In the summer of 2020, the Windsor Redding Care Center, a nursing home in Redding, California, was cited by the California Department of Public Health (CDPH) for its failures to take adequate COVID-19 related infection control measures. In September 2020, things got worse, and 60 of the facility’s 83 residents contracted COVID-19. Nearly a third of the residents–24 of them–died. A CDPH investigation found that three factors contributed to the September 2020 outbreak: (1) Windsor management required employees who reported that they were symptomatic for COVID-19 to come to work; (2) Windsor’s chronic understaffing meant that it was unable to adequately train its employees on infection control procedures; and (3) Windsor failed to test its staff for COVID-19 and allowed untested staff to work with vulnerable patients. Understaffing also led to sick patients not receiving appropriate care after they were diagnosed with COVID-19.
Family members of the residents who died filed suit in California state court against the facility and its owners, asserting negligence, elder abuse, wrongful death, and violations of California’s patient rights law and unfair competition law. Windsor removed the case to federal court in June 2022, asserting that the families’ claims were completely preempted by the PREP Act, and that the federal-officer removal statute and the embedded federal question jurisdiction doctrine provided federal jurisdiction over the case—even though the Ninth Circuit Court of Appeals had already rejected those arguments in Saldana v. Glenhaven Healthcare. The district court granted the families’ motion to remand the case to federal court, finding the case controlled by Saldana, and also awarded the families attorneys’ fees on the grounds that the removal in light of controlling precedent was “objectively unreasonable.”
Windsor appealed to the Ninth Circuit. Representing the families on appeal, we argue that Windsor had failed to preserve its arguments that Saldana should be overruled, that the district court properly concluded that the case was controlled by Saldana, that Windsor waived new (incorrect) arguments that the case was somehow distinguishable from Saldana, and that the fee award was well within the district court’s discretion.