FILED/ENDORSED

1 William C. Wilson, SBN: 149683

Mark A. Ginella, SBN: 185672 FEB 0 4 2019
2 WILSON GETTY LLP
12555 High Bluff Drive, Suite 270 By: E. Toscano
3 San Diego, Califomia 92130 Deputy Clark
Telephone: 858.847.3237
4 Facsimile: 858.847.3365
5 Attomeys for Defendants ROSEVILLE SH, LLC dba MEADOW OAKS OF ROSEVILLE (erroneously
sued and served as MEADOW OAKS OF ROSEVILLE and ROSEVILLE SH, LLC); DCP
6 INVESTORS ROSEVILLE SH, LLC; DCP MANAGEMENT ROSEVILLE SH, LLC; WESTMONT
LIVING, INC.; TANYSHA BORROMEO; and ANA ROJAS
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SACRAMENTO
10 CLAUDE ROGERS by and through his Case No. 34-2018-00244899
Successor-in-interest KATHRYN L. ROGERS
11 KATHRYN L. ROGERS, individually; ANSWER OF DEFENDANTS ROSEVILLE
JEFFREY ROGERS individually; PHILLIP SH, L L C dba MEADOW OAKS OF
12 ROGERS individually; RICHARD ROGERS ROSEVILLE; DCP INVESTORS
individually, ROSEVILLE SH, L L C ; DCP MANAGEMENT
13 ROSEVILLE SH, L L C ; WESTMONT
Plaintiffs, LIVING, INC.; TANYSHA BORROMEO;
14 AND ANA ROJAS TO PLAINTIFFS'
vs. COMPLAINT
15
MEADOW OAKS OF ROSEVILLE; Action Filed: November 20,2018
16 ROSEVILLE SH, LLC; CPR/AR ROSEVILLE
SH OWNER, LLC; DCP INVESTORS Judge: Hon. Kevin R. Culhane .
17 ROSEVILLE SH, LLC; DCP MANAGEMENT Dept.: 23
ROSEVILLE SH, LLC; WESTMONT Trial Date: Not Set
18 LFVING, INC.; TANYSHA BORROMEO; BY FAX
ANA ROJAS; ANDREW BADOUD and
19 DOES 1 through 50, inclusive,

20 Defendants.

21
22 Defendants ROSEVILLE SH, LLC dba MEADOW OAKS OF ROSEVILLE (erroneously sued
23 and served as MEADOW OAKS OF ROSEVILLE and ROSEVILLE SH, LLC); DCP INVESTORS
24 ROSEVILLE SH, LLC; DCP MANAGEMENT ROSEVILLE SH, LLC; WESTMONT LIVING, INC.;
25 TANYSHA BORROMEO; and ANA ROJAS (hereinafter "Defendants") hereby answer plaintiffs'
26 unverified Complaint for themselves and for no other defendants as follows:
27 Pursuant to Code of Civil Procedure section 431.30, these answering defendants deny generally
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ANSWER OF DEFENDANTS ROSEVILLE SH, L L C dba MEADOW OAKS OF ROSEVILLE; DCP INVESTORS
ROSEVILLE SH, L L C ; DC? MANAGEMENT ROSEVILLE SH, L L C ; WESTMONT LIVING, INC.; TANYSHA
BORROMEO; AND ANA ROJAS TO PLAINTIFFS' COMPLAINT
 1 and specifically each and every allegation in the Complaint. These answering defendants further deny
2 that plaintiffs have been damaged in the sum alleged in the Complaint, or any other sum, or at all.
3 FIRST AFFIRMATIVE DEFENSE
4 (Comparative Negligence)
5 1. At the time and place of the occurrence alleged in the Complaint, Plaintiff Claude
6 Rogers failed to exercise ordinary care on his own behalf for his own safety. That negligence caused
7 the injury and damages alleged in plaintiffs' Complaint. Consequently, plaintiffs' right to recover
8 should be diminished by plaintiffs' proportional share of fauh.
9 SECOND AFFIRMATIVE DEFENSE
10 (Apportionment)
11 2. That the liability of the persons ultimately determined to be responsible for the injuries
12 and losses to plaintiffs shall be compared, and the damages, if any, awarded to plaintiffs, shall be
13 apportioned accordingly.
14 THIRD AFFIRMATIVE DEFENSE
15 (Following Physician's Orders)
16 3. That all care, treatment and procedures rendered to and performed upon Claude Rogers
17 was given pursuant to the medical instmctions of his physicians and was given with the express and
18 implied consent of plaintiffs.
19 FOURTH AFFIRMATIVE DEFENSE
20 (Assumption of Risk)
21 4. That any injury, loss or damage purportedly sustained, if at all, by plaintiffs was directly
22 and legally caused and contributed to by risks which were fully and actualiy known to plaintiffs who
23 fully and actually appreciated the nature and scope of the hazards created, and voluntarily assumed
24 these risks and their potendal consequences.
25 FIFTH AFFIRMATIVE DEFENSE
26 (Negligence of Third Parties)
27 5. The damages sustained by plaintiffs were proximately caused by the acts, omissions,
28 -2-
ANSWER OF DEFENDANTS ROSEVILLE SH, L L C dba MEADOW OAKS OF ROSEVILLE; DCP INVESTORS
ROSEVILLE SH, L L C ; DCP MANAGEMENT ROSEVILLE SH, L L C ; WESTMONT LIVING, INC.; TANYSHA
BORROMEO; AND ANA ROJAS TO PLAINTIFFS' COMPLAINT
 1 negligence, fraud and/or breach of obligations by persons other than these answering defendants and
2. these persons were beyond these answering defendants' supervision and control.
3 SIXTH AFFIRMATIVE DEFENSE
4 (Intervening/Superseding Causes)
5 6. The incidents described in plaindffs' Complaint, as well as the injuries, losses and
6 damages allegedly sustained by plaintiffs, were proximately caused by intervening and superseding
7 forces which were beyond the control of these answering defendants and which, in the exercise of
8 reasonable pmdence, were not and could not be anticipated by these answering defendants.
9 SEVENTH AFFIRMATIVE DEFENSE
10 (Code of Civil Procedure §667.7)
II 1. Any recovery by the plaindffs, pursuant to this Complaint, is controlled by the
12 provisions of Code of Civil Procedure section 667.7.
13 EIGHTH AFFIRMATIVE DEFENSE
14 (Civil Code §1431.2)
15 8. The liability of these answering defendants for non-economic damages, if any, is limited
16 to that percentage of those damages which are in direct proportion of these answering defendants'
17 percentage of fault in accordance with Civil Code section 1431.2.
18 NINTH AFFIRMATIVE DEFENSE
19 (Fails to State Cause ofAction)
20 9. The Complaint, and each cause of action it contains, fails to state facts sufficient to
21 constitute a cause of action against these answering defendants.
22 TENTH AFFIRMATIVE DEFENSE
23 (Appropriate Treatment)
24 10. The care and treatment given to Claude Rogers by Roseville SH, LLC dba Meadows
25 Oaks of Roseville was proper, appropriate and reasonable for an individual with the medical and
26 psychological conditions that he had.
27
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ANSWER OF DEFENDANTS ROSEVILLE SH, L L C dba MEADOW OAKS OF ROSEVILLE; DCP INVESTORS
ROSEVILLE SH, LLC; DCP MANAGEMENT ROSEVILLE SH, L L C ; WESTMONT LIVING, INC.; TANYSHA
BORROMEO; AND ANA ROJAS TO PLAINTIFFS' COMPLAINT
 1 ELEVENTH AFFIRMATIVE DEFENSE
2 (Unavoidable Condition)
3 11. The damages sustained by plaintiffs were the result of an unavoidable condition, insofar
4 as these answering defendants is concemed, the condition occurred without any negligence, want of
5 care, fault, or other breach of duty to plaintiffs on the part of these answering defendants.
6 TWELFTH AFFIRMATIVE DEFENSE
7 (No Facts for Recovery ofAttorney's Fees)
8 12. Plaintiffs' Complaint fails to state facts sufficient to warrant the imposition of attomey's
9 fees and costs as damages against these answering defendants. ,
10 THIRTEENTH AFFIRMATIVE DEFENSE
11 (No Facts for Welfare & Institutions Code §15657 Remedies)
12 13. Plaintiffs' Complaint fails to state sufficient facts to warrant the recovery of any
13 damages, including punitive damages, fees or costs provided by Welfare & Institutions Code section
14 15657.
15 FOURTEENTH AFFIRMATIVE DEFENSE
16 (Binding Arbitration)
17 14. The plaintiffs' Complaint is subject to binding arbitradon as set forth in the arbitration
18 agreement.
19 FIFTEENTH AFFIRMATIVE DEFENSE
20 (Business & Professions Code §6146)
21 15. These answering defendants elect to invoke the provisions of Business & Professions
22 Code section 6146.
23 SIXTEENTH AFFIRMATIVE DEFENSE
24 (Failure to Mitigate Damages)
25 16. Plaintiffs failed to exercise reasonable care and diligence to avoid loss and to minimize
26 damages and, therefore, plaintiffs may not recover for losses which could have been prevented by
27 reasonable efforts on their part, or by expenditures that might reasonably have been made. Therefore,
28 -4-
ANSWER OF DEFENDANTS ROSEVILLE SH, LLC dba MEADOW OAKS OF ROSEVILLE; DCP INVESTORS
ROSEVILLE SH, L L C ; DCP MANAGEMENT ROSEVILLE SH, L L C ; WESTMONT LIVING, INC.; TANYSHA
BORROMEO; AND ANA ROJAS TO PLAINTIFFS' COMPLAINT
 1 plaintiffs' recovery, if any, should be reduced by the failure of the plaintiffs to mitigate their damages.
2 SEVENTEENTH AFFIRMATIVE DEFENSE
3 (Conduct Assumed Risk)
4 17. Prior to the event in which the plaintiffs were allegedly injured as a resuh of defendant's
5 negligence, plaintiffs, by their conduct impliedly assumed the risk of a known and appreciated danger,
6 and thus the. plaintifTs may not recover damages from the defendant for that injury.
7 EIGHTEENTH AFFIRMATIVE DEFENSE
8 (Civil Code §1714.8)
9 18. The plaintiffs' actions herein are barred by the provisions of Califomia Civil Code
10 section 1714.8 in that the injuries and damages coriiplained of by the plaintiffs herein, if any, were
11 solely as the result of the natural course of a disease or condition and/or expected result of reasonable
12 treatment rendered for the disease or condition by the defendants herein.
13 NINETEENTH AFFIRMATIVE DEFENSE
14 (Failure to Follow Healthcare Provider Advice)
15 19. That the injury, damage or loss suffered by the plaintiffs herein was legally caused by
16 the negligent or willful failure of the plaintiffs to follow the advice and instmctions of the attending
17 health care providers, including these answering defendants, and in otherwise failing to exercise
18 ordinary care on their own behalf.
19 TWENTIETH AFHRMATIVE DEFENSE
20 (Consent)
21 20. The actions of defendants were consented to by the plaintiffs.
22 TWENTY-FIRST AFFIRMATIVE DEFENSE
23 (No Reliance)
24 21. That at no time mentioned herein did plaintiffs, their agents, servants, representatives, or
25 predecessors in interest, rely on any promises, warranties, express or implied, or representations which
26 may have been made by these answering defendants in connection with the services which they are
27 alleged to have performed under the terms of the contract.
28 -5-
ANSWER OF DEFENDANTS ROSEVILLE SH, L L C dba MEADOW OAKS OF ROSEVILLE; DCP INVESTORS
ROSEVILLE SH, L L C ; DCP MANAGEMENT ROSEVILLE SH, LLC; WESTMONT LIVING, INC.; TANYSHA
BORROMEO; AND ANA ROJAS TO PLAINTIFFS' COMPLAINT
 1 TWENTY-SECOND AFFIRMATIVE DEFENSE
2 (Failure to Comply with Health & Safety Code § 1432.1)
3 22. Some or all of plaintiffs' claims are barred or otherwise without basis pursuant to the
4 immunities and privileges inherent in the Health & Safety Code, including, but not limited to. Health &
5 Safety Code section 1432.1.
6 TWENTY-THIRD AFFIRMATIVE DEFENSE
7 (Statute of Limitations)
8 23. The causes of action alleged in the Complaint are barred by the applicable statues of
9 limitations, including, but not limited to, the provisions of section 340.5 and 335.1 of the Code of Civil
10 Procedure.
II TWENTY-FOURTH AFFIRMATIVE DEFENSE
12 (No Privity of Contract)
13 24. No privity of contract exists, or ever existed, between plaintiffs and defendants, such
14 that defendants cannot be liable as a matter of law.
15 TWENTY-FIFTH AFFIRMATIVE DEFENSE
16 (EstoppedfromRaising Claims)
17 25. Plaindffs are estopped from raising any claims against defendants.
18 TWENTY-SIXTH AFFIRMATIVE DEFENSE
19 (Failure to State a Cause ofAction for Elder Neglect against DCP Investors Roseville SH, LLC, DCP
20 Management Roseville SH, LLC and Westmont Living, Inc.)
21 26. Neglect as a form of abuse under the Elder Abuse Act refers "to the failure of those
22 responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of
23 their professional standing, to carry out their custodial obligations." (Delaney v. Baker (1999) 20
24 Cal.4th 23, 34.) Thus, when the medical care of an elder or dependent adult is at issue, "the statutory
25 definition of 'neglect' speaks not of the undertaking of medical services, but of the failure to provide
26 medical care." (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783; see also Id. at p. 786
27 "statutory elder abuse may include the egregious withholding of medical care for physical and mental
28 -6-
ANSWER OF DEFENDANTS ROSEVILLE SH, L L C dba MEADOW OAKS OF ROSEVILLE; DCP INVESTORS
ROSEVILLE SH, LLC; DCP MANAGEMENT ROSEVILLE SH, L L C ; WESTMONT LIVING, INC.; TANYSHA
BORROMEO; AND ANA ROJAS TO PLAINTIFFS' COMPLAINT
 1 healdi needs.") DCP Investors Roseville SH, LLC, DCP Management Roseville SH, LLC and
2 Westmont Living, Inc. are neither healthcare providers, nor care custodians as defined by Welfare and
3 Institutions Code § 15610.17.
4 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
5 (Failure to Exercise Control)
6 27. Plaintiffs Complaint failed to state facts sufficient to maintain any cause of action
7 against DCP Investors Roseville SH, LLC, DCP Management Roseville SH, LLC and Westmont
8 Living, Inc. These defendants did not operate and/or manage Roseville SH, LLC dba Meadow Oaks of
9 Roseville at any relevant time period with regard to plaintiffs and their alleged injuries.
10 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
11 (No Punitive Damages)
12 28. Plaintiff is not entitled to the recovery of punitive damages under Civil Code section
13 3294 or any other provision of law; the facts alleged due not support such a recovery; and plaintiff did
14 not comply with the requirements of Code of Civil Procedure secdon 425.13.
15 TWENTY-NINTH AFFIRMATIVE DEFENSE
16 (Additional Affirmative Defenses)
17 29. These answering defendants presently have insufficient knowledge or information upon
18 which to form a belief as to whether it may have additional, as yet unstated, affirmative defenses
19 available. Accordingly, these answering defendants reserve the right to assert additional affirmative
20 defenses in the event discovery indicates that they would be appropriate.
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ANSWER OF DEFENDANTS ROSEVILLE SH, L L C dba MEADOW OAKS OF ROSEVILLE; DCP INVESTORS
ROSEVILLE SH, LLC; DCP MANAGEMENT ROSEVILLE SH, LLC; WESTMONT LIVING, INC.; TANYSHA
BORROMEO; AND ANA ROJAS TO PLAINTIFFS' COMPLAINT
 I WHEREFORE, defendants respectfully pray for judgment against plaintiffs as follows:
2 1. Dismissal of these answering defendants from this action;
3 2. That these answering defendants be awarded costs;
4 3. That plaintiffs take nothing by the Complaint;
5 4. For reasonable attomey's fees; and
6 5. For all other relief that this Court deems just and proper.
7
8 Dated: Febmary 1,2019 WILSON GETTY LLP
9
10 By: :
C.Wilson
11 Mark A. Ginella
12 Attomeys for Defendants ROSEVILLE SH, LLC dba
MEADOW OAKS OF ROSEVILLE (erroneously sued and
13 served as MEADOW OAKS OF ROSEVILLE and
ROSEVILLE SH, LLC); DCP INVESTORS ROSEVILLE
14 SH, LLC; DCP MANAGEMENT ROSEVILLE SH, LLC;
WESTMONT LIVING, INC.; TANYSHA BORROMEO;
15 and ANA ROJAS
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ANSWER OF DEFENDANTS ROSEVILLE SH, LLC dba MEADOW OAKS QF ROSEVILLE; DCP INVESTORS
ROSEVILLE SH, LLC; DCP MANAGEMENT ROSEVILLE SH, LLC; WESTMONT LIVING, INC.; TANYSHA
BORROMEO; AND ANA ROJAS TO PLAINTIFFS' COMPLAINT
 1 Claude Roeers, b/a/t his SlPKathryn L^RdRersi et dL vi fiieaHowjQtiks 6f R6^
Superior Court of the State of. Califoniia, ,County of Sacra
2 Case No. 34-2018.00244899
**.*
3 PROOF OF SERVICE
4 I am employed in San Diego County. I am over the age of 18 and not a party to this action. My
5 business address is 12555 High Bluff Drive, Suite 270, San Diego, Califomia 92130.

6 On Februarv 1.2019.1 served the foregoing documents, described in this action as:

7 • ANSWER OF DEFENDANTS ROSEVILLE SH, L L C dba MEADOW OAKS OF

ROSEVILLE; DCP INVESTORS ROSEVILLE SH, L L C ; DCP MANAGEMENT
8 ROSEVILLE SH, LLC; WESTMONT LIVING, INC.; TANYSHA BORROMEO; AND
ANA ROJAS TO PLAINTIFFS' COMPLAINT
9
[X] by' placing [ ] the original pC] a tme copy therepf enclosed in a sealed envelope addressed as
10
follows:
11
Sean R. Laird, Esq.
12 The Law Firm of Sean R. Laird
805 16th Street
13 Sacramento, CA 95814
T: 916.441.1636
14 F: 916.760.9002
15 Email: seanlairdIaw(a),gmail.com
Counselfor Plaintiffs
16
|X] BY U.S. MAIL I deposited such envelopes in the mail at San Diego, Califomia. The
17 envelopes were mailed with postage thereon fully pi-epaid. I am readily familiar with Wilson Getty
LLP's practice of collection and processing correspondence for mailing. Under that practice, docurtients
18
are deposited with the U.S. Postal Service on the same day which is stated in the proof of service, with
19 postage fully prepaid at San Diego, Califomia. in the ordinary course of business. I am aware that on
inotion of party served, service is presumed invalid if the postal cancellation daite or postage mieter date
20 is more than one day after the date stated in this proof of service.
21 [X] STATE: T declare imder penalty of peijury imder the laws of the State of Califomia that; the
above is tme and correct.
22
23 Executed bn Februarv 1.2019 at San Diego, California.

24
25 Shannon Kane

26
27
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PROOF OF SERVICE
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