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Lawyers seeking to continue a two-year spate of suits against nursing homes expect to lean heavily on an obscure piece of California’s Health & Safety Code to get past the blockade imposed by Proposition 64. The initiative’s victory had seemed to ring the death knell for claims under Business & Professions Code �17200 — the state’s private attorney general act — leaving plaintiffs attorneys no way to go after nursing homes for alleged violations without naming a harmed plaintiff. But plaintiffs lawyers argue that Health & Safety Code �1430 also allows a private right to action in nursing home claims. “We’re kind of hot on this 1430 stuff now,” said Sanford Horowitz, a Sonoma, Calif., solo practitioner who specializes in elder abuse cases. He has brought several 1430 claims for understaffing in recent years and said the statute will prove increasingly useful for attorneys who aim more at injunctive relief than large payouts. “You’re really just trying to get [nursing homes] to get their act together. You’re not in it for huge bucks,” he said, pointing out that 1430 allows only for attorneys fees and damages limited to the equivalent of what state fines would be for the alleged abuses. The limited payout doesn’t seem to be a problem for some of the most active nursing home litigants. “You’ll get your attorneys fees and injunctive relief, which we think is very helpful,” said Andrea Laiacona, an associate at the Oakland, Calif., labor firm Weinberg, Roger & Rosenfeld. Laiacona says her firm had filed “several hundred” 17200 claims against nursing homes in recent years. Plaintiffs attorneys acknowledge that they could circumvent Prop 64 — the Nov. 2 measure that placed tight restrictions on 17200 suits — by finding individual residents to name as plaintiffs in their suits. But residents are reluctant to sign on as plaintiffs, they say. Consequently, attorneys much prefer suits that don’t require a harmed plaintiff. “1430 is another avenue to pursue in facing these violations, and in essence it is what we’ve been doing,” said Mark Todzo, who is co-counsel in many of Horowitz’s cases. Todzo, a partner at the Lexington Law Group in San Francisco, says he expects to become more reliant on 1430 claims, especially now that defense lawyers are arguing that Prop 64 should be retroactive. Todzo and Laiacona said that since Election Day, several opposing attorneys have pulled out of settlement agreements in 17200 suits against nursing homes, hoping instead to get the suits dismissed by convincing courts that Prop 64 is retroactive. Mark Reagan, a partner in Hooper, Lundy & Bookman’s San Francisco office who specializes in nursing home defense, said he is in the process of arguing that Prop 64 is retroactive in several cases. And as a result, he expects to see more cases filed under 1430. “It will be attempted to be used. And if there is an attempt to use it, the rules are different,” Reagan said, since 1430 requires that violations be equivalent to those for which the state would impose a fine, while 17200 applies to a much wider range of violations. Reagan said an early February hearing in an Alameda County 17200 case he is defending should determine whether Prop 64 is retroactive, and in turn, whether the expected 1430 explosion will occur now or later. In the meantime, a Long Beach, Calif., lawyer who has filed hundreds of nursing home suits under 17200 says he’s found a completely different route around Prop 64. Stephen Garcia is filing two suits this week using the Consumer Legal Remedies Act — often used against car dealers accused of bait-and-switch advertising — to sue nursing homes over staff levels. For years, Garcia says, no one has realized that CLRA could be applied to elder abuse law. “Nobody used this damned thing,” he said. “Now we will. I’ll use it. I’ll come out with all guns blaring on this one.” Reagan and John Supple, a nursing home defense specialist and partner at Gordon & Rees, said they’ve never seen CLRA used in a nursing home case. Said Supple: “Steve [Garcia] is very creative in his thinking.”

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