Brantley et al v. Maxwell-Jolly et al

Filing 264

STIPULATION AND ORDER: That the hearing re 225 Motion for Preliminary Injunction shall be set for 07/26/11 at 1:00 PM. Responses due by 6/29/2011. Replies due by 7/12/2011. Motion Hearing set for 7/26/2011 01:00 PM before Hon. Saundra Brown Armstrong.. Signed by Judge Saundra Brown Armstrong, on 6/21/11. (lrc, COURT STAFF) (Filed on 6/22/2011) Modified on 6/23/2011 (jlm, COURT STAFF).

Case4:09-cv-03798-SBA Document223

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ELISSA GERSHON (CA SBN 169741)
[e-mail]
ELIZABETH ZIRKER (CA SBN 233487)
[e-mail]
KIM SWAIN (CA SBN 100340)
[e-mail]
DISABILITY RIGHTS OF CALIFORNIA
1330 Broadway, Suite 500
Oakland, California 94612
Telephone: [phone]
Facsimile: 510.267.1201

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Attorneys for Plaintiffs

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Filed06/07/11 Page1 of 6

[Complete List of Counsel on Following Page]

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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ESTHER DARLING; RONALD BELL by his
guardian ad litem Rozene Dilworth; GILDA
GARCIA; WENDY HELFRICH by her guardian
ad litem Dennis Arnett; JESSIE JONES; RAIF
NASYROV by his guardian ad litem Sofiya
Nasyrova; ALLIE JO WOODARD, by her
guardian ad litem Linda Gaspard-Berry;
individually and on behalf of all others similarly
situated,
Plaintiffs,

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Case No.

C09-03798 SBA

STIPULATION AND
XXXXXXXXX
[PROPOSED] ORDER FOR
PRELIMINARY INJUNCTION
BRIEFING SCHEDULE AND
HEARING DATE
The Honorable Saundra Brown
Armstrong

vs.
TOBY DOUGLAS, Director of the Department of
Health Care Services, State of California,
DEPARTMENT OF HEALTH CARE
SERVICES,
Defendants.

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STIPULATION AND [PROPOSED] ORDER FOR PRELIMINARY INJUNCTION BRIEFING SCHEDULE AND HEARING
CASE NO. C09-03798 SBA
pa-1468778

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Filed06/07/11 Page2 of 6

KENNETH A. KUWAYTI (CA SBN
145384)
[e-mail]
MORRISON & FOERSTER LLP
755 Page Mill Road
Palo Alto, California 94304-1018
Telephone: [phone]
Facsimile: 650.494.0792

ANNA RICH (CA SBN 230195)
[e-mail]
KEVIN PRINDIVILLE (CA SBN 235835)
[e-mail]
NATIONAL SENIOR CITIZENS LAW
CENTER
1330 Broadway, Suite 525
Oakland, California 94612
Telephone: [phone]
Facsimile: 510.663.1051

ERIC CARLSON (CA SBN 141538)
[e-mail]
NATIONAL SENIOR CITIZENS LAW
CENTER
3435 Wilshire Boulevard, Suite 2860
Los Angeles, CA 90010
Telephone: [phone]
Facsimile: 213.639.0934

BARBARA JONES (CA SBN 88448)
[e-mail]
AARP FOUNDATION LITIGATION
200 So. Los Robles, Suite 400
Pasadena, California 91101
Telephone: [phone]
Facsimile: 626.583.8538

KENNETH W. ZELLER, Pro Hac Vice
[e-mail]
KELLY BAGBY, Pro Hac Vice
[e-mail]
AARP FOUNDATION LITIGATION
601 E Street NW
Washington, D.C. 20049
Telephone: [phone]
Facsimile: 202.434.6424

SARAH SOMERS (CA SBN 170118)
[e-mail]
MARTHA JANE PERKINS (CA SBN 104784)
[e-mail]
NATIONAL HEALTH LAW PROGRAM
101 East Weaver Street, Suite G-7
Carrboro, North Carolina 27510
Telephone: [phone]
Facsimile: 919.968.8855

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Attorneys for Defendants

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KAMALA D. HARRIS
Attorney General of California
JOSHUA SONDHEIMER (CA SBN 152000)
[e-mail]
Deputy Attorney General
455 Golden Gate Avenue, Suite 1100
San Francisco, California 94102-7004
Telephone: [phone]
Facsimile: 415.703.5480

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STIPULATION AND [PROPOSED] ORDER FOR PRELIMINARY INJUNCTION BRIEFING SCHEDULE AND HEARING
CASE NO. C09-03798 SBA
pa-1468778

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This Stipulation is based on the following facts and circumstances:

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1. On April 21, 2011, the parties stipulated to a partial lift of the stay of this action to

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allow Plaintiffs to file a Motion for Leave to Supplement the First Amended Complaint, and if

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such Motion was granted, to file a Motion for Preliminary Injunction against implementation of

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AB 97, which eliminates Adult Day Health Care (ADHC) as a Medi-Cal optional benefit on the

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first day of the first calendar month following 60 days after the receipt of federal approval. Cal.

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Welf. & Inst. § 14589(d). . The parties further stipulated to briefing schedules for both Motions.

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(Docket No. 204).

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2. On April 25, 2011, the parties filed a Superseding Stipulation to modify the briefing

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schedule for Plaintiffs’ Motion for Leave to Supplement the First Amended Complaint. (Docket

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No. 210).

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3. On April 27, 2011, this Court granted the parties’ request and the following briefing

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schedule was set for the Plaintiffs’ Motion for Preliminary Injunction: Hearing on June 28, 2011,

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Motion to be filed on May 24, 2011, Opposition due on June 14, Reply due on June 21. (Docket

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No. 211).

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4. The Court granted Plaintiffs’ Motion for Leave to Supplement the First Amended
Complaint on June 2, 2011. (Docket No. 217).

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5. Plaintiffs’ Second Amended Complaint was filed on June 2, 2011. (Docket No. 218).

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6. Pursuant to AB 97, ADHC shall be discontinued as a Medi-Cal benefiton the first day

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of the first calendar month following 60 days after the receipt of federal approval. Cal. Welf. &

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Inst. § 14589(d). Federal approval of a State Plan Amendment to remove the ADHC benefitwas

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requested on May 12, 2011 and remains pending. The State has requested that approval be

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awarded in time to allow implementation by September 1, 2011.

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7. Plaintiffs have requested that the Motion for Preliminary Injunction be heard and

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decided before the end of July 2011 based on plaintiffs’ position that ADHC recipients and

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ADHC providers need a minimum of 30 days notice in advance of the proposed September 1,

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2011 implementation date as to whether or not AB 97 will be enjoined.

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STIPULATION AND [PROPOSED] ORDER FOR PRELIMINARY INJUNCTION BRIEFING SCHEDULE AND HEARING
CASE NO. C09-03798 SBA
pa-1468778

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8. The parties have agreed on a hearing date and briefing schedule, subject to the Court’s

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approval, as follows: Hearing July 26, Motion to be filed on June 9, 2011, Opposition to be filed

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June 29, Reply due on July 12.

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9. Plaintiffs are aware that defendants intend to seek a stay of district court proceedings

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in this Court and, if they deem necessary, in the Ninth Circuit Court of Appeals, and that

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defendants’ stipulation to the above schedule is intended to be effective only to the extent that

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defendants’ request for a stay before either court remains pending or is denied.

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THE PARTIES, by and through their respective counsel, HEREBY STIPULATE as
follows:
a) Pursuant to Civil Local Rules 6-1, 6-2, 7-2, and 7-3, and subject to Court approval,

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Plaintiffs’ motion for preliminary injunction may be scheduled for hearing on July 26, 2011,

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subject to the Court’s availability, and will be briefed under the following schedule: opening

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brief to be filed and served by June 9, 2011; opposition brief to be filed and served by June 29,

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2011, and any reply brief to be filed and served by July 12, 2011.

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b) Defendants’ stipulation to the above schedule is without prejudice to defendants’ right

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to seek a stay of the district court proceedings, and is intended to be effective only to the extent

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that defendants’ request for a stay of proceedings before this Court or the Ninth Circuit Court of

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Appeals remains pending or is denied. In addition, this stipulation shall not be construed as an

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acknowledgment or concession by Defendants that the filing of a motion for a preliminary

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injunction is timely or appropriate, and is without prejudice to Defendants’ rights to oppose the

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motion preliminary injunction motion on any procedural and substantive ground.

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Dated: June 7, 2011

KENNETH A. KUWAYTI
MORRISON & FOERSTER LLP

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By:

/s/ Kenneth A. Kuwayti
KENNETH A. KUWAYTI

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Attorneys for Plaintiffs

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STIPULATION AND [PROPOSED] ORDER FOR PRELIMINARY INJUNCTION BRIEFING SCHEDULE AND HEARING
CASE NO. C09-03798 SBA
pa-1468778

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Dated: June 7, 2011

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Filed06/07/11 Page5 of 6

KAMALA D. HARRIS
Attorney General of California
JOSHUA SONDHEIMER
Supervising Deputy Attorney General

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By:

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/s/ Joshua Sondheimer
JOSHUA SONDHEIMER
Attorneys for Defendants

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ORDER

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PURSUANT TO THE PARTIES’ STIPULATION, IT IS SO ORDERED. The hearing
on Plaintiffs’ motion for preliminary injunction shall be set for July 26, 2011 at 1:00 PM
__ _.m.

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Dated: June ___, 2011
Honorable Saundra Brown Armstrong
United States District Judge

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STIPULATION AND [PROPOSED] ORDER FOR PRELIMINARY INJUNCTION BRIEFING SCHEDULE AND HEARING
CASE NO. C09-03798 SBA
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Filed06/07/11 Page6 of 6

GENERAL ORDER 45 ATTESTATION
I, Kenneth A. Kuwayti, am the ECF User whose ID and password are being used to file

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this STIPULATION AND [PROPOSED] ORDER FOR PRELIMINARY INJUNCTION

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BRIEFING SCHEDULE AND HEARING DATE. In compliance with General Order 45, X.B., I

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hereby attest that JOSHUA SONDHEIMER has concurred in this filing.

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Dated: June 7, 2011
By:

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/s/ Kenneth A. Kuwayti
KENNETH A. KUWAYTI

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STIPULATION AND [PROPOSED] ORDER FOR PRELIMINARY INJUNCTION BRIEFING SCHEDULE AND HEARING
CASE NO. C09-03798 SBA
pa-1468778

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