Case 5:21-cv-01329-JWH-SHK Document 22 Filed 05/31/22 Page 1 of 7 Page ID #:730

1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE CENTRAL DISTRICT OF CALIFORNIA 10 11 DIGNA BARREIRO, deceased by and Case No. 5:21-cv-01329-JWH-SHK through her personal legal 12 representative and successor in interest, Daniel Batlle; and ORDER GRANTING PLAINTIFFS’ 13 DANIEL BATLLE, individually, MOTION TO REMAND [ECF No. 13] AND DENYING AS MOOT 14 Plaintiffs, DEFENDANTS’ MOTION TO DISMISS [ECF No. 9] 15 v.

16 AG REDLANDS LLC dba

HIGHLAND CARE CENTER OF

17 REDLANDS;

AG FACILITIES OPERATIONS,

18 LLC;

JACOB WINTER;

19 DOES 1-25, inclusive; and

MARLENE BATLLE,

20 Defendants. 21 22 23 24 25 26 27 28 Case 5:21-cv-01329-JWH-SHK Document 22 Filed 05/31/22 Page 2 of 7 Page ID #:731

1 Before the Court are the following matters: 2  the motion to remand1 filed by: 3 o Plaintiff Daniel Batlle, in his individual capacity; and 4 o Plaintiff Digna Barreiro, deceased, by and through her personal 5 legal representative and successor in interest, Daniel Batlle; and 6  the motion to dismiss2 filed by Defendants AG Redlands LLC; AG 7 Facilities Operations, LLC; and Jacob Wintner. 8 The Court finds these matters appropriate for resolution without a hearing. See 9 Fed. R. Civ. P. 78; L.R. 7-15. After considering the papers filed in support and in 10 opposition,3 the Court orders that the Remand Motion is GRANTED and, 11 therefore, that the Motion to Dismiss is DENIED as moot, as set forth herein. 12 I. BACKGROUND 13 In June 2021, Plaintiffs filed their Complaint commencing this action in 14 San Bernardino County Superior Court.4 In their Complaint, Plaintiffs allege 15 elder abuse and neglect, violation of patient rights, negligence, and wrongful 16 death.5 17 In August, Defendants removed this action to this Court,6 and a few days 18 later Defendants filed their Motion to Dismiss.7 The next month, Plaintiffs filed 19 20

21 1 Pls.’ Motion for Remand (the “Remand Motion”) [ECF No. 13]. 22 2 Defs.’ Mot. to Dismiss (the “Motion to Dismiss”) [ECF No. 9]. 3 The Court considered the following papers: (1) Compl. (the 23 “Complaint”) [ECF No. 1-1]; (2) the Motion to Dismiss; (3) the Remand Motion (including its attachments); (4) Pls.’ Opp’n to the Remand Motion (the 24 “Opposition”) [ECF No. 16]; (5) Defs.’ Req. for Judicial Notice (the “RJN”) [ECF No. 17]; and (6) Defs.’ Reply in Supp. of the Remand Motion (the 25 “Reply”) [ECF No. 18]. 26 4 See Complaint 1:8-21. Unless otherwise noted, all dates are in 2021. 5 Id. at 1:11-16. 27 6 Defs.’ Notice of Removal (the “Notice of Removal”) [ECF No. 1]. 28 7 See Motion to Dismiss. -2- Case 5:21-cv-01329-JWH-SHK Document 22 Filed 05/31/22 Page 3 of 7 Page ID #:732

1 their Remand Motion.8 Defendants opposed9 and filed a Request for Judicial 2 Notice.10 Both Motions are fully briefed. 3 II. REQUEST FOR JUDICIAL NOTICE 4 Defendants request that the Court take judicial notice of the following 5 documents: 6  Plaintiffs’ Complaint for Damages, dated June 4, 2021 (Exhibit 1); 7  Official acts of the United States Health and Human Services Secretary 8 and his office (Exhibits 2-5, 30, 33, & 34); 9  Letter by Robert Charrow, General Counsel for the Office of the 10 Secretary of the Department of Health and Human Services, to Thomas 11 Barker of Foley Hoag, LLP, dated August 14, 2020 (Exhibit 6); 12  Advisory Opinions of the General Counsel for the Department of Health 13 and Human Services, Office of the Secretary (Exhibits 7-9); 14  List of Covered Countermeasures subject to Emergency Use 15 Authorizations by the United States Food and Drug Administration, 16 dated June 15, 2020 (Exhibit 10); 17  Acts of Federal and State administrative Agencies (Centers for Disease 18 Control and Prevention Guidance/Directives, Centers for Medicare and 19 Medicaid Services Memorandums, and California Department of Public 20 Health All Facilities Letters) (Exhibits 11-29); 21  Statement of Interest of the United States of America submitted in Bolton 22 v. Gallatin Center for Rehabilitation & Healing, LLC, Case 23 No. 3:20-cv-00683 (M.D. Tenn.), dated January 19, 2021 (Exhibit 31); 24 and 25 26 8 See Remand Motion. 27 9 See Opposition. 28 10 See RJN. -3- Case 5:21-cv-01329-JWH-SHK Document 22 Filed 05/31/22 Page 4 of 7 Page ID #:733

1  Order Regarding Plaintiff’s Motions for Remand and Defendant’s Motion 2 to Dismiss Complaint in Garcia v. Welltower OpCo Group LLC, Case 3 No. 8:20-CV-02250, at *8-*9 (C.D. Cal. Feb. 10, 2021), dated 4 February 10, 2021 (Exhibit 32).11 5 The Court finds that those documents are all eligible for judicial 6 noticeable, as they constitute either records on file with agencies, publicly 7 available websites, or prior proceedings in federal and state courts. See Lee v. 8 City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001) (finding records on file 9 with agencies to be judicially noticeable); Perkins v. LinkedIn Corp., 53 10 F. Supp. 3d 1190, 1204 (N.D. Cal. 2014) (noting that publicly available websites 11 are judicially noticeable); see also In re Korean Air Lines Co., 642 F.3d 685, 689 12 n.1 (9th Cir. 2011) (taking judicial notice of prior proceedings in federal and state 13 courts). Defendants’ request is thus GRANTED, and the Court takes judicial 14 notice of those documents. 15 III. LEGAL STANDARD 16 Pursuant to 28 U.S.C. § 1441(a), a defendant may remove a matter to 17 federal court where the district court would have original jurisdiction. See 18 Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Federal courts have 19 limited jurisdiction, “possessing only that power authorized by Constitution and 20 statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013). As such, a defendant may 21 remove civil actions in which (1) a federal question exists; or (2) complete 22 diversity of citizenship between the parties exists and the amount in controversy 23 exceeds $75,000. See 28 U.S.C. §§ 1331 & 1332. “Complete diversity” means 24 that “each defendant must be a citizen of a different state from each plaintiff.” 25 In re Digimarc Corp. Derivative Litigation, 549 F.3d 1223, 1234 (9th Cir. 2008). 26 27

28 11 See RJN 1:10-4:14. -4- Case 5:21-cv-01329-JWH-SHK Document 22 Filed 05/31/22 Page 5 of 7 Page ID #:734

1 Moreover, the Ninth Circuit “strictly construe[s] the removal statute 2 against removal jurisdiction,” and “[f]ederal jurisdiction must be rejected if 3 there is any doubt as to the right of removal in the first instance.” Gaus v. Miles, 4 Inc., 980 F.2d 564, 566 (9th Cir. 1992). “The strong presumption against 5 removal jurisdiction means that the defendant always has the burden of 6 establishing that removal is proper.” Jackson v. Specialized Loan Servicing, LLC, 7 2014 WL 5514142, *6 (C.D. Cal. Oct. 31, 2014). The court must resolve doubts 8 regarding removability in favor of remanding the case to state court. Id. 9 IV. DISCUSSION 10 A. Remand Motion 11 Defendants removed this case because they contend that (1) Plaintiffs’ 12 state law claims are entirely preempted by the Public Readiness and Emergency 13 Preparedness Act (the “PREP Act”), 42 U.S.C. §§ 247d-6d; (2) Plaintiffs’ 14 claims present a substantial federal question; and (3) removal is proper under 15 the federal officer statute, 28 U.S.C. § 1442(a)(1).12 16 Courts within this District have decided nearly two dozen cases 17 concerning federal jurisdiction under the PREP Act in cases—like this one— 18 that involve wrongful death and negligence claims arising from the COVID-19 19 death of a skilled nursing facility resident. Every court in this District that has 20 considered a remand under Defendants’ theories, except for one, has held that 21 federal courts lack jurisdiction, therefore making removal improper and 22 mandating remand. See Est. of Jenkins v. Beverly Hills Senior Care Facility, Inc., 23 2021 WL 3563545 (C.D. Cal. Aug. 12, 2021) (Walter, J.); Romeo v. Canoga 24 Healthcare, Inc., 2021 WL 3418730, at *3 (C.D. Cal. Aug. 5, 2021); Est. of Acosta 25 v. WDW Joint Venture, 2021 WL 3089332, at *2-*5 (C.D. Cal. July 21, 2021) 26 (Anderson, J.); Acra v. California Magnolia Convalescent Hosp., Inc., 2021 WL 27

28 12 Notice of Removal ¶¶ 10, 49-51, & 55. -5- Case 5:21-cv-01329-JWH-SHK Document 22 Filed 05/31/22 Page 6 of 7 Page ID #:735

1 2769041, at *8 (C.D. Cal. July 1, 2021) (Wu, J.); Reed v. Sunbridge Hallmark 2 Health Servs., LLC, 2021 WL 2633156, at *8 (C.D. Cal. June 25, 2021) (Walter, 3 J.); Thomas v. Century Villa Inc., 2021 WL 2400970, at *7 (C.D. Cal. June 10, 4 2021) (Scarsi, J.); Forman v. C.p.c.h., Inc., 2021WL 2209308, at *3 (C.D. Cal. 5 June 1, 2021) (Blumenfeld, J.); Golbad v. GHC of Canoga Park, 2021 WL 6 1753624, at *3 (C.D. Cal. May 4, 2021) (Wright, J.); Padilla v. Brookfield 7 Healthcare Ctr., 2021 WL 1549689, at *6 (C.D. Cal. Apr. 19, 2021) (Gee, J.); 8 Hopman v. Sunrise Villa Culver City, 2021 WL 1529964, at *3 (C.D. Cal. Apr. 16, 9 2021) (Klausner, J.); Winn v. California Post Acute LLC, 2021 WL 1292507, at *5 10 (C.D. Cal. Apr. 6, 2021) (Anderson, J.); Nava v. Parkwest Rehab. Ctr. LLC, 2021 11 WL 1253577, at *4 (C.D. Cal. Apr. 5, 2021) (Wright, J.); Stone v. Long Beach 12 Healthcare Ctr., LLC, 2021 WL 1163572, at *8-*9 (C.D. Cal. Mar. 26, 2021) 13 (Walter, J.); Ivey v. Serrano Post Acute, LLC, 2021 WL 1139741, at *3 (C.D. Cal. 14 Mar. 25, 2021) (Fischer, J.); Smith v. Colonial Care Ctr., Inc., 2021 WL 1087284, 15 at *1 (C.D. Cal. Mar. 19, 2021) (Klausner, J.); Est. of McCalebb v. AG Lynwood, 16 LLC, 2021 WL 911951, at *6 (C.D. Cal. Mar. 1, 2021) (Blumenfeld, J.); Lyons v. 17 Cucumber Holdings, LLC, 2021 WL 364640, at *6 (C.D. Cal. Feb. 3, 2021) 18 (Walter, J.); Saldana v. Glenhaven Healthcare LLC, 2020 WL 6713995, at *3 19 (C.D. Cal. Oct. 14, 2020) (Olguin, J.); Martin v. Serrano Post Acute LLC, 2020 20 WL 5422949, at *3 (C.D. Cal. Sept. 10, 2020) (Fischer, J.). But see Garcia v. 21 Welltower OpCo Grp. LLC, 2021 WL 492581, at *7 (C.D. Cal. Feb. 10, 2021) 22 (Selna, J.) (deferring to OGC Advisory Opinion). 23 Except for Garcia, those rulings are consistent with the conclusions of 24 district courts nationwide in legally identical cases. See, e.g., Rae by & through 25 Montisano v. Anza Healthcare Inc., 2021 WL 2290776, at *3 (S.D. Cal. June 4, 26 2021) (collecting cases); Est. of Parr by & through Parr v. Palm Garden of Winter 27 Haven, LLC, 2021 WL 1851688, at *2 (M.D. Fla. May 10, 2021) (collecting 28 cases); Roebuck v. Clinic, 2021 WL 1851414, at *4 (D. Ariz. May 10, 2021) -6- Case 5121-cv-01329-JWH-SHK Document 22 Filed 05/31/22 Page 7of7 Page ID #:736

1|| (collecting cases); Perez on behalf of Est. of Lozano v. Se. SVF LLC, 2021 WL 2|| 1381232, at *2 (W.D. Tex. Apr. 12, 2021) (collecting cases). 3 The wide consensus in this District regarding the absence of federal 4|| jurisdiction under the PREP Act is resounding. The Court agrees with their 5|| reasoning and similarly finds that it does not have jurisdiction over the instant □ □□ case. 7|| B. Motion to Dismiss 8 Because the Court GRANTS Plaintiffs’ Remand Motion, the Court 9|| DENIES Defendants’ Motion to Dismiss as moot. 10 V. CONCLUSION 11 For the foregoing reasons, the Court hereby ORDERS as follows: 12 1. Defendants’ Request for Judicial Notice is GRANTED. 13 2. Plaintiffs’ Remand Motion is GRANTED. This action is 14|| REMANDED to San Bernardino County Superior Court. 15 3. Defendants’ Motion to Dismiss is DENIED as moot. 16 IT IS SO ORDERED. i MUHA 18 || Dated: May 31, 2022 19 GNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 -7-