Case Name: Diane Carlson, et al. v. Regional Medical Center of San Jose, et al.

Case No.: 16CV295428 (Consolidated with 17CV307880)

Milpitas Care Center’s Motion for Summary Adjudication as to Plaintiffs’ First Cause of Action for Statutory Elder Abuse, Pursuant to Code of Civil Procedure Section 437c(f)(1)

Factual and Procedural Background

Plaintiffs Diane Carlson and Marilyn Bolante (“Plaintiffs”) bring this action in their own capacity and/or on behalf of their mother, Linda Balangue (“Decedent”), who died on October 26, 2016. (First Amended Complaint (“FAC”), ¶1.) Decedent was a resident of, among others, defendant Milpitas Care Center (“MCC”) from April 2016 to July 2016. (FAC, ¶¶2 and 5.) During their care and/or custody of Decedent, defendant MCC failed to develop and implement adequate skin integrity and infection control/ monitoring measures, which resulted in Decedent sustaining injuries requiring specialized care; delayed in obtaining needed medical care for Decedent which resulted in Decedent developing serious exacerbation of lower extremity infections and further decreased blood flow into her lower extremities, that resulted in further complications. (FAC, ¶12.) By virtue of defendants’ neglect, Decedent acquired and/or suffered complications associated with pressure wounds while under the custody and/or care of defendants. (Id.) While in defendants’ facilities, Decedent acquired infections that ultimately required specialized care for septic shock, pneumonia, and anemia. (Id.) Further, Decedent suffered from numerous delays by defendants in providing appropriate treatment in/or response to the numerous changes in Decedent’s medical condition, resulting in Decedent developing a progressively debilitated condition while in defendants’ custody and care. (Id.)

The operative FAC, filed July 24, 2017, against defendant MCC asserts causes of action for:

  • Statutory Elder Abuse
  • Negligence/ Wrongful Death
  • Negligence/ Survival
  • Financial Elder Abuse
  • Unfair Business Practices

On November 3, 2017, defendant MCC filed an answer to the Plaintiffs’ complaint.

On March 5, 2018, the court consolidated Plaintiffs’ action in case numbers 17CV307880 and 16CV295428.

On April 5, 2019, Plaintiffs dismissed the fourth and fifth causes of action against defendant MCC.

On April 16, 2019, defendant MCC filed the motion now before the court, a motion for summary adjudication of the first cause of action [statutory elder abuse] in Plaintiffs’ FAC.

  1. Defendant MCC’s motion for summary adjudication is DENIED.

The first cause of action asserted against defendant MCC is by Plaintiffs for elder abuse. “The purpose of the [Elder Abuse Act] is essentially to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 (Delaney).) “The elements of a cause of action under the Elder Abuse Act [Welfare and Institutions Code sections 15600, et seq.] are statutory, and reflect the Legislature’s intent to provide enhanced remedies to encourage private, civil enforcement of laws against elder abuse and neglect.” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82.)

Welfare and Institutions Code section 15610.07, subdivision (a)(1) states, “Abuse of an elder or a dependent adult” means … “[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.” (Emphasis added.)

 

“Physical abuse” is defined by Welfare and Institutions Code section 15610.63 to include, among other things, “unreasonable physical constraint, or prolonged or continual deprivation of food or water” and “use of a physical or chemical restraint or psychotropic medication under any of the following conditions: (1) For punishment; (2) For a period beyond that for which the medication was ordered pursuant to the instructions of a physician and surgeon licensed in the State of California, who is providing medical care to the elder or dependent adult at the time the instructions are given; (3) For any purpose not authorized by the physician and surgeon.”

 

Welfare and Institutions Code section 15610.57 goes on to state:

 

(a) “Neglect” means either of the following:

(1) The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.

(2) The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise.

(b) Neglect includes, but is not limited to, all of the following:

(1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.

(2) Failure to provide medical care for physical and mental health needs. No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.

(3) Failure to protect from health and safety hazards.

(4) Failure to prevent malnutrition or dehydration.

(5) Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4), inclusive, for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.

 

(See also CACI, No. 3103.)

 

“[T]he statutory definition of neglect set forth in the first sentence of Welfare and Institutions Code section 15610.57 is substantially the same as the ordinary definition of neglect.” (Conservatorship of Gregory v. Beverly Enterprises, Inc. (2000) 80 Cal.App.4th 514, 521.) In other words, there is essentially no difference between a claim of neglect under section 15610.57 and a claim for general negligence. The primary reason for making a claim under the Elder/Dependent Abuse Act, however, is to recover enhanced remedies, including pre-death pain and suffering, attorney’s fees and costs, and punitive damages. These enhanced remedies are available under section 15657 but only “[w]here it is proven by clear and convincing evidence that a defendant is liable for … neglect as defined in section 15610.57 … and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse.” (Welf. & Inst. Code, §15657; emphasis added.)

 

In moving for summary adjudication, defendant MCC attempts to establish that it did not physically abuse or neglect Decedent. Defendant MCC begins by proffering its version of the facts.[1] Decedent was admitted to MCC in early May 2016 from Regional Medical Center, an acute care hospital.[2] MCC is, and was, a licensed California healthcare provider when it provided evaluation, care and/or treatment to Decedent during the relevant time periods outlined in Plaintiffs’ FAC for damages.[3] Prior to her admission to MCC, Decedent was a patient at Canyon Springs, a skilled nursing facility for several years where she suffered from significant medical decline including end stage dementia and the development of multiple skin wounds.[4]

 

The wounds that Decedent developed at Canyon Springs were the result of multiple medical problems including significant peripheral vascular disease, end stage dementia and diabetes.[5] Decedent became gravely ill at Canyon Springs with a life threatening and catastrophic infection. The infection caused the development of sepsis and she went into septic shock. One of the clinical conditions of her septic shock is that Decedent’s blood pressure dropped to a low level. Physicians at Regional Medical Center ordered medication to increase her blood pressure, but a side effect of that intravenous medication is that it constricts blood vessels, particular to the periphery, further impairing blood flow to the skin, which caused tissue damage from the development and worsening of skin wounds.[6]

 

After Decedent was treated and discharged from Regional Medical Center and admitted to MCC, Decedent had extensive wound formation with wounds to her left inner thigh, a large sacral wound, dorsal left foot wound, a wound to the posterior medial aspect of her left leg, a left heel wound and numerous lesser intensity minor wounds.[7]

 

At Canyon Springs and Regional Medical Center, Decedent had serious premorbid medical conditions, which included altered sensorium, obesity, diabetes, infectious cellulitis, new onset arterial fibrillation, hypertension and peripheral vascular disease. Decedent was a total assist patient with altered mobility and activity and was bedbound. She had nutritional impairment secondary to poor oral intake and her comorbid conditions.[8] These chronic conditions preexisted Decedent’s admission to MCC and were reflective of her ongoing medical deterioration and end of life issues.[9]

 

At Regional Medical Center, Dr. Nguyen put Decedent on ciolstazol, a medication that assists the symptoms of intermittent claudication from peripheral vascular disease by dilating and inhibiting the aggregation. Dr. Nguyen noted that the right leg was not involved in the wound process, further noting that the left leg disease was below the knee and was not amenable to aorto-femoral bypass or other methods of revascularization.[10] According to the Regional Medical Center records, the Regional Medical Center physicians did not recommend surgical vascularization and sent Decedent to MCC for conservative management.[11]

 

Before admission to MCC, Decedent had inadequate circulation to her sacral area and lower extremities which caused the formation of wounds and inability to heal wounds.[12] When a patient such as Decedent presents with significant vascular disease without the ability to be surgically vascularized then the option is conservative care, which was ordered by her treating physicians at Regional Medical Center and at MCC who were responsible for managing her medical care including the treatment of her wounds.[13]

 

It is the nurse’s responsibility to follow the physician’s orders. Nurses do not order medications, do not order wound treatment and do not order or perform surgery. This is not within the scope of the Nursing Practice Act, Business & Professions Code Chapter 6 or Nursing section 2725. It is the responsibility of the nursing staff at MCC to follow the orders of the treating physicians, in this case, Philip Tse, M.D. (“Dr. Tse”) and Hongdu K. Ly, D.O. (“Dr. Ly”) who were managing the patient’s wounds and the nurse’s responsibility to update the physicians about changes in condition.[14]

 

In the current matter, the MCC’s nurses and CNA staff adhered to basic principles of proper wound care including identification of wound type and patient diagnosis, risk assessment and prevention, identification of barriers to healing and modification if possible, pressure reduction and reduction of mechanical forces, infection control, maintenance of a moist wound healing environment, exudate absorption, nutritional support, pain control, and application of appropriate dressing with appropriate changing intervals.[15] The nurses at MCC assessed, managed and changed wound dressings; the nursing care that was provided was within the standard of care for a skilled nursing facility in the State of California.[16]

 

Decedent was malnourished due to a medical condition that interfered with protein absorption and hydration, as evident by her fluctuant and significant elevation in her liver enzymes. During her hospital admissions, Decedent had significant rises in alkaline phosphatase and frequent rises in ALT and AST, which reflect liver impairment. Of note, Decedent refused her meals despite the multidisciplinary team’s efforts to garner cooperation, provide protein supplements at and between meals, and totally assisted in feeding Decedent breakfast, lunch and dinner daily. Based on the Patient’s Bill of Rights, the standard of care mandates that you cannot force feed a patient who refuses to eat. MCC’s nursing staff also held several care conferences apprising the family about the patient’s refusal to eat and her poor nourishment, but the family refused placement of a feeding tube until the end of her admission and just before the was transferred to Regional Medical Center.[17]

 

When appropriate wound intervention did not result in healing of the major wounds, Decedent was identified as having recalcitrant, refractory wound formation and was appropriately referred for additional surgical wound intervention to Kindred Hospital.[18]

 

To a reasonable degree of medical certainty, the nursing staff at MCC met the standard of care for their treatment of Decedent.[19] Nursing and support staff at MCC implemented therapeutic nursing interventions to increase nutrition, kept the family and physicians apprised of her medical conditions, tried to elicit cooperation from the family to assist in increasing nutrition, including placement of a feeding tube, held regular care conferences that often included the family, did daily assessment and interventions of her preexisting wounds.[20] MCC’s nursing and care staff bathed Decedent, kept her clean and dry from incontinent stool, performed daily wound assessments and dressing changes as ordered by Decedent’s physicians, administered daily medications ordered by the physicians, put her on a special low air loss mattresses to limit pressure on the preexisting wounds, turned and repositioned the patient in accordance to the standard of care.[21] The healing of some of Decedent’s wounds establishes that Decedent was not neglected by MCC as her wounds would not have healed without Decedent being clean, dry and repositioned frequently with appropriate and consistent wound care.[22] Decedent’s death did not occur at MCC but after her admission to Kindred Hospital during a time period where Decedent was noted to have ventricular arrhythmias, tachycardia, bilateral pleural effusions and foaming at the mouth.[23]

 

At the time of her admission to MCC, Decedent had extensive and unavoidable wound formation with wounds to her left inner thigh, a large sacral wound, dorsal left foot wound, a wound to the posterior medial aspect of her left leg, a left heel wound and numerous lesser intensity minor wounds. These wounds had variant origin, but her peripheral vascular disease, shock and infection (sepsis) were the prominent initiators of those wounds.[24]

 

At Regional Medical Center and before she was admitted to MCC, Decedent was a high wound risk patient with a Braden score of 10 documenting extreme wound risk factors. By the Norton scale of wound risk, her general physical condition was classified as “poor.”[25] Decedent had serious premorbid conditions which included altered sensorium, obesity, diabetes, infectious cellulitis, atrial fibrillation, hypertension and peripheral vascular disease.[26] Decedent was a total assist patient with altered mobility and activity and was bedbound. She had nutritional impairment secondary to poor oral intake and extensive inflammatory protein production.[27]

 

It is well documented in the medical records that Decedent’s poor oral intake was due to her refusal to eat. The family refused to allow her to have a feeding tube during the majority of her admission, which was necessary because of the patient’s refusal to eat.[28] Decedent’s inadequate intake of critical nutrients resulted in her being chronically malnourished. This impaired her ability to heal, including healing of all the wounds previously identified.[29]

 

Chronic renal failure was also present which significantly impeded normal wound healing and is a reflection of Decedent’s sepsis, renal vascular stenosis, and diabetic small vessel disease. Decedent was also incontinent of feces which further impaired her ability to heal her wounds.[30] The peripheral vascular disease component of the Decedent’s wound risk factors impeded her wound healing.[31]

 

At Regional Medical Center, Decedent had recent septic shock, which caused vascular collapse and her blood was shunted from the extremities to her heart, lungs and brain in response to the collapse and to perfuse the vital organs. This resulted in deep tissue injury which typically causes and in this case caused stage 3 and 4 wounds, in spite of optimal care.[32] Thus, because of the sepsis, Decedent had vascular collapse which further impaired blood flow to the extremities and the sacral region causing deep tissue injury and the development of wounds and worsening of preexisting wounds.[33]

 

Large vessel and microvascular diabetic angiopathy is the principle causation for impaired healing of Decedent’s left wounds, to reasonable degree of medical probability. These comorbidities were not curable and pre-existed the Decedent’s admission to MCC.[34] Decedent had significant preexisting vascular disease. Her Regional Medical Center physicians stated she was not a surgical candidate for re-vascularization. Regional Medical Center staff and managing physicians ordered conservative would care which was instituted and complied with at MCC recognizing that healing might not occur, because of the patient’s impaired circulation.[35]

 

MCC adhered to all basic principles of proper wound care including identification of the wound type and patient diagnosis, risk assessment and prevention, identification of barriers to healing and modification when possible, pressure reduction and reduction of mechanical forces, infection control, debridement of necrotic or deficient tissue, maintenance of a moist wound healing environment, exudate absorption and elimination of dead space, nutritional support, pain control, appropriate dressing with appropriate changing intervals and advancement and lastly adjunctive therapy.[36]

 

Record review establishes very close wound follow-up and intense management by MCC as well as Vohra Wound Physicians, who were timely consulted by Dr. Tse based on active and timely communication regarding the status of Decedent’s wounds by MCC staff.[37] Adjunctive therapy was offered to Decedent in the form of vacuum-assisted closure, appetite stimulants, tube feedings, etc.[38] MCC met the standard of care to a reasonable degree of medical probability for wound care and prevention of the development of further wounds.[39]

 

The other prominent factor in the delayed healing and wound formation for Decedent was her poor oral intake and protein deficiency. Despite efforts to rehabilitate Decedent by MCC staff, the family consistently refused placement of a feeding tube until just prior to her Kindred Hospital transfer.[40] Despite conservative attempts to increase oral intake by MCC staff such as liquid thickeners, protein supplementation, patient feeding and pureed diet, oral intake was markedly suboptimal based on the patient’s poor appetite, which is not uncommon with end stage dementia. Recommendations for a feeding tube by MCC staff were repeatedly refused by the family.[41] Decedent had protein impairment meaning she was not adequately absorbing protein as part of her decline and disease process. This condition can and likely did cease all wound healing. The sub-optimal nutrition precipitated by the inability to swallow, poor appetite and lack of feeding tube, caused Decedent’s body to cease wound healing. It was her advanced dementia, poor vascularization, cardiac arrhythmias and diabetes that caused her wounds to become stagnant, which resulted in the inability to heal and the formation of additional wounds.[42]

 

Notably, MCC healed all the wounds that did not have a significant vascular component or a deep tissue injury component. This was active wound management as opposed to the converse of neglecting her wounds since the smaller wounds actually healed.[43] When appropriate wound intervention did not result in healing of Decedent’s major wounds, the patient was identified as having recalcitrant, refractory wound formation and was transferred to Kindred Hospital, where she did not improve and in fact expired.[44] Decedent’s wounds were a reflection of her comorbid medical and preexisting conditions, general medical state and decline in condition due to the aging process and not caused by MCC.[45] To a reasonable degree of medical probability, no act or alleged failure to act by MCC was a contributing factor to injury suffered by Decedent. All therapeutic interventions undertaken by MCC were designed to effect healing and met or exceeded the standard of care.[46]

 

In support of its motion for summary adjudication, defendant MCC offers the opinion/declaration of Dorothy Dennin, R.N., B.N., C.C.R.N. (“Dennin”) and Jay Stanley Luxenberg, M.D., F.A.C.P., A.G.S.F. (“Dr. Luxenberg”). (See also Exhibits D – E to Milpitas Care Center’s Table of Contents of Evidence, etc.) It is Dennin’s professional opinion that MCC staff acted within the appropriate standard of care and Dr. Luxenberg’s opinion that no act or omission by MCC was a substantial factor in causing Decedent’s injuries and/or death.

 

In opposition, plaintiffs submit the declaration of their own experts, Edward Schneider, M.D. (“Dr. Schneider”) and Mary Cadogan Ph.D., R.N. (“Dr. Cadogan”), who opine precisely the opposite from Dennin and Dr. Luxenberg.[47] The expert opinions submitted by the parties are in conflict. This amounts to a triable issue of material fact as to whether defendant MCC was negligent in caring for Decedent and whether MCC’s conduct was a substantial factor in causing Decedent’s injuries and/or death.

 

The Elder Abuse Act does not apply to simple or gross negligence by health care providers. [Citations.] To obtain the enhanced remedies of section 15657, “a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct.” [Citation.] “ ‘Recklessness’ refers to a subjective state of culpability greater than simple negligence, which has been described as a ‘deliberate disregard’ of the ‘high degree of probability’ that an injury will occur [citations]. Recklessness, unlike negligence, involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to take precautions’ but rather rises to the level of a ‘conscious choice of a course of action … with knowledge of the serious danger to others involved in it.’ [Citation.]” [Citation.]

 

(Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, 336-37 (Worsham).)

 

Based on the same evidence cited above, defendant MCC argues additionally, that plaintiffs cannot prove by clear and convincing evidence that MCC acted with recklessness, oppression, fraud or malice. However, defendant MCC misunderstands its burden on summary judgment/ adjudication. The burden lies initially with the moving party. Defendant must affirmatively demonstrate that either one or more elements of the cause of action cannot be established or that there is a complete defense thereto. (Code Civ. Proc., §437c, subd. (p)(2).) The burden does not shift to plaintiffs until defendant MCC meets its initial burden which it has not done in asserting the lack of any recklessness, oppression, fraud, or malice. Even if defendant MCC had met its initial burden, the opinion of Dr. Schneider raises a triable issue of material fact with regard to whether defendant MCC acted with recklessness.

 

Finally, defendant MCC contends it is entitled to summary adjudication of the elder abuse cause of action because plaintiff cannot establish corporate ratification of any culpable conduct. Defendant MCC cites Welfare and Institutions Code section 15657, subdivision (c) which states:

 

The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney’s fees permitted under this section may be imposed against an employer.

 

Civil Code section 3294, subdivision (b) states that “[a]n employer shall not be liable for [punitive damages] based upon acts of an employee . . . unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” In other words, to hold MCC liable for elder abuse based upon the acts of its employees, plaintiffs must prove that an officer, director, or managing agent of MCC ratified the conduct of its employees or themselves engaged in oppressive, fraudulent, or malicious misconduct.

 

Defendant MCC contends plaintiffs cannot establish corporate misconduct based on factually devoid discovery responses to MCC discovery asking for factual support regarding corporate ratification of the alleged misconduct. “Where plaintiffs have had adequate opportunity for discovery, their factually devoid responses to discovery requests may ‘show’ that one or more elements of their claim ‘cannot be established.’” (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶10:245.20, p. 10-108 citing Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590—“a moving defendant may rely on factually devoid discovery responses to shift the burden of proof pursuant to section 437c, subdivision (o)(2). Once the burden shifts as a result of the factually devoid discovery responses, the plaintiff must set forth the specific facts which prove the existence of a triable issue of material fact.”) A mere restatement of the allegations contained in the complaint is so devoid of facts, that an absence of evidence can be inferred. (See Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590; see also Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 104.)

 

Here, however, the evidence submitted by defendant MCC does not sufficiently demonstrate plaintiffs’ factually devoid discovery responses.[48] Thus, defendant MCC has not shifted the burden to plaintiffs.

 

For the reasons stated above, defendant MCC’s motion for summary adjudication as to plaintiffs’ first cause of action for statutory elder abuse is DENIED.

[1] See Milpitas Care Center’s Separate Statement of Undisputed Facts in Support of Defendant’s Motion for Summary Adjudication, etc. (“MCC SSUF”), Fact Nos. 2 – 47.

[2] See MCC SSUF, Fact No. 2.

[3] See MCC SSUF, Fact No. 3.

[4] See MCC SSUF, Fact No. 4.

[5] See MCC SSUF, Fact No. 5.

[6] See MCC SSUF, Fact No. 6.

[7] See MCC SSUF, Fact No. 7.

[8] See MCC SSUF, Fact No. 8.

[9] See MCC SSUF, Fact No. 9.

[10] See MCC SSUF, Fact No. 10.

[11] See MCC SSUF, Fact No. 11.

[12] See MCC SSUF, Fact No. 12.

[13] See MCC SSUF, Fact No. 13.

[14] See MCC SSUF, Fact No. 14.

[15] See MCC SSUF, Fact No. 15.

[16] See MCC SSUF, Fact No. 16.

[17] See MCC SSUF, Fact No. 17.

[18] See MCC SSUF, Fact No. 18.

[19] See MCC SSUF, Fact No. 19.

[20] See MCC SSUF, Fact No. 20.

[21] See MCC SSUF, Fact No. 21.

[22] See MCC SSUF, Fact No. 22.

[23] See MCC SSUF, Fact No. 23.

[24] See MCC SSUF, Fact No. 25.

[25] See MCC SSUF, Fact No. 26.

[26] See MCC SSUF, Fact No. 27.

[27] See MCC SSUF, Fact No. 28.

[28] See MCC SSUF, Fact No. 29.

[29] See MCC SSUF, Fact No. 30.

[30] See MCC SSUF, Fact No. 31.

[31] See MCC SSUF, Fact No. 32.

[32] See MCC SSUF, Fact No. 33.

[33] See MCC SSUF, Fact No. 34.

[34] See MCC SSUF, Fact No. 35.

[35] See MCC SSUF, Fact No. 36.

[36] See MCC SSUF, Fact No. 37.

[37] See MCC SSUF, Fact No. 38.

[38] See MCC SSUF, Fact No. 39.

[39] See MCC SSUF, Fact No. 40.

[40] See MCC SSUF, Fact No. 41.

[41] See MCC SSUF, Fact No. 42.

[42] See MCC SSUF, Fact No. 43.

[43] See MCC SSUF, Fact No. 44.

[44] See MCC SSUF, Fact No. 45.

[45] See MCC SSUF, Fact No. 46.

[46] See MCC SSUF, Fact No. 47.

[47] See Plaintiffs’ Responses to Defendant’s Separate Statement of Alleged Undisputed Material Facts, etc., Fact Nos. 15, 16, 17, 19, 21, 22, 23, 33, 34, 35, 37, 40, 43, 44, 46, and 47.

[48] See MCC SSUF, Fact Nos. 49 – 61.