteriorate and eventually his girlfriend took him to a local hospital, where doctors diagnosed

24 the blocked catheter. As a result of the blockage, Mr. BORIS suffered a urinary tract infection

25 and kidney failure, and had to stay in intensive care for several days. After his discharge from

26 the hospital, Mr. BORIS’s condition was so bad that he had to be transferred out of assisted

27 living and into skilled nursing.

28

143. Aware that BROOKDALE’s failure to adequately provide the care and services it

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1 had promised contributed to Mr. BORIS’s declining health, Ms. LYTLE sought to move him out

2 of BROOKDALE’s custody. Ms. LYTLE conducted significant research and held onsite

3 interviews with at least three other skilled nursing facilities. However, because Mr. BORIS’s

4 condition had deteriorated so significantly, she was unable to find any facility willing to accept

5 Mr. BORIS as a resident. Thus, the same inadequate care that contributed to Mr. BORIS’s

6 illness prevented Ms. LYTLE from moving Mr. BORIS into a different facility.

7

144. From February 2016 through the end of his time in BROOKDALE’s assisted

8 living facility, Mr. BORIS had a recurring fungal infection on his legs and in his groin area. His

9 doctor ordered him to keep the area clean and apply a topical medication twice a day. Even

10 though Mr. BORIS paid thousands of dollars per month for necessary personal services,

11 including help with bathing and administering medications, BROOKDALE staff failed to bathe

12 Mr. BORIS or apply his topical medication regularly. As a result, the infection persisted for

13 months. At times, the infected area was bloody and emitted a foul odor that pervaded Mr.

14 BORIS’s room.

15

145. Mr. BORIS takes a blood thinning medication as well as several other

16 medications. When he was in assisted living at BROOKDALE Fountaingrove, he paid $726 per

17 month for staff assistance with ordering, storing, and administering his medications, but

18 BROOKDALE staff regularly failed to perform these tasks. At one point in May 2016,

19 BROOKDALE staff failed to give Mr. BORIS his blood thinning medication for three days

20 straight. The problem was discovered only after Mr. BORIS’s girlfriend noticed the lapse. On

21 several other occasions, staff failed to refill Mr. BORIS’s prescriptions, so his girlfriend had to

22 pick them up herself. One time, Mr. BORIS’s medication for his fungal infection ran out and

23 staff failed to replace it for several days.

24

146. One of the main reasons MICHELE LYTLE sought out an assisted living facility

25 for her father was that Mr. BORIS needed regular staff assistance to prevent and respond to falls.

26 However, on numerous occasions during his stay in the BROOKDALE Fountaingrove assisted

27 living facility, Mr. BORIS fell in his room and was left on the ground for extended periods of

28 time because the facility was so understaffed employees could not regularly check on him.
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1 When Ms. LYTLE reported this problem to staff at BROOKDALE Fountaingrove, they

2 dismissed the falls as minor even though Mr. BORIS had bruises on his body. Other times, even

3 though BROOKDALE had agreed to provide Mr. BORIS with toileting assistance multiple

4 times per day and charged him a substantial monthly fee for that service, he was left sitting in

5 his own feces because BROOKDALE staff failed to check on him or help him use the bathroom.

6 When he resided in assisted living, Mr. BORIS had difficulty getting around on his own, even

7 with the assistance of a walker or wheelchair. He is also very introverted. As a result, he

8 seldom left his room for meals unless prompted by staff. Although BROOKDALE charged Mr.

9 BORIS a monthly fee for help going to and from the dining room, staff frequently failed to

10 prompt Mr. BORIS at mealtimes or bring him food from the dining room, so he often missed

11 meals. BROOKDALE charged Mr. BORIS $5 per meal when meals were supposedly brought

12 to his room. However, when Ms. LYTLE asked BROOKDALE staff how often her father had

13 been eating, they were unable to answer. Because BROOKDALE often failed to prompt Mr.

14 BORIS to attend meals or to supply them in his room, Mr. BORIS relied on his girlfriend to take

15 prepared food to him.

16

147. Even though BROOKDALE promises weekly laundry service in its residency

17 agreement, staff frequently failed to wash Mr. BORIS’s clothes and laundry on a weekly basis.

18 In addition, staff often dumped Mr. BORIS’s clean laundry in a pile in his room, even though he

19 was not capable of putting it away himself. MICHELE LYTLE brought these problems to the

20 attention of managers at BROOKDALE Fountaingrove. BROOKDALE management assured

21 Ms. LYTLE that they were working to address her concerns, but she never saw significant

22 improvement during the time that Mr. Boris resided in assisted living. Mr. BORIS ultimately

23 had to move out of assisted living precisely because of a serious infection he developed due to

24 BROOKDALE staff’s failure to monitor his catheter. BROOKDALE has never disclosed to Mr.

25 BORIS or Ms. LYTLE that its staffing policies and procedures preclude it from consistently

26 providing its residents the care and services they have been promised and places all residents in

27 an inherent and substantial risk that they will not receive the care and services they have paid for

28 on any given day. However, several low-level, non-managerial BROOKDALE employees
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1 admitted to Ms. LYTLE that the BROOKDALE Fountaingrove assisted living facility was

2 understaffed, that caregivers’ hours were being cut, and that they did not have enough time or

3 resources to adequately attend to Mr. BORIS and the other residents.

4

Ralph Schmidt

5

148. RALPH SCHMIDT is 53 years old, is blind, and has significant cognitive

6 impairments, including short-term memory loss. Both his blindness and cognitive impairments

7 are the result of a traumatic brain injury suffered more than 20 years ago. Mr. SCHMIDT has a

8 court-appointed conservator who manages his financial, medical, and legal affairs. He needs

9 assistance with the following activities of daily living: housekeeping, laundry, navigating when

10 outside of his dwelling, preparing nutritious meals, and transportation.

11

149. RALPH SCHMIDT was a resident at the assisted living facility currently known

12 as BROOKDALE Tracy from approximately September 2011 to October 30, 2017. The

13 BROOKDALE Tracy facility was operated by Emeritus when Mr. SCHMIDT moved in.

14 However, BROOKDALE took over operation of the facility following its merger with Emeritus.

15

150. In or about April 2014, Emeritus announced that it would merge with

16 BROOKDALE. At the time of the merger, Mr. SCHMIDT’s then-conservator and legal

17 representative, Ms. Gallagher, had no reason to believe that the care Mr. SCHMIDT would

18 receive from BROOKDALE would be any worse than the care he had received under Emeritus.

19 BROOKDALE did not inform Mr. SCHMIDT or his conservator nor did they have any reason

20 to believe that BROOKDALE would not staff the facility with sufficient staff in numbers and

21 training to provide the services for which Mr. SCHMIDT and the other residents were paying.

22

151. After taking over operations at the Tracy assisted living facility, BROOKDALE,

23 on or about July 5, 2016, required Ms. Gallagher, Ms. FISHER’s predecessor as RALPH

24 SCHMIDT’s conservator, to execute an updated Residency Agreement with BROOKDALE on

25 Mr. SCHMIDT’s behalf. As part of this “RESIDENCY AGREEMENT,” BROOKDALE stated

26 that “[i]n order to provide you with care, supervision and assistance with instrumental activities

27 of daily living in order to meet your needs, we will provide you with the following Basic

28 Services, which are included in the Basic Service Rate.” These included, among other things,
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1 the room, three daily meals, housekeeping, laundry and linen service, planned social activities,

2 transportation, and the availability of staff “24 hours a day, seven days a week.” This standard

3 residency agreement also stated that:

4

[p]rior to moving in and periodically throughout your residency, we will use a personal

5

service assessment to determine the personal services you require. The personal service

6

assessment will be used to develop your Personal Service Plan. The results of the

7

assessment, our method for evaluating your personal care needs, and the cost of providing

8

the additional personal service (the “Personal Service Rate”) will be shared with you.

9 Among the personal services Mr. SCHMIDT required were assistance navigating from his

10 second-floor room to the dining room at meal times and to other community spaces, prompts to

11 engage in community and social activities, and medication management. In exchange for these

12 necessary services, as of July 2016, Mr. SCHMIDT payed a monthly fee of over $1,000 in

13 addition to his basic service rate.

14

152. Mr. SCHMIDT, through his conservator, read and reasonably understood

15 BROOKDALE’s representations as statements that BROOKDALE would perform assessments

16 to determine needed services and staff BROOKDALE Tracy in a manner that would allow it to

17 consistently provide the services that BROOKDALE promised and for which Mr. SCHMIDT

18 was paying. Mr. SCHMIDT, through his conservator, relied on these representations in making

19 the decision to remain at BROOKDALE Tracy and to pay BROOKDALE the monthly fees it

20 charged him. BROOKDALE did not disclose to Mr. SCHMIDT or his legal representative at

21 any time that its corporate policy and procedure of providing pre-determined staffing at its

22 facilities precludes BROOKDALE from providing the care and services residents have been

23 promised and places all residents at a substantial risk that they will not receive the care and

24 services they have paid for on any given day. If BROOKDALE had disclosed this material fact

25 to Mr. SCHMIDT or his legal representative, they would have looked much sooner for another

26 facility for Mr. SCHMIDT and would not have agreed to pay the rates charged by

27 BROOKDALE from Mr. SCHMIDT’s estate’s funds.

28

153. During his time with BROOKDALE, Mr. SCHMIDT lived in a second-floor

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1 room. Because of his blindness, short-term memory loss, and other cognitive impairments,

2 Mr. SCHMIDT was unable to navigate to the dining room or other public areas from the second

3 floor, which would have required him to use stairs or operate an elevator. Placement on the

4 second floor caused Mr. SCHMIDT to require the assistance of BROOKDALE staff for escort

5 services he would not have needed had he been on the first floor, and BROOKDALE mandated

6 that Mr. SCHMIDT pay for the escort services he received. Thus the second-floor placement

7 both unnecessarily reduced Mr. SCHMIDT’s autonomy and increased the fees he paid to

8 BROOKDALE. A first-floor room would have provided Mr. SCHMIDT greater autonomy and

9 would have reduced BROOKDALE’s charges for escort services. However, when Ms.

10 Gallagher asked if Mr. SCHMIDT could be moved to an apartment that would accommodate his

11 needs, BROOKDALE responded that a first-floor room would be more expensive and would

12 thus negate any savings from the elimination of escort fees.

13

154. Because Mr. SCHMIDT required staff assistance to navigate from his second-

14 floor room to the dining room and other common areas, he frequently waited for staff to come

15 and assist him. Mr. SCHMIDT used a call button to summon an escort for each meal and

16 typically waited twenty to thirty minutes before a BROOKDALE staff member would arrive.

17 Mr. SCHMIDT faced similarly lengthy waits when he wanted to return to his room. These waits

18 greatly frustrated Mr. SCHMIDT.

19

155. BROOKDALE responded to Mr. SCHMIDT’s frustration and need for

20 appropriate accommodations in shockingly inappropriate ways. Professing to be concerned that

21 Mr. SCHMIDT might harm someone with his tapping cane, BROOKDALE staff once took it

22 away from him for several weeks. This rendered Mr. SCHMIDT unable to safely navigate

23 around even the first floor of the BROOKDALE Tracy facility. BROOKDALE staff did not

24 return Mr. SCHMIDT’s tapping cane until his conservator personally intervened. On other

25 occasions, BROOKDALE staff failed to provide Mr. SCHMIDT with a tapping cane or notify

26 his conservator of his need for one when his previous cane was broken and unusable.

27 BROOKDALE’s response to Mr. SCHMIDT’s frustration with slow staff responses to calls for

28 assistance simply rendered Mr. SCHMIDT more dependent on BROOKDALE staff.
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1

156. Several times during Mr. SCHMIDT’s years at BROOKDALE, he formed

2 relationships with other residents who would assist him in navigating from his apartment to the

3 dining room at meals times. During these periods in which Mr. SCHMIDT had the assistance of

4 other residents, he did not rely on BROOKDALE staff as frequently for escort services.

5 Nevertheless, BROOKDALE continued to charge Mr. SCHMIDT the same escort fee.

6

157. Because of his short-term memory loss and other cognitive impairments, Mr.

7 SCHMIDT occasionally lost the key to the door of his apartment during his time at

8 BROOKDALE Tracy. On one occasion, rather than replace his key, BROOKDALE staff gave

9 Mr. SCHMIDT a blank, uncut key, and told him that it was the key to his apartment. Mr.

10 SCHMIDT believed what BROOKDALE staff told him and could not understand why the key

11 would not unlock his door. This caused Mr. SCHMIDT great distress and made him

12 unnecessarily reliant on BROOKDALE staff to open his apartment door when he wanted to

13 enter his room.

14

158. On several occasions the toilet in Mr. SCHMIDT’s apartment overflowed.

15 BROOKDALE responded by locking Mr. SCHMIDT out of the bathroom in his apartment

16 altogether. Rather than fix the problems with the toilet, BROOKDALE gave Mr. SCHMIDT,

17 via his conservator, HEATHER FISHER, the option of a portable toilet in Mr. SCHMIDT’s

18 room or paying for a full-time personal caretaker at the additional cost of $250 per day. Mr.

19 SCHMIDT’s estate was unable to bear the expense of a full-time personal caretaker, so Ms.

20 FISHER reluctantly accepted the option of a portable toilet. However, BROOKDALE failed to

21 regularly empty the toilet, which caused Mr. SCHMIDT’s room to have an unpleasant odor. Mr.

22 SCHMIDT responded by routinely emptying the portable toilet himself, directly onto the roof

23 outside of his window. Aware of the problem and Mr. SCHMIDT’s response, BROOKDALE

24 failed to remove fecal matter sitting just outside of Mr. SCHMIDT’s window.

25

159. Mr. SCHMIDT also disliked using the portable toilet as he found it too small for

26 him to comfortably sit on. He would have preferred to use a toilet outside of his room, but staff

27 responded so slowly to his call button that calling for an escort to a bathroom was not a realistic

28 option. On one occasion, he pressed his call button to use the bathroom around 11:00 p.m., and
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1 no staff member ever responded.

2

160. Denial of access to his bathroom also meant that Mr. SCHMIDT could not

3 shower without the assistance of BROOKDALE staff. Having locked him out of his bathroom,

4 BROOKDALE staff allowed Mr. SCHMIDT to shower only twice per week, usually at night.

5 This too distressed Mr. SCHMIDT, as he preferred to shower more frequently and to do so in

6 the morning. Moreover, if Mr. SCHMIDT was engaged in an activity and declined to shower at

7 the moment the opportunity was offered, he could shower only once per week.

8

161. Although BROOKDALE promised to provide housekeeping among its basic

9 services, Mr. SCHMIDT’s apartment was not well cared for and was rarely clean. His carpets

10 were covered with stains and frequently dirty. The windows to his room had no blinds, and the

11 screens had been almost completely torn off. Before BROOKDALE locked Mr. SCHMIDT out

12 of the bathroom in his apartment, BROOKDALE also failed to keep it clean. The bathroom was

13 frequently dirty and unhygienic.

14

Art Lindstrom

15

162. ART LINDSTROM was a resident of BROOKDALE Scotts Valley from

16 approximately November 2015 until his death on February 23, 2018. His wife, PAT

17 LINDSTROM, has also been a resident of BROOKDALE Scotts Valley from approximately

18 November 2015 and remains a resident of the facility. On or about October 31, 2015, ART

19 LINDSTROM and his wife PAT LINDSTROM read, reviewed, and signed a “RESIDENCY

20 AGREEMENT” with BROOKDALE. As part of this “RESIDENCY AGREEMENT,”

21 BROOKDALE stated that “[i]n order to provide you with care, supervision and assistance with

22 instrumental activities of daily living in order to meet your needs, we will provide you with the

23 following Basic Services, which are included in the Basic Service Rate.” These included,

24 among other things, the room, three daily meals, planned activities, transportation, ongoing

25 observation and consultation regarding social and health care needs, and the availability of staff

26 “24 hours a day, seven days a week.”

27

163. BROOKDALE also provided a standard form further elaborating on the

28 “Services and Care Covered by [the] Basic Service Rate.” These services and care described
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1 included “housekeeping,” “routine wellness monitoring,” “consultation with [a] Brookdale

2 clinical team,” and “signature dining programs with nutritious meals and snacks planned by a

3 registered dietician.”

4

164. Mr. and Ms. LINDSTROM read and reasonably understood BROOKDALE’s

5 representations in the RESIDENCY AGREEMENT and other standard documents as statements

6 that BROOKDALE would staff the Scotts Valley facility in a manner that would allow it to

7 consistently provide them with the care, supervision and assistance they needed and for which

8 they were paying BROOKDALE, which included the services and care covered by the Basic

9 Service Rate. Mr. and Ms. LINDSTROM relied on these representations in making the decision

10 to enter BROOKDALE Scotts Valley. BROOKDALE did not disclose to Mr. and Ms.

11 LINDSTROM at any time prior to their admission nor has it disclosed since that time that its

12 corporate policy and procedure of providing predetermined staffing at its facilities precludes

13 BROOKDALE from providing the care and services residents have been promised and places all

14 residents at a substantial risk that they will not receive the care and services they have paid for

15 on any given day. If BROOKDALE had disclosed this material fact to Mr. and Ms.

16 LINDSTROM prior to or early in their residency, they would have looked for another facility

17 and would not have agreed to pay the rates charged by BROOKDALE.

18

165. When Mr. and Ms. LINDSTROM moved in to BROOKDALE, their “basic

19 service rate” was approximately $5,900 per month plus an additional $400 monthly second-

20 resident fee. In addition to these recurring charges, Mr. and Ms. LINDSTROM were made to

21 pay move-in fees totaling more than $8,000. When Mr. and Ms. LINDSTROM moved from

22 their initial two-bedroom suite into a studio apartment, their rate decreased to $4,295 per month

23 plus the $400 monthly second-resident fee.

24

166. During his residency at BROOKDALE Scotts Valley, Mr. LINDSTROM was

25 diabetic; used a cane to walk; suffered from kidney failure, heart disease, and sleep apnea; had a

26 dementia-related cognitive impairment; and had difficulty controlling his weight. He required

27 assistance with the following activities of daily living: bathing, shaving, administration of

28 medication, dressing, laundry, and preparing nutritious meals. Because Mr. and Ms.
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1 LINDSTROM could not afford the additional care fees related to many of these activities, Ms.

2 LINDSTROM assisted Mr. LINDSTROM with most of these tasks. However, Mr. and Ms.

3 LINDSTROM sought and BROOKDALE promised to provide assistance with preparing

4 nutritious meals and snacks planned by a registered dietician and to personally assess and

5 provide necessary health and social services. These promises were among the principal reasons

6 Mr. and Ms. LINDSTROM decided to live at BROOKDALE Scotts Valley. Although

7 BROOKDALE promised to prepare meals appropriate for Mr. LINDSTROM’s personal

8 condition as part of its basic services, it failed to do so.

9

167. After they moved in to BROOKDALE Scotts Valley, Mr. and Ms. LINDSTROM

10 discovered that there was no registered dietician on staff to make sure Mr. LINDSTROM

11 received meals appropriate for his condition. Mr. and Ms. LINDSTROM also discovered that

12 BROOKDALE’s policy and practice of understaffing prevented kitchen staff from preparing and

13 serving Mr. LINDSTROM meals appropriate for someone with diabetes. Because there were

14 too few staff to pay attention to individual residents’ dietary needs, those who were unfamiliar

15 with Mr. LINDSTROM’s condition and personal health requirements often served him

16 oversized portions of foods unsuitable for a diabetic when they noticed he was a large man.

17 Mr. LINDSTROM’s cognitive impairment made it especially difficult for him to resist tempting

18 but unhealthy food once it was on his plate.

19

168. The lack of adequate staffing left Mr. LINDSTROM without the individualized

20 nutritional attention and assistance he required. As a result, after moving into BROOKDALE,

21 Mr. LINDSTROM gained 20 pounds, which exacerbated his difficulty walking and put him at

22 increased risk of complications from diabetes. Because his dementia was also exacerbated by

23 his diabetes, Mr. LINDSTROM’s cognitive decline may have accelerated.

24

169. When the Mr. and Ms. LINDSTROM moved in to BROOKDALE Scotts Valley,

25 there was an onsite physical therapist available to advise and assist residents with recovery from

26 injuries. The availability of a physical therapist was attractive to Mr. and Mrs. LINDSTROM,

27 and they relied on BROOKDALE’s representation that the onsite physical therapist would be

28 available to them. They also understood that BROOKDALE’s promise to provide continuous
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1 monitoring and consultation on health would include keeping an onsite physical therapist on

2 staff.

3

170. Approximately six months after Mr. and Ms. LINDSTROM arrived at

4 BROOKDALE Scotts Valley, however, the physical therapist left, and BROOKDALE has failed

5 to hire a replacement. After entering BROOKDALE, Mr. LINDSTROM suffered a knee injury

6 and would have used the onsite physical therapist’s services during his recovery had that been an

7 option. Instead, Mr. LINDSTROM had to seek less convenient physical therapy services outside

8 of the BROOKDALE facility.

9

Bernie Jestrabek-Hart

10

171. BERNIE JESTRABEK-HART has been a resident of BROOKDALE Scotts

11 Valley since approximately October 17, 2015. On or about September 30, 2015, BERNIE

12 JESTRABEK-HART read, reviewed, and signed a “RESIDENCY AGREEMENT” with

13 BROOKDALE. As part of this “RESIDENCY AGREEMENT,” BROOKDALE stated that

14 “[i]n order to provide you with care, supervision and assistance with instrumental activities of

15 daily living in order to meet your needs, we will provide you with the following Basic Services,

16 which are included in the Basic Service Rate.” These included, among other things, the room,

17 three daily meals, planned activities, transportation, and the availability of staff “24 hours a day,

18 seven days a week.” This standard residency agreement also stated that:

19

[p]rior to moving in and periodically throughout your residency, we will use a personal

20

service assessment to determine the personal services you require. The personal service

21

assessment will be used to develop your Personal Service Plan. The results of the

22

assessment, our method for evaluating your personal care needs, and the cost of

23

providing the additional personal service (the “Personal Service Rate”) will be shared

24

with you.

25 The Personal Service Plan lists the types of staff assistance that Ms. JESTRABEK-HART

26 requires and has agreed to pay for, along with the monthly fee for each type of staff assistance.

27 Ms. JESTRABEK-HART has also received and reviewed a variety of rate increase letters and

28 invoices that list the fees for services BROOKDALE agreed its caregivers and other staff would
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1 provide to her.

2

172. Ms. JESTRABEK-HART read and reasonably understood BROOKDALE’s

3 representations in the RESIDENCY AGREEMENT, invoices and rate increase letters as

4 statements that BROOKDALE would perform assessments to determine needed services and

5 staff BROOKDALE Scotts Valley in a manner that would allow it to consistently provide the

6 services that BROOKDALE promised and for which Ms. JESTRABEK-HART was paying.

7 Ms. JESTRABEK-HART relied on these representations in making the decision to enter

8 BROOKDALE Scotts Valley. BROOKDALE did not disclose to Ms. JESTRABEK-HART at

9 any time prior to her admission nor has it disclosed since that time that its corporate policy and

10 procedure of providing predetermined staffing at its facilities precludes BROOKDALE from

11 providing the care and services residents have been promised and places all residents at a

12 substantial risk that they will not receive the care and services they have paid for on any given

13 day. If BROOKDALE had disclosed this material fact to Ms. JESTRABEK-HART prior to or

14 early in her residency, she would have looked for another facility and would not have agreed to

15 pay the rates charged by BROOKDALE.

16

173. When Ms. JESTRABEK-HART moved in to BROOKDALE, her “basic service

17 rate” was approximately $3,700 per month. In addition, Ms. JESTRABEK-HART would pay a

18 monthly fee of $750 for assistance showering at least four times per week and daily dressing and

19 undressing. These personal care services were among the principal reasons Ms. JESTRABEK-

20 HART sought to live in an assisted-living setting. Over and above these monthly payments,

21 BROOKDALE required Ms. JESTRABEK-HART to pay approximately $1,350 in move-in

22 fees.

23

174. Despite these hefty monthly rates and move-in fees, BROOKDALE began to

24 increase Ms. JESTRABEK-HART’s basic service rate just months after her arrival and at least

25 annually thereafter. By January 2018, BROOKDALE had increased Ms. JESTRABEK-HART’s

26 basic service rate to $4,477, a 21% increase above her initial rate of $3,700 in just over two

27 years. In January 2018, BROOKDALE increased Ms. JESTRABEK-HART’s fee for assistance

28 with dressing and showering from $750 to $834 per month, an 11.2% increase.
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1

175. Ms. JESTRABEK-HART uses an electric wheelchair and cane for mobility, and

2 many common areas at BROOKDALE Scotts Valley are difficult or dangerous for her and

3 others with mobility disabilities to access. A number of doors that connect common indoor

4 space to outdoor courtyards are heavy and difficult to open. Several doors to laundry rooms and

5 bathrooms in common spaces are also heavy and difficult to open. Attempting to open these

6 doors is dangerous for Ms. JESTRABEK-HART, as the weight of the door could injure her

7 directly or cause her to fall.

8

176. Lack of safety precautions in laundry rooms at BROOKDALE Scotts Valley

9 present unreasonable risk to residents with mobility disabilities. On one occasion, Ms.

10 JESTRABEK-HART tripped getting up from her wheelchair and fell onto the floor of the

11 laundry room. This laundry room is in a secluded corner of the facility enclosed by a heavy door

12 and lacks emergency pull cords for residents to use in case of a fall. Accordingly, Ms.

13 JESTRABEK-HART had no way to summon help. Fortunately, another individual whom Ms.

14 JESTRABEK-HART believes to have been a resident was nearby and found Ms. JESTRABEK-

15 HART on the floor. Ms. JESTRABEK-HART informed BROOKDALE of the need for

16 emergency pull cords in the laundry after her fall, but BROOKDALE has taken no action.

17 Ms. JESTRABEK-HART continues to do her own laundry. BROOKDALE’s failure to remedy

18 the dangerous conditions in the laundry rooms at BROOKDALE Scotts Valley puts Ms.

19 JESTRABEK-HART at continuing risk of serious injury.

20

177. Ms. JESTRABEK-HART enjoys getting out of the BROOKDALE Scotts Valley

21 facility and participating in off-site activities. She had been able to take her electric wheelchair

22 on a bus provided by her previous assisted-living residence. Prior to moving into

23 BROOKDALE Scotts Valley, Ms. JESTRABECK-HART looked at BROOKDALE’s website

24 and saw that BROOKDALE offered free bus transportation to doctor’s visits, social outings and

25 other offsite activities. That service was among the major selling points for Ms. JESTRABEK-

26 HART, and she relied on BROOKDALE’s representations that she would be able to participate

27 in outings on the bus. After moving in, she was surprised to learn that the transportation

28 schedule was very limited and that BROOKDALE would not allow her to take her electric
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1 wheelchair on the bus. Her electric wheelchair is Ms. JESTRABEK-HART’s primary means of

2 personal transportation and is necessary for her to participate on shopping trips and other outings

3 that require mobility upon arrival. BROOKDALE has proposed that Ms. JESTRABEK-HART

4 use a non-motorized wheelchair on these outings, but that would leave Ms. JESTRABEK-HART

5 stranded upon arrival because she needs an electric wheelchair for mobility.

6

178. BROOKDALE’s understaffing and failure to plan for emergencies has also

7 negatively affected Ms. JESTRABEK-HART. On one occasion, a power outage caused the

8 elevators to cease to function, stranding Ms. JESTRABEK-HART, whose room is on the

9 facility’s second floor, on a lower level. BROOKDALE staff helped some residents get up to

10 their rooms, but were unable to help Ms. JESTRABEK-HART and other residents who are

11 wheelchair users. She and other residents with mobility disabilities waited for three to four

12 hours before firefighters arrived to assist those who could not walk up the stairs. Because of

13 BROOKDALE’s inadequate staffing and emergency planning, many residents were stranded

14 away from their rooms late into the night.

15

179. While the power was out, Ms. JESTRABEK-HART was unable to use her

16 continuous positive airway pressure (“CPAP”) machine, which she requires to sleep due to sleep

17 apnea. BROOKDALE Scotts Valley had only one electrical outlet that was generator-powered,

18 which was located on the first floor near the nurse’s office. As a result, the outlet was not

19 accessible to Ms. JESTRABEK-HART. BROOKDALE staff did not attempt to connect

20 Ms. JESTRABEK-HART’s CPAP machine to a generator-powered outlet.

21

180. While Ms. JESTRABEK-HART does not require assistance to get to and from

22 meals, she has witnessed those who do need assistance wait for long periods before a staff

23 member is available to help. On one occasion, Ms. JESTRABEK-HART and others waited with

24 a resident who was left in the lunchroom for over an hour and a half following the end of the

25 meal before she received the assistance she needed to return to her room.

26

181. Ms. JESTRABEK-HART requires assistance with dressing and bathing and

27 currently pays BROOKDALE $834 per month for these services. When deciding whether to

28 move in to BROOKDALE Scotts Valley, among the items most important to Ms. JESTRABEK-
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1 HART was that she receive assistance showering at least four times per week, and she relied on

2 BROOKDALE’s representation that it would be able to meet this need. Ms. JESTRABEK-

3 HART usually informs BROOKDALE staff after dinner that she is ready to shower. She

4 frequently waits for two to three hours before a staff member can assist her. On multiple

5 occasions, Ms. JESTRABEK-HART has waited so long that she has gone to sleep only to be

6 awakened by a staff member who has finally come to provide the necessary assistance. Other

7 times, BROOKDALE has canceled a previously scheduled shower altogether.

8

182. With respect to assistance dressing, Ms. JESTREBEK-HART has asked for

9 BROOKDALE staff to come to help her around the time she wakes at 7:00 a.m. Often,

10 however, she will wait until 8:30 a.m. or 9:00 a.m. before staff arrive to assist her. Similarly,

11 she often waits for long periods for assistance undressing in the evenings. On several occasions

12 when help has not come, Ms. JESTREBEK-HART has slept in her clothes and shoes, which can

13 cause pain in her feet and make it otherwise difficult to get comfortable. BROOKDALE staff

14 has told her, often in the evening around 8:30 p.m. and sometimes in the morning around 7:00

15 a.m., that these delays occur because only one staff member is on duty to meet the needs of 150

16 residents. 17

CLASS ALLEGATIONS

18

183. The named Plaintiffs bring this action on behalf of themselves and all persons

19 similarly situated and seek class certification pursuant to Federal Rule of Civil Procedure

20 23(b)(2) and/or (b)(3) as set forth below.

21

184. Class Definitions.

22

Plaintiffs STACIA STINER, HELEN CARLSON, LAWRENCE QUINLAN; EDWARD

23 BORIS; RALPH SCHMIDT; PATRICIA LINDSTROM as successor-in-interest to the Estate of

24 ARTHUR LINDSTROM; and BERNIE JESTRABEK-HART seek to represent the following

25 three classes:

26

RESIDENTS WITH MOBILITY OR VISUAL DISABILITIES CLASS: All persons with

27

disabilities who use wheelchairs, scooters, canes or other mobility aids or who have visual

28

disabilities and who reside or have resided at a residential care facility for the elderly

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1

located in California and owned, operated and/or managed by BROOKDALE during the

2

CLASS PERIOD, including their successors-in-interest if deceased.

3

RESIDENTS WITH DISABILITIES CLASS: All persons with disabilities who require

4

assistance with activities of daily living and who reside or have resided at a residential care

5

facility for the elderly located in California and owned, operated and/or managed by

6

BROOKDALE during the CLASS PERIOD, including their successors-in-interest if

7

deceased.

8

FALSE OR MISLEADING STATEMENTS CLASS: All persons who resided or reside at

9

one of the residential care facilities for the elderly located in California and owned,

10

operated, and/or managed by BROOKDALE during the CLASS PERIOD and who

11

contracted with BROOKDALE or another assisted living facility for services for which

12

BROOKDALE was paid money, including their successors-in-interest if deceased.

13

185. The CLASS PERIOD is defined as commencing three years prior to the filing of

14 this action for the RESIDENTS WITH MOBILITY OR VISUAL DISABILITIES CLASS and

15 commencing on May 16, 2015 for the RESIDENTS WITH DISABILITIES CLASS and the

16 FALSE OR MISLEADING STATEMENTS CLASS.

17

186. Excluded from the above-referenced class are the officers, directors, and

18 employees of BROOKDALE, and any of Defendants’ shareholders or other persons who hold a

19 financial interest in BROOKDALE. Also excluded is any judge assigned to hear this case (or

20 any spouse or family member of any assigned judge), or any juror selected to hear this case.

21

187. This action is brought as a class action and may properly be so maintained

22 pursuant to Federal Rule of Civil Procedure 23 and applicable case law. In addition to

23 declaratory and injunctive relief, this action seeks class-wide damages pursuant to California

24 Civil Code § 52(a) in the amount of $4,000 per class member based on Defendants’ wrongful

25 policy and practice of failing to provide residents with disabilities with full and equal access to

26 and enjoyment of the services, goods, facilities, privileges, and/or advantages of

27 BROOKDALE’s assisted living facilities as alleged herein. It also seeks class-wide statutory

28 and punitive damages based on Defendants’ misrepresentations, misleading statements, and
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1 material omissions, including $5,000 per class member pursuant to California Civil Code

2 § 1780(b). This action also seeks treble damages pursuant to both California Civil Code § 52(a)

3 and California Civil Code § 3345(b)(2) and (3). This action does not seek recovery for personal

4 injuries or emotional distress that may have been caused by Defendants’ conduct alleged herein.

5

188. Ascertainability. Members of the proposed Class are identifiable and

6 ascertainable. BROOKDALE retains admission contracts, resident service plans, and billing

7 statements for all persons who currently reside or resided at BROOKDALE facilities during the

8 CLASS PERIOD.

9

189. Impracticability of Joinder (Numerosity of the Class). The members of the

10 proposed class are so numerous that joinder of all such persons is impracticable and the

11 disposition of their claims in a class action is a benefit both to the parties and to this Court. On

12 information and belief, the number of persons in this case exceeds 5,000 persons. The number

13 of persons in the class and their identities and addresses may be ascertained from Defendants’

14 records.

15

190. Questions of Fact and Law Common to the Class. All members of the class

16 have been and continue to be denied their civil rights to full and equal access to, and use and

17 enjoyment of, the services and facilities operated by the BROOKDALE because of the

18 violations of disability nondiscrimination laws, the CLRA, and Elder Abuse laws alleged herein.

19 There are numerous questions of law and fact common to the class, including, but not limited to,

20 the following:

21

a. Whether BROOKDALE’s assisted living facilities are public

22

accommodations within the meaning of Title III of the ADA;

23

b. Whether BROOKDALE and its assisted living facilities are business

24

establishments within the meaning of the Unruh Civil Rights Act;

25

c. Whether BROOKDALE constructed or altered any of its assisted living

26

facilities after January 26, 1993;

27

d. Whether BROOKDALE’s facilities that were newly constructed or altered

28

between January 26, 1993 and March 15, 2012 comply with the

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1

requirements of the Americans with Disabilities Act Accessibility

2

Guidelines;

3

e. Whether BROOKDALE constructed or altered any of its facilities after

4

March 15, 2012;

5

f. Whether BROOKDALE’s facilities that were constructed or altered after

6

March 15, 2012 comply with the 2010 ADA Standards for Accessible

7

Design;

8

g. Whether BROOKDALE has removed physical access barriers where doing

9

so was readily achievable as required by Title III of the ADA;

10

h. Whether Plaintiffs are being denied full and equal access to and enjoyment

11

of BROOKDALE’s goods, services, facilities, privileges, advantages or

12

accommodations;

13

i. Whether Plaintiffs requested that BROOKDALE make reasonable

14

modifications in policies, practices and/or procedures by providing its

15

facilities with a sufficient number of adequately trained staff to ensure that

16

residents with disabilities receive full and equal access to and enjoyment of

17

the services specified in BROOKDALE’s own resident assessments;

18

j. Whether Plaintiffs’ requested modification in policies, practices or

19

procedures is reasonable;

20

k. Whether Plaintiffs’ requested modification in policies, practices or

21

procedures is necessary to ensure that residents with disabilities have full

22

and equal access to and enjoyment of BROOKDALE’s goods, services,

23

facilities, privileges, advantages and accommodations as required by Title

24

III of the ADA;

25

l. Whether BROOKDALE has provided Plaintiffs with full and equal access

26

to and enjoyment of its transportation services and activities as required by

27

Title III of the ADA;

28

m. Whether BROOKDALE has provided Plaintiffs with full and equal access

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1

to and enjoyment of its services and facilities with respect to emergency

2

planning and evacuation;

3

n. Whether BROOKDALE, by its actions and omissions alleged herein, has

4

engaged in a pattern and practice of discriminating against Plaintiffs and

5

other residents with disabilities in violation of the ADA and the Unruh Civil

6

Rights Act;

7

o. Whether BROOKDALE has violated and continues to violate the Consumer

8

Legal Remedies Act, California Civil Code §§ 1750 et seq., by promising

9

residents that it will provide care and services including those identified by

10

resident assessments, when BROOKDALE knows that its corporate policy

11

and procedure of providing pre-determined staffing at its facilities precludes

12

BROOKDALE from providing the care and services residents have been

13

promised and places all residents at a substantial risk that they will not

14

receive the care and services they have paid for on any given day;

15

p. Whether BROOKDALE’s misrepresentations, misleading statements and

16

omissions regarding the staffing of its facilities as alleged herein were and

17

are material to the reasonable consumer;

18

q. Whether by making the misrepresentations, misleading statements and

19

material omissions alleged in this Complaint, BROOKDALE violated and

20

continues to violate California Business & Professions Code §§ 17200, et.

21

seq. (“UCL”);

22

r. Whether BROOKDALE had exclusive knowledge of material facts not

23

known or reasonably accessible to the Plaintiffs and the class;

24

s. Whether the Plaintiffs, the class, and the consuming public were likely to be

25

deceived by the foregoing concealment and omission;

26

t. Whether the Plaintiffs, the class, and the consuming public have a

27

reasonable expectation that BROOKDALE will provide staffing at its

28

facilities to meet the aggregate care needs of the residents at its facilities;

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1

u. Whether BROOKDALE’s misrepresentations, its misleading statements, its

2

failures to disclose and its concealment of its true policies, procedures, and

3

practices regarding how it staffs its facilities violated the CLRA and the

4

UCL;

5

v. Whether BROOKDALE has engaged and continues to engage in a pattern

6

and practice of unfair and deceptive conduct in connection with the

7

management, administration, and operation of its California assisted living

8

facilities;

9

w. Whether BROOKDALE has violated and continues to violate the UCL by

10

violating the CLRA, ADA, Unruh Civil Rights Act, California Welfare and

11

Institutions Code § 15610.30, and Cal. Health & Safety Code §§ 1569.157

12

and 1569.158 during the CLASS PERIOD;

13

x. Whether BROOKDALE has committed financial elder abuse under

14

California Welfare and Institutions Code § 15610.30 by taking, secreting,

15

appropriating, obtaining, and/or retaining money from elders and dependent

16

adults for a wrongful use and/or with the intent to defraud them;

17

y. Whether the Plaintiffs and the putative class members have been injured;

18

z. Whether the Plaintiffs and the members of the putative class are entitled to

19

damages, and the nature of such damages; and,

20

aa. Whether the Plaintiffs and the members of the putative class are entitled to

21

declaratory and/or injunctive relief, and the nature of such relief.

22

191. Typicality. The claims of the named Plaintiffs are typical of those of the

23 proposed classes. Plaintiffs’ claims are typical of the claims of the proposed classes in the

24 following ways: 1) Plaintiffs are members of the proposed classes; 2) Plaintiffs’ claims arise

25 from the same uniform corporate policies, procedures, practices and course of conduct on the

26 part of BROOKDALE; 3) Plaintiffs’ claims are based on the same legal and remedial theories as

27 those of the proposed classes and involve similar factual circumstances; 4) the injuries suffered

28 by the named Plaintiffs are similar to the injuries suffered by the proposed class members; and
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1 5) the relief sought herein will benefit the named Plaintiffs and all class members alike.

2

192. Adequacy. The named Plaintiffs will fairly and adequately represent the

3 interests of the classes. They have no interests adverse to the interests of other members of the

4 class and have retained counsel who are competent and experienced in litigating complex class

5 actions, including large-scale disability rights and senior care class action cases.

6

193. Predominance. With respect to Plaintiffs’ claims under the ADA, the Unruh

7 Civil Rights Act, the CLRA, the UCL, and the Elder Abuse Act, class certification is appropriate

8 under Federal Rule of Civil Procedure 23(b)(3) because questions of law or fact common to the

9 class members predominate over any questions affecting individual members of the putative

10 classes.

11

194. Superiority. A class action is superior to other methods for the fair and efficient

12 adjudication of this controversy because, inter alia: 1) individual claims by the class members

13 would be impracticable because the costs of pursuit of such claims would far exceed what any

14 individual class member has at stake; 2) relatively little individual litigation has been

15 commenced over the controversies alleged in this Complaint and individual class members are

16 unlikely to have an interest in separately prosecuting and controlling individual actions; 3) the

17 concentration of litigation of these claims in one forum will achieve efficiency and promote

18 judicial economy; 4) the proposed classes are manageable, and no difficulties are likely to be

19 encountered in the management of this class action that would preclude its maintenance as a

20 class action; 5) the proposed class members are readily identifiable from Defendants’ own

21 records; and 6) prosecution of separate actions by individual members of the proposed class

22 would create the risk of inconsistent or varying adjudications with respect to individual members

23 of the proposed classes that would establish incompatible standards of conduct for

24 BROOKDALE.

25

195. The Class Meets the Requirements of Federal Rule of Civil Procedure

26 23(b)(2). BROOKDALE has acted and refused to act on grounds generally applicable to the

27 class, making the declaratory and injunctive relief sought on behalf of the class as a whole

28 appropriate.
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1

FIRST CLAIM FOR RELIEF

2

(Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq.)

(On behalf of Plaintiffs, the RESIDENTS WITH MOBILITY OR VISION

3

DISABILITIES CLASS and the RESIDENTS WITH DISABILITIES CLASS)

4

196. Plaintiffs incorporate by reference as though fully set forth herein the preceding

5 paragraphs of this Complaint.

6

197. Congress enacted the ADA upon finding, among other things, that “society has

7 tended to isolate and segregate individuals with disabilities” and that such forms of

8 discrimination continue to be a “serious and pervasive social problem.” 42 U.S.C. § 12101(a)

9 (2).

10

198. Congress explicitly stated that the purpose of the ADA is to provide “a clear and

11 comprehensive national mandate for the elimination of discrimination against individuals with

12 disabilities” and “clear, strong, consistent, enforceable standards addressing discrimination

13 against individuals with disabilities.” 42 U.S.C. § 12101(b)(1)-(2).

14

199. Title III of the ADA provides in pertinent part: “[N]o individual shall be

15 discriminated against on the basis of disability in the full and equal enjoyment of the goods,

16 services, facilities, privileges, advantages, or accommodations of any place of public

17 accommodation by any person who owns, leases, or leases to, or operates a place of public

18 accommodation.” 42 U.S.C. § 12182.

19

200. At all times relevant to this action, Plaintiffs STACIA STINER, HELEN

20 CARLSON, LAWRENCE QUINLAN; EDWARD BORIS; RALPH SCHMIDT; ARTHUR

21 LINDSTROM; and BERNIE JESTRABEK-HART were and remain qualified individuals with

22 disabilities within the meaning of the ADA.

23

201. Defendants are each a “private entity,” as defined under 42 U.S.C. § 12181(6).

24 They own, operate and/or manage approximately 89 assisted living facilities in California.

25

202. Brookdale’s assisted living facilities provide services to its residents, including

26 but not limited to, assistance with managing and taking medication, housekeeping, laundry,

27 dressing, bathing, toileting, hygiene, food preparation, and transportation. BROOKDALE staff

28 include caregivers, certified nursing assistants (CNAs), and a licensed nurse working in the
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1 facility or on-call 24 hours per day, seven days per week, to allow ongoing monitoring of

2 residents’ health status. These facilities are “public accommodations” pursuant to 42 U.S.C.

3 § 12181(7). BROOKDALE is subject to Title III of the ADA and its corresponding regulations.

4

203. As alleged above in greater detail, BROOKDALE has violated Title III of the

5 ADA in the following ways.

6 Failure to Provide Reasonable Modifications in Staffing Policies, Practices and Procedures

7

204. BROOKDALE has a policy and practice of staffing its assisted living facilities

8 based on pre-set corporate labor budgets and profit margins without regard for residents’ needs.

9 BROOKDALE’s policy and practice of understaffing its assisted living facilities in order to

10 minimize its labor expenses and maximize its corporate profits has resulted in facilities that are

11 chronically understaffed, and in which skeletal levels of staffing make it commonplace for

12 residents with disabilities to go without the services, goods, facilities, privileges, advantages or

13 accommodations for which they have paid. For example, staff are often unavailable or unable to

14 assist residents with disabilities with activities of daily living including, inter alia, bathing,

15 showering, toileting, transferring, taking medications, dressing, dining, and housekeeping. In

16 addition, residents with disabilities are often denied full and equal access to and enjoyment of

17 social and recreational activities, as well as transportation to off-site locations for appointments

18 and other activities, because of the lack of a sufficient number of trained staff to assist residents

19 with disabilities to participate in these activities.

20

205. Plaintiffs have requested that BROOKDALE make reasonable modifications in

21 policies, practices, or procedures as required by Title III of the ADA. Plaintiffs have requested

22 that BROOKDALE provides its facilities with a sufficient number of adequately trained staff to

23 ensure that residents with disabilities are provided with full and equal access to and enjoyment

24 of the services specified in BROOKDALE’s own resident assessments. Among other things,

25 and without limitation, BROOKDALE should increase its level of trained staff in its assisted

26 living facilities such that residents with disabilities are not required to wait for more than five

27 minutes for a substantive response to their call pendants. A substantive response means actual

28 action taken to address the resident’s need, rather than a staff member passing by the resident’s
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1 room to say that they will return later.

2

206. Such reasonable modifications in BROOKDALE’s policies, practices and

3 procedures are necessary to ensure that Plaintiffs and the members of the putative Residents with

4 Disabilities Class receive full and equal access to and enjoyment of BROOKDALE’s services,

5 including assistance with, inter alia, bathing, showering, toileting, transferring, taking

6 medications, dressing, dining, and housekeeping. In addition, such modifications are necessary

7 to ensure that Plaintiffs and the members of the putative Residents with Disabilities Class have

8 full and equal access to and enjoyment of BROOKDALE’s social and recreational activities, and

9 transportation to off-site locations for appointments and other activities. Unless and until

10 BROOKDALE makes this requested reasonable modification in policies, practices, and

11 procedures, Plaintiffs and the members of the putative Residents with Disabilities Class will

12 continue to be denied full and equal access to and enjoyment of the services, goods, facilities,

13 privileges, advantages and accommodations that BROOKDALE claims to provide to all of its

14 residents, whether disabled or nondisabled.

15

207. Plaintiffs’ requested modification in policies, practices or procedures is eminently

16 reasonable in that BROOKDALE already charges residents with disabilities for, and residents

17 with disabilities pay to receive, the services specified in BROOKDALE’s own resident

18 agreements and resident assessments, including inter alia, assistance with activities of daily

19 living such as mobility, bathing, showering, toileting, transferring, taking medications, dressing,

20 dining, and housekeeping, as well as participating in BROOKDALE’s social and recreational

21 activities whether on-site or off-site.

22

208. The requested modification in policies, practices or procedures will not make any

23 alteration (much less a fundamental alteration) in the nature of BROOKDALE’s goods and

24 services. Rather, Plaintiffs merely seek to ensure that BROOKDALE provides a sufficient

25 number of adequately trained staff to provide its residents with disabilities with full and equal

26 access to and enjoyment of the types of services and goods that BROOKDALE already promises

27 to provide to its residents in its normal course of business. Thus, the requested reasonable

28 modification in policy, practice or procedure would not change the nature or type of services and
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1 goods that BROOKDALE sells to the public.

2

209. The requested reasonable modification would impose only a minimal burden on

3 BROOKDALE. Plaintiffs allege on information and belief that the staff who provide

4 BROOKDALE’s services are hourly employees who are paid an average of $10 to $14 per hour.

5 Increasing BROOKDALE’s skeletal night staffing and its minimal level of daytime staffing will

6 only result in a moderate increase in BROOKDALE’s labor budget. BROOKDALE will

7 continue to be able to realize substantial gross profits each year in the multibillion dollar range.

8

210. Plaintiffs have repeatedly requested that BROOKDALE make reasonable

9 modifications in policies, practices, or procedures by increasing the number of trained staff that

10 it provides in its facilities. Notwithstanding the reasonableness and necessity of such

11 modifications, and notwithstanding the fact that BROOKDALE could significantly increase its

12 staffing without changing the nature of its services, goods, facilities, privileges, advantages or

13 accommodations, and could make such modifications without undue financial or administrative

14 burdens, BROOKDALE has failed and refused to make any such modifications.

15

211. Plaintiffs’ claims under the ADA and the Unruh Act based on BROOKDALE’s

16 failure to make reasonable modifications in policies, practices, or procedures in staffing policies

17 and practices are limited to circumstances and facts occurring on or after May 16, 2015.

18

Physical Access Barriers

19

212. Plaintiffs allege on information and belief that many of Defendants’ facilities

20 were designed and constructed after January 26, 1993, thus triggering access requirements under

21 Title III of the ADA. The ADA prohibits designing and constructing facilities for first

22 occupancy after January 26, 1993 that are not readily accessible to and usable by individuals

23 with disabilities when it was structurally practicable to do so. 42 U.S.C. § 12183(a)(1).

24 BROOKDALE has violated the ADA by designing and constructing their facilities in a manner

25 that does not comply with federal disability access design standards including the Americans

26 with Disabilities Act Accessibility Guidelines (“ADAAG”) and the 2010 ADA Standards for

27 Accessible Design (“2010 ADA Standards”) even though it was structurally practicable to do so.

28

213. Plaintiffs allege on information and belief that Defendants’ facilities were altered

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1 after January 26, 1993, thus triggering access requirements under Title III of the ADA. The

2 ADA prohibits altering facilities after January 26, 1993 in a manner that is not readily accessible

3 to, and usable by, individuals with disabilities when it was structurally practicable to do so. 42

4 U.S.C. § 12183(a)(2). Here, Defendants violated the ADA by altering its assisted living

5 facilities after January 26, 1993 in a manner that did not comply with the ADAAG or the 2010

6 ADA Standards even though it was structurally practicable to do so. Specifically, Defendants

7 have failed to ensure that the areas of alteration complied with the ADAAG or the 2010 ADA

8 Standards, and that the path of travel to the areas of alteration complied with the ADAAG or the

9 2010 ADA Standards.

10

214. Additionally, Defendants have failed to remove physical access barriers in their

11 facilities which existed prior to January 26, 1993 when removal of those barriers was “readily

12 achievable,” in violation of 42 U.S.C. § 12182(b)(2)(A)(iv).

13

215. The removal of each of the barriers complained of by Plaintiffs herein was at all

14 times “readily achievable” under the standards of §§ 12181 and 12182 of the ADA.

15 BROOKDALE could have removed each of the barriers alleged herein without much difficulty

16 or expense within the meaning of Title III. Notwithstanding the foregoing, BROOKDALE has

17 failed and refused to do so.

18

Transportation and Activities

19

216. BROOKDALE has violated Title III of the ADA by failing and refusing to

20 provide Plaintiffs with full and equal access to and enjoyment of its transportation services to

21 off-site activities and appointments. BROOKDALE has a policy and practice of limiting the

22 number of wheelchair users who may use transportation to off-site activities. This limitation is

23 not imposed on residents who do not use wheelchairs. In addition, BROOKDALE has required

24 residents with mobility disabilities to transfer from their wheelchairs into the seats in its shuttles,

25 and has not permitted residents to remain in their wheelchairs. BROOKDALE has done so

26 despite the fact that many residents with mobility disabilities have great difficulty in transferring

27 from their wheelchairs into the passenger seats in shuttles, and doing so is time consuming,

28 physically exhausting and sometimes dangerous. Further, on numerous occasions residents with
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1 mobility disabilities have been completely denied access to medical appointments, and other off-

2 site appointments and activities, because BROOKDALE has failed to provide any accessible

3 transportation to those appointments and activities.

4

Evacuation Procedures

5

217. BROOKDALE has failed to provide or communicate to its residents with

6 disabilities any specific or definitive emergency evacuation plan in the event of earthquake, fire

7 or other emergency. Defendants’ failure to do so constitutes a denial of full and equal access to

8 and enjoyment of the services and facilities provided by BROOKDALE in violation of Title III

9 of the ADA. Many of BROOKDALE’s residents with disabilities are unable to exit the building

10 without assistance from staff. While some residents have been advised to remain in their rooms

11 in the event of an emergency, in those instances in which an alarm has sounded, no one has

12 come to their rooms to assist them or to inform them as to whether there is an emergency or just

13 a drill.

14

218. The acts and omissions alleged herein constitute violations of Title III of the

15 Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12181 et seq., and the regulations

16 promulgated thereunder. Defendants’ discriminatory conduct alleged herein includes, inter alia:

17

a. Failing to provide residents with disabilities the opportunity to participate in

18

or benefit from BROOKDALE’s goods, services, facilities, privileges,

19

advantages, and/or accommodations at its assisted living facilities in

20

California, in violation of 42 U.S.C. § 12182(b)(1)(A)(i);

21

b. Failing to provide residents with disabilities the opportunity to participate in

22

or benefit from the goods, services, facilities, privileges, advantages and/or

23

accommodations that are equal to that afforded to individuals without

24

disabilities, in violation of 42 U.S.C. § 12182(b)(1)(A)(ii);

25

c. Failing to provide the goods, services, facilities, privileges, advantages,

26

and/or accommodations at its assisted living facilities in California to

27

residents with disabilities in the most integrated setting possible, in

28

violation of 42 U.S.C. § 12182(b)(1)(B);

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1

d. Utilizing standards, criteria and methods of administration that have the

2

effect of discriminating against residents on the basis of their disabilities, in

3

violation of 42 U.S.C. § 12182(b)(1)(D);

4

e. Imposing eligibility criteria that screen out or tend to screen out residents

5

with disabilities from fully and equally enjoying BROOKDALE’s assisted

6

living facilities’ goods, services, facilities, privileges, advantages, and/or

7

accommodations, in violation of 42 U.S.C. § 12182(b)(2)(A)(i);

8

f. Failing to make reasonable modifications in its policies, practices, and

9

procedures which are necessary for its residents with disabilities to enjoy

10

and access BROOKDALE’s assisted living facilities’ goods, services,

11

facilities, privileges, advantages and/or accommodations, in violation of 42

12

U.S.C. § 12182(b)(2)(A)(ii);

13

g. Failing to remove architectural barriers in those facilities constructed prior

14

to January 26, 1993 and not altered after that date where such removal is

15

readily achievable, in violation of 42 U.S.C. § 12182(b)(2)(A)(iv);

16

h. Failing to design and construct facilities first occupied after January 26,

17

1993 such that they are readily accessible to and usable by persons with

18

disabilities, in violation of 42 U.S.C. § 12183(a)(1);

19

i. Performing alterations after January 26, 1993 that affect the usability of its

20

facilities or a part of its facilities, while failing to ensure that the altered

21

portions and the path of travel to those altered portions are readily

22

accessible to and usable by persons with disabilities, in violation of 42

23

U.S.C. § 12183(a)(2); and

24

j. Failing to operate BROOKDALE’s transportation services such that they

25

ensure a level of service to persons with disabilities that is equivalent to that

26

provided to persons without disabilities, in violation of 42 U.S.C.

27

§ 12182)(b)(2)(C)(i).

28

219. As a direct and proximate result of the aforementioned acts, Plaintiffs have

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1 suffered, and continue to suffer irreparable harm including humiliation, hardship and anxiety due

2 to Defendants’ failure to provide full and equal access to and enjoyment of Defendants’

3 facilities, services, goods, privileges, advantages and/or accommodations.

4

220. WHEREFORE Plaintiffs pray for judgment as set forth below, including

5 declaratory and injunctive relief, as well as reasonable attorneys’ fees, costs and expenses

6 incurred in bringing this action.

7

SECOND CLAIM FOR RELIEF

8

(Unruh Civil Rights Act, California Civil Code §§ 51 et seq.)

(On behalf of Plaintiffs, the RESIDENTS WITH MOBILITY OR VISION DISABILITIES

9

CLASS and the RESIDENTS WITH DISABILITIES CLASS)

10

221. Plaintiffs incorporate by reference as though fully set forth herein the preceding

11 paragraphs of this Complaint.

12

222. California Civil Code § 51(b) provides in pertinent part that “All persons within

13 the jurisdiction of this state are free and equal, and no matter what their…disability or medical

14 condition are entitled to the full and equal accommodations, advantages, facilities, privileges, or

15 services in all business establishments of every kind whatsoever.”

16

223. Pursuant to California Civil Code § 51(f), a violation of the ADA also constitutes

17 a violation of California Civil Code §§ 51 et seq.

18

224. Defendants own, operate and/or manage business establishments within the

19 meaning of the Unruh Civil Rights Act. Defendants are each a public accommodation whose

20 services and facilities are open to the general public.

21

225. Defendants provide services, privileges, advantages and accommodations to the

22 general public. Defendants have failed and refused to provide Plaintiffs with full and equal

23 access to and enjoyment of the benefits of their goods, services, facilities, benefits, advantages,

24 and accommodations, and have done so by reason of Plaintiffs’ disabilities.

25

226. Defendants have discriminated against persons with disabilities in violation of

26 California Civil Code §§ 51 et seq. by failing to operate their facilities and services in full

27 compliance with the requirements of the ADA as set forth above.

28

227. Defendants, by their actions and inactions alleged in this Complaint, have directly

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1 discriminated against persons with disabilities.

2

228. Plaintiffs’ claims under the Unruh Act based on BROOKDALE’s failure to make

3 reasonable modifications in policies, practices, or procedures in staffing policies and practices

4 are limited to circumstances and facts occurring on or after May 16, 2015.

5

229. The actions of Defendants were and are in violation of the Unruh Civil Rights

6 Act, Cal. Civ. Code §§ 51 et seq., and therefore Plaintiffs are also entitled to statutory damages,

7 injunctive relief and reasonable attorneys’ fees, costs and expenses.

8

THIRD CLAIM FOR RELIEF

9

(Consumers Legal Remedies Act, Cal. Civ. Code §§ 1750 et seq.)

(On behalf of Plaintiffs and the FALSE OR MISLEADING STATEMENT CLASS) 10

230. Plaintiffs incorporate by reference as though fully set forth herein the preceding

11

paragraphs of this Complaint.

12

231. Plaintiffs and the members of the putative False or Misleading Statements Class

13

are “consumer[s]” within the meaning of California Civil Code § 1761(d). They are also “senior

14

citizen[s]” and/or “[d]isabled person[s]” within the meaning of California Civil Code § 1761(f)

15

and (g).

16

232. Defendants are each a “person” as defined under California Civil Code § 1761(c).

17

The assisted living services that Defendants have promised to provide Plaintiffs are “[s]ervices”

18

within the meaning of the California Civil Code § 1761(b). The agreement by Defendants to

19

provide assisted living services in return for payment of monthly fees by each of the Plaintiffs

20

constitutes a “transaction” under California Civil Code § 1761(e).

21

233. In Defendants’ uniform resident contracts presented to prospective residents and

22

their family members, Defendants represented and continue to represent that BROOKDALE will

23

assess each resident and provide the basic services, personal services, and select and therapeutic

24

services it has determined are needed. That same representation is made in BROOKDALE’s re-

25

evaluation of residents, rate increase letters, letters regarding the merger, letters regarding the

26

conversion to a new personal assessment system, corporate website statements, invoices, and

27

other standardized corporate promotional materials. These uniform corporate representations are

28

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1 false and misleading, and likely to deceive the reasonable consumer. As alleged herein,

2 Plaintiffs and the putative class members reasonably expected based on these representations

3 that BROOKDALE would provide sufficient levels of qualified and adequately trained staff at

4 its facilities to ensure that all residents receive the services they have been promised and for

5 which they are paying.

6

234. Contrary to its representations regarding the provision of basic services, personal

7 services, and select and therapeutic services, BROOKDALE knows that the policies and

8 practices it uses to staff its facilities—most notably, its policy and practice of using

9 predetermined labor budgets designed to meet corporate profit targets, goals, and margins

10 without regard to residents’ needs—preclude it from providing its residents all of the care and

11 services they have been promised and places all residents at a substantial risk that they will not

12 receive the care and services they have paid for on any given day. BROOKDALE did not intend

13 to provide and has no intention of providing sufficient levels of qualified and adequately trained

14 staff at its facilities to ensure that all residents receive these services. BROOKDALE does not

15 disclose and conceals this material fact from the residents, their family members, and the general

16 public.

17

235. The named Plaintiffs, their family members and powers of attorney, the putative

18 class members, and reasonable consumers considered material BROOKDALE’s

19 misrepresentations and misleading statements that it will provide residents the basic services,

20 personal services, and select and therapeutic services they need and for which they are paying.

21 If the named Plaintiffs had known the true facts about BROOKDALE’s staffing policies and

22 procedures, they would not have agreed to enter or stay in a BROOKDALE facility or to place

23 their relatives in a BROOKDALE facility, or would have paid less money. If the putative class

24 members had known the true facts, they would in all reasonable probability not have agreed to

25 enter or remain in a BROOKDALE facility or to place their relatives in a BROOKDALE

26 facility, or would have paid less money to BROOKDALE.

27

236. The facts that BROOKDALE misrepresents, fails to disclose and actively

28 conceals are material and are likely to deceive the reasonable consumer. Reasonable consumers,
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1 including the residents and their family members herein, consider of great importance the

2 staffing levels provided by the assisted living facility they select, and such consumers also attach

3 great importance to BROOKDALE’s claims regarding its provision of basic services, personal

4 services, and select and therapeutic services.

5

237. Residents and their family members would consider material BROOKDALE’s

6 uniform corporate policy and procedure of basing its staffing on fixed budgets and profit

7 margins resulting in staffing that is inadequate to meet residents’ needs, as identified by

8 BROOKDALE itself through periodic personal service assessments. Residents and their family

9 members could not reasonably have been expected to learn or discover these non-disclosed facts,

10 and in fact, BROOKDALE has affirmatively concealed them.

11

238. Since May 16, 2015, BROOKDALE has violated and continues to violate the

12 CLRA, Cal. Civ. Code §§ 1750 et seq., in at least the following respects:

13

a. In violation of § 1770(a)(5), BROOKDALE has misrepresented, failed to

14

disclose and concealed the true characteristics and/or quantities of services

15

provided at its facilities in California;

16

b. In violation of § 1770(a)(7), BROOKDALE has misrepresented, failed to

17

disclose and concealed the true standard, quality and/or grade of services

18

provided at its facilities in California;

19

c. In violation of § 1770(a)(9), in BROOKDALE’s standard resident

20

admission contracts and elsewhere, BROOKDALE has falsely advertised

21

that it will provide basic services and the assistance specified by each

22

resident’s personal service assessment and which corresponds to that

23

resident’s Personal Service Plan, knowing that BROOKDALE does not

24

intend to provide the services as advertised; and

25

d. In violation of § 1770(a)(14), BROOKDALE has represented that the

26

agreement signed by residents and/or their responsible parties, and under

27

which they pay their monthly rate, confers on residents the right to reside in

28

a facility that provides the basic services, personal services, and select and

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1

therapeutic services that residents have been promised and are paying for,

2

when in fact, BROOKDALE knows that the policies and practices it uses to

3

staff its facilities preclude it from providing its residents all of the care and

4

services they have been promised and places all residents in an inherent and

5

substantial risk that they will not receive the care and services they have

6

paid for on any given day.

7

239. These misrepresentations, misleading statements, acts, practices, and omissions

8 by BROOKDALE are and were intended to induce and lure elderly and dependent adult

9 residents and their family members into agreeing to be admitted to BROOKDALE’s facilities

10 and to pay community and monthly fees.

11

240. BROOKDALE made the misrepresentations and misleading statements alleged

12 herein through various uniform means of communication, including without limitation, the

13 admission agreement; subsequent agreements based on updated Personal Service Plans; letters to

14 residents regarding the merger between BROOKDALE and Emeritus, the implementation of

15 BROOKDALE’s new personal service system, and rate increases; standardized corporate

16 marketing and promotional materials; Defendants’ website; invoices; and other written corporate

17 materials disseminated to the public in connection with Defendants’ services. These

18 representations and misleading statements were made directly to the named Plaintiffs, putative

19 class members and their family members and/or responsible parties by BROOKDALE in the

20 uniform means of communication listed above.

21

241. BROOKDALE failed to disclose and concealed from Plaintiffs, the putative class

22 members, and their family members, that BROOKDALE staffs its facility using predetermined

23 labor budgets designed to meet corporate profit targets, goals, and margins without regard to

24 residents’ needs; that these policies and practices preclude it from providing its residents all of

25 the care and services they have been promised and places all residents at an inherent and

26 substantial risk that they will not receive the care and services they have paid for on any given

27 day; and that BROOKDALE did not intend to provide and has no intention of providing

28 sufficient qualified and adequately trained staff at its facilities to ensure that all residents receive
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1 these services.

2

242. BROOKDALE had exclusive and superior knowledge of materials facts not

3 known to the named Plaintiffs, class members or the general public at the time of the subject

4 transactions and actively concealed those material facts.

5

243. BROOKDALE had exclusive and superior knowledge that its corporate policy

6 and procedure of providing pre-determined staffing at its facilities preclude BROOKDALE from

7 providing the care and services for which it charges its residents and places all residents at a

8 substantial risk that on any given day they will not receive the care and services for which they

9 have paid. BROOKDALE had exclusive and superior knowledge that its policies and

10 procedures for staffing its facilities pose a heightened health and safety risk to the named

11 Plaintiffs and class members. Defendants intentionally concealed, suppressed and/or failed to

12 disclose the true facts with the intent to defraud the named Plaintiffs and putative class members.

13 The named Plaintiffs and putative class members did not know these material undisclosed facts

14 and could not reasonably have been expected to discover them.

15

244. As a direct and proximate result of Defendants’ conduct, Plaintiffs, the class

16 members, and members of the general public (including without limitation persons admitted to

17 and/or residing in the facilities, and their family members and/or responsible parties) have been

18 harmed and continue to be harmed. Among other things, they paid money to Defendants to

19 enter the facilities and/or for services that were not provided or that were substandard to those

20 promised by Defendants.

21

245. Plaintiffs sent BROOKDALE a notice to cure under California Civil Code

22 § 1782(a), which was received by BROOKDALE on June 6, 2017. More than 30 days have

23 passed since BROOKDALE’s receipt, and BROOKDALE has not corrected or remedied the

24 violations alleged in the notice and herein.

25

246. Accordingly, Plaintiffs and the False or Misleading Statements Class members

26 are entitled to no less than $1,000 in statutory damages pursuant to California Civil Code

27 § 1780(a). Moreover, as senior citizens and/or disabled persons, Plaintiffs and the False or

28 Misleading Statements Class members are also entitled to statutory damages of $5,000 per class
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1 member pursuant to California Civil Code § 1780(b), as well as actual damages and restitution

2 in an amount to be proven at trial.

3

247. Plaintiffs and each of the putative False or Misleading Statements Class members

4 are seniors and/or disabled persons as defined by California Civil Code § 1761(f) and (g).

5 Plaintiffs and the putative False or Misleading Statements Class members have each suffered

6 substantial economic harm. Defendants knew that their conduct negatively impacted seniors and

7 disabled persons. Defendants’ conduct caused the named Plaintiffs and the putative False or

8 Misleading Statements Class members to lose property set aside for personal care and

9 maintenance and assets essential to their health and welfare. Further, Plaintiffs and the putative

10 False or Misleading Statements Class members are substantially more vulnerable than other

11 members of the public to Defendants’ conduct because of their age, poor health, impaired

12 understanding, restricted mobility and/or disabilities.

13

248. Plaintiffs additionally seek treble damages under California Civil Code § 3345,

14 punitive damages, reasonable attorneys’ fees and costs, and all other relief the Court deems just

15 and proper. Excluded from Plaintiffs’ request are damages related to any personal injuries,

16 emotional distress or wrongful death suffered by any member of the class.

17

249. Defendants’ conduct presents a continuing threat of substantial harm to the public

18 in that, among other things, Defendants continue to make misleading statements about and

19 conceal material facts about whether and how they provide basic, personal care, and select and

20 therapeutic services at BROOKDALE facilities in California, as well as the fact that their

21 staffing policies and procedures preclude them from providing residents the services they have

22 been promised. Despite these misrepresentations, BROOKDALE continues to induce elderly

23 and vulnerable citizens to enter and remain in its facilities, which conduct irreparably harms

24 Plaintiffs and the putative False or Misleading Statements Class. Accordingly, Plaintiffs seek an

25 injunction that requires that BROOKDALE immediately cease the CLRA violations alleged

26 herein regarding BROOKDALE’s misrepresentations, misleading statements, and material

27 omissions, and to enjoin it from continuing to engage in any such acts or practices in the future.

28 Specifically, Plaintiffs seek an injunction requiring BROOKDALE to disclose to Plaintiffs, the
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1 putative False or Misleading Statements Class members and the consuming public that

2 BROOKDALE’s staffing policies and procedures preclude it from providing its residents the

3 care and services they have been promised and places all residents at an inherent and substantial

4 risk that they will not receive the care and services they have paid for on any given day.

5 Plaintiffs also seek an injunction prohibiting BROOKDALE from charging residents or their

6 responsible parties monthly fees based on their Personal Service Plans until BROOKDALE

7 implements staffing policies and procedures that enable it to deliver those services on a

8 consistent basis.

9

250. Plaintiffs claims for violations of the CLRA are limited to misrepresentations,

10 misleading statements, and failures to disclose that occurred on or after May 16, 2015.

11

251. WHEREFORE Plaintiffs pray for judgment as set forth below, including

12 declaratory and injunctive relief as well as reasonable attorneys’ fees, costs and expenses

13 incurred in bringing this action.

14 FOURTH CLAIM FOR RELIEF
15 (Elder Financial Abuse, Cal. Welf. & Inst. Code § 15610.30)
16 (On behalf of PLAINTIFFS and the FALSE OR MISLEADING STATEMENTS CLASS)

17

252. Plaintiffs incorporate by reference as though fully set forth herein the preceding

18 paragraphs of this Complaint.

19

253. Plaintiffs and the putative False or Misleading Statements Class members are and

20 at all times were “elders” as defined under California Welfare & Institutions Code § 15610.27 or

21 “dependent adults” as defined under California Welfare & Institutions Code § 15610.23.

22

254. BROOKDALE represented to the named Plaintiffs, and/or their responsible

23 parties, and the putative False or Misleading Statements Class members, and/or their responsible

24 parties, in standard agreements, service updates, monthly invoices, standardized corporate letters

25 to residents and/or their responsible parties, and/or annual notification of rate increases, that

26 BROOKDALE would provide care and assistance with activities of daily living, including but

27 not limited to staffing 24 hours a day, dining services, housekeeping, laundry, transportation,

28 and other basic services in exchange for community fees and monthly payments that it received
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1 from the named Plaintiffs and the putative False or Misleading Statements Class members.

2 However, BROOKDALE did not and has no intention of providing sufficient levels of qualified

3 and adequately trained staff at its facilities to ensure that all residents receive these services. As

4 a result, residents do not consistently receive all of the basic services BROOKDALE has

5 promised them and for which they are paying BROOKDALE.

6

255. BROOKDALE further represented through these same corporate materials that

7 BROOKDALE would provide personal services, including but not limited to assistance with

8 bathing, toileting, grooming, dressing, transferring, and mobility, for additional monthly fees.

9 BROOKDALE represented that it would perform an assessment of each resident to identify

10 needed personal services and an individualized service plan to deliver those services. Yet

11 BROOKDALE did not intend to and does not provide adequate staffing for personal services at

12 its facilities. Rather, it has a policy and practice of providing pre-determined facility staffing

13 that does not change with increases in residents’ personal service needs. This policy and

14 practice precludes BROOKDALE from providing facility residents with all of the personal

15 services BROOKDALE has promised them and for which they are paying BROOKDALE.

16

256. BROOKDALE further represented through these same corporate materials that

17 BROOKDALE would provide select and therapeutic services to residents, including but not

18 limited to emergency call pendants and associated services. However, BROOKDALE did not

19 and has no intention of providing sufficient levels of qualified and adequately trained staff at its

20 facilities to ensure that all residents receive these services. As a result, facility residents do not

21 consistently receive all of the select and therapeutic services BROOKDALE has promised them

22 and for which they are paying BROOKDALE.

23

257. BROOKDALE knew or should have known that such conduct would likely be

24 harmful to Plaintiffs and the putative False or Misleading Statements Class members.

25

258. BROOKDALE knew or should have known that Plaintiffs and the putative False

26 or Misleading Statements Class members had a right to the funds used to pay new resident

27 community fees and monthly fees to BROOKDALE.

28

259. As such, BROOKDALE took, secreted, appropriated, obtained and/or retained

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1 money belonging to Plaintiffs and putative class members for a wrongful use and/or with the

2 intent to defraud.

3

260. BROOKDALE’s conduct was despicable, fraudulent, reckless, and carried out

4 with a willful and conscious disregard for the rights and safety of Plaintiffs and the members of

5 the putative False or Misleading Statements Class.

6

261. Plaintiffs and putative False or Misleading Statements Class members also seek

7 compensatory damages, reasonable attorneys’ fees, costs and expenses, punitive damages, treble

8 damages pursuant to California Civil Code § 3345, and all other remedies permitted by law.

9 Plaintiffs do not seek certification of any claims for damages related to any personal injuries,

10 emotional distress, or wrongful death suffered by any member of the class.

11

262. Plaintiffs’ claims under Cal. Welf. & Inst. Code § 15610.30 are limited to

12 circumstances and facts occurring on or after May 16, 2015.

13

263. WHEREFORE Plaintiffs pray for judgment as set forth below, including

14 declaratory and injunctive relief as well as reasonable attorneys’ fees, costs and expenses

15 incurred in bringing this action.

16

FIFTH CLAIM FOR RELIEF

17

(Unlawful, Unfair and Fraudulent Business Practices,

Cal. Bus. & Prof. Code §§ 17200 et seq.)

18

(On behalf of Plaintiffs and all Proposed Classes)

19

264. Plaintiffs incorporate by reference as though fully set forth herein the preceding

20 paragraphs of this Complaint.

21

265. BROOKDALE has engaged in unlawful business acts and practices. Such acts

22 and practices constitute unfair business practices in violation of California Business and

23 Professions Code §§ 17200 et seq.

24

266. In particular, Defendants have engaged in unlawful business acts and practices by

25 violating numerous laws, statutes and regulations including but not limited to:

26

a. Systematically and uniformly representing to the residents of its assisted

27

living facilities in California, family members, and the public that

28

Defendants will assess residents to determine their needs, and will provide

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1

residents specified basic services, personal services, and select and

2

therapeutic services based on those needs, when in fact, Defendants use

3

staffing policies and procedures that preclude them from providing their

4

residents all of the care and services they have been promised and that place

5

all residents in an inherent and substantial risk that they will not receive the

6

care and services they have paid for on any given day, in violation of

7

California Civil Code §§ 1750 et seq.;

8

b. Failing to provide residents with disabilities full and equal enjoyment of

9

BROOKDALE’s goods, services, facilities, privileges, advantages, and/or

10

accommodations at its assisted living facilities in California; failing to

11

remove architectural barriers in those facilities constructed prior to January

12

26, 1993 and not altered after that date where such removal is readily

13

achievable; failing to design and construct facilities first occupied after

14

January 26, 1993 such that they are readily accessible to and usable by

15

persons with disabilities; and performing alterations after January 26, 1993

16

that affect the usability of its facilities or a part of its facilities, while failing

17

to ensure that the altered portions and the path of travel to those altered

18

portions are readily accessible to and usable by persons with disabilities, all

19

in violation of 42 U.S.C. § 12182 and Cal. Civ. Code § 51 et seq.;

20

c. Taking, secreting, appropriating, obtaining, and retaining the funds of elders

21

and dependent adults for a wrongful use and/or with the intent to defraud in

22

violation of California Welfare and Institutions Code § 15610.30;

23

d. Willfully interfering with the maintenance and promotion of a family

24

council in violation of Cal. H&S Code § 1569.158; and

25

e. Willfully interfering with the maintenance and promotion of a resident

26

council in violation of Cal. H&S Code § 1569.157.

27

267. By virtue of the conduct alleged herein, Defendants have also engaged in

28 fraudulent business practices. Members of the general public (including without limitation
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1 persons admitted to and/or residing in BROOKDALE’s California assisted living facilities

2 during the CLASS PERIOD, and their family members and/or responsible parties) have been

3 and are likely to be deceived by Defendants’ misrepresentations and failures to disclose as

4 alleged herein.

5

268. The acts and practices of Defendants also constitute unfair business acts and

6 practices within the meaning of California Business & Professions Code §§ 17200 et seq., in that

7 the conduct alleged herein is immoral, unscrupulous, and contrary to public policy, and the

8 detriment and gravity of that conduct outweighs any benefits attributable to such conduct.

9

269. Defendants’ misrepresentations, misleading statements, acts, practices, and

10 omissions were intended to induce and lure elderly and dependent adult residents and their

11 family members into agreeing to be admitted to and remain at Defendants’ facilities and to pay a

12 community fee and monthly rates to live in an assisted living facility that features sufficient

13 levels of qualified and adequately trained staff to ensure that all residents receive the basic

14 services, personal services, and select and therapeutic services for which they are paying.

15

270. Defendants made these misrepresentations and misleading statements through

16 various uniform means of written corporate communications, including without limitation, the

17 standardized Residency Agreement; subsequent agreements based on re-assessments of the

18 resident; letters to residents regarding the merger between BROOKDALE and Emeritus,

19 Defendants’ conversion to a new personal service system, and rate increases; invoices,

20 marketing and promotional materials, Defendants’ corporate website and other materials

21 disseminated to the public from its corporate headquarters in connection with Defendants’

22 services. These representations were made directly to the named Plaintiffs, class members, and

23 their family members and/or responsible parties by Defendants in the uniform means of

24 communication listed above.

25

271. BROOKDALE concealed from Plaintiffs, the putative class members, and their

26 family members that BROOKDALE’s staffing policies and procedures preclude it from

27 providing its residents all of the care and services they have been promised and places all

28 residents at an inherent and substantial risk that they will not receive the care and services they
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1 have paid for on any given day.

2

272. BROOKDALE had exclusive and superior knowledge of material facts not

3 known to named Plaintiffs, putative class members or the general public at the time of the

4 subject transactions and actively concealed these material facts.

5

273. BROOKDALE had exclusive and superior knowledge of its corporate policy and

6 procedure. Further, Plaintiffs allege on information and belief that Defendants’ officers,

7 directors, and managers knew that Defendants’ failure to provide adequate staffing posed a

8 substantial health and safety risk to the named Plaintiffs and class members. BROOKDALE

9 intentionally concealed, suppressed and/or failed to disclose the true facts with the intent to

10 defraud the named Plaintiffs and putative class members. The named Plaintiffs and the putative

11 class members did not know these material undisclosed facts and could not reasonably have

12 been expected to discover them.

13

274. As a direct and proximate result of Defendants’ conduct, Plaintiffs, the class

14 members, and members of the general public (including without limitation persons admitted to

15 and/or residing in the facilities, and their family members and/or responsible parties) have been

16 harmed and continue to be harmed. Among other things, they paid money to Defendants to

17 enter the facilities and for services that were not provided or that were substandard to those

18 promised by Defendants.

19

275. Plaintiffs seek an injunction that requires that Defendants immediately cease acts

20 of unlawful, unfair and fraudulent business acts or practices as alleged herein, and to enjoin

21 Defendants from continuing to engage in any such acts or practices in the future.

22

276. Plaintiffs’ claims under Cal. Bus. & Prof. Code §§ 17200 are limited to

23 circumstances and facts occurring on or after May 16, 2015 to the extent they are based on

24 Defendants’ failure to provide staff with adequate training and in sufficient numbers to provide

25 their assisted living facility residents all of the care and services they have been promised.

26

277. WHEREFORE Plaintiffs pray for judgment as set forth below, including

27 declaratory and injunctive relief as well as reasonable attorneys’ fees, costs and expenses

28 incurred in bringing this action.
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1

ALLEGATIONS SUPPORTING DECLARATORY AND INJUNCTIVE RELIEF

2

278. Plaintiffs incorporate by reference as though fully set forth herein the preceding

3 paragraphs of this Complaint.

4

279. Plaintiffs STACIA STINER, HELEN CARLSON, and BERNIE JESTRABEK-

5 HART continue to live at a BROOKDALE assisted living facility. Unless and until

6 BROOKDALE brings its facilities into compliance with the requirements of the ADA and

7 applicable federal disability access design standards, the above-named Plaintiffs will continue to

8 be denied full and equal access to and enjoyment of BROOKDALE’s facilities as a result of

9 physical access barriers in violation of the ADA. Moreover, unless and until Defendant

10 BROOKDALE makes the requested reasonable modification in policies, practices and

11 procedures set forth above with respect to the staffing of its facilities, Plaintiffs will continue to

12 be denied full and equal access to and enjoyment of the services, goods, facilities, privileges,

13 advantages and accommodations provided to its residents by BROOKDALE. In this regard,

14 unless and until Defendants provide a sufficient number of adequately trained staff at their

15 facilities, residents with disabilities will continue to suffer the denial and deprivation of basic

16 services that are necessary to daily living, including assistance with bathing, showering,

17 toileting, taking medications, transferring, dressing, dining, cleaning and laundry services.

18 Further, residents with disabilities will continue to be denied full and equal access to on-site and

19 off-site social and recreational activities, and will be segregated and isolated in violation of the

20 ADA’s integration mandate.

21

280. In addition, unless and until Defendants comply with the ADA, Plaintiffs

22 STACIA STINER, HELEN CARLSON, and BERNIE JESTRABEK-HART will continue to

23 suffer falls, and to be at risk of falls and/or serious physical injuries, as a result of Defendants’

24 failure and refusal to provide full and equal access to its facilities and services. In this regard,

25 Defendants must be enjoined to provide facilities that comply with applicable federal disability

26 access standards, a sufficient number of staff who are adequately trained to assist residents with

27 disabilities to prevent falls and to assist them if a fall takes place, and a functioning and effective

28 pendant system so that residents can obtain prompt and effective assistance when they have
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1 fallen and/or are at risk of other physical injuries. Further, unless and until Defendants provide

2 adequate emergency planning and evacuation procedures for residents with disabilities,

3 Defendants will continue to place them at significant risk of serious injury and death.

4

281. Further, unless and until Defendants provide residents with disabilities with full

5 and equal access to enjoyment of its transportation services, residents with disabilities will

6 continue to be excluded from and denied access to off-site appointments and activities in

7 violation of the ADA.

8

282. Additionally, unless and until BROOKDALE ceases its false and/or misleading

9 statements regarding its services and discloses that its corporate staffing policies and practices

10 preclude it from providing its residents the care and services they have been promised and places

11 all residents at an inherent and substantial risk that they will not receive the care and services

12 they have paid for on any given day, residents, their family members, their responsible parties

13 and the general public will continue to be misled and will continue to expend very substantial

14 sums of money for services, goods and facilities that are not as represented, and Defendants will

15 continue to receive the benefits of their ill-gotten gains.

16

283. Finally, unless and until BROOKDALE is ordered to refrain from interfering

17 with the maintenance and promotion of resident and family councils at its facilities, Plaintiffs

18 will continue to suffer from retaliation against resident and family councils and their members

19 and be subjected to BROOKDALE’s obstruction of the promotion and operation of said councils

20 at its facilities.

21

284. A present and actual controversy exists regarding the respective rights and

22 obligations of Plaintiffs and Defendants. Plaintiffs desire a judicial determination of their rights

23 and Defendants’ obligations in a declaration as to whether, and to what extent, the Defendants’

24 conduct violates applicable law.

25

285. Such a declaration is necessary and appropriate at this time in order that Plaintiffs

26 may ascertain their rights. Such a declaration is also necessary and appropriate to prevent

27 further harm or infringement of Plaintiffs’ rights.

28

286. Plaintiffs STACIA STINER, HELEN CARLSON, and BERNIE JESTRABEK-

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1 HART have no adequate remedy at law for the harm to them arising from the conduct alleged

2 herein. Unless and until Defendants are preliminarily and permanently enjoined from engaging

3 in such conduct, Plaintiffs will continue to suffer irreparable harm as a result of Defendants’

4 violations of the ADA, the Unruh Act, the CLRA, the UCL, Cal. Welf. & Inst. Code § 15610.30,

5 and Cal. H&S Code §§ 1569.157 and 1569.158 as alleged herein.

6

287. Plaintiffs STACIA STINER, HELEN CARLSON, and BERNIE JESTRABEK-

7 HART are entitled to declaratory and injunctive relief pursuant to each of the laws under which

8 this action is brought.

9

PRAYER FOR RELIEF

10

WHEREFORE, Plaintiffs respectfully pray that this Court:

11

1. Issue a declaratory judgment that Defendants’ failure to provide full and equal

12 access to and enjoyment of Defendants’ goods, services, facilities, benefits, advantages and

13 accommodations with nondisabled persons violates Plaintiffs’ rights the ADA, § 42 U.S.C.

14 12101 et seq., and the regulations promulgated thereunder, and also violates their civil rights

15 under California Civil Code §§ 51 et seq.;

16

2. With respect to the Residents with Mobility or Visual Disabilities Class and the

17 Residents with Disabilities Class issue preliminary and permanent injunctions requiring

18 Defendants to come into full compliance with the requirements of the ADA and its

19 implementing regulations;

20

3. With respect to the Residents with Mobility or Visual Disabilities Class and the

21 Residents with Disabilities Class issue preliminary and permanent injunctions enjoining

22 Defendants from violating the Unruh Civil Rights Act in the operation of Defendants’ business

23 establishments and/or public accommodations with respect to its goods, services, facilities,

24 advantages, benefits and accommodations at its assisted living facilities in California;

25

4. Issue preliminary and permanent injunctions requiring that Defendants

26 immediately cease acts that constitute false advertising and violations of the Consumer Legal

27 Remedies Act and the Elder Financial Abuse statute as alleged herein with respect to

28 Defendants’ misrepresentations, misleading statements, and material omissions, and to enjoin
95
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1 Defendants from continuing to engage in any such acts or practices in the future;

2

5. Issue preliminary and permanent injunctions requiring that BROOKDALE

3 disclose to Plaintiffs, the putative class members and the consuming public that its corporate

4 staffing policies and procedures preclude it from providing its residents the care and services

5 they have been promised and places all residents at an inherent and substantial risk that they will

6 not receive the care and services they have paid for on any given day, and prohibiting

7 BROOKDALE from charging fees based on the residents’ Personal Service Plans when

8 BROOKDALE does not, in fact, provide adequate staffing levels to perform the personal

9 services identified in those plans;

10

6. Issue preliminary and permanent injunctions ordering BROOKDALE to refrain

11 from interference with the formation, maintenance and promotion of family or resident councils

12 at its facilities.

13

7. For statutory damages pursuant to California Civil Code § 52(a) for the Residents

14 with Mobility or Visual Disabilities and the Residents with Disabilities classes;

15

8. For statutory damages pursuant to California Civil Code § 1780(a) and (b) for the

16 False or Misleading Statements class;

17

9. For actual damages according to proof, excepting any damages for personal

18 injury, emotional distress and/or wrongful death suffered by the named Plaintiffs or any class

19 member;

20

10. For restitution and any other monetary relief permitted by law;

21

11. For punitive damages;

22

12. For treble damages pursuant to California Civil Code §§ 52(a) and 3345;

23

13. For pre-judgment and post-judgment interest according to law;

24

14. Award to Plaintiffs all costs of this proceeding, including reasonable attorneys’

25 fees costs and litigation expenses, as provided by law;

26

15. Issue any other preliminary and permanent injunctions the Court deems sufficient

27 to rectify the acts and omissions alleged herein; and,

28 \\
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1

16. For such other relief as the Court may deem just and proper.

2 3
DATED: 4 5 6 7 8 DATED: 9 10 11
DATED: 12 13 14 15

Respectfully submitted,
SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS, LLP
By: /s/Guy B. Wallace Guy B. Wallace
ROSEN BIEN GALVAN & GRUNFELD LLP
By: /s/Gay Crosthwait Grunfeld Gay Crosthwait Grunfeld
STEBNER AND ASSOCIATES
By: /s/Kathryn A. Stebner Kathryn A. Stebner
Attorneys for Plaintiffs and the Proposed Classes

16

17

18

19

20

21

22

23

24

25

26

27

28
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1

DEMAND FOR JURY TRIAL

2

Plaintiffs demand a jury trial on all issues so triable.

3

4 5 DATED: 6 7 8

Respectfully submitted,
SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP
By: /s/Guy B. Wallace Guy B. Wallace

9 DATED: 10

ROSEN BIEN GALVAN & GRUNFELD LLP

11 12 13 DATED:

By: /s/Gay Crosthwait Grunfeld Gay Crosthwait Grunfeld
STEBNER AND ASSOCIATES

14

By: /s/Kathryn A. Stebner

15

Kathryn A. Stebner

16

Attorneys for Plaintiffs and the Proposed Classes

17

18

19

20

21

22

23

24

25

26

27

28
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CERTIFICATE OF SERVICE 1

2

I hereby certify that on March 29, 2018, I electronically filed the foregoing document with

3 the Clerk of the Court using the Court's CM/ECF system, which will send a notice of electronic

4 filing to all CM/ECF participants.

5

6 /s/ Sarah Colby

7

Sarah Colby (SBN 194475)

SCHNEIDER WALLACE

8

COTTRELL KONECKY WOTKYNS LLP

2000 Powell Street, Suite 1400

9

Emeryville, California 94608

Telephone: (415) 421-7100

10

Facsimile: (415) 421-7105

scolby@schneiderwallace.com

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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[3351751.3]

1 Guy B. Wallace – 176151

Mark T. Johnson – 76904

2 Travis C. Close – 308673

SCHNEIDER WALLACE

3 COTTRELL KONECKY

WOTKYNS LLP

4 2000 Powell Street, Suite 1400

Emeryville, California 94608

5 Telephone: (415) 421-7100

Facsimile: (415) 421-7105

6 Email: gwallace@schneiderwallace.com

mjohnson@schneiderwallace.com

7

tclose@schneiderwallace.com

Gay Crosthwait Grunfeld – 121944 Benjamin Bien-Kahn – 267933 Jenny S. Yelin – 273601 ROSEN BIEN GALVAN & GRUNFELD LLP 101 Mission Street, Sixth Floor San Francisco, California 94105-1738 Telephone: (415) 433-6830 Facsimile: (415) 433-7104 Email: ggrunfeld@rbgg.com
bbien-kahn@rbgg.com jyelin@rbgg.com

8 Kathryn A. Stebner – 121088

George Kawamoto – 280358

9 STEBNER AND ASSOCIATES

870 Market Street, Suite 1212

10 San Francisco, California 94102

Telephone: (415) 362-9800

11 Facsimile: (415) 362-9801

Email: kathryn@stebnerassociates.com

12

george@stebnerassociates.com

13 Attorneys for Plaintiffs and the Proposed Classes
14

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA, OAKLAND DIVISION

17 STACIA STINER; HELEN CARLSON, by

and through her Guardian Ad Litem, JOAN

18 CARLSON; LAWRENCE QUINLAN, by and

through his Guardian Ad Litem, LORESIA

19 VALLETTE; EDWARD BORIS, by and

through his Guardian Ad Litem, MICHELE

20 LYTLE; RALPH SCHMIDT, by and through

his Guardian Ad Litem, HEATHER FISHER;

21 PATRICIA LINDSTROM, as successor-in-

interest to the Estate of ARTHUR

22 LINDSTROM; BERNIE JESTRABEK-

HART; and JEANETTE ALGARME; on their

23 own behalves and on behalf of others similarly

situated,

24

Plaintiffs,

25

v.

26

BROOKDALE SENIOR LIVING, INC.; BROOKDALE SENIOR LIVING

27

COMMUNITIES, INC.; and DOES 1 through 100,

28

Defendants.

Case No. 4:17-cv-03962-HSG
THIRD AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES
CLASS ACTION
1. Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12101 et seq.)
2. Unruh Civil Rights Act (Cal. Civ. Code §§ 51 et seq.)
3. Consumer Legal Remedies Act (Cal. Civ. Code §§ 1750 et seq.)
4. Elder Financial Abuse (Cal. Welf. & Inst. Code §§ 15610.30)
5. Unlawful, Unfair and Fraudulent Business Practices (Cal. Bus. & Prof. Code §§ 17200 et seq.)

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1

INTRODUCTION

2

1. Plaintiffs and the proposed Classes bring this action for declaratory and

3 injunctive relief and damages to stop the unlawful and fraudulent practices of Brookdale

4 Senior Living, Inc. and Brookdale Senior Living Communities, Inc. (“BROOKDALE” or

5 “Defendants”).

6

2. Plaintiffs are elderly or dependent individuals living in California who have

7 significant care needs and disabilities. Plaintiffs and their families were overwhelmed by

8 and required assistance with their activities of daily living including, but not limited to,

9 assistance with managing and taking medication, housekeeping, laundry, dressing, bathing,

10 toileting, hygiene, food preparation, and transportation. Plaintiffs and their families and

11 the classes they seek to represent either chose a BROOKDALE facility or chose to stay in

12 a facility purchased by BROOKDALE because they believed BROOKDALE’s repeated

13 promises to provide the care and assistance that would allow them to age with dignity.

14 Instead, Plaintiffs, their family members, and the proposed class members have all

15 encountered in BROOKDALE a system of understaffed assisted living facilities that fails

16 to consistently provide even the most basic level of promised care.

17

3. Defendant BROOKDALE has engaged in a policy and practice of violating

18 Title III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101 et

19 seq., accompanying regulations, and the Unruh Civil Rights Act (“Unruh Act”), California

20 Civil Code §§ 51 et seq. Among other things, Defendant has violated the ADA by failing

21 to make its assisted living facilities readily accessible to and usable by persons with

22 disabilities even though both the ADA and the Unruh Act impose affirmative duties upon

23 Defendants to make their assisted living facilities accessible. As set forth below,

24 Defendants have a policy and practice of leaving physical access barriers in place in their

25 newly constructed, altered and/or existing facilities in violation of the ADA and the Unruh

26 Act. Defendants have failed to perform new construction and alterations in compliance

27 with applicable federal and state disability access standards, including but not limited to

28 the 1991 Americans with Disabilities Act Accessibility Guidelines (“ADAAG”) and the

1

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1 2010 ADA Standards for Accessible Design, and have failed to evaluate their newly

2 constructed and/or altered assisted living facilities to identify and remediate non-compliant

3 and inaccessible construction and alterations therein. Defendants have also failed and

4 refused to identify and remove physical access barriers from their existing assisted living

5 facilities where such barrier removal was readily achievable within the meaning of the

6 ADA. As a result of Defendants’ corporate policies and practices regarding disability

7 access, Defendants’ assisted living facilities are characterized by multiple, pervasive

8 physical access barriers that limit or deny full and equal access to persons with disabilities.

9

4. Moreover, Defendants have failed to make reasonable modifications to its

10 policies, practices and procedures that are necessary for persons with disabilities to have

11 full and equal access to and enjoyment of the services, goods, facilities, privileges,

12 advantages and accommodations provided by BROOKDALE’s facilities. Defendants’

13 goods, services, facilities, privileges, advantages, and/or accommodations include

14 providing assistance with activities of daily living (assistance with eating, housekeeping

15 and laundry, bathing, grooming, dressing, toileting, personal hygiene, provision of

16 nutritious meals), medication management (ordering and storage of medications, assistance

17 taking medications), social and recreational activities (group exercise, games, movies,

18 scenic drives, happy hours and social mixers, and assistance with arrangements for

19 utilization of local resources), and transportation to and coordination of off-site services.

20 Plaintiffs have specifically requested that Defendant BROOKDALE make reasonable

21 modifications to its staffing policies, practices and procedures for its assisted living

22 facilities in order to ensure that there is staffing in sufficient numbers and with adequate

23 training to provide timely and effective assistance and care to residents with disabilities.

24 Despite the fact that such modifications are necessary to ensure that residents with

25 disabilities receive full and equal access to and enjoyment of Defendants’ goods, services,

26 facilities, privileges, advantages, and/or accommodations, and despite the fact that such

27 modifications will not result in any fundamental alteration to BROOKDALE’s public

28 accommodations, Defendants have refused to do so.

2

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1

5. In addition, Defendants have violated the ADA by failing and refusing to

2 provide residents with mobility disabilities with full and equal access to and enjoyment of

3 its transportation services. Further, Defendants have discriminated against residents with

4 disabilities by failing to provide them with an emergency evacuation plan that is designed

5 for and reasonably calculated to ensure the prompt and effective evacuation of persons

6 with disabilities in the event of emergency.

7

6. Defendant BROOKDALE has also engaged in a policy and practice of

8 violating the Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code §§ 1750 et seq.,

9 committing Elder Financial Abuse, Cal. Welf. & Inst. Code § 15610.30, and Unlawful,

10 Unfair and Fraudulent Business Practices (“UCL”), Cal. Bus. & Prof. Code §§ 17200 et

11 seq. Defendants promise to provide the elderly and disabled the “quality of life they’ve

12 earned,” but Defendants instead engage in a scheme to defraud seniors, persons with

13 disabilities, and their family members. In order to induce the elderly and disabled to move

14 into and stay at its California assisted living facilities, BROOKDALE makes

15 misrepresentations and misleading statements and conceals material facts about the quality

16 and availability of care available at BROOKDALE. Reasonable consumers are misled to

17 believe, and reasonably expect, that BROOKDALE determines each resident’s needs and

18 staffs each facility accordingly to deliver personalized care to meet those needs. Instead,

19 BROOKDALE systemically understaffs its facilities, cuts caregiver hours, and fails to

20 train workers, all to boost its profitability, while the residents in BROOKDALE’s care are

21 forced to endure increasingly expensive monthly charges and worsening care. The results

22 of BROOKDALE’s callous and profit-driven approach are devastating: as multiple reports

23 by state regulators confirm, residents are left without assistance for hours after falling, they

24 are given the wrong medications, they are denied clean clothing, showers, and nutritious

25 food, and they are left in their own waste for long periods of time.

26

7. On any given day, residents of BROOKDALE’s many California facilities

27 live with a substantial risk that they will not receive the care and services they have paid

28 for and that they need. Scores of family and resident council meetings and hundreds of

3

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1 communications to BROOKDALE management have failed to rectify these problems,

2 leaving Plaintiffs and the class no choice but to seek redress in this Court.

3

8. This lawsuit seeks to end this systemic discrimination against persons with

4 disabilities by requiring Defendants to provide them with full and equal access to and

5 enjoyment of BROOKDALE’s facilities, services, goods, privileges, advantages and

6 accommodations. This action seeks to require that Defendants staff their facilities with a

7 sufficient number of adequately trained staff to ensure that residents with disabilities are

8 provided with full and equal access to and enjoyment of the services specified in

9 BROOKDALE’s own resident assessments. In addition, this action seeks to require that

10 Defendants provide assistive living facilities that are readily accessible to and usable by

11 persons with disabilities as required by the ADA. Further, Plaintiffs seek injunctive relief

12 requiring Defendants to provide full and equal access to and enjoyment of Defendants’

13 transportation services and activities. Plaintiffs also seek injunctive relief requiring

14 Defendants to provide adequate emergency planning and evacuation procedures for

15 residents with disabilities. With respect to the CLRA, the UCL and the Elder Financial

16 Abuse statute, this action seeks to require Defendants to disclose to prospective and current

17 residents, their family members or responsible parties, and the class that BROOKDALE’s

18 existing staffing policies and procedures preclude it from providing its residents with all

19 the care and services they have been promised and are paying for. Further, this action

20 seeks to enjoin BROOKDALE from charging residents or their responsible parties

21 monthly fees based on their Personal Service Plans until BROOKDALE implements

22 staffing policies and procedures that enable it to deliver those services on a consistent

23 basis.

24

9. Plaintiffs have no adequate remedy at law and, unless BROOKDALE is

25 preliminarily and permanently enjoined, Plaintiffs will continue to suffer irreparable harm

26 as a result of being denied full and equal access to and enjoyment of BROOKDALE’s

27 goods, services, facilities, privileges, advantages, and/or accommodations. Plaintiffs seek

28 declaratory and injunctive relief and statutory and actual damages as set forth below

4

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1 against BROOKDALE for its policy and practice of denying Plaintiffs full and equal

2 access to and enjoyment of its services and facilities and violating the ADA and its

3 accompanying regulations, the Unruh Act, and the CLRA, for committing Elder Financial

4 Abuse, and for engaging in Unlawful, Unfair and Fraudulent Business Practices. Plaintiffs

5 also seek recovery of reasonable attorneys’ fees, costs and litigation expenses under

6 federal and state law.

7 EXHAUSTION OF PRE-LAWSUIT PROCEDURES FOR STATE LAW CLAIMS

8

10. By letter dated June 2, 2017, Plaintiffs notified Defendants of Plaintiffs’

9 intent to file suit against it based on violations of the Consumer Legal Remedies Act, as

10 required by California Civil Code § 1782. BROOKDALE received the letter on June 6,

11 2017. More than 30 days have passed since BROOKDALE’s receipt, and BROOKDALE

12 has not corrected or remedied the violations alleged in the notice and herein.

13

11. Though they were not required to do so, Plaintiffs also notified

14 BROOKDALE of its multiple violations of Title III of the Americans with Disabilities

15 Act, 42 U.S.C. §§ 1201 et seq., the Unruh Civil Rights Act, California’s elder financial

16 abuse law, and California’s Unfair Competition Law.

17

JURISDICTION

18

12. This Court has subject matter jurisdiction of this action pursuant to

19 28 U.S.C. §§ 1331, 1343(a)(3)-(4). The Americans with Disabilities Act, 42 U.S.C.

20 §§ 12101 et seq., presents federal questions and confers jurisdiction on this Court over

21 Plaintiffs’ claims regardless of the amount in controversy. This Court also has subject

22 matter jurisdiction of this action pursuant to 28 U.S.C. § 1332(d)(2)(A) because this is a

23 class action in which the proposed class includes at least 100 members, the amount in

24 controversy exceeds $5,000,000, exclusive of interests and costs, and at least one putative

25 class member is a citizen of a state different from one of the defendants. Plaintiffs seek

26 damages in the amount of a minimum $9,000 per class member and believe that the class

27 consists of over 5,000 persons, making the amount in controversy well in excess of

28 $5,000,000. BROOKDALE is a Delaware corporation with its principal place of business

5

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1 in Tennessee, making it a citizen of both Delaware and Tennessee, and each of the named

2 Plaintiffs are citizens of the State of California. Pursuant to 28 U.S.C. § 1367, this Court

3 has supplemental jurisdiction over Plaintiffs’ pendent claims under California law.

4

13. Defendants are subject to personal jurisdiction in this Court because

5 Defendants have sufficient minimum contacts in California, or otherwise intentionally

6 avail themselves of the California market through ownership and/or management of

7 assisted living facilities located in California, derivation of substantial revenues from

8 California, and other activities, so as to render the exercise of jurisdiction over Defendants

9 by the California courts consistent with the traditional notions of fair play and substantial

10 justice.

11

VENUE

12

14. Venue is proper in the Northern District of California pursuant to 28 U.S.C.

13 § 1391(b), because the acts upon which this action is based occurred in part in this District

14 within the counties of Alameda, Contra Costa, Lake, Monterey, Napa, San Mateo, Santa

15 Clara, Santa Cruz, and Sonoma.

16

15. A substantial part of the events or omissions which gave rise to Plaintiffs’

17 claims arose in the County of Sonoma and thus, pursuant to Civil Local Rules 3-2(c) and

18 (d), assignment to the Oakland Division of the District Court for the Northern District of

19 California is proper.

20

THE PARTIES

21

16. Plaintiff STACIA STINER is a qualified person with disabilities within the

22 meaning of the ADA and the Unruh Civil Rights Act. She is also a dependent adult

23 pursuant to Cal. Welf. & Inst. Code § 15610.23; a disabled person pursuant to Cal. Civ.

24 Code § 1761(g); and a consumer pursuant to Cal. Civ. Code § 1761(d). Ms. STINER is 48

25 years old. She needs assistance with the following activities of daily living: housekeeping,

26 laundry, dressing, bathing, managing medications, toileting, and transportation. She uses a

27 wheelchair for mobility. STACIA STINER has been a resident of BROOKDALE San

28 Ramon since approximately February 2016. She is a resident of Contra Costa County in

6

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1 the State of California.

2

17. Plaintiff HELEN CARLSON was a qualified person with disabilities within

3 the meaning of the ADA and the Unruh Civil Rights Act. She was also an elder pursuant

4 to Cal. Welf. & Inst. Code § 15610.27; a senior citizen and a disabled person pursuant to

5 Cal. Civ. Code §§ 1761(f), 1761(g); and a consumer pursuant to Cal. Civ. Code § 1761(d).

6 HELEN CARLSON died on January 19, 2019. At the time of her death, Ms. CARLSON

7 was 95 years old. Prior to her death, she needed assistance with the following activities of

8 daily living: managing medications, transferring, toileting, bathing, dressing, grooming,

9 transportation, food preparation and meal setup, housekeeping, and laundry. She used a

10 wheelchair for mobility. At the time of her death, HELEN CARLSON was and had been a

11 resident of BROOKDALE Fountaingrove since approximately October 2011. She was a

12 resident of Sonoma County in the State of California.

13

18. Plaintiff LAWRENCE QUINLAN is a qualified person with disabilities

14 within the meaning of the ADA and the Unruh Civil Rights Act. He is also an elder

15 pursuant to Cal. Welf. & Inst. Code § 15610.27; a senior citizen and a disabled person

16 pursuant to Cal. Civ. Code §§ 1761(f), 1761(g); and a consumer pursuant to Cal. Civ. Code

17 § 1761(d). LAWRENCE QUINLAN is 88 years old. He uses a wheelchair for mobility

18 and has dementia. LAWRENCE QUINLAN stayed at the facility at BROOKDALE

19 Hemet for respite on several occasions between 2013 and 2015. He became a long-term

20 resident of the assisted living at BROOKDALE Hemet on approximately September 13,

21 2015 and left the facility on or about April 30, 2017. He is a currently a resident of an

22 unrelated assisted living facility in Riverside County in the State of California. LORESIA

23 VALLETTE is LAWRENCE QUINLAN’S granddaughter. Since January 25, 2016, she

24 and her uncle Phillip Quinlan—who is Mr. QUINLAN’s son—have shared power of

25 attorney for Mr. QUINLAN. On September 22, 2017, this Court appointed Ms.

26 VALLETTE as Mr. QUINLAN’s guardian ad litem for the purposes of prosecuting this

27 lawsuit.

28

19. Plaintiff EDWARD BORIS was a qualified person with disabilities within

7

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1 the meaning of the ADA and the Unruh Civil Rights Act. He was also an elder pursuant to

2 Cal. Welf. & Inst. Code § 15610.27; a senior citizen and a disabled person pursuant to Cal.

3 Civ. Code §§ 1761(f), 1761(g); and a consumer pursuant to Cal. Civ. Code § 1761(d). He

4 was an assisted living resident at BROOKDALE Fountaingrove from September 2015

5 through July 2016. He was then a resident of the skilled nursing facility at BROOKDALE

6 Fountaingrove. Mr. BORIS died on September 14, 2018. At the time of his death, Mr.

7 BORIS was 86 years old. During his time as an assisted living resident at BROOKDALE

8 Fountaingrove, EDWARD BORIS used a walker and wheelchair. At the time of his death,

9 he was a resident of Sonoma County in the State of California. MICHELE LYTLE is

10 EDWARD BORIS’s daughter. Ms. LYTLE has held Mr. BORIS’s power of attorney

11 since 2011 and has taken action on his behalf as his attorney in fact since 2015. On

12 January 17, 2019, the Court appointed MICHELE LYTLE as the guardian ad litem of

13 EDWARD BORIS for the purposes of prosecuting this lawsuit. MICHELE LYTLE is the

14 successor-in-interest of EDWARD BORIS, and a successor-in-interest declaration will be

15 filed shortly.

16

20. Plaintiff PATRICIA “PAT” LINDSTROM is the wife of ARTHUR “ART”

17 LINDSTROM. ART LINDSTROM died on February 23, 2018, and PAT LINDSTROM

18 is his successor-in-interest. A successor-in-interest declaration was filed concurrently with

19 the Second Amended Complaint. See ECF No. 52-1. At all times relevant to this

20 complaint, Mr. LINDSTROM was a qualified person with disabilities within the meaning

21 of the ADA and the Unruh Civil Rights Act. He was also an elder pursuant to Cal. Welf.

22 & Inst. Code § 15610.27; a senior citizen and disabled person pursuant to Cal. Civ. Code

23 §§ 1761(f), 1761(g); and a consumer pursuant to Cal. Civ. Code § 1761(d). Mr.

24 LINDSTROM was 83 years old when he died. He suffered from diabetes, kidney failure,

25 heart disease, sleep apnea, and incontinence; used a cane to walk; and experienced

26 dementia-related cognitive impairment, including general memory loss, difficulty

27 remembering words, and difficulty speaking when under pressure. He needed assistance

28 with the following activities of daily living: bathing, shaving, administration of

8

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1 medication, dressing, laundry, and preparing nutritious meals. He was a resident of

2 BROOKDALE Scotts Valley from approximately November 2015 until his death. PAT

3 LINDSTROM is a resident of Santa Cruz County in the State of California.

4

21. Plaintiff RALPH SCHMIDT is a qualified person with disabilities within the

5 meaning of the ADA and the Unruh Civil Rights Act. He is also a dependent adult

6 pursuant to Cal. Welf. & Inst. Code § 15610.23; a disabled person pursuant to Cal. Civ.

7 Code § 1761(g); and a consumer pursuant to Cal. Civ. Code § 1761(d). RALPH

8 SCHMIDT is 54 years old, is blind, and has significant cognitive impairments, including

9 short-term memory loss. Both his blindness and cognitive impairments are the result of a

10 traumatic brain injury suffered more than 20 years ago. Mr. SCHMIDT has a court-

11 appointed conservator who manages his financial, medical, and legal affairs. He needs

12 assistance with the following activities of daily living: housekeeping, laundry, navigating

13 when outside of his dwelling, preparing nutritious meals, and transportation.

14 Mr. SCHMIDT was an assisted living resident at the facility currently known as

15 BROOKDALE Tracy from approximately September 2011 through October 30, 2017. He

16 currently resides at an assisted living facility not affiliated with BROOKDALE and is a

17 resident of Stanislaus County in the State of California. HEATHER FISHER is a

18 professional fiduciary and has held a license from the California Professional Fiduciaries

19 Bureau since March 14, 2014. On August 17, 2017, the Superior Court of San Joaquin

20 County appointed Ms. FISHER to serve as conservator for RALPH SCHMIDT, replacing

21 Mary F. Gallagher who had been Mr. SCHMIDT’s conservator since approximately

22 November 2011. The Court appointed Ms. FISHER and Mr. SCHMIDT’s guardian ad

23 litem for the purpose of prosecuting this lawsuit on January 17, 2019.

24

22. Plaintiff BERNIE JESTRABEK-HART is a qualified person with disabilities

25 within the meaning of the ADA and the Unruh Civil Rights Act. She is also an elder

26 pursuant to Cal. Welf. & Inst. Code § 15610.27; a senior citizen and disabled person

27 pursuant to Cal. Civ. Code §§ 1761(f), 1761(g); and a consumer pursuant to Cal. Civ. Code

28 § 1761(d). BERNIE JESTRABEK-HART is 73 years old. She needs assistance with the

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1 following activities of daily living: dressing, bathing, food preparation, and transportation.

2 She uses an electric wheelchair and cane for mobility. BERNIE JESTRABEK-HART has

3 been a resident of BROOKDALE Scotts Valley since approximately October 2015. She is

4 a resident of Santa Cruz County in the State of California.

5

23. Plaintiff JEANETTE ALGARME is a qualified person with disabilities

6 within the meaning of the ADA and the Unruh Civil Rights Act. She is also an elder

7 pursuant to Cal. Welf. & Inst. Code § 15610.27; a senior citizen and a disabled person

8 pursuant to Cal. Civ. Code §§ 1761(f), 1761(g); and a consumer pursuant to Cal. Civ. Code

9 § 1761(d). JEANETTE ALGARME is 74 years old. She needs assistance with the

10 following activities of daily living: physical assistance transferring into the bathroom and

11 shower from her bedroom; dressing and grooming, including physical assistance with

12 dressing tasks; hands-on assistance while showering; and evacuation in an emergency.

13 She uses an electric wheelchair for mobility. JEANETTE ALGARME is and has been a

14 resident of BROOKDALE Brookhurst since approximately April 2018. She is a resident

15 of Orange County in the State of California.

16

24. Defendant BROOKDALE SENIOR LIVING, INC. is a corporation

17 organized under the laws of the State of Delaware with its principal place of business in

18 Brentwood, Tennessee. Defendant BROOKDALE SENIOR LIVING COMMUNITIES,

19 INC. is a corporation organized under the laws of the State of Delaware with its principal

20 place of business in Brentwood, Tennessee. BROOKDALE SENIOR LIVING, INC. and

21 BROOKDALE SENIOR LIVING COMMUNITIES, INC. will be referred to collectively

22 as “BROOKDALE” or “Defendants.” BROOKDALE owns, manages, and/or operates

23 approximately eighty-nine (89) assisted living facilities throughout California. It is the

24 largest chain of senior living facilities in California and the United States.

25 BROOKDALE’s operations are centralized, hierarchical and standardized, and all of

26 BROOKDALE’s assisted living facilities in California use the same uniform corporate

27 policies, practices and procedures. These corporate policies, practices and procedures

28 control all aspects of the operations, staffing and staff training in its assisted living

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1 facilities. All of BROOKDALE’s assisted living facilities in California are required to

2 follow the uniform policies, practices and procedures established by BROOKDALE’s

3 corporate headquarters.

4

25. BROOKDALE’s unlawful conduct as alleged herein has been widespread,

5 repeated, and consistent at each of its locations. The operations of BROOKDALE’s

6 assisted living facilities in California are standardized, if not identical. BROOKDALE’s

7 conduct, as alleged herein, was and is part of a statewide plan, practice, course of conduct

8 and scheme, and affects all of the residents of BROOKDALE’s assisted living facilities.

9

26. Defendants DOES 1-100 are sued herein under fictitious names because

10 Plaintiffs do not presently know their true names and capacities. Plaintiffs will seek leave

11 to amend this Complaint to allege their true names and capacities when such are

12 discovered. Plaintiffs allege that each of these Defendants was responsible in some

13 capacity for the events alleged herein, or is a necessary party for obtaining appropriate

14 relief. Plaintiffs are informed and believe and thereon allege that in carrying out each of

15 the acts and violations alleged in this Complaint, each Defendant acted as an agent,

16 principal, and/or representative for each other Defendant.

17

FACTUAL ALLEGATIONS

18

27. BROOKDALE is the largest provider of assisted living for senior citizens

19 and persons with disabilities in the nation and has the largest number of assisted living

20 facility residents within the state of California. On information and belief, Plaintiffs allege

21 that there are more than 5,000 residents in Defendants’ eighty-nine facilities in California.

22

28. Assisted living facilities, also called Residential Care Facilities for the

23 Elderly (“RCFEs”), offer room, board and daily assistance for seniors and persons with

24 disabilities in certain activities of daily living (“ADLs”), such as preparing meals,

25 shopping, transportation, preparing and taking medication, housekeeping, laundry, bathing,

26 toileting, grooming, dressing, and others.

27

29. Assisted living facilities are intended to provide a level of care appropriate

28 for those who are unable to live by themselves, but who do not have medical conditions

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1 requiring more extensive nursing care.

2

30. In recent years, BROOKDALE has increasingly been accepting and retaining

3 more residents with conditions and care needs that were once handled almost exclusively

4 in skilled nursing facilities. This has allowed it to increase not only the potential resident

5 pool but also the amounts of money charged to residents and/or their family members.

6

31. At BROOKDALE facilities, residents are charged a base rate, which

7 includes room, board, basic maintenance, housekeeping, laundry, dining services, planned

8 social and recreational programs, scheduled transportation services, staffing 24 hours a

9 day, observation and consultation, and assistance with access to outside services.

10 BROOKDALE uses its resident assessment system to assess each resident before

11 admission and then again periodically throughout residency and/or whenever there is a

12 change of the resident’s condition. By performing these assessments, BROOKDALE

13 determines what additional services a resident needs, such as assistance with ADLs, and

14 develops a Personal Service Plan for the resident. Each additional need, or service, is

15 assigned a monthly Personal Service Rate, which is added onto the resident’s base rate.

16 The more personal services determined by BROOKDALE to be needed by a resident, the

17 more money BROOKDALE charges that resident.

18

32. Every month, BROOKDALE sends each resident or his or her responsible

19 party an invoice for services that BROOKDALE represents it will provide in the following

20 month. These invoices reflect the monthly rate for the Basic Services set forth in

21 BROOKDALE’s standard residency agreements, the Personal Service Rate that is based

22 on each resident’s Personal Service Plan, and any adjustments. On information and belief,

23 these monthly invoices range from approximately $4,000 to $10,000 per person per month.

24

33. On information and belief, as of January 1, 2016, BROOKDALE increased

25 the Basic Service Rate and Personal Service Rate for residents in its California facilities by

26 roughly 6%, and as of January 1, 2017, it raised these rates again by approximately 7%. In

27 standard form letters sent to residents attempting to explain these steep rate increases,

28 BROOKDALE attributed them to increases in “the operating costs of your community,”

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1 including costs for “utility usage, insurance, supplies, and food.” But in fact the Consumer

2 Price Index for the Bay Area rose only 3.4% between approximately January 1, 2016 and

3 December 31, 2016.

4 Brookdale Fails to Provide Full and Equal Access To and Enjoyment of Its Facilities

and Services to Persons With Disabilities In Violation of the ADA and the Unruh

5

Civil Rights Act

6 Physical Access Violations

7

34. BROOKDALE has violated Title III of the ADA and the Unruh Civil Rights

8 Act by failing to provide full and equal access to its facilities and services. Rooms

9 occupied by persons with mobility disabilities and common areas at the BROOKDALE

10 San Ramon, Windsor, Fountaingrove, Scotts Valley, and likely other facilities, do not meet

11 federal or state accessibility standards. Under Title III, fifty percent of the residential

12 rooms in long-term care facilities must meet the requirements of the 1991 ADAAG or the

13 2010 ADA Standards. BROOKDALE’s facilities do not meet these standards.

14

35. There is a pattern of physical access barriers in BROOKDALE facilities, as

15 described below:

16

a. Wheelchair users are placed in rooms that do not have sufficient

17

turning space in the bathrooms or the bedroom area. This means that

18

they often cannot even use their bathroom unless they are able to

19

transfer out of their wheelchair and enter without it. Those who can

20

enter in their wheelchair usually do not have enough space to transfer

21

safely onto the toilet or into the shower or to use the sink or vanity

22

space. Some residents have given up on using their inaccessible toilet

23

and must rely on adult briefs and caregiving staff to clean them.

24

b. There is no clearance for wheelchairs under the sinks and/or the sinks

25

are too high for a wheelchair user to reach them, preventing residents

26

from using them.

27

c. The grab bars that do exist in the bathrooms are not compliant with

28

applicable access standards, and there are no roll-in showers. Both of

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1

these barriers are safety hazards, increasing the likelihood of falls.

2

They also prevent most persons with mobility disabilities from

3

bathing as independently as possible. Some wheelchair users have

4

stopped using their showers altogether and instead take sponge baths,

5

hardly an adequate substitute.

6

d. There are barriers to using the outdoor space for the residents’ rooms,

7

including hard-to-open sliding doors, a lip at the threshold of the door,

8

and insufficient space to accommodate a wheelchair. This prevents

9

persons with mobility disabilities from using their outdoor space as

10

persons without disabilities can.

11

e. The closets do not have accessible hanging and storage space, in that

12

they are placed out of the reach of a wheelchair user. This prevents

13

persons with mobility disabilities from accessing their clothing and

14

other personal items, forcing them to rely on others for assistance.

15

f. Kitchen countertops and sinks are too high for a wheelchair user to

16

access, preventing those residents from fully using their kitchens.

17

g. Heavy doors in common areas cannot be used independently by and

18

pose a safety risk to many persons with disabilities.

19

36. These physical access barriers, which residents live with on a daily basis,

20 prevent them from having full and equal access to their rooms as required by law.

21 Understaffing

22

37. BROOKDALE does not schedule or provide sufficient numbers of trained

23 staff to deliver promised services and meet the needs of its residents. Plaintiffs allege on

24 information and belief that BROOKDALE staffs its facilities based on predetermined labor

25 budgets and desired profit margins. Pursuant to Defendants’ corporate policies and

26 procedures, the executive directors who manage individual BROOKDALE facilities must

27 request permission from Defendants’ corporate headquarters to deviate from these pre-

28 determined budgets. Executive directors have a disincentive to request increased labor

14

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1 budgets for their facilities because they are not eligible for bonuses unless they meet

2 earnings targets set by Defendants’ corporate headquarters. As a result of Defendants’

3 corporate policies, practices and procedures BROOKDALE’s assisted living facilities are

4 inadequately staffed.

5

38. Reports issued by California Department of Social Services’ Community

6 Care Licensing Division (“Community Care Licensing”), the state agency that regulates

7 assisted living facilities, indicate that inadequate staffing pervades Defendants’ California

8 facilities. For instance, Community Care Licensing issued a citation to BROOKDALE

9 Corona after a licensing inspector found “that there are not enough staff present” and

10 observed five residents sitting unsupervised in the dining room and 19 residents in the

11 activity room with only one staff member present. In March 2017, Community Care

12 Licensing cited a BROOKDALE facility in Santa Cruz County after a licensing inspector

13 found that the facility did not have an adequate amount of staff to meet residents’ needs.

14 In June 2016, BROOKDALE Oceanside received a citation because it had only two

15 caregivers on duty during daytime hours in the assisted living part of its facility.

16

39. Plaintiffs allege on information and belief that BROOKDALE uses pre-

17 determined staffing schedules at its facilities and does not change these schedules or the

18 number of staff hours worked when the facility has more residents or residents with greater

19 needs. Community Care Licensing records demonstrate the inadequacy of Defendants’

20 staffing to meet even the most basic needs of residents. For instance, a personnel report

21 that BROOKDALE filed with Community Care Licensing in February 2017 indicates that

22 BROOKDALE Fountaingrove, a facility in Sonoma County, is understaffed for the night

23 shift from 10:00 p.m. to 6:00 a.m. That schedule lists only four resident caregivers

24 assigned to the night shift, three of whom work only three days a week, with the result that

25 in many instances there are as few as one resident caregiver on duty during the night shift

26 to care for approximately 100 residents on three floors. Moreover, the official numbers of

27 caregivers on duty is often quite deceptive, as BROOKDALE frequently pulls caregivers

28 from their responsibilities in order to perform other tasks, such as serving meals in the

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1 dining room.

2

40. As a direct result of Defendants’ discriminatory staffing practices, residents

3 with disabilities have not received or run a substantial risk of not receiving the personal

4 services, emergency and evacuation response, dining services, housekeeping and laundry

5 services, transportation, and activities for which they are paying and that are necessary for

6 full and equal enjoyment of Defendants’ goods, services, facilities, benefits, advantages

7 and accommodations.

8

Impact of Understaffing on Personal Services

9

41. The lack of sufficient numbers of trained staff at BROOKDALE means that

10 residents with disabilities who need and pay for assistance with bathing, dressing, brushing

11 their teeth, toileting, incontinence care, and other hygiene assistance do not receive it on a

12 routine basis. Scheduled showers are routinely skipped by staff who do not have time to

13 bathe residents. Staff often leave residents unattended on the toilet because another

14 resident has activated their call pendant, and there is no one else available to respond.

15 Residents have been left on their bed undressed by staff called away to attend to other

16 residents in need.

17

42. Residents who need assistance getting to the bathroom often wait for long

18 periods of time for staff to respond to their call pendants. Because they must wait so long

19 for assistance, some residents have given up using the toilet altogether, instead relying on

20 adult briefs and a caregiver to clean and change them when they have time. Incontinent

21 residents often wait for thirty minutes or more for a staff member to help them change out

22 of soiled briefs, raising the risk of urinary tract infections and decubitus ulcers. For

23 example, an inspector from Community Care Licensing found in May 2016 that

24 BROOKDALE San Pablo had insufficient staff to meet the residents’ needs, noting that

25 “[i]ndividuals requiring incontinence care are not always changed in a timely manner.” In

26 November 2016, a licensing inspector found that even though a resident at BROOKDALE

27 Cherry Hills was paying for regular incontinence checks, she was left lying on the floor for

28 an extended amount of time after a fall because staff failed to check on her. In March of

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1 2017, a licensing inspector cited BROOKDALE Palm Springs for not providing a resident

2 with those basic and personal care services—assistance with showering, dressing,

3 transportation and medication—that the resident needed and for which the facility was

4 being paid.

5

43. Insufficient staffing has also caused and continues to cause errors in

6 medication administration, including providing the wrong dosage or the wrong medication,

7 untimely or missed doses, and/or a failure to implement physicians’ orders. Community

8 Care Licensing has documented several examples from BROOKDALE’s Sonoma County

9 facilities that illustrate the broader problem. Community Care Licensing records show that

10 the agency cited BROOKDALE Chanate five times on consecutive visits between October

11 28, 2015 and October 13, 2016 for failing to give residents their prescribed medications.

12 At BROOKDALE Windsor, a resident received a double dose of medication because the

13 nurse who administered the first dose failed to document that it had been given. On a

14 different occasion, staff gave a resident at BROOKDALE Windsor a medication that had

15 been prescribed for a different resident. Meanwhile, at BROOKDALE Rohnert Park,

16 licensing inspectors found that staff were not properly trained on storing and administering

17 residents’ medication, leading to a narcotic pill that went missing in August 2016 and

18 staff’s failure to administer medications in October 2016. Numerous other reports issued

19 by Community Care Licensing confirm that problems with medication administration

20 pervade Defendants’ facilities throughout California. For example, Community Care

21 Licensing cited BROOKDALE Palm Springs when 20 residents missed their medication

22 doses on December 24, 2016 because there was no med tech on duty. At BROOKDALE

23 San Ramon, someone stole a number of residents’ medication from the facility during the

24 overnight shift (“NOC SHIFT”) between July 9 and 10, 2017. The facility did not inform

25 all of the residents’ family members of the theft. When one resident’s daughter-in-law,

26 who learned about the theft from the resident, asked the facility’s acting Executive

27 Director, Shawn Cull, which employees were on duty during the NOC shift, he told her

28 that there were only two employees on duty to respond to all residents at the facility. The

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1 facility has an occupancy of between approximately 70 to 80 residents. Because no one

2 was immediately available at the facility to pick up refills, at least one resident did not

3 receive her pain medication until later that evening and was extremely anxious until that

4 time. Another resident’s family was not informed of the theft until almost 6 p.m., after the

5 resident’s physician’s offices had closed and the family could not obtain a refill. That

6 resident was given an inadequate substitute pain medication in the evening, which was

7 distressing to the resident and her family members, who had to reassure and calm her. The

8 following day, although BROOKDALE was notified that the refill was ready for pick-up at

9 10 a.m., the resident told her family that she did not receive her prescribed pain medication

10 until 4 p.m.

11

44. BROOKDALE’s understaffing creates many dangerous situations for

12 residents. Among those are an increase in elopements from facilities by persons with

13 cognitive impairments, because the facilities do not hire staff in sufficient numbers or with

14 the training necessary to monitor residents and prevent escapes. For example,

15 BROOKDALE Oceanside was cited in April and September of 2016 for relying on

16 delayed egress systems to compensate for insufficient staffing, resulting in resident

17 elopements. An informal conference was held by Community Care Licensing with

18 BROOKDALE Oceanside management in December 2016 as a result of the elopements

19 and other compliance failures. Subsequently, on April 26, 2017, BROOKDALE staff

20 failed to monitor residents on an outing, and one wandered away for approximately an

21 hour.

22

Impact of Understaffing on Pendant Call Systems and Medical Emergencies

23

45. BROOKDALE’S failure to staff sufficiently results in caregivers’ inability to

24 respond promptly to call pendants, if at all. BROOKDALE has represented that residents

25 who wear a call pendant, and pay a monthly fee for this service, may push a button to alert

26 staff if they have an emergency, and staff will immediately respond to provide assistance.

27 Residents with disabilities rely heavily on these call pendants for assistance with basic

28 tasks and activities of daily living, as well as for emergencies. However, the call pendants

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1 do not notify staff of the resident’s location should they not be in their room. In or about

2 late 2016, a BROOKDALE San Ramon resident fell and hit his head on the pavement in

3 the facility parking lot and pressed his pendant. No one responded. Bleeding profusely

4 from his head, he used his mobile phone to call the front desk. The son of another

5 resident, a fire chief with emergency response training, found the resident in the parking

6 lot just as BROOKDALE’s bookkeeper and maintenance director responded to the

7 resident’s telephone call. Because those employees have no caregiver or emergency

8 response training, they would not even touch the resident. The fire chief had to call 911

9 and administer first aid while waiting.

10

46. Moreover, contrary to Defendants’ representations, staff do not immediately

11 respond when residents use their call pendants. For instance, in November 2016, a

12 resident in the BROOKDALE Paso Robles facility pushed her emergency pendant after

13 falling in her room and waited 22 hours on the floor with broken bones until staff finally

14 found her. That same month, a resident at the BROOKDALE Fountaingrove fell, injured

15 her head, pressed her call pendant, and waited thirty minutes bleeding profusely from her

16 head before staff arrived. She died 10 days later. In January 2017, a former resident of

17 BROOKDALE Fountaingrove waited three hours for staff to respond to a call.

18 BROOKDALE’s policy and practice of not maintaining its call pendant system properly

19 and of not providing sufficient staff to respond to call pendants deprives residents with

20 disabilities of full and equal enjoyment of its goods, services, facilities, and benefits.

21

47. Community Care Licensing records indicate lengthy emergency response

22 times at Defendants’ facilities throughout California. For example, in February 2017 a

23 licensing inspector found that staff at BROOKDALE Riverside routinely took over 10

24 minutes to respond to emergency pendant calls, and on one occasion took 36 minutes to

25 respond. At BROOKDALE Orangevale, a licensing inspector tested an emergency call

26 pendant during a January 2017 visit and found that it took over 45 minutes for facility staff

27 to respond. At BROOKDALE North Tarzana, a review of the facility’s records revealed

28 numerous response times of over 30 minutes, including multiple response times of over an

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1 hour. A licensing inspector who tested emergency pull cords at BROOKDALE

2 Chatsworth found that it took staff 24 minutes to respond during a June 2016 inspection;

3 during another visit, the inspector found that it took staff 30 minutes to respond, and that

4 they did so only after the inspector alerted the facility administrators. At BROOKDALE

5 Oceanside, an inspector found that as of April and May 2016, there were times when staff

6 did not answer residents’ calls for 15 to 45 minutes. The inspector’s report noted that there

7 were only two direct caregivers on duty during the day and evening shifts at the facility,

8 which has a capacity of 186 residents, and that those caregivers were responsible for

9 numerous tasks in addition to answering emergency calls on two floors. Community Care

10 Licensing cited BROOKDALE Fountaingrove at the end of March 2017 after a review of

11 the pendant system report revealed many instances of extremely lengthy response times,

12 noting in particular a pendant pressed at 5:23 p.m. which was not answered for over 39

13 minutes and a pendant set off at 5:45 p.m. to which staff did not respond for one hour and

14 27 minutes.

15

48. Even when Defendants’ staff do respond within a reasonable amount of time

16 to a request for assistance, the response is often inadequate. In one case, staff at

17 BROOKDALE Fountaingrove failed to notify a resident’s family after the resident had a

18 fall and was sent to the emergency room. Staff also failed to send identifying information

19 or documents with the resident, as required by Defendants’ policies and procedures. As a

20 result, the resident was listed as a Jane Doe until the next morning. A doctor at the

21 hospital told the resident’s daughter that he would have operated on the resident shortly

22 after she was admitted, but had to wait until the next morning because he had no family

23 contact numbers to call. The Community Care Licensing inspector who investigated this

24 incident noted that she observed insufficient staffing at BROOKDALE Fountaingrove to

25 ensure that the facility’s own policies and procedures were being followed. On another

26 occasion, a BROOKDALE Fountaingrove resident pressed the call button on her pendant

27 because she could tell she was going to have terrible diarrhea. While she waited for a

28 response, the resident headed for the toilet, but by the time she got there, she had already

20

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1 soiled herself and her nightgown. Although a caregiver responded to the pendant call,

2 when the caregiver looked in the bathroom and saw the resident sitting on the toilet, she

3 left without providing assistance and never returned. The resident screamed for help and

4 pressed the emergency button next to the toilet, but no one responded until roughly an hour

5 later, when a new set of caregivers started their shifts.

6

49. Residents must resort to calling 911 for assistance when staff fail to promptly

7 respond to their call pendants. For example, public records kept by the Rincon Valley &

8 Windsor Fire Protection Districts revealed that in a one-year period from June 2016

9 through May 2017, the agency responded to 83 emergency calls from 907 Adele Drive, the

10 address of BROOKDALE Windsor. Community Care Licensing records indicate that this

11 facility has a capacity of 80, but often has fewer than 70 residents, suggesting that

12 BROOKDALE Windsor residents averaged well over one 911 call per person over the past

13 year. Many of these calls were classified as “medical assists,” meaning the Rincon

14 Valley & Windsor Fire Protection Districts provided assistance to another group or agency

15 that had primary responsibility for medical care, such as assisting with moving a heavy

16 patient. Several of these 911 calls were classified as instances where a member of the

17 public called the fire protection districts for routine help, such as assisting a person in

18 returning to a bed or chair, with no transport or medical treatment given.

19

50. In other cases, Defendants’ staff failed to monitor residents’ health status as

20 promised, placing residents in danger and distress in situations where the resident was not

21 able to call for help. At BROOKDALE Fountaingrove, one resident was left in her

22 wheelchair all night because she requires staff assistance to get in and out of her

23 wheelchair, but staff failed to help her into bed and never checked on her during the night.

24 In another case, a resident at BROOKDALE Scotts Valley fell in his apartment and went

25 without food or water for 24 to 30 hours because staff failed to check on him. The resident

26 was taken to a hospital, where doctors diagnosed him with dehydration and

27 rhabdomyolysis, a condition in which damaged skeletal muscle tissue breaks down and the

28 damaged muscle cells are released into the bloodstream, causing further injury. At

21

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1 BROOKDALE Riverside, a resident fell while outside and suffered severe sunburns

2 because staff failed to regularly check on him. In November 2016, Community Care

3 Licensing issued a citation to BROOKDALE Hemet based on an incident in which staff

4 left a resident with a known risk of falling unattended in a dining room chair. The resident

5 fell and hit his head, requiring ten stitches. Just three days later, Defendants’ staff again

6 left the resident unattended, and he fell and re-injured his head. The licensing inspector

7 noted that this resident had additional staff supervision as part of his care plan, but that

8 BROOKDALE Hemet lacked sufficient staff to meet the resident’s needs.

9

51. Because Defendants’ staff are stretched so thin responding to emergency

10 calls and attending to their other duties, they have attempted to dissuade residents from

11 calling for assistance. Residents have been told by overworked caregivers to use their call

12 buttons “only in an emergency,” despite the fact that, short of screaming for help, this is

13 the only way to alert caregivers that they need the assistance for which they are paying

14 BROOKDALE. In many instances, residents feel bad for overworked caregivers and

15 attempt to perform tasks on their own, despite paying BROOKDALE for these services.

16 This has led to residents’ falling or otherwise injuring themselves.

17

Impact of Understaffing on Dining Services

18

52. BROOKDALE’s policy and practice of understaffing has resulted in its

19 cutting staffing hours and eliminating positions in dining services. As a result, residents

20 wait for long periods of time to be served. Some residents give up in frustration. Food is

21 often served cold, and residents do not dare to make a special request, for fear that the wait

22 will be extreme. Moreover, the quality of the food has so deteriorated that it is in many

23 cases nearly inedible. Fresh ingredients are rare, meat of poor quality is hidden under

24 sauces, and both residents and licensing inspectors have encountered food beyond its

25 expiration date. The understaffing also prevents staff from maintaining a clean and

26 hygienic dining area.

27

53. At BROOKDALE San Ramon, the hours of serving staff were cut, and

28 servers have left as a result, leaving the dining department severely understaffed. At

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1 breakfast, there is often one server for 80 people. On at least one day during June 2017,

2 there were no servers in the dining room for breakfast, and the activities director was

3 cleaning the tables while the chef both cooked and served meals. At BROOKDALE

4 Windsor, licensing inspectors found a single staff member working morning shifts in the

5 dining room, with dirty dishes and food droppings strewn about because no other staff

6 members were available to clean up. BROOKDALE Riverside received a Community

7 Care Licensing citation after investigators found that food was served cold and residents

8 had to wait an unreasonable amount of time for food to be served. The investigator

9 attributed this problem to understaffing, noting in her report that “[i]t was revealed there is

10 not enough servers for the number of residents in the dining room at one time.” On a visit

11 to BROOKDALE Corona, the licensing inspector found five residents sitting in the dining

12 room without supervision, and noted that caregivers were expected to serve lunch, clean

13 the dining room after meals, and sweep the floors in the dining room in addition to their

14 other duties. The same inspector found uncovered and dried-out ham and cheese

15 sandwiches in the refrigerator and unrefrigerated cartons of strawberry milk in a cupboard.

16

54. The long waits and substandard meals in the dining room mean that some

17 residents either purchase their own food or often forgo meals altogether, despite the fact

18 that residents are paying BROOKDALE for three meals per day and snacks. Residents’

19 nutrition needs are not being met, and to the extent that they look forward to meals as a

20 pleasant social experience, they are being deprived of that benefit as well. Residents have

21 made numerous complaints to Defendants about the dining service, individually and

22 through the family and resident councils. For example, the Resident Council at

23 BROOKDALE San Ramon has been complaining about the problems in dining services

24 for over two years. Yet residents have seen no durable improvements. There may be

25 temporary improvements from time to time, but the overall trend is actually downward.

26

Impact of Understaffing on Housekeeping and Laundry

27

55. BROOKDALE’s policy and practice of understaffing extends to

28 housekeeping and laundry services. For example, on information and belief,

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1 BROOKDALE San Ramon went for many months with only one housekeeper to clean

2 approximately 80 rooms. As a result, the maintenance director and the executive director

3 also had to clean rooms and consequently had less time to perform maintenance and

4 administrative duties. Residents’ rooms have been left in deplorable and often unsanitary

5 conditions, including toilet seats and showers covered in feces and rooms which smell

6 strongly of urine.

7

56. BROOKDALE routinely fails to wash residents’ personal belongings and

8 bed linens. Even when BROOKDALE’s staff take these items for laundering, residents’

9 clothes and linens are often lost, or they are given back other residents’ clothing or linen

10 instead of their own. Residents are left in dirty and malodorous clothing. For example,

11 Loresia Vallette, the granddaughter of former BROOKDALE Hemet resident

12 LAWRENCE QUINLAN observed that her grandfather’s clothes were never washed, and

13 that staff continued to dress him in the same pair of urine-stained pants. Some residents or

14 their family members have despaired of waiting and begun to perform these services on

15 their own, despite BROOKDALE’s promise to provide them as part of their base rate.

16 Discrimination in Transportation/Activities

17

57. Due to chronic understaffing at Defendants’ facilities, promised

18 transportation services and activities are often sporadic or nonexistent. Many residents

19 rely on BROOKDALE for transportation to medical and lab appointments, church, grocery

20 shopping, banking and other activities. Additionally, they expected and would enjoy both

21 on- and off-site activities. Yet they do not receive these services on a regular basis, if at

22 all. Scheduled activities—such as poker, bingo and movies—are frequently cancelled, and

23 BROOKDALE regularly fails to provide the promised transportation services to its

24 residents. Residents are often told about cancellations at the last minute for shuttles to

25 planned events, such as church services. The lack of staffing at BROOKDALE San

26 Ramon means that its activities director must fulfill multiple duties. In addition to her

27 expected duties, she often works in the dining room serving food or cleaning and at the

28 front desk as a receptionist. She is frequently the only driver for facility-provided

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1 transportation. On several occasions, residents of BROOKDALE San Ramon have been

2 left waiting outside a medical office or a church because BROOKDALE staff forgot to

3 pick them up and had to rely on others to take them back to the facility.

4

58. Additionally, BROOKDALE has implemented policies and practices

5 regarding its provision of transportation services that discriminate against persons with

6 mobility disabilities. Residents at BROOKDALE San Ramon who use wheelchairs must

7 be able to transfer from their chairs to a seat in the bus, despite the existence of a

8 wheelchair lift and a system for securing wheelchairs in at least one of BROOKDALE San

9 Ramon’s buses. Making this transfer is impossible and/or unsafe for many wheelchair

10 users. The facility also requires wheelchair users to arrange for a family member or an

11 outside care attendant to accompany them on any off-site activity, which deters many

12 wheelchair users from participating and imposes a surcharge on those who do. The facility

13 also limits the number of wheelchair users for each off-site trip to two. At BROOKDALE

14 Fountaingrove, wheelchair users are limited to two off-site trips per month. At least one

15 wheelchair user at BROOKDALE San Ramon was told that she could not participate in

16 regular Saturday trips to the grocery store and shopping, because the driver “couldn’t

17 handle her.”

18 Emergency Evacuation Procedures

19

59. BROOKDALE has emergency and evacuation policies and procedures in

20 place for at least some of its facilities, but these policies and procedures do not take into

21 account the needs of persons with disabilities, or if they do, Defendants have not informed

22 the residents. Residents with disabilities have been told to wait in their rooms for someone

23 to come, and although the facilities have emergency drills, staff have not demonstrated for

24 residents what will happen in the event of an actual emergency.

25

60. Plaintiffs are informed and believe, and on that basis allege, that these

26 practices have been and are an official policy and practice by which Defendants operate

27 their businesses and/or services.

28

61. Defendants’ failure and refusal to provide equal services to persons with

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1 disabilities is humiliating and degrading to and creates a serious safety risk for the

2 members of the proposed class of persons with disabilities.

3

62. Defendants are responsible for their illegal operations and discriminatory

4 policies and practices as described herein. BROOKDALE residents, their family

5 members, and staff members have raised these issues repeatedly with members of

6 BROOKDALE management to no avail.

7

63. Defendants have been notified of the civil rights violations described herein,

8 but have refused to provide necessary reasonable modifications to its staffing policies,

9 practices and procedures to provide residents with disabilities full and equal enjoyment of

10 their goods, services, facilities, activities, benefits and accommodations and to comply

11 with the requirements of the ADA and the Unruh Civil Rights Act .

12 Retaliation Against Resident Councils and Their Members

13

64. Pursuant to Cal. Health & Safety Code § 1569.157(a), residential care

14 facilities must assist the residents in establishing and maintaining a resident council.

15 Moreover, a facility must respond in writing to any written concerns or recommendations

16 submitted by the resident council within 14 days. Cal. H&S Code § 1569.157(c).

17

65. California law also prohibits assisted living facilities from willfully

18 interfering with the “formation, maintenance, or promotion of a resident council.” Cal.

19 H&S Code § 1569.157(g). The law defines “willful interference” as including

20 “discrimination or retaliation in any way against an individual as a result of his or her

21 participation in a resident council, refusal to publicize resident council meetings or provide

22 appropriate space for either meetings or a bulletin board, or failure to respond to written

23 requests by the resident council in a timely manner.” Cal. H&S Code § 1569.157(g).

24

66. BROOKDALE has not responded in writing to at least four letters sent to its

25 corporate offices by Ms. JESTRABEK-HART in her capacity as chair of the

26 BROOKDALE Scotts Valley residents’ council. The letters addressed the lack of

27 adequate staffing, facility maintenance concerns, the lack of emergency signals in the

28 laundry rooms, common room doors that are difficult to open, and the high price of meals

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1 for visitors. The executive director at the Scotts Valley facility responded to one of the

2 letters orally, but BROOKDALE has not responded in writing to any of the above-

3 mentioned letters, in violation of Cal. H&S Code§ 1569.157(c) and (g) .

4 Brookdale Misrepresents, Makes Misleading Statements, and Conceals Material Facts About the Quality and Availability of Care It Provides to All Residents
5

6

67. As a result of Defendants’ corporate policies and practices, BROOKDALE

7 subjects all residents, regardless of disability, to a substantial risk that they will not receive

8 the care and services they require and have paid for on any given day, as described in

9 Paragraphs 36-60. BROOKDALE lures residents to move into or stay at its facilities by

10 misrepresenting in various corporate written materials that it will provide the basic,

11 personal, and therapeutic services each resident needs based on individualized assessments

12 performed by BROOKDALE staff, and by failing to disclose and concealing that it cannot

13 provide the promised services to all residents because its facilities are chronically

14 understaffed.

15 Standardized Residency Agreements

16

68. In order to move in to one of BROOKDALE’s California facilities, residents

17 must sign one of Defendants’ standardized Residency Agreements. In its standardized

18 Residency Agreement, BROOKDALE represents to residents prior to move-in and

19 throughout their residency that it will provide them with a standard set of basic services,

20 additional personal services identified in the Personal Service Plan, and any select and

21 therapeutic services for which the resident chooses to pay. At the time of signing the

22 Residency Agreement, residents or their responsible parties are required to confirm that

23 they have reviewed and understand the document.

24

69. In Section I.A of its standardized Residency Agreement, BROOKDALE

25 affirmatively represents to prospective residents that “[i]n order to provide you with care,

26 supervision and assistance with instrumental activities of daily living in order to meet your

27 needs, we will provide you with the following Basic Services”: accommodations,

28 including a residential suite and use of common areas; three meals a day plus snacks 24

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1 hours a day; basic utilities; “light housekeeping once a week”; weekly laundry service of

2 the resident’s “personal belongings and bed linens”; “planned social and recreational

3 programs”; transportation services; and staffing by “Community associates … available 24

4 hours a day, seven days a week.” Section I.A further represents that BROOKDALE will

5 observe the resident’s “health status to identify social and health care needs” and “will

6 consult with you regarding social and health-related issues.” In addition, BROOKDALE

7 represents in Section I.A of its standardized Residency Agreement that “[w]e will provide

8 personal services that are included as part of the personal service assessment.”

9

70. In Section I.B of its standardized Residency Agreement, BROOKDALE

10 represents that “[p]rior to moving in and periodically throughout your residency, we will

11 use a personal service assessment to determine the personal services you require. The

12 personal service assessment will be used to develop your Personal Service Plan.”

13

71. Defendants’ standardized price schedule for personal care services is

14 attached to the standardized Residency Agreement. This price schedule includes a variety

15 of personal services, such as staff assistance with ordering, storing, and taking medication;

16 staff assistance with eating, dressing, bathing, using the toilet, and other activities of daily

17 living; escort and mobility assistance to get around Defendants’ facilities; and help taking

18 care of residents’ pets. This price schedule lists the monthly costs of each service and

19 details how Defendants’ caregivers and other staff will provide the services. For instance,

20 a resident may require and agree to pay for “[s]taff attention while you administer your

21 insulin injections”; “additional staff involvement” for residents who are reluctant to accept

22 care; and bathroom assistance such as “reminders to get to the bathroom,” “pulling up and

23 down pants, handling toilet paper, wiping, changing protective undergarments and getting

24 onto and off of toilet,” as well as “weight-bearing or balance assistance from one

25 associate” for residents “unable to stand independently while using the bathroom.”

26

72. BROOKDALE repeats these representations in the Personal Service Plan

27 that it prepares for each resident before the resident moves in and updates periodically

28 throughout his or her residency. The Personal Service Plan lists the types of staff

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1 assistance that the resident requires and has agreed to pay for, along with the monthly fee

2 for each. For example, the Personal Service Plan for one former resident states that

3 Defendants’ staff will “[p]rovide physical assistance to and from the dining room and/or

4 community activities as needed” for a monthly fee of $273. Standardized language in the

5 Personal Service Plan states that “[t]he Personal Service Assessment and the Physician

6 Plan of Care are used to determine the personal services that you require at move-in and

7 periodically throughout your residency. The Personal Service Assessment will be used to

8 develop your Personal Service Plan.”

9

73. Pursuant to Sections I.B and III.F of its standardized Residency Agreement,

10 “[t]he results of the assessment, our method for evaluating your personal care needs, and

11 the cost of providing the additional personal services (the ‘Personal Service Rate’) will be

12 shared with you,” and a change in the Personal Service Plan be offered or required “when

13 we determine additional services are requested or required” and after 60 days’ written

14 notice has been provided.

15

74. In Section I.C of its standardized Residency Agreement, BROOKDALE

16 represents that it will make “Select Services and Therapeutic Services … available to you

17 at your request,” but that the fees for these services are not included in the rates residents

18 pay for basic services and personal services. Defendants’ standardized Residency

19 Agreement incorporates by reference a standardized price list which features prices for the

20 select and therapeutic services that Defendants make available, many of which consist of

21 staff assistance with the resident’s activities of daily living. For example, residents may

22 elect to pay for tray service in their rooms for up to three meals a day or for additional

23 laundry and housekeeping services beyond what is provided in the basic service rate.

24

75. Every month, BROOKDALE sends each resident or his or her responsible

25 party an invoice for services that the company represents it will provide the following

26 month. These invoices list the monthly rate for basic services, the Personal Service Rate

27 that is based on each resident’s Personal Service Plan, and any rate adjustments.

28

76. BROOKDALE repeats these representations in the letters it periodically

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1 sends all residents informing them of increases in the rates they owe for basic services,

2 personal services, and select and therapeutic services. Using standardized language,

3 Defendants’ rate increase letters notify the resident of changes to his or her monthly rates

4 for these services, which BROOKDALE attributes to increases in the cost of “providing

5 the services you desire and depend upon.”

6 Defendants’ Communications Regarding the Merger and New Assessment System

7

77. In early 2014, Emeritus Senior Living (“Emeritus”), at the time a major

8 chain of senior living facilities, sent residents a standardized letter informing them of the

9 merger between BROOKDALE and Emeritus. The letter promised that residents would

10 not be impacted by the change but would “receive the same excellent care and service you

11 expect at your community” and would “continue to enjoy all the amenities of your

12 community.” It further stated the merger would create a “senior living company offering

13 the most comprehensive set of senior care solutions” with a commitment to “customer-

14 focused cultures and a commitment to continuous improvement and innovation.” Rather

15 than inform residents that the merger would result in even lower staffing levels and poorly

16 trained staff, the letter promised a continuum of care with likely improvements.

17

78. In or about October 2015, BROOKDALE sent residents a standardized letter

18 informing them of an upgrade to its community assessment and care planning system

19 effective December 1, 2015. The upgrade would involve a conversion to a “new personal

20 service system” which would “enhance our ability to match your needs and preferences

21 with the right services at the right time.” The letter promised “benefits from

22 enhancements,” which included, inter alia, “[p]ersonalized service planning and care

23 systems.”

24

79. Based on these representations, Plaintiffs, and the putative class members

25 reasonably expected that the merger would result in improvements in care, or at the very

26 least, would not result in a decline in services. Additionally, they reasonably expected that

27 the conversion to the new assessment and care planning system would result in improved

28 delivery of basic services, personal services, and select and therapeutic services for which

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1 they were paying.

2 Defendants’ Marketing Materials

3

80. Defendants’ public website, www.brookdale.com, prominently features

4 online marketing materials directed at prospective residents. In a section of its website

5 entitled “What is Assisted Living?”, BROOKDALE claims that its “assisted living

6 communities have staff and programs in place that support and assist residents with daily

7 living and basic care in a homelike or apartment setting. Residents receive three meals a

8 day, recreational and social activities, housekeeping, linen service, apartment maintenance

9 and transportation. That means your loved one gets all the benefits of retired life, without

10 the hassle of daily chores.”

11

81. Defendants’ online marketing materials also tout the personalized services

12 that its assisted living facilities provide. The company’s website explains that “[o]ur

13 trained caregivers provide attention and assistance with medication support, bathing,

14 dressing, cooking and other tasks throughout the day. Our staff will also coordinate

15 services with outside healthcare providers and monitor residents to ensure they are healthy.

16 So your loved one gets the care they need while enjoying the quality of life they’ve

17 earned.”

18

82. Defendants’ online marketing materials promise a “Culinary Arts” program

19 that uses “only the freshest meat, seafood, produce, herbs and spices.”

20

83. Defendants’ online marketing materials further represent that “[a]t

21 Brookdale, we believe in delivering senior care that’s tailored to you and your loved one

22 based on those unique needs and desires. That’s why we provide a variety of options.

23 This personalized approach ensures that you and your family get exactly what you need

24 without paying for what you don’t.”

25

84. BROOKDALE represents to prospective and current residents that it tailors

26 its services to residents’ personal needs. According to Defendants’ representations, the

27 process begins with an individualized assessment, which BROOKDALE uses to produce a

28 Personal Service Plan for each resident. The Personal Service Plan includes a list of

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1 services for which the resident pays a monthly fee. Defendants’ affirmative

2 representations give rise to a reasonable expectation on the part of the reasonable

3 consumer that BROOKDALE will determine and then provide the amount of caregiver and

4 other staff time that is necessary to provide the personal services for which residents are

5 paying.

6

85. BROOKDALE makes similar representations in the standardized marketing

7 folder it distributes to prospective and incoming residents. In this marketing folder,

8 BROOKDALE represents that at its facilities, “Carefully selected and trained associates do

9 more than assist with activities of daily living such as dressing, bathing and dispensing of

10 medications; they implement custom care plans designed to meet the individual needs of

11 each resident … It all begins with a Personal Service Assessment. We take the time to

12 listen to our residents so that we understand how to establish clinical, dining and program

13 support that works for them in a meaningful way. We recognize their individual needs and

14 preferences and respond to them accordingly. So, whether it’s a scented lotion, a unique

15 snack, a favorite recipe or a lifelong interest, we integrate everything we learn to create a

16 truly individualized living experience.” Elsewhere in this marketing folder,

17 BROOKDALE represents that it “provide[s] customized care solutions to meet residents’

18 unique needs and complement their vision for all the places they would still like their lives

19 to go. From our trained staff to our wide variety of amenities and activities, we strive to

20 offer personalized care and exceptional service at competitive and affordable rates. Fees

21 for care and services are based on each resident’s needs and preferences, as determined by

22 the Living Accommodation selected and their Personal Service Plan … This provides

23 customer value because our residents only pay for what they need and want.”

24 (Emphasis in original). BROOKDALE’s marketing folder also promises an industry-

25 leading dining services program that “continue[s] to satisfy the preferences and nutritional

26 needs of residents with dining choices that offer mealtime fulfillment while meeting

27 dietary requirements.”

28

86. Based on all of Defendants’ representations, Plaintiffs, the putative class

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1 members, and the general consuming public reasonably expect that BROOKDALE will

2 ensure adequate staffing to perform the services promised to residents, including by

3 providing sufficient levels of qualified and adequately trained staff to perform the services

4 identified in each resident’s Personal Service Plan.

5 Defendants’ Failures to Disclose

6

87. Contrary to Defendants’ representations regarding its provision of services,

7 BROOKDALE has a corporate policy and practice of staffing its facilities according to a

8 system that ensures all BROOKDALE residents run the continuing risk of not receiving

9 the services for which they are paying, of not having their care needs met, and of suffering

10 injury from the lack of care.

11

88. In addition to the Community Care Licensing records described in

12 Paragraphs 38-39, 42-44, 47-50 and 53, current and former residents of BROOKDALE

13 facilities confirm that Defendants’ staffing levels do not change when updates to personal

14 service assessments show that residents require additional personal services.

15 BROOKDALE has in many cases modified residents’ Personal Service Plans—and raised

16 monthly personal service fees accordingly—even though BROOKDALE failed to conduct

17 an updated personal service assessment, failed to provide residents or their responsible

18 parties with the results and method of the assessment, and/or failed to provide 60 days’

19 written notice. Despite paying higher fees as a result of these changes to their Personal

20 Service Plans, residents and their families have observed that neither the services provided

21 nor staffing levels increased and, in many cases, decreased.

22

89. Caregivers have informed residents that they would like to work a 40-hour

23 week, but BROOKDALE allows certain caregivers to work only 24 hours in a week.

24 Residents and their family members have also observed that BROOKDALE fails to ensure

25 that all staff members receive necessary training. At BROOKDALE Fountaingrove, the

26 facility’s interim executive director admitted to residents’ families that BROOKDALE has

27 insufficient staff to meet residents’ needs.

28

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1

Brookdale’s Misrepresentations and Concealed Facts Were Material

2

90. BROOKDALE’s misrepresentations and the facts it conceals are material to

3 the reasonable consumer. An important and significant factor in choosing to move oneself

4 or one’s relative to a BROOKDALE facility, to stay there after the facility was purchased

5 by BROOKDALE, and/or to continue to agree to pay the amounts charged by

6 BROOKDALE is the provision of staffing that is necessary to provide the services its

7 residents need and for which the residents are paying.

8

91. BROOKDALE’s misrepresentations, misleading statements and omissions

9 regarding its provision of staffing are material to prospective residents and their family

10 members. Assurances that a facility will provide the amount of staffing necessary to

11 provide basic services and meet the personal service needs of residents based on

12 BROOKDALE’s own assessments is a substantial factor (and indeed often the most

13 important factor) in deciding to enter a certain facility. The named Plaintiffs would not

14 have, and the members of the putative class would in all reasonable probability not have,

15 entered BROOKDALE’s facilities or stayed at these facilities after BROOKDALE

16 purchased them from other companies, or they would have insisted on paying a lower

17 price, if they had known that, although BROOKDALE would charge them based on the

18 staffing associated with their Personal Service Plans, BROOKDALE did not and does not

19 provide adequate staffing to carry out the services identified in residents’ Personal Service

20 Plans, nor does it provide adequate staffing to perform basic services and select and

21 therapeutic services.

22

92. This is true even for residents who currently are nearly independent. These

23 residents chose an assisted living facility as opposed to an independent living community

24 or remaining at home because they wish to “age in place.” They may not need significant

25 assistance with the activities of daily living initially, but they will become more dependent

26 as they age and do not want to move again when that happens. Moreover, even the most

27 independent residents depend on the basic services that BROOKDALE promised them,

28 such as food, laundry, and housekeeping. A key factor for these residents in selecting

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1 BROOKDALE is that the facility will provide the staffing that BROOKDALE itself has

2 determined is necessary to meet their assessed needs, both now and as those needs

3 increase.

4

93. BROOKDALE has a duty to disclose that its staffing policies and procedures

5 preclude it from consistently providing basic services, personal services, and select and

6 therapeutic services, because of, among other things, the substantial safety risk to current

7 and future residents from BROOKDALE’s conduct.

8

94. The non-disclosure is material because, among other things, BROOKDALE

9 knows that its conduct risks the safety of its residents. In addition to individual complaints

10 made by residents and family members, family and resident councils send regular

11 correspondence to Executive Directors of BROOKDALE facilities, as well as regional and

12 national mangers regarding the problems outlined above. In the case of BROOKDALE

13 San Ramon and BROOKDALE Fountaingrove, local and regional management employees

14 have attended numerous meetings of the Family and Resident Councils and have made

15 unfulfilled promises to address the concerns outlined above. Moreover, Community Care

16 Licensing has conducted numerous licensing inspections which are delivered to

17 BROOKDALE executives and managers of California facilities, describing the failure of

18 various facilities to meet state laws and regulations.

19

95. BROOKDALE is fully aware of the facts alleged above. Yet,

20 BROOKDALE has failed to disclose and actively concealed from residents, prospective

21 residents and their family members the true facts about how staffing is provided at

22 BROOKDALE’s California facilities.

23 Barriers to Moving Out

24

96. BROOKDALE’s misrepresentations, misleading statements, and material

25 omissions affect not only the decision of residents to enter the facility but also the decision

26 to stay at a BROOKDALE facility.

27

97. In choosing assisted living in general and a BROOKDALE facility in

28 particular, the resident forgoes other options such as their former home, an independent

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1 living community, or other facilities. Once in a facility, there are significant physical,

2 emotional and other burdens for the residents that are triggered if they terminate residency,

3 including impacts such as “transfer trauma.” BROOKDALE knows and relies on this fact.

4 As BROOKDALE notes on its website “[a]s a resident’s health needs increase, they may

5 transition from one level to the next—all within the same community. This provides a

6 permanent link to friends and families for them by assuring they remain in a single

7 location.”

8

98. BROOKDALE puts great effort into increasing and maintaining building

9 occupancy to the detriment of their current and future residents. Plaintiffs allege on

10 information and belief that when residents or their family members complain about

11 staffing and/or conditions at a BROOKDALE facility, employees are instructed to reassure

12 them that things will improve and that the incident or incidents are temporary snags. For

13 example, the Family Council of BROOKDALE Fountaingrove was meeting every month

14 for many months to address the inadequate staffing, slow response times to call buttons,

15 and other health and safety issues faced by the Fountaingrove residents. BROOKDALE

16 representatives, including Vice President of Regional Operations Sharyl Ronan and

17 Interim Executive Director Dan Devine, appeared at many meetings, listened to the

18 numerous complaints, and assured those present that they are looking into the problems

19 and all will be well. Notwithstanding these claims, members of the Family Council report

20 little to no changes or action items undertaken by BROOKDALE staff after these

21 meetings.

22

99. Similarly, residents and family members at BROOKDALE San Ramon hold

23 monthly Family Council and Resident Council meetings and have informed facility

24 management, as well as Rick Flynn, District Director of Operations, former Executive

25 Director Steve Millard, Executive Director Shawn Cull, and former Acting Director Bill

26 Grady of the problems described above. In January 2017, Mr. Flynn, Mr. Grady and

27 Mr. Cull attended a Family Council meeting at which family members and residents

28 demanded answers to their questions about understaffing, poorly trained staff, undelivered

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1 services, food and dining deficiencies, cancelled activities, and problems with call

2 pendants. They were reassured at the meeting and subsequently told by email

3 correspondence that BROOKDALE was working “diligently” on solutions and had

4 reached out to the District Vice President of Operations Sheila Garner, who would be

5 helping to resolve the problems. BROOKDALE also represented that management had

6 “made progress in our hiring process for clinical and dining,” and was monitoring the call

7 pendant system and providing additional training to staff. Since that time, BROOKDALE

8 announced the hiring of additional employees but concealed from residents that it was

9 simultaneously cutting the hours of its current employees, cuts which have led to

10 significant staff turnover. Residents and family members report that the problems

11 described above have in fact worsened.

12

100. Such reassurances from BROOKDALE are common when residents and

13 family members raise concerns about the quality of care and services they are receiving.

14 On information and belief, Regional Vice Presidents and Executive Directors are

15 instructed to minimize potential move-outs. Executive Directors are regularly told by

16 upper management to do everything they can to “save” the move-out.

17

101. BROOKDALE thereby unjustly continues to profit from the original fraud

18 by perpetuating the misrepresentations, misleading statements, and failures to disclose.

19

Named Plaintiffs’ Experiences in Brookdale Facilities

20 Stacia Stiner

21

102. STACIA STINER has been a resident at BROOKDALE San Ramon since

22 approximately February 13, 2016. On or about February 12, 2016, STACIA STINER’s

23 mother, Rita Stiner, read, reviewed, and signed an agreement with BROOKDALE as

24 STACIA STINER’s legal representative and power of attorney. As part of this

25 “RESIDENCY AGREEMENT”, BROOKDALE stated that “[i]n order to provide you with

26 care, supervision and assistance with instrumental activities of daily living in order to meet

27 your needs, we will provide you with the following Basic Services, which are included in

28 the Basic Service Rate,” which included, among other things, the room, three daily meals

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1 and snacks on demand, weekly room cleaning, weekly laundry and linen service, planned

2 activities, transportation, observation, and the availability of staff “24 hours a day, seven

3 days a week.” This standard residency agreement also stated that:

4

[p]rior to moving in and periodically throughout your residency, we will use

a personal service assessment to determine the personal services you require.

5

The personal service assessment will be used to develop your Personal

Service Plan. The results of the assessment, our method for evaluating your

6

personal care needs, and the cost of providing the additional personal

services (the “Personal Service Rate”) will be shared with you.

7

8 The Personal Service Plan lists the types of staff assistance that Ms. STINER requires and

9 has agreed to pay for, along with the monthly fee for each type of staff assistance. In

10 addition, Ms. STINER’s mother Rita Stiner has received and reviewed, as enclosures to

11 BROOKDALE’s rate increase letters, a personal service schedule and list of select and

12 therapeutic services. These documents describe a variety of available services, list the

13 monthly or per-occurrence fee for each service, and detail how BROOKDALE’s

14 caregivers or other staff will provide the service. Every month, BROOKDALE sends

15 Ms. STINER, through Rita Stiner, an invoice for services that the company impliedly

16 represents it will provide in the following month. These invoices list the monthly rate for

17 the basic services set forth in BROOKDALE’s standardized residency agreements, the

18 Personal Service Rate that is based on Ms. STINER’s Personal Service Plan, and any rate

19 adjustments.

20

103. Ms. STINER, through her legal representative and power of attorney, Rita

21 Stiner, read and reasonably understood BROOKDALE’s representations as statements that

22 BROOKDALE would perform assessments to determine needed services and staff

23 BROOKDALE San Ramon in a manner that would allow it to consistently provide the

24 services that BROOKDALE promised and Ms. STINER was paying for. Ms. STINER,

25 through Rita Stiner, relied on these representations in making the decision to enter

26 BROOKDALE San Ramon. BROOKDALE did not disclose to STACIA or Rita STINER

27 at any time prior to her admission nor has it disclosed since that time that its corporate

28 policy and procedure of providing pre-determined staffing at its facilities precludes

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1 BROOKDALE from providing the care and services residents have been promised and

2 places all residents at a substantial risk that they will not receive the care and services they

3 have paid for on any given day. If BROOKDALE had disclosed this material fact to

4 STACIA and/or Rita STINER prior to or early in Ms. STINER’s residency, RITA

5 STINER would have looked for another facility for STACIA or would have told

6 BROOKDALE that her daughter would not agree to pay the rates charged by

7 BROOKDALE.

8

104. Beginning in October 2016, BROOKDALE initiated increases in

9 Ms. STINER’s basic service and personal service rates. Ms. STINER and her mother Rita

10 Stiner have been unable to decipher the changes in Ms. STINER’s bills. On or about

11 October of 24, 2016, Rita Stiner received a letter from BROOKDALE’s Executive

12 Director informing her that Ms. STINER’s basic service rate would increase from $3,205

13 to $3,429 per month and that her personal service rate would increase by approximately

14 6%. During an in-person meeting in January of 2017, BROOKDALE staff told Rita Stiner

15 that Ms. STINER’s personal service rates would rise as follows: the monthly medication

16 management fee would rise from $567 to $631; the monthly fee for staff assistance with

17 dressing and grooming tasks would rise from $454 to $505; the monthly fee for assistance

18 with two showers per week would rise from $113 to $631 per week (a significant increase

19 because STACIA STINER was purportedly requiring more than the allotted 20 minutes of

20 caregiver time per shower); and the monthly fee for assistance with toileting would

21 increase from $397 to $442. Rita Stiner had conversations with Shawn Cull, the acting

22 Executive Director, during which he told her that BROOKDALE would not charge the full

23 amount of the increases listed above. Despite numerous communications with Mr. Cull

24 and the billing department, the monthly bills remain confusing and BROOKDALE has

25 sent Rita Stiner notices of late payment and even a “30-DAY FINAL DEMAND TO PAY”

26 in December 2016, stating that “[i]n order to provide the care our residents expect and

27 deserve and at the same time support the professional staff we employ, it’s imperative that

28 we receive our monthly rent and any additional charges in a timely fashion.” Brookdale

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1 subsequently withdrew the demand, but the bills remain confusing, and every time there is

2 an increase in Ms. STINER’s monthly rates, the rate on Ms. STINER’s bills does not

3 correspond to the information given to her or her mother by Mr. Cull about the increase.

4

105. Although Ms. STINER is a wheelchair user, BROOKDALE has not

5 provided her with a room that has any physical access features. It does not have sufficient

6 turning space in the bathroom area, making it difficult for Ms. STINER to enter the

7 bathroom in her wheelchair and impossible for Ms. STINER to turn around in the

8 bathroom. The bathroom does not have a roll-in shower, and the grab bars do not comply

9 with applicable access standards, preventing her from bathing independently and creating a

10 serious safety hazard. Ms. STINER cannot reach most of the hanging or the storage space

11 in her closet and therefore cannot access her clothing or other personal items without

12 assistance from others. Ms. STINER’s room has a balcony, but a two-inch lip leading out

13 to the balcony and insufficient turning space once outside makes it inaccessible to

14 Ms. STINER. She once tried to enter and exit the balcony by herself, but has not

15 attempted to do so since because the experience scared her. The complete lack of

16 accessible features in Ms. STINER’s room prevents her from being as independent as

17 possible and causes her to rely on personal assistance from BROOKDALE staff. In fact,

18 Ms. STINER is charged more than $400 per month for toilet assistance because “resident

19 is unable to use the bathroom on their own.” BROOKDALE charges Ms. STINER an

20 elevated rate of over $600 for two showers per week because, according to BROOKDALE

21 management, she requires more than the allotted 20 minutes per shower. Compounding

22 this problem is BROOKDALE’s understaffing in care services, which means that

23 Ms. STINER must wait to accomplish most of her activities of daily living, if at all. This

24 puts Ms. STINER in humiliating, frustrating and hazardous situations on a daily basis.

25

106. Despite STACIA STINER’s paying approximately $600 per month for

26 BROOKDALE to “order and coordinate medications between family, health care

27 providers and pharmacy,” Rita Stiner must pick up medication for her daughter at least

28 once per week, frequently with only one-day notice from BROOKDALE. Rita Stiner also

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1 does the majority of her daughter’s laundry because BROOKDALE frequently loses her

2 clothing or returns the wrong clothing to her.

3

107. Understaffing in the dining services department means that Ms. STINER has

4 had to wait up to 45 minutes just to order breakfast.

5

108. On some days, there is only one caregiver available in the mornings, causing

6 Ms. STINER to wait anywhere from 10 minutes to one hour for assistance getting dressed.

7 At night, Ms. STINER requires assistance if she needs to use the toilet. She waits

8 anywhere from 10 minutes to an hour for staff to respond and will occasionally have to

9 urinate in her bed when assistance takes too long to arrive. She frequently resorts to using

10 her mobile phone to call the outside line when staff do not respond to her call pendant.

11 Due to short-staffing, caregivers often attempt to leave Ms. STINER in the middle of

12 assisting her with bathing or toileting because they must respond to call pendants from

13 other residents or because they left another resident on the commode to respond to Ms.

14 STINER. Ms. STINER objects and insists that the caregivers finish assisting her before

15 they leave, but she knows that other residents are too afraid to speak up for themselves and

16 are often stranded by caregivers.

17

109. Ms. STINER enjoys getting out of the facility and participating in off-site

18 activities. However, BROOKDALE requires that, because she is a wheelchair user, she be

19 accompanied by a family member or a private personal caregiver. Although she has been

20 able to participate in scenic drives or lunches by herself, Ms. STINER had to pay

21 approximately $180 for a personal assistant to participate in a trip to a casino in Cache

22 Creek in approximately August 2016. Ms. STINER enjoys outings to the casino, but

23 BROOKDALE still requires that she take her mother or a private caregiver on those trips.

24 Outings are also limited to two wheelchair users per outing on a first come, first served

25 basis. If Ms. STINER does not sign up immediately, she will lose her ability to participate

26 on a particular outing. This is true of other wheelchair users in the facility.

27

110. In case of fire and other emergencies, BROOKDALE staff has told

28 Ms. STINER to remain in her room until they come and get her. However, staff members

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1 have not come to get Ms. STINER when fire alarms go off at the facility, nor have they

2 given her any additional instructions about how they would assist her in exiting the

3 facility.

4 Helen Carlson

5

111. HELEN CARLSON was a resident at BROOKDALE Fountaingrove from

6 October 2011 until her death on January 19, 2019. When Ms. CARLSON moved into the

7 facility, it was owned and operated by Emeritus and was known as Emeritus at Santa Rosa.

8 Prior to move-in, CARLSON’s daughter-in-law JOAN CARLSON, acting as

9 Ms. CARLSON’s legal representative and power of attorney, read, reviewed, and signed a

10 standardized residency agreement with Emeritus. In this agreement, Emeritus promised to

11 provide a list of “core services” that are substantially similar to the basic services

12 enumerated in Defendants’ standardized residency agreement. Emeritus also agreed to

13 “perform a comprehensive Resident Evaluation prior to your admission in the Community,

14 regularly thereafter, and as your condition warrants, in order to determine the level of

15 Personal Care Services that you need. We will develop your Service Plan, based on your

16 Resident Evaluation, that describes how we will provide these services. You will receive

17 services appropriate to your individual needs, as described in your Service Plan.” The

18 agreement reserved Emeritus’s right to assign the agreement to any successor-in-interest

19 selected by Emeritus.

20

112. Ms. CARLSON, through her legal representative and power of attorney

21 JOAN CARLSON, read and reasonably understood Emeritus’s representations in the

22 residency agreement as statements that Emeritus used its resident assessment system and

23 results generated by it to determine and provide staffing levels necessary to meet residents’

24 needs. Ms. CARLSON also reasonably understood and expected that Emeritus would staff

25 Emeritus at Santa Rosa in a manner that would allow it to consistently provide the services

26 that Emeritus promised and Ms. CARLSON would be paying for. Ms. CARLSON,

27 through JOAN CARLSON, read and relied on the representations in the residency

28 agreement in making the decision to enter Emeritus at Santa Rosa. As Ms. CARLSON’s

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1 legal representative and power of attorney, JOAN CARLSON read and signed the

2 agreement acknowledging that she understood and agreed to all of the terms contained in

3 the agreement. In or about February 2014, JOAN CARLSON received and read a letter

4 from Emeritus informing residents about the merger between BROOKDALE and

5 Emeritus. The letter promised that residents would not be impacted by the change but

6 would “receive the same excellent care and service you expect at your community” and

7 would “continue to enjoy all the amenities of your community.” It further stated the

8 merger would create a “senior living company offering the most comprehensive set of

9 senior care solutions” with a commitment to “consumer-focused cultures and a

10 commitment to continuous improvement and innovation.”

11

113. JOAN CARLSON, as her mother-in-law’s power of attorney and legal

12 representative, read the letter and reasonably understood that the care her mother-in-law

13 received would be no worse than the care she had received under Emeritus, and possibly

14 improve. BROOKDALE did not inform JOAN or HELEN CARLSON nor did they have

15 any reason to believe that BROOKDALE would not staff the facility with sufficient staff

16 in numbers and training to provide the services for which Ms. CARLSON and the other

17 residents were paying.

18

114. In 2015, BROOKDALE merged with Emeritus, and Emeritus at Santa Rosa

19 became BROOKDALE Fountaingrove. Plaintiffs are informed and believe, and on that

20 basis allege, that Emeritus assigned its residency agreements with existing residents to

21 BROOKDALE, and that BROOKDALE assumed any liability arising from those

22 agreements.

23

115. On November 17, 2015, JOAN CARLSON read, reviewed, and signed an

24 agreement with BROOKDALE as Ms. CARLSON’s legal representative and power of

25 attorney. This agreement, entitled “AMENDMENT TO CONTINUING CARE

26 RESIDENCE AND SERVICES AGREEMENT,” amended the residency agreement that

27 Ms. CARLSON signed with Emeritus and that was assigned to BROOKDALE after the

28 merger with Emeritus. Pursuant to this amendment, references to “core services” and

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1 “personal care services” were replaced with the terms “basic services” and “personal

2 services,” and Emeritus’s price schedules for various services were replaced with

3 BROOKDALE’s standardized personal services price schedule and lists of select and

4 therapeutic services. The parties agreed that except as otherwise amended, the terms of the

5 prior residency agreement would remain in full force and effect.

6

116. BROOKDALE has also prepared and periodically updated a Personal

7 Service Plan for Ms. CARLSON. Ms. CARLSON’s Personal Service Plan lists the type of

8 staff assistance that Ms. CARLSON requires and has agreed to pay for, along with the

9 monthly fee for each type of staff assistance. In addition, Ms. CARLSON has received

10 and reviewed as enclosures to BROOKDALE’s rate increase letters a personal service

11 price schedule and list of select and therapeutic services. These documents describe a

12 variety of available services, list the monthly or per-occurrence fee for each service, and

13 detail how BROOKDALE’s caregivers or other staff will provide the service. Every

14 month, BROOKDALE sends Ms. CARLSON, through JOAN CARLSON, an invoice for

15 services that the company impliedly represents it will provide in the following month.

16 These invoices list the monthly rate for the basic services set forth in BROOKDALE’s

17 standardized residency agreements, the Personal Service Rate that is based on

18 Ms. CARLSON’s Personal Service Plan, and any rate adjustments.

19

117. Ms. CARLSON, through her legal representative and power of attorney

20 JOAN CARLSON, read and reasonably understood BROOKDALE’s representations—as

21 well as Emeritus’s representations in the agreement that was assigned to BROOKDALE

22 and expressly incorporated into BROOKDALE’s November 17, 2015 agreement with

23 Ms. CARLSON—as statements that BROOKDALE would perform assessments to

24 determine needed services and staff BROOKDALE Fountaingrove in a manner that would

25 allow it to consistently provide the services that BROOKDALE promised and that

26 Ms. CARLSON was paying for. Ms. CARLSON, through JOAN CARLSON, read and

27 relied on these representations in making the decision to stay at the facility despite the

28 change in ownership.

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1

118. In December 2017, BROOKDALE told JOAN CARLSON that Ms.

2 CARLSON would need to move into the memory care section of BROOKDALE

3 Fountaingrove. When Ms. CARLSON moved, BROOKDALE presented JOAN

4 CARLSON with a new RESIDENCY AGREEMENT. On or about December 18, 2017,

5 JOAN CARLSON read, reviewed, and signed an agreement with BROOKDALE as Ms.

6 CARLSON’s legal representative and power of attorney. As part of this RESIDENCY

7 AGREEMENT, BROOKDALE stated that “[i]n order to provide you with care,

8 supervision and assistance with instrumental activities of daily living in order to meet your

9 needs, we will provide you with the following Basic Services, which are included in the

10 Basic Service Rate,” which included, among other things, the room, three daily meals and

11 snacks on demand, weekly room cleaning, weekly laundry and linen service, planned

12 activities, transportation, observation, and the availability of staff “24 hours a day, seven

13 days a week.” This standard residency agreement also stated that:

14

[p]rior to moving in and periodically throughout your residency, we will use

a personal service assessment to determine the personal services you require.

15

The personal service assessment will be used to develop your Personal

Service Plan. The results of the assessment, our method for evaluating your

16

personal care needs, and the cost of providing the additional personal

services (the “Personal Service Rate”) will be shared with you.

17

18 The Personal Service Plan lists the types of staff assistance that Ms. CARLSON requires

19 and has agreed to pay for, along with the monthly fee for each type of staff assistance. In

20 addition, JOAN CARLSON has received and reviewed, as enclosures to BROOKDALE’s

21 rate increase letters, a personal service schedule and list of select and therapeutic services.

22 These documents describe a variety of available services, list the monthly or per-

23 occurrence fee for each service, and detail how BROOKDALE’s caregivers or other staff

24 will provide the service.

25

119. Ms. CARLSON, through her legal representative and power of attorney,

26 JOAN CARLSON, read and reasonably understood BROOKDALE’s representations as

27 statements that BROOKDALE would perform assessments to determine needed services

28 and staff BROOKDALE Fountaingrove in a manner that would allow it to consistently

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1 provide the services and supervision that BROOKDALE promised she would receive in

2 their memory care unit and for which Ms. CARLSON was paying. Ms. CARLSON,

3 through JOAN CARLSON, relied on these representations in making the decision to move

4 into the memory care unit of BROOKDALE Fountaingrove. BROOKDALE has never

5 disclosed to Ms. CARLSON or JOAN CARLSON that its corporate policy and procedure

6 of providing pre-determined staffing at its facilities precludes BROOKDALE from

7 providing the supervision, care and services residents have been promised and places all

8 residents at a substantial risk that they will not receive the care and services they have paid

9 for on any given day.

10

120. Until her death in January 2019, BROOKDALE charged Ms. CARLSON a

11 Basic Service Rate of $5,290 per month, plus a Personal Service Rate of $4,173 per month

12 and a Select and Therapeutic Services rate of $105 per month, minus a loyalty credit of

13 $529 per month. Ms. CARLSON’s Personal Service Rate included, among other things, a

14 $580 monthly fee for staff assistance with ordering, storing, and taking medications; a

15 $811 monthly fee for staff assistance with dressing and grooming; a $637 monthly fee for

16 assistance with her oxygen and respiratory equipment; a $1,507 monthly fee for help

17 setting up, cleaning and assistance with nebulizer treatments; a $116 monthly fee for staff

18 assistance with showering; a $927 monthly fee for staff assistance with using the

19 bathroom; a $522 monthly fee for staff assistance with accomplishing and/or participating

20 in daily routines due to memory loss or cognitive impairment; a $290 monthly fee for help

21 going to and from the dining room and/or community activities; and a $290 monthly fee

22 for “additional staff involvement because of demonstrating anxious, disruptive or

23 obsessive behavior requiring additional attention.” Ms. CARLSON also paid $100 per

24 month for incontinence supplies, which BROOKDALE represents its staff will order and

25 stock.

26

121. Beginning in early 2016, JOAN CARLSON and her husband Ralph Carlson

27 began to observe a decline in the quality of care provided to Ms. CARLSON. On one

28 occasion, JOAN discovered that despite promising to fax certain paperwork to

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1 Ms. CARLSON’s primary care physician in advance of a scheduled appointment,

2 BROOKDALE’s staff never did so. In addition, JOAN and Ralph CARLSON stopped

3 receiving phone calls to notify them of Ms. CARLSON’s injuries and other noteworthy

4 incidents.

5

122. In June 2016, Ms. CARLSON was admitted to the hospital after falling while

6 attempting to get out of bed. BROOKDALE’s staff failed to call JOAN or Ralph

7 CARLSON, even though they are listed as Ms. CARLSON’s emergency contacts. As a

8 result, Ms. CARLSON spent several hours in the emergency room without a family

9 member present, and she was charged for ambulance transport back to BROOKDALE

10 Fountaingrove because no family member was present to give her a ride.

11

123. In December 2016, Ms. CARLSON’s doctor took her off the blood thinner

12 Coumadin. Nonetheless, in January and February 2017, staff at BROOKDALE

13 Fountaingrove continued to order and stock Coumadin for Ms. CARLSON.

14 BROOKDALE charged Ms. CARLSON a monthly fee for staff assistance with ordering

15 and storing medications, even though BROOKDALE’s staff failed to adequately perform

16 that service.

17

124. JOAN and Ralph CARLSON have also observed numerous failures by staff

18 to assist Ms. CARLSON with using the bathroom, even though Ms. CARLSON paid a

19 monthly fee for that service. In addition, even though Ms. CARLSON paid a monthly fee

20 for staff to order and stock incontinence products, she often ran out of such products

21 because BROOKDALE’s staff do not check whether supplies are running low or if orders

22 need to be adjusted.

23

125. Ms. CARLSON was unable to use the bathroom sink and kitchenette sink in

24 her previous suite because they are installed at a height that makes them inaccessible for

25 wheelchair users. Ms. CARLSON required glasses to see and dentures to eat, but

26 BROOKDALE staff frequently misplaced or lost these assistive devices.

27

126. JOAN and Ralph CARLSON complained to managers at BROOKDALE

28 Fountaingrove about these problems on numerous occasions. Although BROOKDALE

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1 management repeatedly reassured JOAN and Ralph CARLSON that BROOKDALE would

2 address their concerns, they did not see any improvement when Ms. CARLSON resided in

3 assisted living. Since Ms. CARLSON has resided at BROOKDALE Fountaingrove,

4 BROOKDALE has never disclosed that its staffing policies and procedures preclude it

5 from providing its residents all of the care and services they have been promised and

6 places all residents at an inherent and substantial risk that they will not receive the care and

7 services they have paid for on any given day. If BROOKDALE had disclosed this material

8 fact to JOAN CARLSON early in Ms. CARLSON’s residency, she would have looked for

9 another facility for Ms. CARLSON and would have told BROOKDALE that Ms.

10 CARLSON would not agree to pay the rates charged by BROOKDALE.

11

127. In December 2017, BROOKDALE told JOAN and Ralph CARLSON that

12 HELEN CARLSON needed to move to memory care, and that she would receive

13 additional supervision and care if she moved to the memory care unit and paid additional

14 fees. BROOKDALE told them that if they did not move Ms. CARLSON into memory

15 care at BROOKDALE Fountaingrove, Ms. CARLSON would have to move out of

16 Fountaingrove entirely, and gave JOAN CARLSON only a little over a week to

17 decide. Because of the short time frame, JOAN CARLSON was unable to investigate

18 whether there were comparable facilities in the area that might have accepted Ms.

19 CARLSON. JOAN CARLSON ultimately felt she had no choice but to move Ms.

20 CARLSON into the memory care unit at BROOKDALE Fountaingrove. Her decision was

21 based on BROOKDALE’s representations about additional supervision and care, her fear

22 that Ms. CARLSON would suffer severe trauma if she were to be transferred to an entirely

23 new facility, and the lack of time to investigate other options. In the memory care unit,

24 just as in assisted living, Ms. CARLSON was housed in a room with multiple inaccessible

25 features, including a sink, toilet, and closet that are not wheelchair-accessible.

26 Lawrence Quinlan

27

128. LAWRENCE QUINLAN stayed at the facility at BROOKDALE Hemet for

28 short-term respite on several occasions between 2013 and 2015. On approximately July

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1 14, 2015, he was admitted to BROOKDALE Hemet for a “respite stay” following a

2 hospitalization and rehabilitation for a broken leg. On July 10, 2015, BROOKDALE gave

3 his granddaughter, LORESIA VALLETTE, a Residency Agreement for LAWRENCE

4 QUINLAN. Ms. VALLETTE read, reviewed, and signed the agreement with

5 BROOKDALE on behalf of LAWRENCE QUINLAN. BROOKDALE did not ask

6 LAWRENCE QUINLAN whether he could sign the document or whether LORESIA

7 VALLETTE held Power of Attorney for him. BROOKDALE did not ask Ms.

8 VALLETTE for documentation showing that she had the legal authority to sign the

9 Residency Agreement on behalf of LAWRENCE QUINLAN.

10

129. LAWRENCE QUINLAN left BROOKDALE Hemet for his home on or

11 about September 5, 2015. On September 13, 2015, he was re-admitted to BROOKDALE

12 Hemet as a long-term resident. Prior to LAWRENCE QUINLAN’s move-in, on or about

13 September 13, 2015, BROOKDALE gave his son, Phillip Quinlan, a Residency

14 Agreement for LAWRENCE QUINLAN. Phillip Quinlan read, reviewed, and signed the

15 agreement with BROOKDALE on behalf of LAWRENCE QUINLAN. BROOKDALE

16 did not ask LAWRENCE QUINLAN whether he could sign the document or whether

17 Phillip Quinlan held Power of Attorney for him. BROOKDALE did not ask Phillip

18 Quinlan for documentation showing that he had the legal authority to sign the Residency

19 Agreement on behalf of LAWRENCE QUINLAN. In fact, on page 15 of the Residency

20 Agreement, under his signature, Phillip Quinlan filled in the name and contact information

21 of his niece and LAWRENCE QUINLAN’s granddaughter, LORESIA VALLETTE, under

22 the section titled “LEGAL REPRESENTATIVE/RESPONSIBLE PARTY ADDRESS.”

23 In its Resident Information/Emergency Contact Sheet, BROOKDALE listed LORESIA

24 VALLETTE as Mr. QUINLAN’s “Legally Responsible Party” for both “Financial” and

25 “Health Care.”

26

130. As part of the “RESIDENCY AGREEMENT” provided first to Ms.

27 VALLETTE and then to Phillip Quinlan, BROOKDALE stated that “[i]n order to provide

28 you with care, supervision and assistance with instrumental activities of daily living in

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1 order to meet your needs, we will provide you with the following Basic Services, which

2 are included in the Basic Service Rate.” These included, among other things, the room,

3 three daily meals and snacks on demand, weekly room cleaning, weekly laundry and linen

4 service, planned activities, transportation, observation, and the availability of staff “24

5 hours a day, seven days a week.” This standard residency agreement also stated that:

6

[p]rior to moving in and periodically throughout your residency, we will use

a personal service assessment to determine the personal services you require.

7

The personal service assessment will be used to develop your Personal

Service Plan. The results of the assessment, our method for evaluating your

8

personal care needs, and the cost of providing the additional personal

services (the “Personal Service Rate”) will be shared with you.

9

10 The Personal Service Plan listed the types of staff assistance that Mr. QUINLAN required

11 and had agreed to pay for, along with the monthly fee for each type of staff assistance.

12

131. Mr. QUINLAN’s son, Phillip Quinlan, and his granddaughter, LORESIA

13 VALLETTE, read the agreement on LAWRENCE QUINLAN’s behalf and reasonably

14 understood BROOKDALE’s representations as statements that BROOKDALE would

15 perform assessments to determine needed services and staff BROOKDALE Hemet in a

16 manner that would allow it to consistently provide the services that BROOKDALE

17 promised and for which Mr. QUINLAN was paying. Ms. VALLETTE and Phillip Quinlan

18 relied on these representations in making the decision to place Mr. QUINLAN at

19 BROOKDALE Hemet and to pay BROOKDALE the monthly fees from Mr. QUINLAN’s

20 accounts. BROOKDALE did not disclose to LAWRENCE QUINLAN, Phillip Quinlan, or

21 LORESIA VALLETTE at any time prior to his admission nor has it disclosed since that

22 time that its corporate policy and procedure of providing pre-determined staffing at its

23 facilities precludes BROOKDALE from providing the care and services residents have

24 been promised and places all residents at a substantial risk that they will not receive the

25 care and services they have paid for on any given day. If BROOKDALE had disclosed

26 this material fact to LAWRENCE QUINLAN, Phillip Quinlan, or LORESIA VALLETTE,

27 they would have looked for another facility for Mr. QUINLAN and would not have agreed

28 to pay the rates charged by BROOKDALE from LAWRENCE QUINLAN’s accounts.

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1

132. Mr. QUINLAN is a wheelchair-user. He has right hemiparesis and aphasia

2 due to past strokes. He has mild dementia. During the time Mr. QUINLAN was a resident

3 at BROOKDALE Hemet, he required assistance with the following activities of daily

4 living: bathing, personal hygiene, dressing, laundry, housecleaning, taking medication,

5 preparing meals, toileting, and transfers to and from his wheelchair. During Mr.

6 QUINLAN’s long-term stay at BROOKDALE Hemet, he paid for but was not consistently

7 provided that assistance.

8

133. Although he was paying for assistance with laundry, dressing and showering,

9 Mr. QUINLAN’s granddaughter and son noticed that he smelled horrible and wore dirty

10 clothing. When Ms. VALLETTE asked BROOKDALE staff why Mr. QUINLAN smelled

11 so bad, they blamed him for refusing to take a shower. BROOKDALE then raised Mr.

12 QUINLAN’s monthly personal care rate by $700, even though they were not giving him

13 the promised showers, because he was “resistant.” Ms. VALLETTE requested that

14 BROOKDALE’s staff call her if Mr. QUINLAN refused to shower or change his clothing

15 so that she could speak with her grandfather and try to convince him to cooperate.

16 BROOKDALE staff rarely called Ms. VALLETTE, but the facility continued to charge

17 Mr. QUINLAN a premium for showers and dressing assistance they were not providing.

18

134. Over time, BROOKDALE continued to increase Mr. QUINLAN’s monthly

19 care rates, blaming his resistance to care. Ms. VALLETTE accepted the care rate

20 increases with the expectation that Mr. QUINLAN would actually receive the services for

21 which BROOKDALE was charging him. Despite the increased fees, BROOKDALE staff

22 rarely provided the promised assistance with showering, dressing or toileting to Mr.

23 QUINLAN. Toward the end of Mr. QUINLAN’s stay at BROOKDALE Hemet, the

24 Executive Director told Ms. VALLETTE that they would need to move Mr. QUINLAN to

25 the memory care unit and take away his motorized scooter in order to care for him. This

26 would result in another increase in his monthly rate. In April 2017, frustrated by

27 BROOKDALE’s failure to provide the assistance her grandfather needed and for which he

28 was paying increasingly higher fees, Ms. VALLETTE told BROOKDALE that Mr.

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1 QUINLAN would be moving out. Prior to the move-out date, Ms. VALLETTE and

2 Phillip Quinlan took Mr. QUINLAN to a physician’s office to get a tuberculosis test.

3 When he transferred out of his wheelchair, they saw that the seating pad was soaked with

4 urine and that the plastic was breaking down as a result. It was clear that neither the

5 seating pad nor Mr. QUINLAN had been washed for a very long time. Although Mr.

6 QUINLAN’s move-out date was scheduled for early May 2017, Ms. VALLETTE moved

7 him out on April 30, 2017. Mr. QUINLAN is a currently a resident of an unrelated

8 assisted living facility in Riverside, California.

9 Edward Boris

10

135. EDWARD BORIS was a resident at BROOKDALE Fountaingrove’s

11 assisted living facility from approximately September 10, 2015 to approximately July 21,

12 2016. On or about September 10, 2015, EDWARD BORIS’s daughter MICHELE

13 LYTLE, read, reviewed, and signed a “RESIDENCY AGREEMENT” with

14 BROOKDALE as EDWARD BORIS’s legal representative and power of attorney. As

15 part of this “RESIDENCY AGREEMENT,” BROOKDALE stated that “[i]n order to

16 provide you with care, supervision and assistance with instrumental activities of daily

17 living in order to meet your needs, we will provide you with the following Basic Services,

18 which are included in the Basic Service Rate.” These included, among other things, the

19 room, three daily meals, planned activities, transportation, and the availability of staff “24

20 hours a day, seven days a week.” This standard residency agreement also stated that:

21

[p]rior to moving in and periodically throughout your residency, we will use

a personal service assessment to determine the personal services you require.

22

The personal service assessment will be used to develop your Personal

Service Plan. The results of the assessment, our method for evaluating your

23

personal care needs, and the cost of providing the additional personal service

(the “Personal Service Rate”) will be shared with you.

24

25

136. Among the personal services Mr. BORIS required and agreed to pay for

26 were catheter care, changing, and emptying; toileting assistance; assistance going to and

27 from the dining room and other activities; medication administration; pharmacy services,

28 including medication pick-up; assistance bathing; and application of topical anti-fungal

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1 medication. On top of a $4,545 monthly Basic Service Rate, BROOKDALE charged Mr.

2 BORIS a $2,697 monthly personal service fee. In addition to the residency agreement’s

3 promises of adequate care and service provision, Ms. LYTLE received and reviewed a

4 variety of rate increase letters and invoices that listed the fees for services BROOKDALE

5 agreed its caregivers and other staff would provide to Mr. BORIS. Mr. BORIS, through

6 his legal representative and power of attorney, MICHELE LYTLE, read and reasonably

7 understood BROOKDALE’s representations as statements that BROOKDALE would

8 perform assessments to determine needed services and staff BROOKDALE Fountaingrove

9 in a manner that would allow it to consistently provide the services that BROOKDALE

10 promised and for which Mr. BORIS was paying. Mr. BORIS, through MICHELE

11 LYTLE, relied on these representations in making the decision to enter BROOKDALE

12 Fountaingrove and to pay BROOKDALE the monthly fees it charged him.

13

137. BROOKDALE did not disclose to Mr. BORIS or his legal representative at

14 any time prior to his admission nor has it disclosed since that time that its corporate policy

15 and procedure of providing pre-determined staffing at its facilities precludes

16 BROOKDALE from providing the care and services residents have been promised and

17 places all residents at a substantial risk that they will not receive the care and services they

18 have paid for on any given day. If BROOKDALE had disclosed this material fact to Mr.

19 BORIS or his legal representative prior to or early in his residency, they would have

20 looked for another facility for Mr. BORIS and would not have agreed to pay the rates

21 charged by BROOKDALE.

22

138. BROOKDALE staff failed to regularly monitor Mr. BORIS’s catheter, even

23 though Mr. BORIS required and paid for that service. On one occasion in May 2016, Mr.

24 BORIS’s catheter overflowed, disconnected, and spilled urine all over his room. On July

25 20, 2016, Mr. BORIS’s catheter developed a blockage, but BROOKDALE’s staff failed to

26 identify or address the problem for about 24 hours. Mr. BORIS’s girlfriend, who visited

27 Mr. BORIS at BROOKDALE Fountaingrove on the evening of July 20, noticed blood in

28 the catheter bag and reported it to BROOKDALE’s staff. Staff came to Mr. BORIS’s

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1 room, but they were rushed, failed to identify the blockage, and did nothing to assist Mr.

2 BORIS. Instead, they told Mr. BORIS’s girlfriend not to worry. The next day, Mr.

3 BORIS was in extreme pain; there was still a blockage and very little urine appeared in the

4 catheter bag. Mr. BORIS’s condition continued to deteriorate and eventually his girlfriend

5 took him to a local hospital, where doctors diagnosed the blocked catheter. As a result of

6 the blockage, Mr. BORIS suffered a urinary tract infection and kidney failure, and had to

7 stay in intensive care for several days. After his discharge from the hospital, Mr. BORIS’s

8 condition was so bad that he had to be transferred out of assisted living and into skilled

9 nursing.

10

139. Aware that BROOKDALE’s failure to adequately provide the care and

11 services it had promised contributed to Mr. BORIS’s declining health, Ms. LYTLE sought

12 to move him out of BROOKDALE’s custody. Ms. LYTLE conducted significant research

13 and held onsite interviews with at least three other skilled nursing facilities. However,

14 because Mr. BORIS’s condition had deteriorated so significantly, she was unable to find

15 any facility willing to accept Mr. BORIS as a resident. Thus, the same inadequate care

16 that contributed to Mr. BORIS’s illness prevented Ms. LYTLE from moving Mr. BORIS

17 into a different facility.

18

140. From February 2016 through the end of his time in BROOKDALE’s assisted

19 living facility, Mr. BORIS had a recurring fungal infection on his legs and in his groin

20 area. His doctor ordered him to keep the area clean and apply a topical medication twice a

21 day. Even though Mr. BORIS paid thousands of dollars per month for necessary personal

22 services, including help with bathing and administering medications, BROOKDALE staff

23 failed to bathe Mr. BORIS or apply his topical medication regularly. As a result, the

24 infection persisted for months. At times, the infected area was bloody and emitted a foul

25 odor that pervaded Mr. BORIS’s room.

26

141. Mr. BORIS took a blood thinning medication as well as several other

27 medications. When he was in assisted living at BROOKDALE Fountaingrove, he paid

28 $726 per month for staff assistance with ordering, storing, and administering his

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1 medications, but BROOKDALE staff regularly failed to perform these tasks. At one point

2 in May 2016, BROOKDALE staff failed to give Mr. BORIS his blood thinning medication

3 for three days straight. The problem was discovered only after Mr. BORIS’s girlfriend

4 noticed the lapse. On several other occasions, staff failed to refill Mr. BORIS’s

5 prescriptions, so his girlfriend had to pick them up herself. One time, Mr. BORIS’s

6 medication for his fungal infection ran out and staff failed to replace it for several days.

7

142. One of the main reasons MICHELE LYTLE sought out an assisted living

8 facility for her father was that Mr. BORIS needed regular staff assistance to prevent and

9 respond to falls. However, on numerous occasions during his stay in the BROOKDALE

10 Fountaingrove assisted living facility, Mr. BORIS fell in his room and was left on the

11 ground for extended periods of time because the facility was so understaffed employees

12 could not regularly check on him. When Ms. LYTLE reported this problem to staff at

13 BROOKDALE Fountaingrove, they dismissed the falls as minor even though Mr. BORIS

14 had bruises on his body. Other times, even though BROOKDALE had agreed to provide

15 Mr. BORIS with toileting assistance multiple times per day and charged him a substantial

16 monthly fee for that service, he was left sitting in his own feces because BROOKDALE

17 staff failed to check on him or help him use the bathroom. When he resided in assisted

18 living, Mr. BORIS had difficulty getting around on his own, even with the assistance of a

19 walker or wheelchair. He is also very introverted. As a result, he seldom left his room for

20 meals unless prompted by staff. Although BROOKDALE charged Mr. BORIS a monthly

21 fee for help going to and from the dining room, staff frequently failed to prompt Mr.

22 BORIS at mealtimes or bring him food from the dining room, so he often missed meals.

23 BROOKDALE charged Mr. BORIS $5 per meal when meals were supposedly brought to

24 his room. However, when Ms. LYTLE asked BROOKDALE staff how often her father

25 had been eating, they were unable to answer. Because BROOKDALE often failed to

26 prompt Mr. BORIS to attend meals or to supply them in his room, Mr. BORIS relied on his

27 girlfriend to take prepared food to him.

28

143. Even though BROOKDALE promises weekly laundry service in its

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1 residency agreement, staff frequently failed to wash Mr. BORIS’s clothes and laundry on a

2 weekly basis. In addition, staff often dumped Mr. BORIS’s clean laundry in a pile in his

3 room, even though he was not capable of putting it away himself. MICHELE LYTLE

4 brought these problems to the attention of managers at BROOKDALE Fountaingrove.

5 BROOKDALE management assured Ms. LYTLE that they were working to address her

6 concerns, but she never saw significant improvement during the time that Mr. Boris

7 resided in assisted living. Mr. BORIS ultimately had to move out of assisted living

8 precisely because of a serious infection he developed due to BROOKDALE staff’s failure

9 to monitor his catheter. BROOKDALE has never disclosed to Mr. BORIS or Ms. LYTLE

10 that its staffing policies and procedures preclude it from consistently providing its residents

11 the care and services they have been promised and places all residents in an inherent and

12 substantial risk that they will not receive the care and services they have paid for on any

13 given day. However, several low-level, non-managerial BROOKDALE employees

14 admitted to Ms. LYTLE that the BROOKDALE Fountaingrove assisted living facility was

15 understaffed, that caregivers’ hours were being cut, and that they did not have enough time

16 or resources to adequately attend to Mr. BORIS and the other residents.

17 Ralph Schmidt

18

144. RALPH SCHMIDT is 54 years old, is blind, and has significant cognitive

19 impairments, including short-term memory loss. Both his blindness and cognitive

20 impairments are the result of a traumatic brain injury suffered more than 20 years ago. Mr.

21 SCHMIDT has a court-appointed conservator who manages his financial, medical, and

22 legal affairs. He needs assistance with the following activities of daily living:

23 housekeeping, laundry, navigating when outside of his dwelling, preparing nutritious

24 meals, and transportation.

25

145. RALPH SCHMIDT was a resident at the assisted living facility currently

26 known as BROOKDALE Tracy from approximately September 2011 to October 30, 2017.

27 The BROOKDALE Tracy facility was operated by Emeritus when Mr. SCHMIDT moved

28 in. However, BROOKDALE took over operation of the facility following its merger with

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1 Emeritus.

2

146. In or about April 2014, Emeritus announced that it would merge with

3 BROOKDALE. At the time of the merger, Mr. SCHMIDT’s then-conservator and legal

4 representative, Ms. Gallagher, had no reason to believe that the care Mr. SCHMIDT would

5 receive from BROOKDALE would be any worse than the care he had received under

6 Emeritus. BROOKDALE did not inform Mr. SCHMIDT or his conservator nor did they

7 have any reason to believe that BROOKDALE would not staff the facility with sufficient

8 staff in numbers and training to provide the services for which Mr. SCHMIDT and the

9 other residents were paying.

10

147. After taking over operations at the Tracy assisted living facility,

11 BROOKDALE, on or about July 5, 2016, required Ms. Gallagher, Ms. FISHER’s

12 predecessor as RALPH SCHMIDT’s conservator, to execute an updated Residency

13 Agreement with BROOKDALE on Mr. SCHMIDT’s behalf. As part of this

14 “RESIDENCY AGREEMENT,” BROOKDALE stated that “[i]n order to provide you with

15 care, supervision and assistance with instrumental activities of daily living in order to meet

16 your needs, we will provide you with the following Basic Services, which are included in

17 the Basic Service Rate.” These included, among other things, the room, three daily meals,

18 housekeeping, laundry and linen service, planned social activities, transportation, and the

19 availability of staff “24 hours a day, seven days a week.” This standard residency

20 agreement also stated that:

21

[p]rior to moving in and periodically throughout your residency, we will use

a personal service assessment to determine the personal services you require.

22

The personal service assessment will be used to develop your Personal

Service Plan. The results of the assessment, our method for evaluating your

23

personal care needs, and the cost of providing the additional personal service

(the “Personal Service Rate”) will be shared with you.

24

25 Among the personal services Mr. SCHMIDT required were assistance navigating from his

26 second-floor room to the dining room at meal times and to other community spaces,

27 prompts to engage in community and social activities, and medication management. In

28 exchange for these necessary services, as of July 2016, Mr. SCHMIDT payed a monthly

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1 fee of over $1,000 in addition to his basic service rate.

2

148. Mr. SCHMIDT, through his conservator, read and reasonably understood

3 BROOKDALE’s representations as statements that BROOKDALE would perform

4 assessments to determine needed services and staff BROOKDALE Tracy in a manner that

5 would allow it to consistently provide the services that BROOKDALE promised and for

6 which Mr. SCHMIDT was paying. Mr. SCHMIDT, through his conservator, relied on

7 these representations in making the decision to remain at BROOKDALE Tracy and to pay

8 BROOKDALE the monthly fees it charged him. BROOKDALE did not disclose to Mr.

9 SCHMIDT or his legal representative at any time that its corporate policy and procedure of

10 providing pre-determined staffing at its facilities precludes BROOKDALE from providing

11 the care and services residents have been promised and places all residents at a substantial

12 risk that they will not receive the care and services they have paid for on any given day. If

13 BROOKDALE had disclosed this material fact to Mr. SCHMIDT or his legal

14 representative, they would have looked much sooner for another facility for Mr.

15 SCHMIDT and would not have agreed to pay the rates charged by BROOKDALE from

16 Mr. SCHMIDT’s estate’s funds.

17

149. During his time with BROOKDALE, Mr. SCHMIDT lived in a second-floor

18 room. Because of his blindness, short-term memory loss, and other cognitive impairments,

19 Mr. SCHMIDT was unable to navigate to the dining room or other public areas from the

20 second floor, which would have required him to use stairs or operate an elevator.

21 Placement on the second floor caused Mr. SCHMIDT to require the assistance of

22 BROOKDALE staff for escort services he would not have needed had he been on the first

23 floor, and BROOKDALE mandated that Mr. SCHMIDT pay for the escort services he

24 received. Thus the second-floor placement both unnecessarily reduced Mr. SCHMIDT’s

25 autonomy and increased the fees he paid to BROOKDALE. A first-floor room would have

26 provided Mr. SCHMIDT greater autonomy and would have reduced BROOKDALE’s

27 charges for escort services. However, when Ms. Gallagher asked if Mr. SCHMIDT could

28 be moved to an apartment that would accommodate his needs, BROOKDALE responded

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1 that a first-floor room would be more expensive and would thus negate any savings from

2 the elimination of escort fees.

3

150. Because Mr. SCHMIDT required staff assistance to navigate from his

4 second-floor room to the dining room and other common areas, he frequently waited for

5 staff to come and assist him. Mr. SCHMIDT used a call button to summon an escort for

6 each meal and typically waited twenty to thirty minutes before a BROOKDALE staff

7 member would arrive. Mr. SCHMIDT faced similarly lengthy waits when he wanted to

8 return to his room. These waits greatly frustrated Mr. SCHMIDT.

9

151. BROOKDALE responded to Mr. SCHMIDT’s frustration and need for

10 appropriate accommodations in shockingly inappropriate ways. Professing to be

11 concerned that Mr. SCHMIDT might harm someone with his tapping cane, BROOKDALE

12 staff once took it away from him for several weeks. This rendered Mr. SCHMIDT unable

13 to safely navigate around even the first floor of the BROOKDALE Tracy facility.

14 BROOKDALE staff did not return Mr. SCHMIDT’s tapping cane until his conservator

15 personally intervened. On other occasions, BROOKDALE staff failed to provide Mr.

16 SCHMIDT with a tapping cane or notify his conservator of his need for one when his

17 previous cane was broken and unusable. BROOKDALE’s response to Mr. SCHMIDT’s

18 frustration with slow staff responses to calls for assistance simply rendered Mr. SCHMIDT

19 more dependent on BROOKDALE staff.

20

152. Several times during Mr. SCHMIDT’s years at BROOKDALE, he formed

21 relationships with other residents who would assist him in navigating from his apartment

22 to the dining room at meals times. During these periods in which Mr. SCHMIDT had the

23 assistance of other residents, he did not rely on BROOKDALE staff as frequently for

24 escort services. Nevertheless, BROOKDALE continued to charge Mr. SCHMIDT the

25 same escort fee.

26

153. Because of his short-term memory loss and other cognitive impairments, Mr.

27 SCHMIDT occasionally lost the key to the door of his apartment during his time at

28 BROOKDALE Tracy. On one occasion, rather than replace his key, BROOKDALE staff

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1 gave Mr. SCHMIDT a blank, uncut key, and told him that it was the key to his apartment.

2 Mr. SCHMIDT believed what BROOKDALE staff told him and could not understand why

3 the key would not unlock his door. This caused Mr. SCHMIDT great distress and made

4 him unnecessarily reliant on BROOKDALE staff to open his apartment door when he

5 wanted to enter his room.

6

154. On several occasions the toilet in Mr. SCHMIDT’s apartment overflowed.

7 BROOKDALE responded by locking Mr. SCHMIDT out of the bathroom in his apartment

8 altogether. Rather than fix the problems with the toilet, BROOKDALE gave Mr.

9 SCHMIDT, via his conservator, HEATHER FISHER, the option of a portable toilet in Mr.

10 SCHMIDT’s room or paying for a full-time personal caretaker at the additional cost of

11 $250 per day. Mr. SCHMIDT’s estate was unable to bear the expense of a full-time

12 personal caretaker, so Ms. FISHER reluctantly accepted the option of a portable toilet.

13 However, BROOKDALE failed to regularly empty the toilet, which caused Mr.

14 SCHMIDT’s room to have an unpleasant odor. Mr. SCHMIDT responded by routinely

15 emptying the portable toilet himself, directly onto the roof outside of his window. Aware

16 of the problem and Mr. SCHMIDT’s response, BROOKDALE failed to remove fecal

17 matter sitting just outside of Mr. SCHMIDT’s window.

18

155. Mr. SCHMIDT also disliked using the portable toilet as he found it too small

19 for him to comfortably sit on. He would have preferred to use a toilet outside of his room,

20 but staff responded so slowly to his call button that calling for an escort to a bathroom was

21 not a realistic option. On one occasion, he pressed his call button to use the bathroom

22 around 11:00 p.m., and no staff member ever responded.

23

156. Denial of access to his bathroom also meant that Mr. SCHMIDT could not

24 shower without the assistance of BROOKDALE staff. Having locked him out of his

25 bathroom, BROOKDALE staff allowed Mr. SCHMIDT to shower only twice per week,

26 usually at night. This too distressed Mr. SCHMIDT, as he preferred to shower more

27 frequently and to do so in the morning. Moreover, if Mr. SCHMIDT was engaged in an

28 activity and declined to shower at the moment the opportunity was offered, he could

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1 shower only once per week.

2

157. Although BROOKDALE promised to provide housekeeping among its basic

3 services, Mr. SCHMIDT’s apartment was not well cared for and was rarely clean. His

4 carpets were covered with stains and frequently dirty. The windows to his room had no

5 blinds, and the screens had been almost completely torn off. Before BROOKDALE

6 locked Mr. SCHMIDT out of the bathroom in his apartment, BROOKDALE also failed to

7 keep it clean. The bathroom was frequently dirty and unhygienic.

8 Art Lindstrom

9

158. ART LINDSTROM was a resident of BROOKDALE Scotts Valley from

10 approximately November 2015 until his death on February 23, 2018. His wife, PAT

11 LINDSTROM, has also been a resident of BROOKDALE Scotts Valley from

12 approximately November 2015 and remains a resident of the facility. On or about October

13 31, 2015, ART LINDSTROM and his wife PAT LINDSTROM read, reviewed, and signed

14 a “RESIDENCY AGREEMENT” with BROOKDALE. As part of this “RESIDENCY

15 AGREEMENT,” BROOKDALE stated that “[i]n order to provide you with care,

16 supervision and assistance with instrumental activities of daily living in order to meet your

17 needs, we will provide you with the following Basic Services, which are included in the

18 Basic Service Rate.” These included, among other things, the room, three daily meals,

19 planned activities, transportation, ongoing observation and consultation regarding social

20 and health care needs, and the availability of staff “24 hours a day, seven days a week.”

21

159. BROOKDALE also provided a standard form further elaborating on the

22 “Services and Care Covered by [the] Basic Service Rate.” These services and care

23 described included “housekeeping,” “routine wellness monitoring,” “consultation with [a]

24 Brookdale clinical team,” and “signature dining programs with nutritious meals and snacks

25 planned by a registered dietician.”

26

160. Mr. and Ms. LINDSTROM read and reasonably understood

27 BROOKDALE’s representations in the RESIDENCY AGREEMENT and other standard

28 documents as statements that BROOKDALE would staff the Scotts Valley facility in a

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1 manner that would allow it to consistently provide them with the care, supervision and

2 assistance they needed and for which they were paying BROOKDALE, which included the

3 services and care covered by the Basic Service Rate. Mr. and Ms. LINDSTROM relied

4 on these representations in making the decision to enter BROOKDALE Scotts Valley.

5 BROOKDALE did not disclose to Mr. and Ms. LINDSTROM at any time prior to their

6 admission nor has it disclosed since that time that its corporate policy and procedure of

7 providing predetermined staffing at its facilities precludes BROOKDALE from providing

8 the care and services residents have been promised and places all residents at a substantial

9 risk that they will not receive the care and services they have paid for on any given day. If

10 BROOKDALE had disclosed this material fact to Mr. and Ms. LINDSTROM prior to or

11 early in their residency, they would have looked for another facility and would not have

12 agreed to pay the rates charged by BROOKDALE.

13

161. When Mr. and Ms. LINDSTROM moved in to BROOKDALE, their “basic

14 service rate” was approximately $5,900 per month plus an additional $400 monthly

15 second-resident fee. In addition to these recurring charges, Mr. and Ms. LINDSTROM

16 were made to pay move-in fees totaling more than $8,000. When Mr. and Ms.

17 LINDSTROM moved from their initial two-bedroom suite into a studio apartment, their

18 rate decreased to $4,295 per month plus the $400 monthly second-resident fee.

19

162. During his residency at BROOKDALE Scotts Valley, Mr. LINDSTROM

20 was diabetic; used a cane to walk; suffered from kidney failure, heart disease, and sleep

21 apnea; had a dementia-related cognitive impairment; and had difficulty controlling his

22 weight. He required assistance with the following activities of daily living: bathing,

23 shaving, administration of medication, dressing, laundry, and preparing nutritious meals.

24 Because Mr. and Ms. LINDSTROM could not afford the additional care fees related to

25 many of these activities, Ms. LINDSTROM assisted Mr. LINDSTROM with most of these

26 tasks. However, Mr. and Ms. LINDSTROM sought and BROOKDALE promised to

27 provide assistance with preparing nutritious meals and snacks planned by a registered

28 dietician and to personally assess and provide necessary health and social services. These

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1 promises were among the principal reasons Mr. and Ms. LINDSTROM decided to live at

2 BROOKDALE Scotts Valley. Although BROOKDALE promised to prepare meals

3 appropriate for Mr. LINDSTROM’s personal condition as part of its basic services, it

4 failed to do so.

5

163. After they moved in to BROOKDALE Scotts Valley, Mr. and Ms.

6 LINDSTROM discovered that there was no registered dietician on staff to make sure Mr.

7 LINDSTROM received meals appropriate for his condition. Mr. and Ms. LINDSTROM

8 also discovered that BROOKDALE’s policy and practice of understaffing prevented

9 kitchen staff from preparing and serving Mr. LINDSTROM meals appropriate for someone

10 with diabetes. Because there were too few staff to pay attention to individual residents’

11 dietary needs, those who were unfamiliar with Mr. LINDSTROM’s condition and personal

12 health requirements often served him oversized portions of foods unsuitable for a diabetic

13 when they noticed he was a large man. Mr. LINDSTROM’s cognitive impairment made it

14 especially difficult for him to resist tempting but unhealthy food once it was on his plate.

15

164. The lack of adequate staffing left Mr. LINDSTROM without the

16 individualized nutritional attention and assistance he required. As a result, after moving

17 into BROOKDALE, Mr. LINDSTROM gained 20 pounds, which exacerbated his

18 difficulty walking and put him at increased risk of complications from diabetes. Because

19 his dementia was also exacerbated by his diabetes, Mr. LINDSTROM’s cognitive decline

20 may have accelerated.

21

165. When the Mr. and Ms. LINDSTROM moved in to BROOKDALE Scotts

22 Valley, there was an onsite physical therapist available to advise and assist residents with

23 recovery from injuries. The availability of a physical therapist was attractive to Mr. and

24 Mrs. LINDSTROM, and they relied on BROOKDALE’s representation that the onsite

25 physical therapist would be available to them. They also understood that BROOKDALE’s

26 promise to provide continuous monitoring and consultation on health would include

27 keeping an onsite physical therapist on staff.

28

166. Approximately six months after Mr. and Ms. LINDSTROM arrived at

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1 BROOKDALE Scotts Valley, however, the physical therapist left, and BROOKDALE

2 failed to hire a replacement. After entering BROOKDALE, Mr. LINDSTROM suffered a

3 knee injury and would have used the onsite physical therapist’s services during his

4 recovery had that been an option. Instead, Mr. LINDSTROM had to seek less convenient

5 physical therapy services outside of the BROOKDALE facility.

6 Bernie Jestrabek-Hart

7

167. BERNIE JESTRABEK-HART has been a resident of BROOKDALE Scotts

8 Valley since approximately October 17, 2015. On or about September 30, 2015, BERNIE

9 JESTRABEK-HART read, reviewed, and signed a “RESIDENCY AGREEMENT” with

10 BROOKDALE. As part of this “RESIDENCY AGREEMENT,” BROOKDALE stated

11 that “[i]n order to provide you with care, supervision and assistance with instrumental

12 activities of daily living in order to meet your needs, we will provide you with the

13 following Basic Services, which are included in the Basic Service Rate.” These included,

14 among other things, the room, three daily meals, planned activities, transportation, and the

15 availability of staff “24 hours a day, seven days a week.” This standard residency

16 agreement also stated that:

17

[p]rior to moving in and periodically throughout your residency, we will use

a personal service assessment to determine the personal services you require.

18

The personal service assessment will be used to develop your Personal

Service Plan. The results of the assessment, our method for evaluating your

19

personal care needs, and the cost of providing the additional personal service

(the “Personal Service Rate”) will be shared with you.

20

21 The Personal Service Plan lists the types of staff assistance that Ms. JESTRABEK-HART

22 requires and has agreed to pay for, along with the monthly fee for each type of staff

23 assistance. Ms. JESTRABEK-HART has also received and reviewed a variety of rate

24 increase letters and invoices that list the fees for services BROOKDALE agreed its

25 caregivers and other staff would provide to her.

26

168. Ms. JESTRABEK-HART read and reasonably understood BROOKDALE’s

27 representations in the RESIDENCY AGREEMENT, invoices and rate increase letters as

28 statements that BROOKDALE would perform assessments to determine needed services

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1 and staff BROOKDALE Scotts Valley in a manner that would allow it to consistently

2 provide the services that BROOKDALE promised and for which Ms. JESTRABEK-

3 HART was paying. Ms. JESTRABEK-HART relied on these representations in making

4 the decision to enter BROOKDALE Scotts Valley. BROOKDALE did not disclose to Ms.

5 JESTRABEK-HART at any time prior to her admission nor has it disclosed since that time

6 that its corporate policy and procedure of providing predetermined staffing at its facilities

7 precludes BROOKDALE from providing the care and services residents have been

8 promised and places all residents at a substantial risk that they will not receive the care and

9 services they have paid for on any given day. If BROOKDALE had disclosed this material

10 fact to Ms. JESTRABEK-HART prior to or early in her residency, she would have looked

11 for another facility and would not have agreed to pay the rates charged by BROOKDALE.

12

169. When Ms. JESTRABEK-HART moved in to BROOKDALE, her “basic

13 service rate” was approximately $3,700 per month. In addition, Ms. JESTRABEK-HART

14 would pay a monthly fee of $750 for assistance showering at least four times per week and

15 daily dressing and undressing. These personal care services were among the principal

16 reasons Ms. JESTRABEK-HART sought to live in an assisted-living setting. Over and

17 above these monthly payments, BROOKDALE required Ms. JESTRABEK-HART to pay

18 approximately $1,350 in move-in fees.

19

170. Despite these hefty monthly rates and move-in fees, BROOKDALE began to

20 increase Ms. JESTRABEK-HART’s basic service rate just months after her arrival and at

21 least annually thereafter. By January 2018, BROOKDALE had increased Ms.

22 JESTRABEK-HART’s basic service rate to $4,477, a 21% increase above her initial rate

23 of $3,700 in just over two years. In January 2018, BROOKDALE increased Ms.

24 JESTRABEK-HART’s fee for assistance with dressing and showering from $750 to $834

25 per month, an 11.2% increase.

26

171. Ms. JESTRABEK-HART uses an electric wheelchair and cane for mobility,

27 and many common areas at BROOKDALE Scotts Valley are difficult or dangerous for her

28 and others with mobility disabilities to access. A number of doors that connect common

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1 indoor space to outdoor courtyards are heavy and difficult to open. Several doors to

2 laundry rooms and bathrooms in common spaces are also heavy and difficult to open.

3 Attempting to open these doors is dangerous for Ms. JESTRABEK-HART, as the weight

4 of the door could injure her directly or cause her to fall.

5

172. Lack of safety precautions in laundry rooms at BROOKDALE Scotts Valley

6 present unreasonable risk to residents with mobility disabilities. On one occasion, Ms.

7 JESTRABEK-HART tripped getting up from her wheelchair and fell onto the floor of the

8 laundry room. This laundry room is in a secluded corner of the facility enclosed by a

9 heavy door and lacks emergency pull cords for residents to use in case of a fall.

10 Accordingly, Ms. JESTRABEK-HART had no way to summon help. Fortunately, another

11 individual whom Ms. JESTRABEK-HART believes to have been a resident was nearby

12 and found Ms. JESTRABEK-HART on the floor. Ms. JESTRABEK-HART informed

13 BROOKDALE of the need for emergency pull cords in the laundry after her fall, but

14 BROOKDALE has taken no action. Ms. JESTRABEK-HART continues to do her own

15 laundry. BROOKDALE’s failure to remedy the dangerous conditions in the laundry

16 rooms at BROOKDALE Scotts Valley puts Ms. JESTRABEK-HART at continuing risk of

17 serious injury.

18

173. Ms. JESTRABEK-HART enjoys getting out of the BROOKDALE Scotts

19 Valley facility and participating in off-site activities. She had been able to take her electric

20 wheelchair on a bus provided by her previous assisted-living residence. Prior to moving

21 into BROOKDALE Scotts Valley, Ms. JESTRABECK-HART looked at BROOKDALE’s

22 website and saw that BROOKDALE offered free bus transportation to doctor’s visits,

23 social outings and other offsite activities. That service was among the major selling points

24 for Ms. JESTRABEK-HART, and she relied on BROOKDALE’s representations that she

25 would be able to participate in outings on the bus. After moving in, she was surprised to

26 learn that the transportation schedule was very limited and that BROOKDALE would not

27 allow her to take her electric wheelchair on the bus. Her electric wheelchair is Ms.

28 JESTRABEK-HART’s primary means of personal transportation and is necessary for her

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1 to participate on shopping trips and other outings that require mobility upon arrival.

2 BROOKDALE has proposed that Ms. JESTRABEK-HART use a non-motorized

3 wheelchair on these outings, but that would leave Ms. JESTRABEK-HART stranded upon

4 arrival because she needs an electric wheelchair for mobility.

5

174. BROOKDALE’s understaffing and failure to plan for emergencies has also

6 negatively affected Ms. JESTRABEK-HART. On one occasion, a power outage caused

7 the elevators to cease to function, stranding Ms. JESTRABEK-HART, whose room is on

8 the facility’s second floor, on a lower level. BROOKDALE staff helped some residents

9 get up to their rooms, but were unable to help Ms. JESTRABEK-HART and other

10 residents who are wheelchair users. She and other residents with mobility disabilities

11 waited for three to four hours before firefighters arrived to assist those who could not walk

12 up the stairs. Because of BROOKDALE’s inadequate staffing and emergency planning,

13 many residents were stranded away from their rooms late into the night.

14

175. While the power was out, Ms. JESTRABEK-HART was unable to use her

15 continuous positive airway pressure (“CPAP”) machine, which she requires to sleep due to

16 sleep apnea. BROOKDALE Scotts Valley had only one electrical outlet that was

17 generator-powered, which was located on the first floor near the nurse’s office. As a

18 result, the outlet was not accessible to Ms. JESTRABEK-HART. BROOKDALE staff did

19 not attempt to connect Ms. JESTRABEK-HART’s CPAP machine to a generator-powered

20 outlet.

21

176. While Ms. JESTRABEK-HART does not require assistance to get to and

22 from meals, she has witnessed those who do need assistance wait for long periods before a

23 staff member is available to help. On one occasion, Ms. JESTRABEK-HART and others

24 waited with a resident who was left in the lunchroom for over an hour and a half following

25 the end of the meal before she received the assistance she needed to return to her room.

26

177. Ms. JESTRABEK-HART requires assistance with dressing and bathing and

27 pays BROOKDALE $834 per month for these services. When deciding whether to move

28 in to BROOKDALE Scotts Valley, among the items most important to Ms. JESTRABEK-

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1 HART was that she receive assistance showering at least four times per week, and she

2 relied on BROOKDALE’s representation that it would be able to meet this need.

3 Ms. JESTRABEK-HART usually informs BROOKDALE staff after dinner that she is

4 ready to shower. She frequently waits for two to three hours before a staff member can

5 assist her. On multiple occasions, Ms. JESTRABEK-HART has waited so long that she

6 has gone to sleep only to be awakened by a staff member who has finally come to provide

7 the necessary assistance. Other times, BROOKDALE has canceled a previously scheduled

8 shower altogether.

9

178. With respect to assistance dressing, Ms. JESTREBEK-HART has asked for

10 BROOKDALE staff to come to help her around the time she wakes at 7:00 a.m. Often,

11 however, she will wait until 8:30 a.m. or 9:00 a.m. before staff arrive to assist her.

12 Similarly, she often waits for long periods for assistance undressing in the evenings. On

13 several occasions when help has not come, Ms. JESTREBEK-HART has slept in her

14 clothes and shoes, which can cause pain in her feet and make it otherwise difficult to get

15 comfortable. BROOKDALE staff has told her, often in the evening around 8:30 p.m. and

16 sometimes in the morning around 7:00 a.m., that these delays occur because only one staff

17 member is on duty to meet the needs of 150 residents.

18 Jeanette Algarme

19

179. JEANETTE ALGARME has been a resident at BROOKDALE Brookhurst

20 since approximately April 2018. Prior to moving in, Ms. ALGARME read, reviewed, and

21 signed a Residency Agreement. The Residency Agreement stated that “[i]n order to

22 provide you with care, supervision and assistance with instrumental activities of daily

23 living in order to meet your needs, we will provide you with the following Basic Services,

24 which are included in the Basic Service Rate.” These included, among other things,

25 Ms. ALGARME’s room, three meals daily, housekeeping, laundry and linen service,

26 activities, transportation, “staffing 24 hours a day,” and personal services as determined

27 appropriate based on a “personal service assessment” used to “develop your Personal

28 Service Plan.” The Residency Agreement noted that “[t]he results of the assessment, our

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1 method for evaluating your personal care needs, and the cost of providing the additional

2 personal services (the ‘Personal Service Rate’) will be shared with you.”

3

180. Upon moving into the BROOKDALE Brookhurst facility, Ms. ALGARME

4 required and agreed to pay for the following personal services: “hands on” assistance with

5 dressing and grooming, and “hands on” assistance with showering. The Personal Service

6 Plan listed the types of assistance Ms. ALGARME required, along with the monthly fee

7 for each type of assistance. Ms. ALGARME read and reasonably understood

8 BROOKDALE’s representations as statements that BROOKDALE would perform

9 assessments to determine needed services and would staff the facility in a manner that

10 would allow it to consistently provide the services that BROOKDALE promised and for

11 which Ms. ALGARME was paying. Ms. ALGARME relied on these representations in

12 making the decision to move into BROOKDALE Brookhurst and to pay BROOKDALE

13 the monthly fees. BROOKDALE did not disclose to Ms. ALGARME at any time prior to

14 her move-in nor has it disclosed since that time that its corporate policy and procedure of

15 providing pre-determined staffing at its facilities precludes BROOKDALE from providing

16 the care and services residents have been promised, and places all residents at a substantial

17 risk that they will not receive the care and services they have paid for on any given day. If

18 BROOKDALE had disclosed this material fact to Ms. ALGARME, she would have looked

19 for another facility and would not have agreed to pay the rates charged by BROOKDALE.

20

181. BROOKDALE currently charges Ms. ALGARME a Basic Service Rate of

21 $3,964.00 per month, plus $79.00 per month for basic TV service, plus a Personal Service

22 Rate of $874.00, which is supposed to cover physical assistance with transfers into the

23 bathroom and shower, assistance with dressing, and assistance with showering.

24

182. Ms. ALGARME is an electric wheelchair user. She has Brown-Séquard

25 Syndrome, a rare neurological condition characterized by a lesion in the spinal cord which

26 results in weakness or paralysis (hemiparaplegia) on one side of the body and a loss of

27 sensation (hemianesthesia) on the opposite side. She also has lumbar spinal stenosis. Due

28 to these conditions, Ms. ALGARME requires “hands-on assistance” with dressing and

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1 grooming. Ms. ALGARME has paid for those personal services throughout her time

2 living at BROOKDALE Brookhurst, but has not been consistently provided that

3 assistance.

4

183. Ms. Algarme has paid for hands-on assistance with showering twice per

5 week since she moved into BROOKDALE Brookhurst. In the beginning of her time there,

6 staff would assist her by wheeling her into the restroom and assisting her with transferring

7 into the shower, before assisting her in the shower. Several months into her stay at

8 BROOKDALE Brookhurst, a BROOKDALE staff member informed Ms. ALGARME that

9 BROOKDALE would no longer be able to assist her with transferring into the bathroom

10 and into her shower, because she did not pay a special rate for “transport” services. The

11 staff member also informed Ms. ALGARME that BROOKDALE instructed staff to time

12 Ms. ALGARME’s showers because they thought her showers took too long, and

13 BROOKDALE wanted to charge her more money. Ms. ALGARME was then forced to

14 use an aluminum walker to get herself into the restroom, and then step over the threshold

15 of her shower to get in, before receiving assistance with showering. Given her disability,

16 this was difficult for her, and she was unstable, making her concerned that she would fall.

17

184. Ms. ALGARME has also not consistently received the “hands on” assistance

18 with dressing and grooming that she pays BROOKDALE to provide. Due to

19 BROOKDALE’s severe understaffing, Ms. ALGARME frequently has to wait a very long

20 time before she is able to receive assistance from a staff member to get dressed in the

21 morning. On several occasions, Ms. ALGARME has had to wait as long as one and one-

22 half hours after initially pressing her call button before receiving assistance getting

23 dressed. Sometimes by the time staff do respond to help her get dressed,

24 Ms. ALGARME’s table in the dining room is full and she is not able to eat breakfast with

25 her social group. Ms. ALGARME has requested a printout of her pendant calls from

26 BROOKDALE to verify the wait times, but BROOKDALE staff have ignored her

27 requests. There are often no staff persons assigned to assist residents on Ms. ALGARME’s

28 floor, even though Ms. ALGARME was originally informed that there would be one aide

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1 assigned per floor. Usually, a staff person assigned to another floor comes to assist

2 Ms. ALGARME. One staff member informed Ms. ALGARME that she could not assist

3 her with dressing because she was on light duty, and there was no one else available that

4 day to help Ms. ALGARME get dressed. She eventually did begrudgingly assist Ms.

5 ALGARME to dress into her pajamas, given that no other staff were available.

6 Frequently, the staff member who assists Ms. ALGARME with dressing in the evenings

7 does not wait to ensure she is safely settled in her sleeping chair prior to leaving her room,

8 because she has so many other people to assist. This causes Ms. ALGARME to fear that

9 she will fall. Recently, BROOKDALE Brookhurst had to terminate several non-caregiving

10 staff, so caregivers had to assume non-caregiving tasks such as laundry and housekeeping,

11 making them less available to help residents.

12

185. Ms. ALGARME has fallen on more than one occasion since she moved into

13 BROOKDALE Brookhurst. In approximately May or June 2018, Ms. ALGARME’s legs

14 gave out and she was not able to stand up, so she fell to the floor while she was in the

15 restroom. She was in severe pain because her knee, which had previously been operated

16 upon, was pressing against the wall. She repeatedly pushed her BROOKDALE call button

17 pendant, but no BROOKDALE staff came for at least fifteen minutes. Eventually she used

18 her private emergency medical alert pendant, from GreatCall. The GreatCall staff called

19 BROOKDALE Brookhurst on her behalf, and a BROOKDALE staff person finally arrived

20 to her room to assist her. After the fall, no BROOKDALE staff followed up with

21 Ms. ALGARME to find out how she was doing. Ms. ALGARME does not wish to pay for

22 the additional expense of the GreatCall medical alert system, given that BROOKDALE is

23 supposed to provide prompt staff assistance when she presses her BROOKDALE call

24 pendant, but she has decided to continue paying for GreatCall due to fears that

25 BROOKDALE staff will not be responsive in an emergency.

26

186. Ms. ALGARME has spoken to the Executive Director of BROOKDALE

27 Brookhurst regarding the non-responsiveness of staff when she presses her BROOKDALE

28 pendant, but the Executive Director has told Ms. ALGARME that she is pressing the

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1 pendant too much, and that it is “only for emergencies.” When Ms. ALGARME was

2 signing the paperwork prior to moving into BROOKDALE Brookhurst, she was never

3 informed in writing or orally that there was a limit on use of the call pendant, and in fact

4 during the sales pitch, BROOKDALE informed her that she could “use it whenever you

5 want.”

6

187. Ms. ALGARME also fell on three occasions in early December, 2018. On

7 the first occasion, a caregiver was not present in the room with her while she was standing

8 at her bathroom sink, and the brakes were not set on her wheelchair, so she fell as she

9 attempted to sit down. The caregiver inaccurately stated to the Medical Technician that

10 she was present in the room with Ms. ALGARME. On the second occasion, Ms.

11 ALGARME fell on the way back from the bathroom early in the morning. BROOKDALE

12 staff came to assist her in getting into her transport wheelchair, but then left her in the

13 transport for half an hour, because no staff was available to transfer her back into her sleep

14 chair until the change of shift. BROOKDALE offered to bring Ms. ALGARME her

15 breakfast in her room that day, but said she would be charged $13.00. On the third

16 occasion, Ms. ALGARME fell while transferring to her electric wheelchair with a

17 caregiver.

18

188. After this series of falls, Ms. ALGARME was very concerned that she would

19 continue to fall while attempting to transfer herself in and out of the bathroom and in and

20 out of the shower, so she agreed to pay an additional fee for “transport services” that was

21 not included in her original Personal Service Rate. These services added an additional

22 $291 per month to the fees she pays BROOKDALE, and only include “transports” two

23 times per day into her bathroom. They do not include any assistance getting to the dining

24 room or other areas of the facility.

25

189. Several parts of Ms. ALGARME’s room at BROOKDALE Brookhurst are

26 inaccessible to her as a wheelchair user. The shower in her room is not accessible, as it

27 has a threshold or lip. As a result, Ms. ALGARME requires assistance to get into the

28 shower. In early December 2018, BROOKDALE did agree to modify Ms. ALGARME’s

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1 shower, but there is still a small threshold and it is not possible to wheel into the shower

2 without tipping Ms. ALGARME’s chair over the threshold. Ms. ALGARME’s family had

3 to purchase a shower chair, because while there was a shower bench in her shower, it was

4 not installed evenly, and it was unsafe for her to use since she continually felt as though

5 she would slip off of it. The sinks in Ms. ALGARME’s bathroom and kitchen have

6 cabinets underneath, so Ms. ALGARME cannot roll up to them in her chair.

7 Ms. ALGARME pays BROOKDALE for a room that includes an outside balcony, but she

8 is not able to use her balcony because there is a threshold or lip blocking access to the

9 balcony with a wheelchair, and the balcony is too narrow to safely fit her electric

10 wheelchair.

11

190. Shortly after she moved into BROOKDALE Brookhurst, Ms. Algarme

12 attended a meeting with residents and the facility’s Executive Director. The Executive

13 Director instructed residents that if they use walkers, they must leave them in the hallway

14 during meals, and residents who use wheelchairs must transfer to chairs at the dining

15 tables. The Executive Director stated that this was BROOKDALE policy and that it

16 “doesn’t look good” to have many walkers and wheelchairs in the dining room.

17 Ms. ALGARME informed the Executive Director that it would be very difficult for her to

18 transfer to a chair from her wheelchair for meals. The Executive Director informed her

19 that “maybe you do not belong in this facility.” This was extremely distressing to

20 Ms. ALGARME since she had just uprooted her life to move into BROOKDALE

21 Brookhurst.

22

191. BROOKDALE Brookhurst’s Executive Director also informed residents at a

23 residents’ meeting that electric wheelchair users cannot use the mechanical lift on the

24 BROOKDALE van that is used to transport residents, because BROOKDALE’s policy is

25 that “scooters” are not allowed on the lift. Ms. ALGARME had to print out paperwork to

26 prove to BROOKDALE staff that her electric wheelchair was not a scooter.

27

192. BROOKDALE staff has asked Ms. ALGARME for records of her physical

28 therapy services, which she receives in her room through a private physical therapy

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1 provider, and pays for with her Medicare coverage. Ms. ALGARME did not feel

2 comfortable providing these records to BROOKDALE, as they were not necessary for

3 BROOKDALE to provide the services Ms. ALGARME purportedly receives from

4 BROOKDALE. Staff made the request for the records when Ms. ALGARME was eating

5 in the dining hall, in front of other residents, which made Ms. ALGARME feel very

6 uncomfortable. BROOKDALE management told Ms. ALGARME and her family

7 members that BROOKDALE provides physical therapy services, which Ms. ALGARME

8 perceives as BROOKDALE attempting to upsell her on additional services.

9

193. Ms. ALGARME has complained to management at BROOKDALE

10 Brookhurst about these issues on several occasions, but generally, Ms. ALGARME has not

11 seen significant improvement. In fact, after Ms. ALGARME protested to the Executive

12 Director that she would not be able to safely transfer out of her wheelchair for meals, the

13 Executive Director informed her that she had “heard” Ms. ALGARME was over-using her

14 call pendant, and that she should only use it for emergencies. Because BROOKDALE had

15 never informed her of any limits on the allowed use of the call pendant, Ms. ALGARME

16 felt that this comment was in retaliation for Ms. ALGARME’s complaints regarding

17 transfers out of her wheelchair at mealtime.

18

194. Ms. ALGARME has noticed a decline in the quality of food since she moved

19 into BROOKDALE Brookhurst. The fruits are often canned instead of fresh, and the

20 vegetables are so over-cooked that it is impossible to tell whether they were fresh or

21 canned. Meats are often highly processed, and many hot meals are covered in sauces to

22 hide the low quality of the meat and produce.

23

195. Since Ms. ALGARME has resided at BROOKDALE Brookhurst,

24 BROOKDALE has never disclosed that its staffing policies and procedures preclude it

25 from providing its residents all of the care and services they have been promised and

26 places all residents at an inherent and substantial risk that they will not receive the care and

27 services they have paid for on any given day. If BROOKDALE had disclosed this material

28 fact to Ms. ALGARME, she would have looked for another assisted living facility.

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1

CLASS ALLEGATIONS

2

196. The named Plaintiffs bring this action on behalf of themselves and all

3 persons similarly situated and seek class certification pursuant to Federal Rule of Civil

4 Procedure 23(b)(2) and/or (b)(3) as set forth below.

5

197. Class Definitions.

6

Plaintiffs STACIA STINER, HELEN CARLSON, LAWRENCE QUINLAN;

7 EDWARD BORIS; RALPH SCHMIDT; PATRICIA LINDSTROM as successor-in-

8 interest to the Estate of ARTHUR LINDSTROM; BERNIE JESTRABEK-HART; and

9 JEANETTE ALGARME seek to represent the following three classes:

10

RESIDENTS WITH MOBILITY OR VISUAL DISABILITIES CLASS: All

11

persons with disabilities who use wheelchairs, scooters, canes or other mobility aids

12

or who have visual disabilities and who reside or have resided at a residential care

13

facility for the elderly located in California and owned, operated and/or managed by

14

BROOKDALE during the CLASS PERIOD, including their successors-in-interest

15

if deceased.

16

RESIDENTS WITH DISABILITIES CLASS: All persons with disabilities who

17

require assistance with activities of daily living and who reside or have resided at a

18

residential care facility for the elderly located in California and owned, operated

19

and/or managed by BROOKDALE during the CLASS PERIOD, including their

20

successors-in-interest if deceased.

21

FALSE OR MISLEADING STATEMENTS CLASS: All persons who resided or

22

reside at one of the residential care facilities for the elderly located in California and

23

owned, operated, and/or managed by BROOKDALE during the CLASS PERIOD

24

and who contracted with BROOKDALE or another assisted living facility for

25

services for which BROOKDALE was paid money, including their successors-in-

26

interest if deceased.

27

198. The CLASS PERIOD is defined as commencing three years prior to the

28 filing of this action for the RESIDENTS WITH MOBILITY OR VISUAL DISABILITIES

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1 CLASS and commencing on May 16, 2015 for the RESIDENTS WITH DISABILITIES

2 CLASS and the FALSE OR MISLEADING STATEMENTS CLASS.

3

199. Excluded from the above-referenced class are the officers, directors, and

4 employees of BROOKDALE, and any of Defendants’ shareholders or other persons who

5 hold a financial interest in BROOKDALE. Also excluded is any judge assigned to hear

6 this case (or any spouse or family member of any assigned judge), or any juror selected to

7 hear this case.

8

200. This action is brought as a class action and may properly be so maintained

9 pursuant to Federal Rule of Civil Procedure 23 and applicable case law. In addition to

10 declaratory and injunctive relief, this action seeks class-wide damages pursuant to

11 California Civil Code § 52(a) in the amount of $4,000 per class member based on

12 Defendants’ wrongful policy and practice of failing to provide residents with disabilities

13 with full and equal access to and enjoyment of the services, goods, facilities, privileges,

14 and/or advantages of BROOKDALE’s assisted living facilities as alleged herein. It also

15 seeks class-wide statutory and punitive damages based on Defendants’ misrepresentations,

16 misleading statements, and material omissions, including $5,000 per class member

17 pursuant to California Civil Code § 1780(b). This action also seeks treble damages

18 pursuant to both California Civil Code § 52(a) and California Civil Code § 3345(b)(2) and

19 (3). This action does not seek recovery for personal injuries or emotional distress that may

20 have been caused by Defendants’ conduct alleged herein.

21

201. Ascertainability. Members of the proposed Class are identifiable and

22 ascertainable. BROOKDALE retains admission contracts, resident service plans, and

23 billing statements for all persons who currently reside or resided at BROOKDALE

24 facilities during the CLASS PERIOD.

25

202. Impracticability of Joinder (Numerosity of the Class). The members of

26 the proposed class are so numerous that joinder of all such persons is impracticable and the

27 disposition of their claims in a class action is a benefit both to the parties and to this Court.

28 On information and belief, the number of persons in this case exceeds 5,000 persons. The

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1 number of persons in the class and their identities and addresses may be ascertained from

2 Defendants’ records.

3

203. Questions of Fact and Law Common to the Class. All members of the

4 class have been and continue to be denied their civil rights to full and equal access to, and

5 use and enjoyment of, the services and facilities operated by the BROOKDALE because of

6 the violations of disability nondiscrimination laws, the CLRA, and Elder Abuse laws

7 alleged herein. There are numerous questions of law and fact common to the class,

8 including, but not limited to, the following:

9

a. Whether BROOKDALE’s assisted living facilities are public

10

accommodations within the meaning of Title III of the ADA;

11

b. Whether BROOKDALE and its assisted living facilities are business

12

establishments within the meaning of the Unruh Civil Rights Act;

13

c. Whether BROOKDALE constructed or altered any of its assisted

14

living facilities after January 26, 1993;

15

d. Whether BROOKDALE’s facilities that were newly constructed or

16

altered between January 26, 1993 and March 15, 2012 comply with

17

the requirements of the Americans with Disabilities Act Accessibility

18

Guidelines;

19

e. Whether BROOKDALE constructed or altered any of its facilities

20

after March 15, 2012;

21

f. Whether BROOKDALE’s facilities that were constructed or altered

22

after March 15, 2012 comply with the 2010 ADA Standards for

23

Accessible Design;

24

g. Whether BROOKDALE has removed physical access barriers where

25

doing so was readily achievable as required by Title III of the ADA;

26

h. Whether Plaintiffs are being denied full and equal access to and

27

enjoyment of BROOKDALE’s goods, services, facilities, privileges,

28

advantages or accommodations;

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i. Whether Plaintiffs requested that BROOKDALE make reasonable

modifications in policies, practices and/or procedures by providing its

facilities with a sufficient number of adequately trained staff to ensure

that residents with disabilities receive full and equal access to and

enjoyment of the services specified in BROOKDALE’s own resident

assessments;

j. Whether Plaintiffs’ requested modification in policies, practices or

procedures is reasonable;

k. Whether Plaintiffs’ requested modification in policies, practices or

procedures is necessary to ensure that residents with disabilities have

full and equal access to and enjoyment of BROOKDALE’s goods,

services, facilities, privileges, advantages and accommodations as

required by Title III of the ADA;

l. Whether BROOKDALE has provided Plaintiffs with full and equal

access to and enjoyment of its transportation services and activities as

required by Title III of the ADA;

m. Whether BROOKDALE has provided Plaintiffs with full and equal

access to and enjoyment of its services and facilities with respect to

emergency planning and evacuation;

n. Whether BROOKDALE, by its actions and omissions alleged herein,

has engaged in a pattern and practice of discriminating against

Plaintiffs and other residents with disabilities in violation of the ADA

and the Unruh Civil Rights Act;

o. Whether BROOKDALE has violated and continues to violate the

Consumer Legal Remedies Act, California Civil Code §§ 1750 et seq.,

by promising residents that it will provide care and services including

those identified by resident assessments, when BROOKDALE knows

that its corporate policy and procedure of providing pre-determined

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staffing at its facilities precludes BROOKDALE from providing the

care and services residents have been promised and places all

residents at a substantial risk that they will not receive the care and

services they have paid for on any given day;

p. Whether BROOKDALE’s misrepresentations, misleading statements

and omissions regarding the staffing of its facilities as alleged herein

were and are material to the reasonable consumer;

q. Whether by making the misrepresentations, misleading statements and

material omissions alleged in this Complaint, BROOKDALE violated

and continues to violate California Business & Professions Code

§§ 17200, et. seq. (“UCL”);

r. Whether BROOKDALE had exclusive knowledge of material facts

not known or reasonably accessible to the Plaintiffs and the class;

s. Whether the Plaintiffs, the class, and the consuming public were

likely to be deceived by the foregoing concealment and omission;

t. Whether the Plaintiffs, the class, and the consuming public have a

reasonable expectation that BROOKDALE will provide staffing at its

facilities to meet the aggregate care needs of the residents at its

facilities;

u. Whether BROOKDALE’s misrepresentations, its misleading

statements, its failures to disclose and its concealment of its true

policies, procedures, and practices regarding how it staffs its facilities

violated the CLRA and the UCL;

v. Whether BROOKDALE has engaged and continues to engage in a

pattern and practice of unfair and deceptive conduct in connection

with the management, administration, and operation of its California

assisted living facilities;

w. Whether BROOKDALE has violated and continues to violate the

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1

UCL by violating the CLRA, ADA, Unruh Civil Rights Act,

2

California Welfare and Institutions Code § 15610.30, and Cal. Health

3

& Safety Code §§ 1569.157 and 1569.158 during the CLASS

4

PERIOD;

5

x. Whether BROOKDALE has committed financial elder abuse under

6

California Welfare and Institutions Code § 15610.30 by taking,

7

secreting, appropriating, obtaining, and/or retaining money from

8

elders and dependent adults for a wrongful use and/or with the intent

9

to defraud them;

10

y. Whether the Plaintiffs and the putative class members have been

11

injured;

12

z. Whether the Plaintiffs and the members of the putative class are

13

entitled to damages, and the nature of such damages; and,

14

aa. Whether the Plaintiffs and the members of the putative class are

15

entitled to declaratory and/or injunctive relief, and the nature of such

16

relief.

17

204. Typicality. The claims of the named Plaintiffs are typical of those of the

18 proposed classes. Plaintiffs’ claims are typical of the claims of the proposed classes in the

19 following ways: 1) Plaintiffs are members of the proposed classes; 2) Plaintiffs’ claims

20 arise from the same uniform corporate policies, procedures, practices and course of

21 conduct on the part of BROOKDALE; 3) Plaintiffs’ claims are based on the same legal

22 and remedial theories as those of the proposed classes and involve similar factual

23 circumstances; 4) the injuries suffered by the named Plaintiffs are similar to the injuries

24 suffered by the proposed class members; and 5) the relief sought herein will benefit the

25 named Plaintiffs and all class members alike.

26

205. Adequacy. The named Plaintiffs will fairly and adequately represent the

27 interests of the classes. They have no interests adverse to the interests of other members of

28 the class and have retained counsel who are competent and experienced in litigating

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1 complex class actions, including large-scale disability rights and senior care class action

2 cases.

3

206. Predominance. With respect to Plaintiffs’ claims under the ADA, the

4 Unruh Civil Rights Act, the CLRA, the UCL, and the Elder Abuse Act, class certification

5 is appropriate under Federal Rule of Civil Procedure 23(b)(3) because questions of law or

6 fact common to the class members predominate over any questions affecting individual

7 members of the putative classes.

8

207. Superiority. A class action is superior to other methods for the fair and

9 efficient adjudication of this controversy because, inter alia: 1) individual claims by the

10 class members would be impracticable because the costs of pursuit of such claims would

11 far exceed what any individual class member has at stake; 2) relatively little individual

12 litigation has been commenced over the controversies alleged in this Complaint and

13 individual class members are unlikely to have an interest in separately prosecuting and

14 controlling individual actions; 3) the concentration of litigation of these claims in one

15 forum will achieve efficiency and promote judicial economy; 4) the proposed classes are

16 manageable, and no difficulties are likely to be encountered in the management of this

17 class action that would preclude its maintenance as a class action; 5) the proposed class

18 members are readily identifiable from Defendants’ own records; and 6) prosecution of

19 separate actions by individual members of the proposed class would create the risk of

20 inconsistent or varying adjudications with respect to individual members of the proposed

21 classes that would establish incompatible standards of conduct for BROOKDALE.

22

208. The Class Meets the Requirements of Federal Rule of Civil Procedure

23 23(b)(2). BROOKDALE has acted and refused to act on grounds generally applicable to

24 the class, making the declaratory and injunctive relief sought on behalf of the class as a

25 whole appropriate.

26

27

28

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1

FIRST CLAIM FOR RELIEF

(Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq.)

2

(On behalf of Plaintiffs, the RESIDENTS WITH MOBILITY OR VISION

DISABILITIES CLASS and the RESIDENTS WITH DISABILITIES CLASS)

3

4

209. Plaintiffs incorporate by reference as though fully set forth herein the

5 preceding paragraphs of this Complaint.

6

210. Congress enacted the ADA upon finding, among other things, that “society

7 has tended to isolate and segregate individuals with disabilities” and that such forms of

8 discrimination continue to be a “serious and pervasive social problem.” 42 U.S.C.

9 § 12101(a) (2).

10

211. Congress explicitly stated that the purpose of the ADA is to provide “a clear

11 and comprehensive national mandate for the elimination of discrimination against

12 individuals with disabilities” and “clear, strong, consistent, enforceable standards

13 addressing discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1)-

14 (2).

15

212. Title III of the ADA provides in pertinent part: “[N]o individual shall be

16 discriminated against on the basis of disability in the full and equal enjoyment of the

17 goods, services, facilities, privileges, advantages, or accommodations of any place of

18 public accommodation by any person who owns, leases, or leases to, or operates a place of

19 public accommodation.” 42 U.S.C. § 12182.

20

213. At all times relevant to this action, Plaintiffs STACIA STINER, HELEN

21 CARLSON, LAWRENCE QUINLAN; EDWARD BORIS; RALPH SCHMIDT;

22 ARTHUR LINDSTROM; BERNIE JESTRABEK-HART; and JEANETTE ALGARME

23 were and remain qualified individuals with disabilities within the meaning of the ADA.

24

214. Defendants are each a “private entity,” as defined under 42 U.S.C.

25 § 12181(6). They own, operate and/or manage approximately 89 assisted living facilities

26 in California.

27

215. Brookdale’s assisted living facilities provide services to its residents,

28 including but not limited to, assistance with managing and taking medication,

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1 housekeeping, laundry, dressing, bathing, toileting, hygiene, food preparation, and

2 transportation. BROOKDALE staff include caregivers, certified nursing assistants

3 (CNAs), and a licensed nurse working in the facility or on-call 24 hours per day, seven

4 days per week, to allow ongoing monitoring of residents’ health status. These facilities are

5 “public accommodations” pursuant to 42 U.S.C. § 12181(7). BROOKDALE is subject to

6 Title III of the ADA and its corresponding regulations.

7

216. As alleged above in greater detail, BROOKDALE has violated Title III of

8 the ADA in the following ways.

9

Failure to Provide Reasonable Modifications in

Staffing Policies, Practices and Procedures

10

11

217. BROOKDALE has a policy and practice of staffing its assisted living

12 facilities based on pre-set corporate labor budgets and profit margins without regard for

13 residents’ needs. BROOKDALE’s policy and practice of understaffing its assisted living

14 facilities in order to minimize its labor expenses and maximize its corporate profits has

15 resulted in facilities that are chronically understaffed, and in which skeletal levels of

16 staffing make it commonplace for residents with disabilities to go without the services,

17 goods, facilities, privileges, advantages or accommodations for which they have paid. For

18 example, staff are often unavailable or unable to assist residents with disabilities with

19 activities of daily living including, inter alia, bathing, showering, toileting, transferring,

20 taking medications, dressing, dining, and housekeeping. In addition, residents with

21 disabilities are often denied full and equal access to and enjoyment of social and

22 recreational activities, as well as transportation to off-site locations for appointments and

23 other activities, because of the lack of a sufficient number of trained staff to assist residents

24 with disabilities to participate in these activities.

25

218. Plaintiffs have requested that BROOKDALE make reasonable modifications

26 in policies, practices, or procedures as required by Title III of the ADA. Plaintiffs have

27 requested that BROOKDALE provides its facilities with a sufficient number of adequately

28 trained staff to ensure that residents with disabilities are provided with full and equal

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1 access to and enjoyment of the services specified in BROOKDALE’s own resident

2 assessments. Among other things, and without limitation, BROOKDALE should increase

3 its level of trained staff in its assisted living facilities such that residents with disabilities

4 are not required to wait for more than five minutes for a substantive response to their call

5 pendants. A substantive response means actual action taken to address the resident’s need,

6 rather than a staff member passing by the resident’s room to say that they will return later.

7

219. Such reasonable modifications in BROOKDALE’s policies, practices and

8 procedures are necessary to ensure that Plaintiffs and the members of the putative

9 Residents with Disabilities Class receive full and equal access to and enjoyment of

10 BROOKDALE’s services, including assistance with, inter alia, bathing, showering,

11 toileting, transferring, taking medications, dressing, dining, and housekeeping. In addition,

12 such modifications are necessary to ensure that Plaintiffs and the members of the putative

13 Residents with Disabilities Class have full and equal access to and enjoyment of

14 BROOKDALE’s social and recreational activities, and transportation to off-site locations

15 for appointments and other activities. Unless and until BROOKDALE makes this

16 requested reasonable modification in policies, practices, and procedures, Plaintiffs and the

17 members of the putative Residents with Disabilities Class will continue to be denied full

18 and equal access to and enjoyment of the services, goods, facilities, privileges, advantages

19 and accommodations that BROOKDALE claims to provide to all of its residents, whether

20 disabled or nondisabled.

21

220. Plaintiffs’ requested modification in policies, practices or procedures is

22 eminently reasonable in that BROOKDALE already charges residents with disabilities for,

23 and residents with disabilities pay to receive, the services specified in BROOKDALE’s

24 own resident agreements and resident assessments, including inter alia, assistance with

25 activities of daily living such as mobility, bathing, showering, toileting, transferring, taking

26 medications, dressing, dining, and housekeeping, as well as participating in

27 BROOKDALE’s social and recreational activities whether on-site or off-site.

28

221. The requested modification in policies, practices or procedures will not make

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1 any alteration (much less a fundamental alteration) in the nature of BROOKDALE’s goods

2 and services. Rather, Plaintiffs merely seek to ensure that BROOKDALE provides a

3 sufficient number of adequately trained staff to provide its residents with disabilities with

4 full and equal access to and enjoyment of the types of services and goods that

5 BROOKDALE already promises to provide to its residents in its normal course of

6 business. Thus, the requested reasonable modification in policy, practice or procedure

7 would not change the nature or type of services and goods that BROOKDALE sells to the

8 public.

9

222. The requested reasonable modification would impose only a minimal burden

10 on BROOKDALE. Plaintiffs allege on information and belief that the staff who provide

11 BROOKDALE’s services are hourly employees who are paid just over California’s

12 minimum wage rate. Increasing BROOKDALE’s skeletal night staffing and its minimal

13 level of daytime staffing will only result in a moderate increase in BROOKDALE’s labor

14 budget. BROOKDALE will continue to be able to realize substantial gross profits each

15 year in the multibillion dollar range.

16

223. Plaintiffs have repeatedly requested that BROOKDALE make reasonable

17 modifications in policies, practices, or procedures by increasing the number of trained staff

18 that it provides in its facilities. Notwithstanding the reasonableness and necessity of such

19 modifications, and notwithstanding the fact that BROOKDALE could significantly

20 increase its staffing without changing the nature of its services, goods, facilities, privileges,

21 advantages or accommodations, and could make such modifications without undue

22 financial or administrative burdens, BROOKDALE has failed and refused to make any

23 such modifications.

24

224. Plaintiffs’ claims under the ADA and the Unruh Act based on

25 BROOKDALE’s failure to make reasonable modifications in policies, practices, or

26 procedures in staffing policies and practices are limited to circumstances and facts

27 occurring on or after May 16, 2015.

28

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1

Physical Access Barriers

2

225. Plaintiffs allege on information and belief that many of Defendants’ facilities

3 were designed and constructed after January 26, 1993, thus triggering access requirements

4 under Title III of the ADA. The ADA prohibits designing and constructing facilities for

5 first occupancy after January 26, 1993 that are not readily accessible to and usable by

6 individuals with disabilities when it was structurally practicable to do so. 42 U.S.C.

7 § 12183(a)(1). BROOKDALE has violated the ADA by designing and constructing their

8 facilities in a manner that does not comply with federal disability access design standards

9 including the Americans with Disabilities Act Accessibility Guidelines (“ADAAG”) and

10 the 2010 ADA Standards for Accessible Design (“2010 ADA Standards”) even though it

11 was structurally practicable to do so.

12

226. Plaintiffs allege on information and belief that Defendants’ facilities were

13 altered after January 26, 1993, thus triggering access requirements under Title III of the

14 ADA. The ADA prohibits altering facilities after January 26, 1993 in a manner that is not

15 readily accessible to, and usable by, individuals with disabilities when it was structurally

16 practicable to do so. 42 U.S.C. § 12183(a)(2). Here, Defendants violated the ADA by

17 altering its assisted living facilities after January 26, 1993 in a manner that did not comply

18 with the ADAAG or the 2010 ADA Standards even though it was structurally practicable

19 to do so. Specifically, Defendants have failed to ensure that the areas of alteration

20 complied with the ADAAG or the 2010 ADA Standards, and that the path of travel to the

21 areas of alteration complied with the ADAAG or the 2010 ADA Standards.

22

227. Additionally, Defendants have failed to remove physical access barriers in

23 their facilities which existed prior to January 26, 1993 when removal of those barriers was

24 “readily achievable,” in violation of 42 U.S.C. § 12182(b)(2)(A)(iv).

25

228. The removal of each of the barriers complained of by Plaintiffs herein was at

26 all times “readily achievable” under the standards of §§ 12181 and 12182 of the ADA.

27 BROOKDALE could have removed each of the barriers alleged herein without much

28 difficulty or expense within the meaning of Title III. Notwithstanding the foregoing,

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1 BROOKDALE has failed and refused to do so.

2

Transportation and Activities

3

229. BROOKDALE has violated Title III of the ADA by failing and refusing to

4 provide Plaintiffs with full and equal access to and enjoyment of its transportation services

5 to off-site activities and appointments. BROOKDALE has a policy and practice of

6 limiting the number of wheelchair users who may use transportation to off-site activities.

7 This limitation is not imposed on residents who do not use wheelchairs. In addition,

8 BROOKDALE has required residents with mobility disabilities to transfer from their

9 wheelchairs into the seats in its shuttles, and has not permitted residents to remain in their

10 wheelchairs. BROOKDALE has done so despite the fact that many residents with

11 mobility disabilities have great difficulty in transferring from their wheelchairs into the

12 passenger seats in shuttles, and doing so is time consuming, physically exhausting and

13 sometimes dangerous. Further, on numerous occasions residents with mobility disabilities

14 have been completely denied access to medical appointments, and other off-site

15 appointments and activities, because BROOKDALE has failed to provide any accessible

16 transportation to those appointments and activities.

17

Evacuation Procedures

18

230. BROOKDALE has failed to provide or communicate to its residents with

19 disabilities any specific or definitive emergency evacuation plan in the event of

20 earthquake, fire or other emergency. Defendants’ failure to do so constitutes a denial of

21 full and equal access to and enjoyment of the services and facilities provided by

22 BROOKDALE in violation of Title III of the ADA. Many of BROOKDALE’s residents

23 with disabilities are unable to exit the building without assistance from staff. While some

24 residents have been advised to remain in their rooms in the event of an emergency, in those

25 instances in which an alarm has sounded, no one has come to their rooms to assist them or

26 to inform them as to whether there is an emergency or just a drill.

27

231. The acts and omissions alleged herein constitute violations of Title III of the

28 Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12181 et seq., and the regulations

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1 promulgated thereunder. Defendants’ discriminatory conduct alleged herein includes,

2 inter alia:

3

a. Failing to provide residents with disabilities the opportunity to

4

participate in or benefit from BROOKDALE’s goods, services,

5

facilities, privileges, advantages, and/or accommodations at its

6

assisted living facilities in California, in violation of 42 U.S.C.

7

§ 12182(b)(1)(A)(i);

8

b. Failing to provide residents with disabilities the opportunity to

9

participate in or benefit from the goods, services, facilities, privileges,

10

advantages and/or accommodations that are equal to that afforded to

11

individuals without disabilities, in violation of 42 U.S.C.

12

§ 12182(b)(1)(A)(ii);

13

c. Failing to provide the goods, services, facilities, privileges,

14

advantages, and/or accommodations at its assisted living facilities in

15

California to residents with disabilities in the most integrated setting

16

possible, in violation of 42 U.S.C. § 12182(b)(1)(B);

17

d. Utilizing standards, criteria and methods of administration that have

18

the effect of discriminating against residents on the basis of their

19

disabilities, in violation of 42 U.S.C. § 12182(b)(1)(D);

20

e. Imposing eligibility criteria that screen out or tend to screen out

21

residents with disabilities from fully and equally enjoying

22

BROOKDALE’s assisted living facilities’ goods, services, facilities,

23

privileges, advantages, and/or accommodations, in violation of 42

24

U.S.C. § 12182(b)(2)(A)(i);

25

f. Failing to make reasonable modifications in its policies, practices, and

26

procedures which are necessary for its residents with disabilities to

27

enjoy and access BROOKDALE’s assisted living facilities’ goods,

28

services, facilities, privileges, advantages and/or accommodations, in

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1

violation of 42 U.S.C. § 12182(b)(2)(A)(ii);

2

g. Failing to remove architectural barriers in those facilities constructed

3

prior to January 26, 1993 and not altered after that date where such

4

removal is readily achievable, in violation of 42 U.S.C.

5

§ 12182(b)(2)(A)(iv);

6

h. Failing to design and construct facilities first occupied after January

7

26, 1993 such that they are readily accessible to and usable by persons

8

with disabilities, in violation of 42 U.S.C. § 12183(a)(1);

9

i. Performing alterations after January 26, 1993 that affect the usability

10

of its facilities or a part of its facilities, while failing to ensure that the

11

altered portions and the path of travel to those altered portions are

12

readily accessible to and usable by persons with disabilities, in

13

violation of 42 U.S.C. § 12183(a)(2); and

14

j. Failing to operate BROOKDALE’s transportation services such that

15

they ensure a level of service to persons with disabilities that is

16

equivalent to that provided to persons without disabilities, in violation

17

of 42 U.S.C. § 12182)(b)(2)(C)(i).

18

232. As a direct and proximate result of the aforementioned acts, Plaintiffs have

19 suffered, and continue to suffer irreparable harm including humiliation, hardship and

20 anxiety due to Defendants’ failure to provide full and equal access to and enjoyment of

21 Defendants’ facilities, services, goods, privileges, advantages and/or accommodations.

22

WHEREFORE Plaintiffs pray for judgment as set forth below, including

23 declaratory and injunctive relief, as well as reasonable attorneys’ fees, costs and expenses

24 incurred in bringing this action.

25

SECOND CLAIM FOR RELIEF

(Unruh Civil Rights Act, California Civil Code §§ 51 et seq.)

26

(On behalf of Plaintiffs, the RESIDENTS WITH MOBILITY OR VISION

DISABILITIES CLASS and the RESIDENTS WITH DISABILITIES CLASS)

27

28

233. Plaintiffs incorporate by reference as though fully set forth herein the

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1 preceding paragraphs of this Complaint.

2

234. California Civil Code § 51(b) provides in pertinent part that “All persons

3 within the jurisdiction of this state are free and equal, and no matter what their…disability

4 or medical condition are entitled to the full and equal accommodations, advantages,

5 facilities, privileges, or services in all business establishments of every kind whatsoever.”

6

235. Pursuant to California Civil Code § 51(f), a violation of the ADA also

7 constitutes a violation of California Civil Code §§ 51 et seq.

8

236. Defendants own, operate and/or manage business establishments within the

9 meaning of the Unruh Civil Rights Act. Defendants are each a public accommodation

10 whose services and facilities are open to the general public.

11

237. Defendants provide services, privileges, advantages and accommodations to

12 the general public. Defendants have failed and refused to provide Plaintiffs with full and

13 equal access to and enjoyment of the benefits of their goods, services, facilities, benefits,

14 advantages, and accommodations, and have done so by reason of Plaintiffs’ disabilities.

15

238. Defendants have discriminated against persons with disabilities in violation

16 of California Civil Code §§ 51 et seq. by failing to operate their facilities and services in

17 full compliance with the requirements of the ADA as set forth above.

18

239. Defendants, by their actions and inactions alleged in this Complaint, have

19 directly discriminated against persons with disabilities.

20

240. Plaintiffs’ claims under the Unruh Act based on BROOKDALE’s failure to

21 make reasonable modifications in policies, practices, or procedures in staffing policies and

22 practices are limited to circumstances and facts occurring on or after May 16, 2015.

23

241. The actions of Defendants were and are in violation of the Unruh Civil

24 Rights Act, Cal. Civ. Code §§ 51 et seq., and therefore Plaintiffs are also entitled to

25 statutory damages, injunctive relief and reasonable attorneys’ fees, costs and expenses.

26

WHEREFORE Plaintiffs pray for judgment as set forth below, including

27 declaratory and injunctive relief, as well as reasonable attorneys’ fees, costs and expenses

28 incurred in bringing this action.

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1

THIRD CLAIM FOR RELIEF

(Consumers Legal Remedies Act, Cal. Civ. Code §§ 1750 et seq.)

2 (On behalf of Plaintiffs and the FALSE OR MISLEADING STATEMENT CLASS)

3

242. Plaintiffs incorporate by reference as though fully set forth herein the

4 preceding paragraphs of this Complaint.

5

243. Plaintiffs and the members of the putative False or Misleading Statements

6 Class are “consumer[s]” within the meaning of California Civil Code § 1761(d). They are

7 also “senior citizen[s]” and/or “[d]isabled person[s]” within the meaning of California

8 Civil Code § 1761(f) and (g).

9

244. Defendants are each a “person” as defined under California Civil Code

10 § 1761(c). The assisted living services that Defendants have promised to provide Plaintiffs

11 are “[s]ervices” within the meaning of the California Civil Code § 1761(b). The

12 agreement by Defendants to provide assisted living services in return for payment of

13 monthly fees by each of the Plaintiffs constitutes a “transaction” under California Civil

14 Code § 1761(e).

15

245. In Defendants’ uniform resident contracts presented to prospective residents

16 and their family members, Defendants represented and continue to represent that

17 BROOKDALE will assess each resident and provide the basic services, personal services,

18 and select and therapeutic services it has determined are needed. That same representation

19 is made in BROOKDALE’s re-evaluation of residents, rate increase letters, letters

20 regarding the merger, letters regarding the conversion to a new personal assessment

21 system, corporate website statements, invoices, and other standardized corporate

22 promotional materials. These uniform corporate representations are false and misleading,

23 and likely to deceive the reasonable consumer. As alleged herein, Plaintiffs and the

24 putative class members reasonably expected based on these representations that

25 BROOKDALE would provide sufficient levels of qualified and adequately trained staff at

26 its facilities to ensure that all residents receive the services they have been promised and

27 for which they are paying.

28

246. Contrary to its representations regarding the provision of basic services,

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1 personal services, and select and therapeutic services, BROOKDALE knows that the

2 policies and practices it uses to staff its facilities—most notably, its policy and practice of

3 using predetermined labor budgets designed to meet corporate profit targets, goals, and

4 margins without regard to residents’ needs—preclude it from providing its residents all of

5 the care and services they have been promised and places all residents at a substantial risk

6 that they will not receive the care and services they have paid for on any given day.

7 BROOKDALE did not intend to provide and has no intention of providing sufficient levels

8 of qualified and adequately trained staff at its facilities to ensure that all residents receive

9 these services. BROOKDALE does not disclose and conceals this material fact from the

10 residents, their family members, and the general public.

11

247. The named Plaintiffs, their family members and powers of attorney, the

12 putative class members, and reasonable consumers considered material BROOKDALE’s

13 misrepresentations and misleading statements that it will provide residents the basic

14 services, personal services, and select and therapeutic services they need and for which

15 they are paying. If the named Plaintiffs had known the true facts about BROOKDALE’s

16 staffing policies and procedures, they would not have agreed to enter or stay in a

17 BROOKDALE facility or to place their relatives in a BROOKDALE facility, or would

18 have paid less money. If the putative class members had known the true facts, they would

19 in all reasonable probability not have agreed to enter or remain in a BROOKDALE facility

20 or to place their relatives in a BROOKDALE facility, or would have paid less money to

21 BROOKDALE.

22

248. The facts that BROOKDALE misrepresents, fails to disclose and actively

23 conceals are material and are likely to deceive the reasonable consumer. Reasonable

24 consumers, including the residents and their family members herein, consider of great

25 importance the staffing levels provided by the assisted living facility they select, and such

26 consumers also attach great importance to BROOKDALE’s claims regarding its provision

27 of basic services, personal services, and select and therapeutic services.

28

249. Residents and their family members would consider material

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1 BROOKDALE’s uniform corporate policy and procedure of basing its staffing on fixed

2 budgets and profit margins resulting in staffing that is inadequate to meet residents’ needs,

3 as identified by BROOKDALE itself through periodic personal service assessments.

4 Residents and their family members could not reasonably have been expected to learn or

5 discover these non-disclosed facts, and in fact, BROOKDALE has affirmatively concealed

6 them.

7

250. Since May 16, 2015, BROOKDALE has violated and continues to violate

8 the CLRA, Cal. Civ. Code §§ 1750 et seq., in at least the following respects:

9

a. In violation of § 1770(a)(5), BROOKDALE has misrepresented,

10

failed to disclose and concealed the true characteristics and/or

11

quantities of services provided at its facilities in California;

12

b. In violation of § 1770(a)(7), BROOKDALE has misrepresented,

13

failed to disclose and concealed the true standard, quality and/or grade

14

of services provided at its facilities in California;

15

c. In violation of § 1770(a)(9), in BROOKDALE’s standard resident

16

admission contracts and elsewhere, BROOKDALE has falsely

17

advertised that it will provide basic services and the assistance

18

specified by each resident’s personal service assessment and which

19

corresponds to that resident’s Personal Service Plan, knowing that

20

BROOKDALE does not intend to provide the services as advertised;

21

and

22

d. In violation of § 1770(a)(14), BROOKDALE has represented that the

23

agreement signed by residents and/or their responsible parties, and

24

under which they pay their monthly rate, confers on residents the right

25

to reside in a facility that provides the basic services, personal

26

services, and select and therapeutic services that residents have been

27

promised and are paying for, when in fact, BROOKDALE knows that

28

the policies and practices it uses to staff its facilities preclude it from

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1

providing its residents all of the care and services they have been

2

promised and places all residents in an inherent and substantial risk

3

that they will not receive the care and services they have paid for on

4

any given day.

5

251. These misrepresentations, misleading statements, acts, practices, and

6 omissions by BROOKDALE are and were intended to induce and lure elderly and

7 dependent adult residents and their family members into agreeing to be admitted to

8 BROOKDALE’s facilities and to pay community and monthly fees.

9

252. BROOKDALE made the misrepresentations and misleading statements

10 alleged herein through various uniform means of communication, including without

11 limitation, the admission agreement; subsequent agreements based on updated Personal

12 Service Plans; letters to residents regarding the merger between BROOKDALE and

13 Emeritus, the implementation of BROOKDALE’s new personal service system, and rate

14 increases; standardized corporate marketing and promotional materials; Defendants’

15 website; invoices; and other written corporate materials disseminated to the public in

16 connection with Defendants’ services. These representations and misleading statements

17 were made directly to the named Plaintiffs, putative class members and their family

18 members and/or responsible parties by BROOKDALE in the uniform means of

19 communication listed above.

20

253. BROOKDALE failed to disclose and concealed from Plaintiffs, the putative

21 class members, and their family members, that BROOKDALE staffs its facility using

22 predetermined labor budgets designed to meet corporate profit targets, goals, and margins

23 without regard to residents’ needs; that these policies and practices preclude it from

24 providing its residents all of the care and services they have been promised and places all

25 residents at an inherent and substantial risk that they will not receive the care and services

26 they have paid for on any given day; and that BROOKDALE did not intend to provide and

27 has no intention of providing sufficient qualified and adequately trained staff at its

28 facilities to ensure that all residents receive these services.

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1

254. BROOKDALE had exclusive and superior knowledge of materials facts not

2 known to the named Plaintiffs, class members or the general public at the time of the

3 subject transactions and actively concealed those material facts.

4

255. BROOKDALE had exclusive and superior knowledge that its corporate

5 policy and procedure of providing pre-determined staffing at its facilities preclude

6 BROOKDALE from providing the care and services for which it charges its residents and

7 places all residents at a substantial risk that on any given day they will not receive the care

8 and services for which they have paid. BROOKDALE had exclusive and superior

9 knowledge that its policies and procedures for staffing its facilities pose a heightened

10 health and safety risk to the named Plaintiffs and class members. Defendants intentionally

11 concealed, suppressed and/or failed to disclose the true facts with the intent to defraud the

12 named Plaintiffs and putative class members. The named Plaintiffs and putative class

13 members did not know these material undisclosed facts and could not reasonably have

14 been expected to discover them.

15

256. As a direct and proximate result of Defendants’ conduct, Plaintiffs, the class

16 members, and members of the general public (including without limitation persons

17 admitted to and/or residing in the facilities, and their family members and/or responsible

18 parties) have been harmed and continue to be harmed. Among other things, they paid

19 money to Defendants to enter the facilities and/or for services that were not provided or

20 that were substandard to those promised by Defendants.

21

257. Plaintiffs sent BROOKDALE a notice to cure under California Civil Code

22 § 1782(a), which was received by BROOKDALE on June 6, 2017. More than 30 days

23 have passed since BROOKDALE’s receipt, and BROOKDALE has not corrected or

24 remedied the violations alleged in the notice and herein.

25

258. Accordingly, Plaintiffs and the False or Misleading Statements Class

26 members are entitled to no less than $1,000 in statutory damages pursuant to California

27 Civil Code § 1780(a). Moreover, as senior citizens and/or disabled persons, Plaintiffs and

28 the False or Misleading Statements Class members are also entitled to statutory damages

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1 of $5,000 per class member pursuant to California Civil Code § 1780(b), as well as actual

2 damages and restitution in an amount to be proven at trial.

3

259. Plaintiffs and each of the putative False or Misleading Statements Class

4 members are seniors and/or disabled persons as defined by California Civil Code § 1761(f)

5 and (g). Plaintiffs and the putative False or Misleading Statements Class members have

6 each suffered substantial economic harm. Defendants knew that their conduct negatively

7 impacted seniors and disabled persons. Defendants’ conduct caused the named Plaintiffs

8 and the putative False or Misleading Statements Class members to lose property set aside

9 for personal care and maintenance and assets essential to their health and welfare. Further,

10 Plaintiffs and the putative False or Misleading Statements Class members are substantially

11 more vulnerable than other members of the public to Defendants’ conduct because of their

12 age, poor health, impaired understanding, restricted mobility and/or disabilities.

13

260. Plaintiffs additionally seek treble damages under California Civil Code

14 § 3345, punitive damages, reasonable attorneys’ fees and costs, and all other relief the

15 Court deems just and proper. Excluded from Plaintiffs’ request are damages related to any

16 personal injuries, emotional distress or wrongful death suffered by any member of the

17 class.

18

261. Defendants’ conduct presents a continuing threat of substantial harm to the

19 public in that, among other things, Defendants continue to make misleading statements

20 about and conceal material facts about whether and how they provide basic, personal care,

21 and select and therapeutic services at BROOKDALE facilities in California, as well as the

22 fact that their staffing policies and procedures preclude them from providing residents the

23 services they have been promised. Despite these misrepresentations, BROOKDALE

24 continues to induce elderly and vulnerable citizens to enter and remain in its facilities,

25 which conduct irreparably harms Plaintiffs and the putative False or Misleading

26 Statements Class. Accordingly, Plaintiffs seek an injunction that requires that

27 BROOKDALE immediately cease the CLRA violations alleged herein regarding

28 BROOKDALE’s misrepresentations, misleading statements, and material omissions, and

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1 to enjoin it from continuing to engage in any such acts or practices in the future.

2 Specifically, Plaintiffs seek an injunction requiring BROOKDALE to disclose to Plaintiffs,

3 the putative False or Misleading Statements Class members and the consuming public that

4 BROOKDALE’s staffing policies and procedures preclude it from providing its residents

5 the care and services they have been promised and places all residents at an inherent and

6 substantial risk that they will not receive the care and services they have paid for on any

7 given day. Plaintiffs also seek an injunction prohibiting BROOKDALE from charging

8 residents or their responsible parties monthly fees based on their Personal Service Plans

9 until BROOKDALE implements staffing policies and procedures that enable it to deliver

10 those services on a consistent basis.

11

262. Plaintiffs claims for violations of the CLRA are limited to

12 misrepresentations, misleading statements, and failures to disclose that occurred on or after

13 May 16, 2015.

14

WHEREFORE Plaintiffs pray for judgment as set forth below, including

15 declaratory and injunctive relief as well as reasonable attorneys’ fees, costs and expenses

16 incurred in bringing this action.

17

FOURTH CLAIM FOR RELIEF

(Elder Financial Abuse, Cal. Welf. & Inst. Code § 15610.30)

18

(On behalf of PLAINTIFFS and the

FALSE OR MISLEADING STATEMENTS CLASS)

19

20

263. Plaintiffs incorporate by reference as though fully set forth herein the

21 preceding paragraphs of this Complaint.

22

264. Plaintiffs and the putative False or Misleading Statements Class members are

23 and at all times were “elders” as defined under California Welfare & Institutions Code

24 § 15610.27 or “dependent adults” as defined under California Welfare & Institutions Code

25 § 15610.23.

26

265. BROOKDALE represented to the named Plaintiffs, and/or their responsible

27 parties, and the putative False or Misleading Statements Class members, and/or their

28 responsible parties, in standard agreements, service updates, monthly invoices,

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1 standardized corporate letters to residents and/or their responsible parties, and/or annual

2 notification of rate increases, that BROOKDALE would provide care and assistance with

3 activities of daily living, including but not limited to staffing 24 hours a day, dining

4 services, housekeeping, laundry, transportation, and other basic services in exchange for

5 community fees and monthly payments that it received from the named Plaintiffs and the

6 putative False or Misleading Statements Class members. However, BROOKDALE did not

7 and has no intention of providing sufficient levels of qualified and adequately trained staff

8 at its facilities to ensure that all residents receive these services. As a result, residents do

9 not consistently receive all of the basic services BROOKDALE has promised them and for

10 which they are paying BROOKDALE.

11

266. BROOKDALE further represented through these same corporate materials

12 that BROOKDALE would provide personal services, including but not limited to

13 assistance with bathing, toileting, grooming, dressing, transferring, and mobility, for

14 additional monthly fees. BROOKDALE represented that it would perform an assessment

15 of each resident to identify needed personal services and an individualized service plan to

16 deliver those services. Yet BROOKDALE did not intend to and does not provide adequate

17 staffing for personal services at its facilities. Rather, it has a policy and practice of

18 providing pre-determined facility staffing that does not change with increases in residents’

19 personal service needs. This policy and practice precludes BROOKDALE from providing

20 facility residents with all of the personal services BROOKDALE has promised them and

21 for which they are paying BROOKDALE.

22

267. BROOKDALE further represented through these same corporate materials

23 that BROOKDALE would provide select and therapeutic services to residents, including

24 but not limited to emergency call pendants and associated services. However,

25 BROOKDALE did not and has no intention of providing sufficient levels of qualified and

26 adequately trained staff at its facilities to ensure that all residents receive these services.

27 As a result, facility residents do not consistently receive all of the select and therapeutic

28 services BROOKDALE has promised them and for which they are paying BROOKDALE.

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268. BROOKDALE knew or should have known that such conduct would likely

2 be harmful to Plaintiffs and the putative False or Misleading Statements Class members.

3

269. BROOKDALE knew or should have known that Plaintiffs and the putative

4 False or Misleading Statements Class members had a right to the funds used to pay new

5 resident community fees and monthly fees to BROOKDALE.

6

270. As such, BROOKDALE took, secreted, appropriated, obtained and/or

7 retained money belonging to Plaintiffs and putative class members for a wrongful use

8 and/or with the intent to defraud.

9

271. BROOKDALE’s conduct was despicable, fraudulent, reckless, and carried

10 out with a willful and conscious disregard for the rights and safety of Plaintiffs and the

11 members of the putative False or Misleading Statements Class.

12

272. Plaintiffs and putative False or Misleading Statements Class members also

13 seek compensatory damages, reasonable attorneys’ fees, costs and expenses, punitive

14 damages, treble damages pursuant to California Civil Code § 3345, and all other remedies

15 permitted by law. Plaintiffs do not seek certification of any claims for damages related to

16 any personal injuries, emotional distress, or wrongful death suffered by any member of the

17 class.

18

273. Plaintiffs’ claims under Cal. Welf. & Inst. Code § 15610.30 are limited to

19 circumstances and facts occurring on or after May 16, 2015.

20

WHEREFORE Plaintiffs pray for judgment as set forth below, including

21 declaratory and injunctive relief as well as reasonable attorneys’ fees, costs and expenses

22 incurred in bringing this action.

23

FIFTH CLAIM FOR RELIEF

(Unlawful, Unfair and Fraudulent Business Practices,

24

Cal. Bus. & Prof. Code §§ 17200 et seq.)

(On behalf of Plaintiffs and all Proposed Classes)

25

26

274. Plaintiffs incorporate by reference as though fully set forth herein the

27 preceding paragraphs of this Complaint.

28

275. BROOKDALE has engaged in unlawful business acts and practices. Such

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1 acts and practices constitute unfair business practices in violation of California Business

2 and Professions Code §§ 17200 et seq.

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276. In particular, Defendants have engaged in unlawful business acts and

4 practices by violating numerous laws, statutes and regulations including but not limited to:

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a. Systematically and uniformly representing to the residents of its

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assisted living facilities in California, family members, and the public

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that Defendants will assess residents to determine their needs, and will

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provide residents specified basic services, personal services, and

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select and therapeutic services based on those needs, when in fact,

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Defendants use staffing policies and procedures that preclude them

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from providing their residents all of the care and services they have

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been promised and that place all residents in an inherent and

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substantial risk that they will not receive the care and services they

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have paid for on any given day, in violation of California Civil Code

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§§ 1750 et seq.;

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b. Failing to provide residents with disabilities full and equal enjoyment

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of BROOKDALE’s goods, services, facilities, privileges, advantages,

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and/or accommodations at its assisted living facilities in California;

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failing to remove architectural barriers in those facilities constructed

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prior to January 26, 1993 and not altered after that date where such

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removal is readily achievable; failing to design and construct facilities

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first occupied after January 26, 1993 such that they are readily

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accessible to and usable by persons with disabilities; and performing

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alterations after January 26, 1993 that affect the usability of its

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facilities or a part of its facilities, while failing to ensure that the

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altered portions and the path of travel to those altered portions are

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readily accessible to and usable by persons with disabilities, all in

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violation of 42 U.S.C. § 12182 and Cal. Civ. Code § 51 et seq.;

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c. Taking, secreting, appropriating, obtaining, and retaining the funds of

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elders and dependent adults for a wrongful use and/or with the intent

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to defraud in violation of California Welfare and Institutions Code

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§ 15610.30; and

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d. Willfully interfering with the maintenance and promotion of a resident

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council in violation of Cal. H&S Code § 1569.157.

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277. By virtue of the conduct alleged herein, Defendants have also engaged in

8 fraudulent business practices. Members of the general public (including without limitation

9 persons admitted to and/or residing in BROOKDALE’s California assisted living facilities

10 during the CLASS PERIOD, and their family members and/or responsible parties) have

11 been and are likely to be deceived by Defendants’ misrepresentations and failures to

12 disclose as alleged herein.

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278. The acts and practices of Defendants also constitute unfair business acts and

14 practices within the meaning of California Business & Professions Code §§ 17200 et seq.,

15 in that the conduct alleged herein is immoral, unscrupulous, and contrary to public policy,

16 and the detriment and gravity of that conduct outweighs any benefits attributable to such

17 conduct.

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279. Defendants’ misrepresentations, misleading statements, acts, practices, and

19 omissions were intended to induce and lure elderly and dependent adult residents and their

20 family members into agreeing to be admitted to and remain at Defendants’ facilities and to

21 pay a community fee and monthly rates to live in an assisted living facility that features

22 sufficient levels of qualified and adequately trained staff to ensure that all residents receive

23 the basic services, personal services, and select and therapeutic services for which they are

24 paying.

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280. Defendants made these misrepresentations and misleading statements

26 through various uniform means of written corporate communications, including without

27 limitation, the standardized Residency Agreement; subsequent agreements based on re-

28 assessments of the resident; letters to residents regarding the merger between

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1 BROOKDALE and Emeritus, Defendants’ conversion to a new personal service system,

2 and rate increases; invoices, marketing and promotional materials, Defendants’ corporate

3 website and other materials disseminated to the public from its corporate headquarters in

4 connection with Defendants’ services. These representations were made directly to the

5 named Plaintiffs, class members, and their family members and/or responsible parties by

6 Defendants in the uniform means of communication listed above.

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281. BROOKDALE concealed from Plaintiffs, the putative class members, and

8 their family members that BROOKDALE’s staffing policies and procedures preclude it

9 from providing its residents all of the care and services they have been promised and

10 places all residents at an inherent and substantial risk that they will not receive the care and

11 services they have paid for on any given day.

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282. BROOKDALE had exclusive and superior knowledge of material facts not

13 known to named Plaintiffs, putative class members or the general public at the time of the

14 subject transactions and actively concealed these material facts.

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283. BROOKDALE had exclusive and superior knowledge of its corporate policy

16 and procedure. Further, Plaintiffs allege on information and belief that Defendants’

17 officers, directors, and managers knew that Defendants’ failure to provide adequate

18 staffing posed a substantial health and safety risk to the named Plaintiffs and class

19 members. BROOKDALE intentionally concealed, suppressed and/or failed to disclose the

20 true facts with the intent to defraud the named Plaintiffs and putative class members. The

21 named Plaintiffs and the putative class members did not know these material undisclosed

22 facts and could not reasonably have been expected to discover them.

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284. As a direct and proximate result of Defendants’ conduct, Plaintiffs, the class

24 members, and members of the general public (including without limitation persons

25 admitted to and/or residing in the facilities, and their family members and/or responsible

26 parties) have been harmed and continue to be harmed. Among other things, they paid

27 money to Defendants to enter the facilities and for services that were not provided or that

28 were substandard to those promised by Defendants.

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285. Plaintiffs seek an injunction that requires that Defendants immediately cease

2 acts of unlawful, unfair and fraudulent business acts or practices as alleged herein, and to

3 enjoin Defendants from continuing to engage in any such acts or practices in the future.

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286. Plaintiffs’ claims under Cal. Bus. & Prof. Code §§ 17200 are limited to

5 circumstances and facts occurring on or after May 16, 2015 to the extent they are based on

6 Defendants’ failure to provide staff with adequate training and in sufficient numbers to

7 provide their assisted living facility residents all of the care and services they have been

8 promised.

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287. WHEREFORE Plaintiffs pray for judgment as set forth below, including

10 declaratory and injunctive relief as well as reasonable attorneys’ fees, costs and expenses

11 incurred in bringing this action.

12 ALLEGATIONS SUPPORTING DECLARATORY AND INJUNCTIVE RELIEF

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288. Plaintiffs incorporate by reference as though fully set forth herein the

14 preceding paragraphs of this Complaint.

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289. Plaintiffs STACIA STINER, BERNIE JESTRABEK-HART, and

16 JEANETTE ALGARME continue to live at a BROOKDALE assisted living facility.

17 Unless and until BROOKDALE brings its facilities into compliance with the requirements

18 of the ADA and applicable federal disability access design standards, the above-named

19 Plaintiffs will continue to be denied full and equal access to and enjoyment of

20 BROOKDALE’s facilities as a result of physical access barriers in violation of the ADA.

21 Moreover, unless and until Defendant BROOKDALE makes the requested reasonable

22 modification in policies, practices and procedures set forth above with respect to the

23 staffing of its facilities, Plaintiffs will continue to be denied full and equal access to and

24 enjoyment of the services, goods, facilities, privileges, advantages and accommodations

25 provided to its residents by BROOKDALE. In this regard, unless and until Defendants

26 provide a sufficient number of adequately trained staff at their facilities, residents with

27 disabilities will continue to suffer the denial and deprivation of basic services that are

28 necessary to daily living, including assistance with bathing, showering, toileting, taking

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1 medications, transferring, dressing, dining, cleaning and laundry services. Further,

2 residents with disabilities will continue to be denied full and equal access to on-site and

3 off-site social and recreational activities, and will be segregated and isolated in violation of

4 the ADA’s integration mandate.

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290. In addition, unless and until Defendants comply with the ADA, Plaintiffs

6 STACIA STINER, BERNIE JESTRABEK-HART, and JEANETTE ALGARME will

7 continue to suffer falls, and to be at risk of falls and/or serious physical injuries, as a result

8 of Defendants’ failure and refusal to provide full and equal access to its facilities and

9 services. In this regard, Defendants must be enjoined to provide facilities that comply with

10 applicable federal disability access standards, a sufficient number of staff who are

11 adequately trained to assist residents with disabilities to prevent falls and to assist them if a

12 fall takes place, and a functioning and effective pendant system so that residents can obtain

13 prompt and effective assistance when they have fallen and/or are at risk of other physical

14 injuries. Further, unless and until Defendants provide adequate emergency planning and

15 evacuation procedures for residents with disabilities, Defendants will continue to place

16 them at significant risk of serious injury and death.

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291. Further, unless and until Defendants provide residents with disabilities with

18 full and equal access to enjoyment of its transportation services, residents with disabilities

19 will continue to be excluded from and denied access to off-site appointments and activities

20 in violation of the ADA.

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292. Additionally, unless and until BROOKDALE ceases its false and/or

22 misleading statements regarding its services and discloses that its corporate staffing

23 policies and practices preclude it from providing its residents the care and services they

24 have been promised and places all residents at an inherent and substantial risk that they

25 will not receive the care and services they have paid for on any given day, residents, their

26 family members, their responsible parties and the general public will continue to be misled

27 and will continue to expend very substantial sums of money for services, goods and

28 facilities that are not as represented, and Defendants will continue to receive the benefits of

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1 their ill-gotten gains.

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293. Finally, unless and until BROOKDALE is ordered to refrain from interfering

3 with the maintenance and promotion of resident and family councils at its facilities,

4 Plaintiffs will continue to suffer from retaliation against resident and family councils and

5 their members and be subjected to BROOKDALE’s obstruction of the promotion and

6 operation of said councils at its facilities.

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294. A present and actual controversy exists regarding the respective rights and

8 obligations of Plaintiffs and Defendants. Plaintiffs desire a judicial determination of their

9 rights and Defendants’ obligations in a declaration as to whether, and to what extent, the

10 Defendants’ conduct violates applicable law.

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295. Such a declaration is necessary and appropriate at this time in order that

12 Plaintiffs may ascertain their rights. Such a declaration is also necessary and appropriate

13 to prevent further harm or infringement of Plaintiffs’ rights.

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296. Plaintiffs STACIA STINER, BERNIE JESTRABEK-HART, and

15 JEANETTE ALGARME have no adequate remedy at law for the harm to them arising

16 from the conduct alleged herein. Unless and until Defendants are preliminarily and

17 permanently enjoined from engaging in such conduct, Plaintiffs will continue to suffer

18 irreparable harm as a result of Defendants’ violations of the ADA, the Unruh Act, the

19 CLRA, the UCL, Cal. Welf. & Inst. Code § 15610.30, and Cal. H&S Code §§ 1569.157

20 and 1569.158 as alleged herein.

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297. Plaintiffs STACIA STINER, BERNIE JESTRABEK-HART, and

22 JEANETTE ALGARME are entitled to declaratory and injunctive relief pursuant to each

23 of the laws under which this action is brought.

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PRAYER FOR RELIEF

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WHEREFORE, Plaintiffs respectfully pray that this Court:

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1. Issue a declaratory judgment that Defendants’ failure to provide full and

27 equal access to and enjoyment of Defendants’ goods, services, facilities, benefits,

28 advantages and accommodations with nondisabled persons violates Plaintiffs’ rights the

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1 ADA, § 42 U.S.C. 12101 et seq., and the regulations promulgated thereunder, and also

2 violates their civil rights under California Civil Code §§ 51 et seq.;

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2. With respect to the Residents with Mobility or Visual Disabilities Class and

4 the Residents with Disabilities Class issue preliminary and permanent injunctions requiring

5 Defendants to come into full compliance with the requirements of the ADA and its

6 implementing regulations;

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3. With respect to the Residents with Mobility or Visual Disabilities Class and

8 the Residents with Disabilities Class issue preliminary and permanent injunctions

9 enjoining Defendants from violating the Unruh Civil Rights Act in the operation of

10 Defendants’ business establishments and/or public accommodations with respect to its

11 goods, services, facilities, advantages, benefits and accommodations at its assisted living

12 facilities in California;

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4. Issue preliminary and permanent injunctions requiring that Defendants

14 immediately cease acts that constitute false advertising and violations of the Consumer

15 Legal Remedies Act and the Elder Financial Abuse statute as alleged herein with respect to

16 Defendants’ misrepresentations, misleading statements, and material omissions, and to

17 enjoin Defendants from continuing to engage in any such acts or practices in the future;

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5. Issue preliminary and permanent injunctions requiring that BROOKDALE

19 disclose to Plaintiffs, the putative class members and the consuming public that its

20 corporate staffing policies and procedures preclude it from providing its residents the care

21 and services they have been promised and places all residents at an inherent and substantial

22 risk that they will not receive the care and services they have paid for on any given day,

23 and prohibiting BROOKDALE from charging fees based on the residents’ Personal

24 Service Plans when BROOKDALE does not, in fact, provide adequate staffing levels to

25 perform the personal services identified in those plans;

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6. Issue preliminary and permanent injunctions ordering BROOKDALE to

27 refrain from interference with the formation, maintenance and promotion of family or

28 resident councils at its facilities.

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7. For statutory damages pursuant to California Civil Code § 52(a) for the

2 Residents with Mobility or Visual Disabilities and the Residents with Disabilities classes;

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8. For statutory damages pursuant to California Civil Code § 1780(a) and (b)

4 for the False or Misleading Statements class;

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9. For actual damages according to proof, excepting any damages for personal

6 injury, emotional distress and/or wrongful death suffered by the named Plaintiffs or any

7 class member;

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10. For restitution and any other monetary relief permitted by law;

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11. For punitive damages;

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12. For treble damages pursuant to California Civil Code §§ 52(a) and 3345;

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13. For pre-judgment and post-judgment interest according to law;

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14. Award to Plaintiffs all costs of this proceeding, including reasonable

13 attorneys’ fees costs and litigation expenses, as provided by law;

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15. Issue any other preliminary and permanent injunctions the Court deems

15 sufficient to rectify the acts and omissions alleged herein; and,

16 / / /

17 / / /

18 / / /

19 / / /

20 / / /

21 / / /

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24 / / /

25 / / /

26 / / /

27 / / /

28 / / /

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16. For such other relief as the Court may deem just and proper.

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Respectfully submitted,

3 DATED: February 15, 2019
4 5 6 7
DATED: February 15, 2019 8 9 10 11
DATED: February 15, 2019 12 13 14 15

SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS, LLP
By: /s/ Guy B. Wallace Guy B. Wallace
ROSEN BIEN GALVAN & GRUNFELD LLP
By: /s/ Gay Crosthwait Grunfeld Gay Crosthwait Grunfeld
STEBNER AND ASSOCIATES
By: /s/ Kathryn A. Stebner Kathryn A. Stebner
Attorneys for Plaintiffs and the Proposed Classes

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17 / / /

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21 / / /

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DEMAND FOR JURY TRIAL

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Plaintiffs demand a jury trial on all issues so triable.

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4

Respectfully submitted,

5 DATED: February 15, 2019
6 7 8 9
DATED: February 15, 2019 10 11 12 13
DATED: February 15, 2019 14 15 16 17

SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP
By: /s/ Guy B. Wallace Guy B. Wallace
ROSEN BIEN GALVAN & GRUNFELD LLP
By: /s/ Gay Crosthwait Grunfeld Gay Crosthwait Grunfeld
STEBNER AND ASSOCIATES
By: /s/ Kathryn A. Stebner Kathryn A. Stebner
Attorneys for Plaintiffs and the Proposed Classes

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THIRD AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES