NOVATO HEALTHCARE CENTER, LLC vs. CALIFORNIA DEPARTMENT OF PUBLIC HEALTH, ET AL

Plaintiff Novato Healthcare Center, LLC’s (“Plaintiff”) motion for summary judgment is GRANTED. (Code Civ. Proc., § 437c, subd. (c).) I. BACKGROUND

This action is based on a skilled nursing facility’s challenge to a citation by the California Department of Public Health (“CDPH”) arising out of the death of a resident. According to the complaint, Plaintiff runs a licensed skilled nursing facility in Novato. (Complaint, ¶ 1.) On November 20, 2024, CDPH issued Plaintiff a Class “AA” citation1 stating that the facility’s violations of applicable regulations resulted in a 71-year-old male patient being permitted to leave the facility unsupervised on December 19, 2019. (Plaintiff’s Separate Statement of Undisputed Material Facts (“UMF”) No. 7; Stock Dec., Ex.

A.) According to the citation, the patient, referred to as Resident 23, wandered onto a railroad track during this outing and was fatally struck by a train. (Stock Dec., Ex. A.) Health and Safety Code, section 1428 authorizes an action by a cited entity to “adjudicate the validity of the citation[.]” (Health & Saf. Code, § 1428, subd. (b).) In that action, the court “may affirm, modify, or dismiss the citation, the level of the citation, or the amount of the proposed assessment of the civil penalty.” (Ibid.)

Plaintiff filed this action against CDPH to challenge the November 2024 citation. Plaintiff’s complaint alleges in part that regardless of whether the

1 CDPH citations are classified according to the nature of the violation. (Health & Saf. Code, § 1424.) Class “A” violations are violations presenting either an “imminent danger” or a “substantial probability” that death or serious harm will befall a resident. (Health & Saf. Code, § 1424, subd. (d)(1).) Class “AA” violations are Class “A” violations that were a substantial factor in causing the death of a resident of a long-term health care facility. (Health & Saf. Code, § 1424, subd. (c)(1).)

violations occurred, the citation was not timely and should be dismissed on that basis. (Complaint, ¶¶ 21-24.) Before the Court is Plaintiff’s motion for summary judgment. II. LEGAL STANDARD

Any party may move for summary judgment. (Code of Civ. Proc, § 437c, subd. (a); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) The motion “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c); Aguilar, supra, 25 Cal.4th 826, 843.) Similarly, a party may move for summary adjudication as to a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Code Civ.

Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication . . . shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).) The object of the summary judgment procedure is “to cut through the parties’ pleadings” to determine whether trial is necessary to resolve the dispute. (Aguilar, supra, 25 Cal.4th 826, 843.) The “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar, supra, 25 Cal.4th 826, 850; see Evid.

Code, § 110.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Aguilar, supra, 25 Cal.4th 826, 851.) When the moving party is the plaintiff, the initial burden entails “prov[ing] each element of the cause of action entitling the party to judgment[.]” (Code Civ. Proc., § 437c, subd. (p)(1).) When the moving party is the defendant, the initial burden entails showing “that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ.

Proc., § 437c, subd. (p)(2).) Once the moving party has met its initial burden, the burden shifts to the opposing party to “show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subds. (p)(1)-(2).) “There is a genuine issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, 25 Cal.4th 826, 845.)

III. DISCUSSION A. Procedural Matters

Both Plaintiff and CDPH submitted evidentiary objections. Plaintiff’s Objections Numbers 19, 24, and 25 are overruled. These relate to the evidence offered in support of CDPH’s Statement of Additional Material Facts (“AMF”) No. 38, pertaining to the sufficiency of Plaintiff’s discovery responses. The Court does not rule on the remaining objections or on Plaintiff’s request for judicial notice because the evidence at issue was not material to its disposition of the motion. (See Code Civ. Proc., § 437c, subd. (q).) The dispositive evidence was the evidence establishing that CDPH completed its investigation on May 6, 2020, and did not issue the citation until November 20, 2024. The Court has not considered Plaintiff’s “Response to Defendant’s Separate Statement in Opposition.” The summary judgment statute does not provide for a “reply separate statement.”

(Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 306 [abrogated in unrelated part as stated in Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 853, fn. 12].) B. Merits

Plaintiff’s motion concerns the timeliness of the citation issued by CDPH. The Court is not asked to determine whether the alleged violation underlying the citation occurred or played any role in Resident 23’s death. The Long-Term Care, Health, Safety, and Security Act of 1973 (“Long-Term Care Act”) provides that when CDPH elects to issue a state citation to a licensed nursing or long-term health care facility for a violation of applicable laws or regulations, the “state citation shall be served upon the licensee within 30 days after completion of the investigation.” (Health & Saf.

Code, § 1423, subd. (a)(2)(B).) It is undisputed that CDPH completed its investigation of Plaintiff in relation to Resident 23’s death on May 6, 2020. (UMF No. 4.) It did not even issue the citation, let alone serve it, until November 20, 2024, more than four years later. (UMF No. 7.) Plaintiff argues that Health and Safety Code, section 1423, subdivision (a)(2)(B)’s 30-day deadline to serve the citation is mandatory and that CDPH’s failure to serve Plaintiff with the citation within that time frame means the citation cannot stand as a matter of law.

Courts distinguish between mandatory and directory procedural requirements. If a procedural requirement is mandatory, not following it results in the invalidation of the ultimate government action at which the procedure is directed. (People v. Allen (2007) 42 Cal.4th 91, 101; Morris v. County of Marin (1977) 18 Cal.3d 901, 908-909.) If the procedural requirement is merely directory, the ultimate government action may stand without regard to the fact that the procedural requirement was violated. (Ibid.) “Whether a particular statute is intended to impose a mandatory duty is a question of interpretation for the courts.” (Nunn v.

State of California (1984) 35 Cal.3d 616, 624.) First, the Court addresses the parties’ dispute over the effect of Kizer v. Hillhaven, Inc. (1993) 19 Cal.App.4th 309. Kizer summed up its holding as follows: “In our view, the Legislature intended the provisions of Health and Safety Code section 1423 to be directory, and the failure to comply with them does not negate the court’s jurisdiction or the validity of the citation.” (19 Cal.App.4th 309, 309.) However, the sole portion of Health and Safety Code, section 1423 at issue in Kizer was the portion requiring that, within 24 hours of developing reasonable cause to believe that a licensed facility committed a violation, CDPH issue the facility a notice to correct the violation and a notice of intent to issue a citation. (Health & Saf.

Code, § 1423, subd. (a); Kizer, supra, 19 Cal.App.4th 309, 315 & fn. 3 [setting forth the “pertinent part” of the statute], 317.) Kizer’s reasoning was specific to that portion of the statute. (Id. at p. 318.) Kizer did not address the portion of Section 1423 at issue in this case – subdivision (a)(2)(B)’s 30-day timeline for service of a state citation – in any way. The Fifth District may have spoken with less than perfect precision when summarizing its holding, but that does not render Kizer authority on the meaning of the provision at issue in this case. (See People v.

Ault (2004) 33 Cal.4th 1250, 1268, fn. 10 [“It is axiomatic that cases are not authority for propositions not considered.”].) Section 1423(a)(2)(B) uses mandatory language (“shall”) does not control whether it is mandatory versus directory. Plaintiff’s arguments to the contrary confuse the nature of the question presented here. It is clear on the face of the statute that CDPH is required to serve a

licensee with a state citation within 30 days of completing its investigation. (Health & Saf. Code, § 1423, subd. (a)(2)(B); see also West Shield Investigations and Sec. Consultants v. Superior Court (2000) 82 Cal.App.4th 935, 949 [“The word ‘shall’ is usually deemed mandatory[.]’ ”]; Health & Saf. Code, § 16 [“ ‘Shall’ is mandatory and ‘may’ is permissive.”].) The statute does not contain any exception or substantial compliance provision relating to this requirement. Plaintiff alleges that CDPH’s failure to serve Plaintiff with the citation within 30 days violated the law.

The question presented here, however, is not whether CDPH violated the law, but whether its violation of the law has the effect of invalidating the citation. “The directorymandatory distinction ‘does not refer to whether a particular statutory requirement is ‘permissive’ or ‘obligatory.’ ” (Allen, supra, 42 Cal.4th 91, 101 [quoting Morris, supra, 18 Cal.3d 901, 908].) As Morris, supra, 18 Cal.3d 901, explained: “Many statutory provisions which are ‘mandatory’ in the obligatory sense are accorded only ‘directory’ effect.

For example, while a governmental entity has an obligatory duty to observe the provisions of California's ‘open meeting’ law, and can be enjoined from violating or mandated to follow such provisions, California decisions to date have uniformly construed such provisions as having ‘directory’ effect, and thus have refused to invalidate governmental acts, such as the promulgation of an administrative regulation, even when the governmental entity improperly discussed the matter at a nonpublic meeting.” (18 Cal.3d 901, 908, fn. 4.)

As a result, “[n]either the word ‘may,’ nor the word ‘shall,’ is dispositive” of whether a procedural requirement is mandatory versus directory. (Allen, supra, 42 Cal.4th 91, 103.) Thus, in Kizer, supra, 19 Cal.App.4th 309, a procedural deadline was deemed directory even though the statutory provision describing it used the word “shall.” (19 Cal.App.4th 309, 317, 319.) In Allen, supra, 42 Cal.4th 91, a procedural deadline was deemed mandatory even though the statutory provision at issue used the word “may.” (42 Cal.4th 91, 94.) “[T]here is no simple, mechanical test for determining whether a provision should be given ‘directory’ or ‘mandatory’ effect.” (Morris, supra, 18 Cal.3d 901, 909-910.)

The touchstone is legislative intent. (Allen, supra, 42 Cal.4th 91, 102.) “ ‘In the absence of express language, the intent must be gathered from the terms of the statute construed as a whole, from the nature and character of the act to be done, and from the consequences which would follow the doing or failure to do the particular act at the required time.’ ” (Ibid. [quoting Pulcifer v. Alameda County (1946) 29 Cal.2d 258, 262].) “In some cases focus has been directed at the likely consequences of holding a particular time limitation mandatory, in an attempt to ascertain whether those consequences would defeat or promote the purpose of the enactment.” (Edwards v.

Steele (1979) 25 Cal.3d 406, 410; see also Pulcifer, supra, 29 Cal.2d 258, 262 [“When the object is to subserve some public purpose, the provision may be held directory or mandatory as will best accomplish that purpose[.]”].) In some cases, courts have looked to whether the statute prescribes a penalty for failure to do the act within the time required to determine whether a time requirement is mandatory or directory. (Allen, supra, 42 Cal.4th 91, 103, fn. 6; see also Kizer, supra, 19 Cal.App.4th 309, 318.)

However, this factor is not determinative. (See Allen, supra, 42 Cal.4th 91, 100 [statute did not set forth any penalty for untimeliness, but timing provision was still deemed mandatory].) The cases law focuses primarily on legislative intent as determined by the overall statutory scheme. (See, e.g., Allen, supra, 42 Cal.4th 91, 103-104; Pulcifer, supra, 29 Cal.2d 258, 262-263.)

“One of the express purposes of the [Long-Term Care] Act is the prompt issuance of civil sanctions against facilities that violate health and safety regulations.” (Waterman Convalescent Hospital, Inc. v. State Department of Health Services (2002) 101 Cal.App.4th 1433, 1439 [emphasis in original] [citing Health & Saf. Code, § 1417.1].) The Legislature’s intent that citations proceed expediently is plainly visible in provisions such as Health and Safety Code, section 1428, subdivision (i), which requires that court actions challenging citations “shall be set for trial at the earliest possible date”; that they “shall take precedence on the court calendar over all other cases except matters to which equal or superior precedence is specifically granted by law”; and that the court shall set deadlines in these cases “with the object of securing a decision as to subject matters at the earliest possible time.” (Health & Saf.

Code, § 1428, subd. (i).) The Legislature specified “relatively short time periods for the completion of all actions related to enforcement of the Act[,]” which “speak to the Legislature’s intent to ensure quick action.” (Waterman, supra, 101 Cal.App.4th 1433, 1439.) The statute does not qualify the 30-day timeline for service of a citation with any sort of “reasonable diligence” requirement and does not provide that substantial compliance with that timeline is sufficient.

• Either the 30-day time limit is mandatory, and citations must be served within 30 days of completion of the investigation or else be dismissed, • or the 30-day time limit is directory and the Legislature effectively allowed CDPH to cite facilities at its leisure, even many years after concluding an investigation.

The latter view of the statute is inconsistent with every indication of the Legislature’s intent. The Legislature clearly did not intend that anyone, be it a facility or CDPH, be permitted to delay in matters of enforcement of the Long-Term Care Act. (See Waterman, supra, 101 Cal.App.4th 1433, 1439.) Allowing CDPH an unlimited amount of time to serve a citation would undercut “the legislative purpose of collecting penalties and correcting violations quickly” (Waterman, supra, 101 Cal.App.4th 1433, 1439) and in turn the overriding purpose of the Long-Term Care Act: protecting patients. (See Waterman, supra, 101 Cal.App.4th 1433, 1440 [“Prompt resolution of alleged violations is critical to the DHS when the facility is in violation[.] . . . [It] promotes speedy rectification of deficiencies for the protection of long-term health-care patients, as well as the timely collection of appropriate fines.”].)

To the extent prejudice is appropriately considered in making the mandatory/directory determination, CDPH’s interpretation of the statute would prejudice facilities by creating circumstances in which, should they want to challenge a citation, they must do so years after the fact, when the allegations are stale and the testimony of those with knowledge of an incident is more difficult to obtain. (Compare Crane v. Board of Sup’rs of Los Angeles County (1936) 17 Cal.App.2d 360, 368 [statutory requirement “should be regarded as directory . . . when a failure of performance of such act will result in no injury or prejudice to the substantial rights of interested persons”].)

CDPH raises the concern that interpreting Section 1423(a)(2)(B) to be mandatory will allow facilities to escape accountability for violations. Whether a citation fails because of CDPH’s lack of compliance with Section 1423(a)(2)(B) is within CDPH’s control. The law decidedly

provides that if CDPH is going to issue a state citation to a licensee, it must serve that citation within 30 days after completing its investigation. (Health & Saf. Code, § 1423, subd. (a)(2)(B).) Code of Civil Procedure, section 437c, subdivision (h) permits a court to continue a motion for summary judgment to allow time for additional discovery under certain circumstances. The Court previously issued an order continuing Plaintiff’s motion for summary judgment. “If, after granting a continuance to allow specified additional discovery, the court determines that the party seeking summary judgment has unreasonably failed to allow the discovery to be conducted, the court shall grant a continuance to permit the discovery to go forward or deny the motion for summary judgment or summary adjudication.” (Code Civ.

Proc., § 437c, subd. (i).) CDPH asks the Court to deny Plaintiff’s motion for summary judgment on the basis that Plaintiff’s responses to CDPH’s post-continuance discovery efforts were evasive. Of the three discovery requests at issue, two relate to Plaintiff’s laches argument, which the Court did not reach. (See AMF No. 38.) The other one is a very generalized request that does not clearly seek information relevant to the facts that were dispositive to this motion. (Ibid.) CDPH has not disputed the facts that were dispositive to this motion – the timing of when it issued the citation relative to when it finished its investigation – and does not contend that it needs any more discovery on this topic.

C. Ruling

For the reasons so stated, the motion for summary judgment is GRANTED.

Parties must comply with Marin County Superior Court Local Rules, Rule 2.10(A), (B), which provides that if a party wants to present oral argument, the party must contact the Court at (415) 444- 7046 and all opposing parties by 4:00 p.m. the court day preceding the scheduled hearing. Notice may be by telephone or in person to all other parties that argument is being requested (i.e., it is not necessary to speak with counsel or parties directly.) Unless the Court and all parties have been notified of a request to present oral argument, no oral argument will be permitted except by order of the Court. In the event no party requests oral argument in accordance with Rule 2.10(B), the tentative ruling shall become the order of the court.

IT IS ORDERED that evidentiary hearings shall be in-person in Department L. For routine appearances, the parties may access Department L for video conference via a link on the court website. Kindly turn your camera on when your case is called and make sure the party or lawyer making the appearance is properly identified on the screen.

FURTHER ORDERED that the parties are responsible for ensuring that they have a good connection and that they are available for the hearing while using the virtual remote courtroom. If the connection is inadequate, the Court may proceed with the hearing in the party’s absence. If it is determined that you are diving your car during the hearing, you will be removed from the virtual courtroom. (Yes, this happens).