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Page 1: TABLE OF CONTENTS - ctylaw.comctylaw.com/wp-content/uploads/2015/03/Noval-v.-Kaiser-Writ-Filed.pdf · 7. Victorino Noval's son, Hector Noval (Plaintiff), was not m favor of ceasing
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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................................... ii

I. INTRODUCTION ......................................................... !

II. PETITION .. : ................................................................ 2

III. VERIFICATION .......................................................... lO

IV. MEMORANDUM OF POINTS AND AUTHORITIES .......... 11

A. Writ Review is Appropriate and Warranted ................... 11

B. Standard ofReview ................................................ 13

C. The Instant Controversy is Beyond the Scope of the

Arbitration Disclosure ............................................. 13

l. Health & Safety Code §L363.1(c) ........................ 14

2. The Instant Case is Not for "Malpractice" ............. 15

3. The Arbitration Disclosure Cannot Bind Plaintiff

to Arbitration for the Underlying Lawsuit ............. 15

D. The Arbitration Disclosure is Unenforceable as a

Matter of Law ....................................................... 16

1. Health & Safety Code §1363.1(b) ........................ 17

2. The Instant Arbitration Disclosure was Not

"Prominently Displayed" ................................. 19

3. Defendants' Arguments ................................... 21

E. The Medicare Act Does Not Preempt Health & Safety

Code §1363.1 ....................................................... 23

F. The Circumstances justify the Delay in Filing the

Instant Petition ...................................................... 27

V. CONCLUSION ............................................................ 29

CERTIFICATE OF COMPLIANCE ........................................... 32

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TABLE OF AUTHORITIES

CASES

Amtendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal. 4th 83 ................................................... 28, 29

Atlas Inc. v. Superior Court (1977) 72 Cal.App.3d 63 ................................................ 1, 11

Bertero v. Superior Court (1963) 216 Cal.App.2d 213 ................................................ 11

Burks v. Kaiser Foundation Health Plan, Inc. (2008) 160 Cal.App.4th 1021, 1024 ................... 17, 18, 19, 21, 23

Clay v. Medical Group, Inc. (N.D. Cal. 2007) 540 F.Supp.2d 1101. ............................. 25, 26

Drissi v. Kaiser Foundation Hospitals, Inc. (N.D. Cal. 2008) 543 F.Supp.2d 1076 ................................... 25

Dziffens v. Valenti (2008) 161 Cal.App.4th 434 .......................................... 28, 29

Erickson v. Aetna Health Plans of CalifOrnia, Inc. (1999) 71 Cal.App.4th 646 ................................................ 25

Green v. Mt. Diablo Hosp. Dist. (1989) 207 Cal.App.3d 63 ............................................. 28, 29

Imbler v. PacifiCare of CalifOrnia, Inc. (2002) 103 Cal.App.4th 567 ..................................... 18, 19,25

Independent Assn. of Mailbox Center Owners, Inc. v. Superior Court (2005) 133 Cal.App.4th 396 .............................................. 13

International Film Investors v. Arbitration Tribunal of Directors Guild (1984) 152 Cal.App.3d 699 ................................................ 27

Lewis & Q_ueen v. N.M Ball Sons (195 7) 48 Cal.2d 141 ....................................................... 29

ii

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Malek v. Blue Cross qf California (2004) 121 Cal.App.4th 44 ......................... 19, 20, 25, 26, 28, 29

Medeiros v. Superior Court . (2007) 146 Cal.App.4th 1008 ............................................. 18

Pagarigan v. Supe1ior Court (2002) 102 Cal.App.4th 1121. ................................ 1, 23, 24, 26

Ramirez v. Superior Court (1980) 103 Cal.App.3d 746 ................................................. 1

Robertson v. Health Net qf Inc. (2005) 132 Cal.App.4th 1419 .................................... 13, 19, 20

Rodriguez v. Blue Cross qf California (2008) 162 Cal.App.4th330 .................................. 1, 14, 15,16

Saxena v. Gqffiuy (2008) 159 Cal.App.4th 316 .............................................. 15

Smith v. Paci.ficare Behavioral Health qf Inc. (2001) 93 Cal.App.4th 139 ................................................ 25

St. Agnes Medical Center v. Paci.fiCare qf California (2003) 31 Cal.4th 1187 .................................................... 11

Thor v. Superior Court (1993) 5 Cal.4th 725 ....................................................... 15

Western Camps, Inc. v. Rivenvay Ranch Enterp1ises (1977) 70 Cal.App.3d 714 ................................................. 29

.?pnbsch v. Supe1ior Court (2006) 146 Cal.App.4th 153 ......................... 1, 11, 13, 19, 20, 27

.?plezzi v. Paci.ficare qf California (2003) 1 OS Cal.App.4th 5 73 ..................................... 23, 24, 26

iii

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STATUTES

Page

42 U.S.C. § 1395 .................................................................... 24

42 U.S.C. §1395w-26(b)(3) ......................................................... 23

Cal. Health & Safety Code §1363.1. ................................ 23, 24, 26, 30

Cal. Health & Safety Code §1363.1(b) ..................... 17, 18, 20, 22, 23, 30

Cal. Health & Safety Code §1363.1(c) ....................................... 14, 16

Cal. Health & Safety Code §1363.1(d) ........................................... 22

Cal. Prob. Code §4202(b) ............................................................ 4

OTHER

Page

69 Fed.Reg. 46914 ............................................................. 24, 26

70 Fed .. Reg. 4588 ................................................................... 24

70 Fed.Reg. 4665 ................................................................... 24

iv

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I. INTRODUCTION

This petition seeks a writ of mandate (or other relief) directing

the trial court to vacate its order compelling Plaintiff to arbitrate the

underlying elder abuse and wrongful death lawsuit. It raises two questions:

1. Where a lawsuit against a hospital and its staff is for

"physical elder abuse" and "wrongful death," based on

the intentional tort of "battery," does this constitute a

"dispute" for something different than "malpractice"?

2. Where a notice of "binding arbitration" in a health

care enrollment form lacks any heading or title and is

instead placed in the third and fourth sentences of the

15th paragraph of legalese on the "back side" of the

enrollment form, camouflaged in the same type and

style font as the rest of the paragraph, does the

arbitration disclosure fail to comply with California

Health & Safety Code §1363.l(b)'s mandatory

requirement that it be "prominently displayed"?

The answer is "yes" to both. But for either reason, Plaintiff has

been compelled to arbitration for which there is no jurisdiction. (Rod1iguez v.

Blue Cross qf California (2008) 162 Cal.App.4th 330, 340.) Writs of mandate

are granted to rescue parties from this situation. (:(embsch v. Superior Court

(2006) 146 Cal.App.4th 153, 160-161; Pagarigan v. Superior Court (2002) 102

Cal.App.4th 1121, 1124; Ramirez v. Superior Court (1980) 103 Cal.App.3d

746, 757-758; Atlas Inc. v. Superior Coutt (1977) 72 Cal.App.3d 63,

72-73.) This is what Plaintiff is seeking instantly.

1

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II.

PETITION Petitioner/Plaintiff Hector Noval petitions for a writ of

mandate, prohibition or other appropriate writ directing respondent

Riverside Superior Court to (1) vacate its May 9, 2012 order compelling

arbitration and (2) enter a new and different order denying Defendants'

petition to compel arbitration. Petitioner alleges:

Description ofthe Parties

1. Petitioner is the plaintiff in the action entitled Hector

Noval v. Kaiser Foundation Health Plan, Inc., et al., pending in the Respondent

Riverside Superior Court as Case No. RIC 1201608. (Ex. 1, p. 1.) His

prima facie case is set forth at Ex. 14, pp. 445-4 7 0.

2. Respondent Riverside County Superior Court ("the

trial court") is a duly authorized court of general jurisdiction where the

underlying dispute is currently pending, and which issued the order from

which relief is sought by this petition. (Ex. 9, pp. 313-314.)

3. Real Parties in Interest are the "Defendants" in the

case below: Kaiser Foundation Health Plan, Inc., Kaiser Foundation

Hospitals, Southern California Permanente Medical Group, Richard Mark

Bradburne, Anthony Tapia, Dan Wilson, and Nicole Baril. (Ex. 1, p. 1.)

Underlying Lawsuit fOr "Intentional Tort" of ''BatteJ;y"

4. On April 28, 2010, Victorino Noval was admitted to

Defendants' intensive care unit and treated for a lung infection causing

"shortness of breadth." (Ex. 14, p. 451:20-21.) He was placed on a

2

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mechanical ventilator for oxygen support and was sedated for comfort. (Ex.

14, p. 451:22-23.)

5. By May 6, 2010, he had experienced "material"

improvement, and by May 7, 2010, he had experienced "further"

improvement. (Ex. 14, p. 452:12-13.) His lung had cleared, his body

temperature was within normal ranges, and according to Defendants, what

he had left to do was regain the strength in his lungs that had atrophied

while he was on the assisted breathing machine. (Ex. 1, p. 11: 1-1 0; Ex. 14,

p. 452: 16-18.)

6. Victorino Noval's two daughters spoke with

Defendants and convinced them to cease treatment and end their father's

life. (Ex. 1, p. 11:1-10; Ex. 14, p. 458:1-3.)

7. Victorino Noval's son, Hector Noval (Plaintiff), was not

m favor of ceasing treatment and had urged Defendants to provide all

possible treatment to his father. (Ex. 14, pp. 455-458.)

8. Ignoring Plaintiffs desires, and at the daughters'

request, Defendants ceased Victorino Noval's treatment and injected him

with morphine to suppress his respiratory functioning and deliberately

trigger his death. (Ex. 1, p. 12: 14-24; Ex. 14, p. 458:4-5.) He died hours

later. (Ex. 1, p. 12:14-24; Ex. 14, p. 458:9.)

9. Defendants admit that they could have kept Victorino

Nova! alive and continued treatment had they desired to do so. (Ex. 1, p.

12:1-12.)

3

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10. Victorino Noval was worth $60 million. When he died,

his daughters (as well as his two sons and ex-wife) became instantly

wealthier. (Ex. 1, p. 4:7-16.)

11. What Defendants did constituted the "intentional tort"

of"battery." (Ex. 14, p. 462:2-12.)

12. They had in their possession a copy of Victorino

Noval's Durable Power of Attorney for Health Care, dated July 7, 1999

("DPOA"). (Ex. 14, p. 453: 1-2.) The DPOA named Victorino Noval's son,

Hector (Plaintiff), and one of Victorino Noval's two daughters as his

"attorneys-in-fact" and ')oint agents" to work ')ointly" and "together" to

make the health care decisions. (Ex. 14, p. 453:3-5.)

13. The law states that there can be no change in a

patient's treatment plan without the "unanimous" consent of the joint

agents. (Probate Code §4202(b).) By law, Defendants needed the

"unanimous" consent of both Plaintiff and his sister before they were legally

authorized to do what they did. Without "unanimous" consent, Defendants

were legally required to continue forward with the then-current treatment

plan.

14. Instead of continuing treatment as Plaintiff desired,

Defendants discreetly prepared two kinds of medical notes and placed them

in the file. Some said,jalsely andfiaudulently, that Plaintiffhad agreed with his

sisters to cease treatment. Others said, falsely and fraudulently, that Plaintiff

was not acting in his father's best interests by desiring continued treatment

and that Defendants were not going to follow PlaintifPs wishes for that

reason. (Ex. 14, pp. 456:3-457:13.)

4

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Filing Suit & the Order Compelling Arbitration

15. Once Plaintiff discovered what had happened to his

father, as an heir and interested person in his father's estate, he filed the

instant civil lawsuit in Riverside Superior Court against Defendants for

"physical elder abuse" and "wrongful death," among other things, based on

the underlying intentional tort of "battery." (Ex. 1, p. 1.)

16. Defendants filed a Petition to Compel Arbitration,

claiming that Victorino Noval had agreed to "binding arbitration" when he

agreed to his health care service plan with Defendants in 1996. (Ex. 2, pp.

28-238.)

17. The trial court granted the petition on May 9, 2012.

(Ex. 9, pp. 313-314.)

Initial Expectations o[Arbitration

18. Defendants' "Kaiser Arbitration" rules dictate that

arbitration shall be completed and a decision/ award rendered within 18

months (except where the case is "complex"). (OIA Rule 24(a).)

19. Originally, Defendants asserted that arbitration would

only require three days, and the arbitrator set arbitration for March 25,

2014. With those expectations, arbitration would have already been over by

now, and Plaintiff would have already had the "right" to appeal the orders

made in the trial court.

Changed Circumstances

20. Plaintiff has sought Defendants' depositions since the

early stages of this case. To date, Defendants have yet to sit for them.

5

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21. No third parties have appeared for their subpoenaed

depositions. Certain of them, including Plaintiffs own sisters, refuse to

honor subpoenas issued in arbitration, claiming that the arbitration lacks

')urisdiction" over them. Without the authority of the state court, Plaintiffs

discovery and trial preparation is exceedingly more difficult.

22. Only Plaintiff has been deposed. He appeared for his

deposition promptly and without any objection whatsoever.

23. On February 10, 2014, the arbitrator sua sponte vacated

the arbitration date that had been set for March 25, 2014.

24. Within days thereafter, Defendants began claiming

they are now intending to call as many as 30 witnesses during their portion

of the arbitration and that they are now insisting that the arbitration

hearing expand to at least 12-15 days.

25. Plaintiff has retained a medical expert who charges

$6,000 per day for his testimony. This is within the standard rate for

medical experts in Southern California. Defendants have retained three

medical experts.

26. Recently, the arbitrator tentatively set the arbitration

hearing for October 6, 2014 through October 21, 2014.

27. When he set the matter for trial, the arbitrator stated

that there would be no court reporter present, and no recordings would be

made of the testimony elicited in arbitration from any of the 30+ witnesses.

6

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28. Plaintiff cannot afford to engage m multiple,

duplicative trials (once in arbitration, and then in civil court). Each

duplicative expense that Plaintiff is forced to incur in arbitration makes it

more difficult for him to ultimately to bring this case to a final judgment in

civil court.

29. Also, duplicative trials will consume significant resources

just in trying to coordinate the schedules of 30+ witnesses and subpoenaing

(and seeking orders compelling) their appearances in a 'jurisdiction" they

are refusing to acknowledge.

30. Furthermore, as time passes, it is only natural that

parties become less available and their memories risk fading. For these

reasons, as time passes, the truth gets more difficult to illustrate and the case

gets more difficult to prosecute.

31. For these reasons, should Plaintiff be forced to engage

m a 12-15 day arbitration (with a multi-year lead-up to it) bifore filing an

appeal and bifore presenting this case to a jury in a civil case, he would be

irreparably harmed, and substantial justice would be denied.

Plainti{fs Immediate Actions to Prevent Injustice

32. When the arbitrator vacated the original arbitration

date of March 25, 2014, and when Defendants began claiming arbitration

would expand to 30+ witnesses over 12-15 days, Plaintiff recognized the

changed circumstances and promptly filed a motion in the trial court to

"renew" the trial court's original order compelling the parties to arbitration.

(Ex. 10, pp. 315-358.)

7

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33. Plaintiffs "renewal" motion asked the trial court, in

light of the changed circumstances, to consider that Defendants' enrollment

form failed to comply with Health & Safety Code § 1363.1. (Ex. 10, pp. 315-

358.)

34. On March 19, 2014, the trial court heard Plaintiffs

"renewal" motion and denied it. (Ex. 16, pp. 478-479.)

35. Plaintiff has now, immediately thereafter, and without

delay, filed the instant petition. He has no other plain, speedy or adequate

remedy at law but for this petition. (Civ. Proc. Code §1068(a).)

36. Writ relief is appropriate because under the controlling

law, Plaintiffs right to relief is clear and he will be irreparably harmed

without the relief requested.

3 7. The instant petition has followed promptly and

without delay after the changed circumstances in arbitration and after the

trial court denied Plaintiff's motion to "renew" its original order compelling

arbitration.

Prayer for Relief

Based on the foregoing, Plaintiff prays that:

1. This Court issue a peremptory writ of mandate,

prohibition or other appropriate writ in the first instance, directing

Respondent Riverside County Superior Court to (1) vacate its May 9, 2012

order granting Defendants' petition to compel arbitration and (2) deny

Defendant's petition to compel arbitration; or in the alternative,

8

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IV.

MEMORANDUM OF POINTS AND AUTHORITIES

A. Writ Review is Appropriate and Warranted.

Writ review is warranted where, as here, a controversy is

compelled to arbitration for which there is no jurisdiction. (.?,ernbschJ supra)

146 Cal.App.4th at 160-161.) Courts find writ review appropriate because

"the expense to the parties in participating in [arbitration] and [then]

seeking review of the arbitration is apparent." (,Zembsch, supra, 146

Cal.App.4th at 161, citing Atlas PlasteJing, supra, 72 Cal.App.3d at 68.)

Parties improperly ordered to arbitrate are "put to the unnecessary delay

and expense of an arbitration, further court proceedings, and an appeal,

after which they would be required to start over." (Bertero v. Superior Court

(1963) 216 Cal.App.2d 213, 222, disapproved on other grounds in St. Agnes

Medical Center v. PacijiCare rifCalifomia (2003) 31 Cal. 4th 1187, 1192.)

Plaintiff is being forced to endure these precise harms:

unnecessary, multi-year delays and duplicative fees, costs, and other

expenses before ever having the opportunity to prosecute the underlying

controversy to a jury. These harms and expenses are "apparent," and he

cannot afford to incur them. His ability to ultimately present this case to a

jury will be irreparably harmed should the Court not issue a writ of

mandate or other relief.

Beyond these "apparent" harms and expenses are other

umque prejudices Plaintiff is facing. The arbitration is forbidding court

reporters and/ or any other means of preserving the testimony of the

witnesses. This means that there will be no record of Plaintiffs cross-

examination of Defendants and their witnesses in arbitration. It will be lost.

In essence, the arbitration will turn into nothing more than a dress rehearsal

11

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for Defendants. This will allow them the opportunity to evaluate how they

answered PlaintifPs cross-examination questions the first time in arbitration

and rehearse new I different answers before being re-examined a second time

before a jury in a civil case.

The underlying civil case is a highly "factual" one, and the

credibility of the witnesses is paramount. Forcing Plaintiff to engage in a

dress rehearsal (in arbitration) before being able to present his case to a jury

would eliminate most, if not all, of the sincere, natural, and authentic

aspects of being able to cross-examine the opposing party and their

witnesses for the first time in the presence of the jury. (The sporting

equivalent would be like having to disclose to the other side the very plays

you plan on running; the other side would be at a tremendous, insincere

advantage.)

Additionally, this is an emotionally charged case that has

divided a family. If the allegations are true, PlaintifPs sisters encouraged, if

not assisted, Defendants in ending their healthy father's life so that they could

collect their multi-million dollar inheritances. PlaintifPs sisters are amongst

the most material witnesses to the case. Yet they are refusing to honor

subpoenas. In theory, the arbitrator may be able to "order" their

appearances, but they have no reason to comply with any such order - in

the same way they refuse to comply with subpoenas. It is not as if the

arbitrator (who is a private attorney, sole practitioner) has the legal

authority to issue bench warrants or hold quasi-criminal contempt hearings

in the context of a "Kaiser Arbitration."

Without the of a civil court, and the "authority"

of a civil judge, Plaintiff will not be able to bring the full scope of evidence

12

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to the fact-finder's (arbitrator's) attention. He will be denied a fair trial due

solely to the informal 'jurisdiction" and 'judge" imposed upon him.

For all of these reasons, Plaintiff will be irreparably harmed

by being compelled to arbitration and requires a writ of mandate (or other

relief) to prevent it.

B. Standard of Review.

In a mandate proceeding, this Court reviews de novo a trial

court's order compelling arbitration. (:?pnbsch, supra, 146 Cal.App.4th at

162, citing Independent Assn. qf Mailbox Center Owners, Inc. v. Superior Court

(2005) 133 Cal.App.4th 396, 405.) In addition, both questions for this Court

to answer, dealing with the scope and unenforceability of Defendants'

arbitration disclosure, are reviewed de novo. (Zembsch, supra, 146 Cal.App.4th

at 162, citing Robertson v. Health Net of California, Inc. (2005) 132 Cal.App.4th

1419, 1425.)

C. The Instant Controversy is Beyond the Scope of the

Arbitration Disclosure.

scope:

The instant arbitration disclosure provides for the following

" ... .1 understand that ... any claim that I, my heirs, or other claimants associated with me, assert for medical or hospital malpractice or premises liability must be decided by binding arbitration ... "

The disclosure is clear. It provides for arbitration of only

"medical or hospital malpractice ... " It could have provided arbitration for

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"other disputes," like intentional torts, fraud, and/ or statutory violations,

among other things. But it did not.

1. Health & Safety Code §1363.l(c).

Health & Safety Code §1363.l(c) provides:

"Any health care service plan that includes terms that require binding arbitration to settle disputes and that restrict, or provide for a waiver of, the right to a jury trial shall include, in clear and understandable language, a disclosure that meets all of the following conditions: ...

(c) The disclosure shall clearly state whether the subscriber or enrollee is waiving his or her right to a jury trial for medical malpractice, other disputes relating to the delivery of service under the plan, or both, and shall be substantially expressed in the wording provided in subdivision (a) of Section 1295 of the Code of Civil Procedure."

Where an arbitration disclosure in a health care enrollment

form limits arbitration to "medical [and/or hospital] malpractice," and not

to "other disputes relating to the delivery of service under the plan, or

both," pursuant to Health & Safety Code §1363.l(c), "it [is] impossible to

conclude" that the enrollee "knowingly waived his right to a jury trial"

"with respect to disputes other than medical malpractice." (Rodriguez v. Blue

Cross qf CalifomiaJ supraJ 162 Cal.App.4th at 340.) For that reason, such

disclosures cannot succeed in compelling a party to arbitration for non

"malpractice" causes of action. (Ibid.)

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2. The Instant Case is Not for "Malpractice".

Plaintiffs case is born in "battery," an intentional tort. It is

not based on "medical or hospital malpractice." His case, as it has

developed, is set forth in detail in his "Opposition" to Defendants' Motion

for Summary Judgment in arbitration. (Ex. 14, pp. 445-470.) This

Opposition, using supporting facts and evidence, sets forth what Plaintiffs

claims will be at trial.

Plaintiffs case consists of two causes of action, "physical elder

abuse" and "wrongful death." The foundation for both is "battery," i.e.,

Defendants' cessation of Victorino Naval's treatment without legal

"consent." This is not a form of negligence, nor is it a form of medical

"malpractice." (Thor v. Superior Court (1993) 5 Cal.4th 725, 735 ["The

common law has long recognized this principle: A physician who performs

any medical procedure without the patient's consent commits a battery

irrespective of the skill or care used"]; see also Saxena v. Griffory (2008) 159

Cal.App.4th 316, 324-325 [Lack of consent in the medical context

constitutes the intentional tort of "battery" and does not fall within the

scope of medical malpractice for purposes of MICRA].)

3. The Arbitration Disclosure Cannot Bind Plaintiff to

Arbitration for the Underlying Lawsuit.

In Rodriguez, supra, 162 Cal.App.4th 330, the arbitration

disclosure contained a similar deficiency, limiting arbitration only to

disputes involving "medical malpractice." (!d. at 340.) The Rodriguez court

explained that this "renders it impossible to conclude" that the enrollee

"knowingly waived his right to a jury trial" "with respect to disputes other

than medical malpractice." (Ibid.)

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For the same reason, the instant arbitration disclosure

"renders it impossible to conclude" Victorino N oval "knowingly waived his

[heir's] right to a jury trial" with respect to elder abuse and wrongful death

based on the intentional tort theory of "battery." For this reason, and

pursuant to Health & Safety Code §1363.1(c), the arbitration disclosure in

the enrollment form cannot be held to compel Plaintiff to arbitration for

these causes of action. (Rodriguez, supra, 162 Cal.App.4th at 340). Imposing

arbitration on these claims violates §1363.1(c) and its supporting case law.

D. The Arbitration Disclosure is Unenforceable as a Matter

of Law.

The paragraph m Defendants' enrollment form containing

the instant arbitration disclosure is set forth as follows:

• I hereby apply for Kaiser Permanente Senior Advantage membership. I agree to abide by the provisions of the Service Agreement and Health Plan Policies. I understand that, except for small claims court cases, any claim that I, my heirs, or other claim-ants assfWiatedwith me, assert for medical or hospital malpractice or preulises liability must be decided by binding arbitration under California law and not by a lawsuit or resort to court process except as California law provides for judicial review of arbitration proceedings. I/ we are therefore giving up our right to a jury trial and are accepting the use o£binding arbitration.

(Original emphasis; original spacmg; original lines of text; original

formatting.) (Ex. 2, p. 234.)

For context, this paragraph is found on the "back side" of

Defendants' single-page enrollment form. (Ex. 2, pp. 233-234.) The "front

side" demands most of the enrollee's attention with as many as 30 questions

to answer, boxes to check, and/ or items to fill-in. The "back side" contains

15 paragraphs in two columns of dense, small-font legalese and a line at the

bottom for the enrollee to sign. The "front side" reminds the enrollee to

"see and sign back side," and that is likely all any enrollee is given the

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opportunity to do – “see” the dense legalese on the “back side” and quickly

“sign” the form without reading it or discussing any of it with Defendants.

The “back side” of the form contains approximately 644

words. The arbitration disclosure is buried in the third and fourth sentences

of the 15th and final paragraph, immediately following two superfluous

sentences in the same paragraph declaring generally that the enrollee is

applying for “membership” in Defendants’ health care plan and that the

enrollee agrees to abide by the provisions of a separate and distinct “Service

Agreement and Health Plan.” This paragraph is 104 words long, and the

enrollee has to read 58 words into it before finally coming to the words

“binding arbitration” in the third sentence, on the fifth line.

1. Health & Safety Code §1363.1(b).

Any arbitration disclosure in a health care enrollment form

must be “prominently displayed.” (Health & Safety Code §1363.1(b).)

Where it is not, the arbitration disclosure is unenforceable, and there is no

jurisdiction for any arbitration the health care provider seeks to compel.

(Burks v. Kaiser Foundation Health Plan, Inc. (2008) 160 Cal.App.4th 1021,

1024, 1029.)

Health & Safety Code §1363.1 provides:

“Any health care service plan that includes terms that require binding arbitration to settle disputes and that restrict, or provide for a waiver of, the right to a jury trial shall include, in clear and understandable language, a disclosure that meets all of the following conditions: [¶] ... [¶]

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(b) The disclosure ... shall be prominently displayed on the enrollment form signed by each subscriber or enrollee.

According to the cases that have evaluated the meaning of

Health & Safety Code §1363.1(b), '"[p]rominent' is defined as 'standing out

or projecting beyond a surface or line,' or 'readily noticeable."' (Imbler v.

PacifiCare rifCaliflmia, Inc. (2002) 103 Cal.App.4th 567, 579.) " ... [T]he word

'prominent' - like its synonyms 'noticeable,' 'remarkable,' 'outstanding,'

'conspicuous,' 'salient,' and 'striking' - means 'attracting notice or

attention.' [Citation.] ['IJ] More specifically, 'prominent' 'applies to

something commanding notice by standing out from its surroundings or

background.' [Citation.]" (Burks, supra, 160 Cal.App.4th at 1026.)

"By requiring that the notice [i.e., arbitration disclosure] be

'prominently displayed,' without dictating exactly how, the Legislature gave

health plans ... the right to choose what typeface, format, headings, and/ or

other devices they would use to make the notice [i.e., arbitration disclosure]

stand out from its surroundings." (Burks, supra, 160 Cal.App.4th at 1 028.)

However, "[c]ourts have 'concluded that strict compliance with section

1363.1 is required to enforce [an] arbitration provision' in a health service

plan. '[T] echnical violations' of the statute ... 'render [the] arbitration

provision unenforceable' regardless of whether the person enrolling in the

health plan received some notice of the arbitration clause by reviewing the

noncomplying provision." (!d., citing Medeiros v. Superior Court (2007) 146

Cal.App.4th 1008, 1015, fns. omitted.)

The legislature's intent is to ensure health care insurers

"prominently display" any arbitration disclosures so that enrollees do not

"unknowingly waiv[ e] their right to a jury trial in a dispute with their health

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care service plan." (Malek v. Blue Cross qf California (2004) 121 Cal.App.4th

44, 71).

The cases have found that arbitration disclosures are not

"prominently displayed" where a1?:Y of the following exist:

(1) The arbitration disclosure lacks a title or heading

(BurksJ supraJ 160 Cal.App.4th at 1 029; lmblerJ supraJ 103

Cal.App.4th at 5 79);

(2) The arbitration disclosure is not uniquely separated

and/ or indented from the other non-arbitration text

(-?pnbsch, supraJ 146 Cal.App.4th at 165);

(3) The arbitration disclosure is placed within paragraphs

that follow superfluous and/ or non-arbitration text

(Imbler, supra, 103 Cal.App.4th at 579; Malek, supra, 121

Cal.App.4th at 61); or

( 4) The arbitration disclosure does not use significantly

larger font than the font used for other terms in the

enrollment form. (Malek, supra, 121 Cal.App.4th at 61;

Robertson, supra, 132 Cal.App.4th at 1429.)

2. The Instant Arbitration Disclosure was Not

"Prominendy Displayed".

Defendants' arbitration disclosure is "guilty" of all four of the

"failures" from the case law. Among other things, it lacked any heading or

title. It was not uniquely spaced or indented in any way from the other

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provisions in the form. It was not of any larger font than used elsewhere in

the form. Instead, it was buried in the third and fourth sentences of the 15th

and final paragraph on the "back side" of the form, camouflaged amongst

the rest of the dense, small-font legalese the enrollee had to quickly "see"

before signing.

Even the arbitration disclosures the Court of Appeal has

found to lack "prominence" do a better job than the instant arbitration

disclosure in "standing out" and being "readily noticeable." For example, at

least in Malek, the arbitration disclosure contained the heading

"ARBITRATION AGREEMENT," original emphasis. (Malek, supra, 121

Cal.App.4th at 51.) Similarly, in Robertson, the enrollment form used the

heading "Arbitration Agreem.ent," original emphasis. (Robertson, supra,

132 Cal.App.4th at 1423.) And even the enrollment form in Zembsch had the

heading "Arbitration Agreement: ... " (Zembsch, supra, 146 Cal.App.4th at

158.)

Yet, even these three cases failed to prominently display the

arbitration disclosure because, as the Court of Appeal discussed, there must

be more than a heading to constitute prominence in compliance with Health

& Safety Code §1363.1(b). (Malek, supra, 121 Cal.App.4th at 51; Robertson,

supra, 132 Cal.App.4th at 1429; Zembsch, supra, 146 Cal.App.4th at 164-165.)

There must also be larger font or something else that makes the disclosure

"stand[ ] out" and "project [ ] beyond a surface or line" to render it

"readily noticeable." (Malek, 121 Cal.App. 4th at 51; Robertson, supra,

132 Cal.App.4th at 1429; Zembsch, supra, 146 Cal.App.4th at 164-165.)

Defendants are well-aware of this case law and these

"prominence" requirements. The instant Defendants' similar enrollment

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form came under scrutiny in Burks v. Kaiser Foundation Health PlanJ Inc. (2008)

160 Cal.App.4th 1021, and the trial court and Court of Appeal found that

Defendants' arbitration disclosure was not "prominently displayed."

According to the Court of Appeal, the arbitration disclosure did not "have a

separate heading" and was "printed in the same ... typeface as the typeface

used in the rest of the enrollment form." (Burks) supmJ at 1 024.) The Court

of Appeal thus concluded "there was nothing that made the [arbitration]

disclosure stand out from the remainder of the form, such that it could be

reasonably expected to command the notice of a person filling out the

form." (Ibid.)

The instant arbitration disclosure is less "prominently

displayed" and more camouflaged than Defendants' enrollment form at

issue in Burks. Like Burks, there is no heading and the font is no larger than

the rest of the document. But unlike Burks, the instant arbitration disclosure

does not even get its own paragraph. It is stuck in the third and fourth

sentences of another topic's paragraph. It is buried. Camouflaged. It blends

in. And it is in no way "prominently displayed."

3. Defendants' Arguments.

Based on the case law, Defendants have been left to argue

that the instant arbitration disclosure is "prominently displayed" because:

(1) the paragraph containing the arbitration disclosure was immediately

before the signature line for the enrollee, and (2) the entire paragraph that

contained the arbitration disclosure was in "bold." Both arguments fail.

Defendants' first argument is recycled from Burks, supra, 160

Cal.App.4th at 1028. In Burks, the Court rejected this argument, explaining

that the disclosure's proximately just above the signature is already a

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separate requirement in Health & Safety Code §1363.l(d). Burks found that

mere compliance with this Section (d) (relating to proximity of the

disclosure) does not satisfY the "prominently displayed" requirement in

Section 1363.l(b). (Ibid.) "[Tlhe legislative history supports the conclusion

that by requiring prominence in addition to placement immediately above

the signature line, the Legislature intended to require something more than

placement to make the notice prominent." (Ibid.)

Defendants' second argument also fails. While it is true that

the arbitration disclosure is technically in some form of a light "bold" font,

so are five of the 15 paragraphs and approximately 35% of all words on the

page (approximately 227 of 644). Plus, the entire paragraph containing the

arbitration disclosure is in this "bold" font. Nothing about the arbitration

disclosure in the third and fourth sentences "stand[s] out" from the

unrelated and superfluous content, also in "bold," in the first and second

sentences. It is all equally "bolded."

When a drafter wants to "prominently display" a particular

issue, he/ she gives it a heading, its own paragraph, and carefully targets

selected words and holds on!J those words. The drafter does not bold the

entire paragraph containing those words, including a significant amount of

unrelated and superfluous content. Such would serve the opposite effect: it

would de-emphasize the specific words in "bold." Because so much of the

page is in "bold," including the entire paragraph containing the disclosure,

the drafter has de-emphasized the disclosure. It is not uniquely presented on

the page, nor does it "stand[] out" beyond other content- even within its

own paragraph.

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Instantly, Defendants were asking their enrollee, Victorino

Noval, to sign a document that contained a waiver of his constitutional right

to a jury trial. California law requires that the disclosure of this waiver be

"prominently displayed." Here, no conclusion can be made but that the

disclosure is undetectable by an overview of the document. A reader's eyes

are not immediately drawn to it, nor does it "stand(] out" or "project(]

beyond a surface or line" and "command( ] notice." (Burks, supra, 160

Cal.App.4th at 1 026.) Instead, it is camouflaged amongst its surroundings

and is only spotted by delving into the substance of the legalese and reading

three sentences into the final paragraph. This is not what the legislature had

in mind when it created Health & Safety Code § 1363.1 (b) and declared that

arbitration disclosures must be "prominently displayed" in enrollment forms

or else they are unenforceable.

E. The Medicare Act Does Not Preem.pt Health & Safety Code

§1363.1.

In the trial court, Defendants argued that the Medicare Act

preempts Health & Safety Code §1363.1. (Ex. 11, p. 376: 1-12). It does not.

(:(plez6 v. Pacijicare qf California (2003) 105 Cal.App.4th 573, 585-587

(Medicare Act did not preempt Health & Safety Code §1363.1, using

Medicare Act's pre-2003 preemption language]; Pagmigan v. Superior Court,

supra, 102 Cal.App.4th at 1128, 1135-1136, 1150-1151 [Same.]).

However, it IS true that in 2003, the "Medicare Act"

broadened its preemption language to state: "The standards established

under this part shall supersede any State law or regulation (other than State

licensing laws or State laws relating to plan solvency) with respect to

(Medicare Act] plans which are offered by [Medicare Act] organizations

under this part." (42 U.S.C. §1395w-26(b)(3)).

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No California Court of Appeal has decided whether or not

and Pagangan still apply in light of this changed preemption language

in the "Medicare Act." But there is certainly support for PlaintifPs position

that and Pagarigan still apply.

The "Medicare Act" did not change its introductory

language, entitled "Prohibition against any Federal interference," which

states: "Nothing in this subchapter shall be construed to authorize any

Federal officer or employee to exercise ... any supervision or control over

the administration or operation of any [State health care] institution,

agency, or person." (emphasis added). (42 U.S.C. § 1395).

Also, the "Medicare Act's" federal regulations relating to the

changed preemption language state: "We also have considered how the

changes [to the more expansive "Medicare Act" preemption language]

apply, if at all, to State tort or contract law that could affect [Medicare Act]

organizations. . . . We continue to believe that generally applicable State

tort, contract, or consumer protection law would not be preempted under

[the Medicare Act]." (See 69 Fed.Reg. 46914).

The same series of federal regulations also state: "State health

and safety standards, or generally applicable standards, that do not involve

regulation of an [Medicare Act] plan are not preempted. (See 70 Fed.Reg.

4588, 4665).

Health & Safety Code § 1363.1 is precisely this type of "State"

statute dealing with "contract" law and/ or "consumer protection laws."

Health & Safety Code § 1363.1 is intended "to protect health care

consumers from the consequences of unknowingly waiving their right to a

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jury trial in a dispute with their health care service plan." (Malek, supra, 121

Cal.App.4th at 71). Therefore, the Medicare Act does not appear to have

preempted Health & Safety Code §1363.1 or any related California

"contract" or "consumer protection law."

Preemption arguments are nothing new for Health & Safety

Code § 1363.1. Years ago, the California Court of Appeal ruled that the

"Federal Arbitration Act" preempted Health & Safety Code §1363.1.

(Erickson v. Aetna Health Plans qf CalifOrnia, Inc. (1999) 71 Cal.App.4th 646,

652). In a subsequent case, however, the Court of Appeal went the other

direction and ruled that the "Federal Arbitration Act" did not preempt

Health & Safety Code § 1363.1. (Smith v. Paci.ficare Behavioral Health qf

CalifOrnia, Inc. (2001) 93 Cal.App.4th 139, 162). Mter Smith, the Court of

Appeal now consistently rules that the "Federal Arbitration Act" does not

preempt Health & Safety Code §1363.1. (See, inter alia, Imbler, supra, 103

Cal.App.4th at 577).

Now it is the Medicare Act's turn for health care service

providers to accuse of preempting Section 1363.1, and the support for it is a

single federal district court case, Clay v. Permanente Medical Group, Inc. (N.D.

Cal. 2007) 540 F.Supp.2d 1101.1 The Clay decision is not binding upon this

Court, and Plaintiff urges this Court to analyze the issue as Plaintiff does,

above, not as set forth in Clay. In Clay, the district court was dealing with

well-heeled defendants and a plaintiff who did not seek any appellate review

of the decision.

20 days after rendering the Clay decision, the same district court judge issued a second decision in a "related" case, ruling identically. (Drissi v. Kaiser Foundation Hospitals, Inc. (N.D. Cal. 2008) 543 F.Supp.2d 1076.)

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Moreover, substantively, Clay trumpeted the "Federal

Arbitration Act." (ld. at 1105.) It then assumed Health & Safety Code

§1363.1 regulated "marketing materials," not that it was a "contract" or

"consumer protection law." (/d. at 11 09.) On that assumption, CU;ry found

the "Medicare Act" preempted Health & Safety Code § 1363.1 because the

Medicare Act, to some extent, regulates certain "marketing materials."

(Ibid.)

Clay never addressed the "Medicare Act's" proVIsions

prohibiting Federal interference with states, nor did Clay ever address the

Federal Regulations declaring that the "Medicare Act" was not preempting

"State tort, contract, or consumer protection law." (See 69 Fed.Reg.

46914).

Arbitration disclosures are not "marketing materials." They

are binding "contracts" with significant legal ramifications. Also, Health &

Safety Code § 1363.1 is not a regulation on "marketing materials." It is a

"consumer protection law" put in place to ensure enrollees in health plans

do not "unknowingly waiv[ e] their right to a jury trial in a dispute with their

health care service plan." (Malek, supra, 121 Cal.App.4th at 71).

The Medicare Act is silent on arbitration disclosures. They do

not regulate them in any way. And its own federal regulations expressly

state that it does not preempt "State" "contract" or "consumer protection

law." To find otherwise, that the Medicare Act preempts § 1363.1, would be

to deny the California legislature the ability to protect elders with contract

and consumer protection laws in health care matters. For these reasons,

Plaintiff asserts that .?plezzi and Pagarigan are still the applicable law and/ or

that the Medicare Act does not preempt Health & Safety Code § 1363.1.

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F. The Circumstances Justify the Delay in Filing the Instant

Petition.

The trial court's order compelling arbitration was

interlocutory. 146 Cal.App.4th at 160, citing International

Film Investors v. Arbitration Tribunal qf Directors Guild (1984) 152 Cal.App.3d

699, 703.) Plaintiffs right to appeal will lie on{v when arbitration has

concluded and the trial court confirms any final order I award rendered in

arbitration. (International Film Investors, supia, 152 Cal.App.3d at 703.)

As Defendants originally represented, arbitration would be

completed promptly. Defendants' own rules declared that arbitration would

be completed in less than 18 months, and they, themselves, represented that

the instant arbitration would only be approximately three days long.

Defendants, early in the proceeding, agreed to a March 25, 2014

arbitration date.

Had Defendants stayed true to these representations, any

unwarranted and/ or undue expense and consumption of time before an

"appeal" would have been mitigated by the speed and efficiency of the

arbitration proceeding. In fact, under these original expectations, Plaintiff

would have already completed arbitration and would currently already be

in a position to appeal the trial court's order compelling it.

But the circumstances have changed and there does not

appear to be any end to arbitration in sight. Defendants have not sat for a

single deposition, neither have any third parties or Defendants' alleged 30+

witnesses. The arbitration date has been continued, and Defendants have

taken that opportunity to expand the scope of the case to include 12-15

days of proceedings.

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Simultaneously, Plaintiff has learned that there will be no

court reporter present at arbitration or any other form of (audio/video)

recording to preserve the testimony presented. This is a highly "factual"

case, and the testimony of the parties and their witnesses is paramount.

Plaintiff will be significantly and irreparably harmed if he must jirst present

his case and cross-examination of Defendants and their witnesses in a non-

binding arbitration forum before being able to do so in front of a jury.

Within days of Plaintiff discovering these circumstances, he

filed in the superior court a motion to "renew" his opposition to

Defendants' petition to compel arbitration. (Ex. 10, pp. 315-358.) The trial

court denied this motion to "renew." (Ex. 16, pp. 4 78-4 79.) Promptly, and

without delay, Plaintiff has now filed the instant petition for a writ of

mandate and/ or other relief. In short, Plaintiff has not delayed in any way

in seeking appellate review of the trial court's order compelling arbitration

once the arbitration date was continued and he discovered the

circumstances above that will render arbitration substantially prejudicial

and irreparably harmful.

The Court of Appeal has stated, in a similar context, that "the

progress of arbitration was not material" to the Court's analysis of whether

or not to issue a writ of mandate. (Malek, supra, 121 Cal.App.4th at 60).

Plaintiff asks the Court to adopt this position instantly. That is

because contracts contrary to express statutes, i.e., the instant arbitration

disclosure, are illegal and void. (Green v. Mt. Diablo Hosp. Dist. (1989) 207

Cal.App.3d 63, 73; Dziffens v. Valenti (2008) 161 Cal.App.4th 434, 454;

Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83,

103-104.) Noncompliance with Health & Safety Code §1363.1 voids an

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arbitration clause as unenforceable. (Malek v. Blue Cross of Calif. (2004) 121

Cal.App.4th 44, 70-72.) The court, at any stage of the proceeding, “has

both the power and duty to ascertain the true facts [and law] in order that it

may not unwittingly lend its assistance to the consumption or

encouragement of what public policy forbids.” (Western Camps, Inc. v.

Riverway Ranch Enterprises (1977) 70 Cal.App.3d 714, 725, citing Lewis &

Queen v. N.M. Ball Sons (1957) 48 Cal.2d 141, 147-148).

Instantly, as discussed in detail above, there is no jurisdiction

for arbitration, and the parties have been ordered to engage in arbitration

pursuant to a purported arbitration disclosure that is invalid, unenforceable,

illegal, and against public policy. (See Green, supra, 207 Cal.App.3d at 73;

Duffens, supra, 161 Cal.App.4th at 454; Armendariz, supra, 24 Cal.4th 83, 103-

104; Malek, supra, 121 Cal.App.4th at 70-72.) Therefore, any “delay” in

filing the instant petition “is not material” in the light of the consequences

Plaintiff is facing without judicial review. (Malek, supra, at 60.) What is

“material” is preserving justice and ensuring the parties are not irreparably

harmed by an excessively long, arduous, and expensive arbitration

procedure with no jurisdiction over the parties to begin with.

V.

CONCLUSION

For the reasons set forth above, there is no jurisdiction for the

arbitration for which the parties are being forced to participate. Defendants’

arbitration disclosure expressly limits the scope of “binding arbitration” to

only “medical or hospital malpractice…” This is not such a case of

“malpractice.” It is a case based on intentional tort theory, which far

exceeds the scope of Defendants’ arbitration disclosure.

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Moreover, Defendants' arbitration disclosure was not

"prominently displayed" in its enrollment form as required by Health &

Safety Code § 1363.1 (b). It lacked any heading, unique spacing, or large

font. It was buried in the third and fourth sentence of another topic's

paragraph and camouflaged in the same font as the rest of the paragraph. It

does not "stand(] out" in any way, nor is it "prominently displayed" in any

way.

Both of these conclusions are based on Health & Safety Code

§ 1363.1, which is an often used "contract" and "consumer protection law"

to ensure health care enrollees, including elders, do not unknowingly waive

their constitutional rights to jury trials when contracting for health care.

As a matter of first impression for the Court of Appeal, this

case presents the issue of whether or not the federal "Medicare Act"

preempts this statute and renders it inapplicable when dealing with elders -

one of the state's most protected classes of individuals. The ftderal

regulations make clear that the "Medicare Act" does not do so, but a single

flderal court case has created uncertainty. California state superior courts,

parties, and legal/medical practitioners across the state would all benefit by

the Court of Appeal's voice on this issue - confirming the applicability of

Health & Safety Code § 1363.1 to all health care enrollees, including elders.

Finally, Plaintiff asks the Court to find justification in the

timing of the instant petition. It is true that Plaintiff could have filed some

version of this petition in the year 2012, but at that time, the circumstances

were different, and less arduous. Since the circumstances have changed,

significantly and prejudicially, Plaintiff has wasted no time in seeking relief

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