Carnes v. Atria Senior Living, Inc.

Filing 43

Order by Hon. Vince Chhabria granting 26 Motion to Dismiss with Leave to Amend within 21 days.(knm, COURT STAFF) (Filed on 11/6/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THOMAS CARNES,

Case No. 14-cv-02727-VC

Plaintiff,
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v.

ORDER GRANTING DEFENDANTS'
MOTION TO DISMISS

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ATRIA SENIOR LIVING, INC.,

Re: Dkt. No. 26

Defendant.

United States District Court
Northern District of California

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Defendant Atria Senior Living, Inc. ("Atria"), owns and operates a number of assisted

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living facilities throughout California. Plaintiff Thomas Carnes, a resident of one of these

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facilities, filed this putative class action alleging violations of California's Consumer Legal

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Remedies Act ("CLRA"), Cal Civ. Code § 1750 et seq., and unfair competition law, Cal. Bus. &

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Prof. Code § 17200 et seq. ("UCL"), and elder financial abuse in violation of California Welfare

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and Institutions Code § 15610.30. Atria moved to dismiss. The motion is granted, with leave to

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amend.

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At bottom, Carnes's complaint rests on a theory that Atria, by representing that it both

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provides care and charges residents according to its resident evaluation system, is necessarily also

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representing that it uses the same evaluation system to determine its overall staffing levels at a

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particular facility. It is this second (and implied) representation that Carnes alleges is fraudulent—

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Carnes alleges that Atria instead determines overall staffing levels at a facility based on corporate

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labor budgets and profit margins, without regard to the evaluations of each resident. FAC ¶ 5.

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But Carnes does not identify any actual representation that relates to Atria's overall staffing levels

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or explain why Atria's representations about its resident evaluation system would necessarily

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imply that overall facility staffing levels would be dictated by this system.

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If Carnes had alleged that Atria provided less individual care than what it promised its

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residents, that claim might sound in fraud. But Carnes never alleges that Atria does not provide

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residents with the number of hours of care that corresponds to each resident's point value. Nor

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does he allege that Atria's policies for determining how facilities should be staffed preclude those

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facilities from providing the care Atria itself determines each resident needs—and for which Atria

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charges additional fees. Carnes thus fails to state a plausible claim of misrepresentation, let alone

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one that provides the specificity necessary to satisfy Rule 9(b).

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Accordingly, Atria's motion to dismiss is granted. Should Carnes wish to file an amended
complaint, he must do so within 21 days of this order or the dismissal will be with prejudice.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: November 6, 2014
______________________________________
VINCE CHHABRIA
United States District Judge

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