Demurrer (Judge Deborah C. Servino)


Defendants 1440 South Euclid Street LLC, AG Seal Beach LLC, and Cambridge Healthcare Services LLC’s demurrer to Plaintiff Lynda Poulter as successor in interest to Florence Gamble’s Complaint, is overruled.

Request for Judicial Notice

The court grants Defendants’ request to judicially notice the Exhibits A and C, the March 29, 2021 complaint in case no. 2021-01192188 and the notice of related case filed therein respectively. (Evid. Code, § 452, subd. (d).)

The request is denied as to Exhibit B, the Complaint in this case. It is unnecessary to ask the court to take judicial notice of materials previously filed in this case. “[A]ll that is necessary is to call the court’s attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 9.53.1a.)

Merits

First Cause of Action for Negligence

Defendants argue that this negligence claim is duplicative of a claim in Plaintiff’s 2021 lawsuit against the same Defendants for the same subject matter and thus should be dismissed in this action. Defendants cite no case to support this argument.

In contrast, a plea in abatement pursuant to Code of Civil Procedure section 430.10, subdivision (c), may be made by demurrer or answer when there is another action pending between the same parties on the same cause of action.”  (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 789 [emphasis in original].) This special demurrer lies only where the action is also pending in California. (Leadford v. Leadford (1992) 6 Cal.App.4th 571, 575.)  The identical cause of action must be involved in both suits, so that a judgment in the first action would be res judicata on the claim in the present lawsuit (claim preclusion). The identity of the “causes of action” is determined by a comparison of the facts alleged in each complaint. To be the same “cause of action,” each complaint must allege invasion of the same “primary right.” (Bush v. Superior Court (1992) 10 Cal.App.4th 1374, 1384.)

Here, Defendants do not make this argument but could assert such a defense in their answers.  They may also seek leave to amend if res judicata or claim preclusion become applicable. Thus, the demurrer as to the first cause of action is overruled.

Second Cause of Action for Violation of Residents Rights under Health & Safety Code § 1430, Subd. (b)

Plaintiff alleges that the Decedent’s last day at 1440 South Euclid Street, LLC (which she refers to in the Complaint as Facility 1) was in December 2020. (Compl., at ¶ 24). On December 12, 2020, the Decedent was admitted to AG Seal Beach, LLC (which she refers to in the Complaint as Facility 2). (Compl., at ¶ 32). She died on January 8, 2021, while still a resident of AG Seal Beach, LLC. (Compl., at ¶ 35.) The Complaint in this case was filed more than a year later on March 11, 2022. (ROA 2). Defendants argue that the second cause of action is barred by the one year statute of limitations under Code of Civil Procedure section 340, subdivision (a).

Plaintiff contends that the catch-all three-year statute of limitations under Code of Civil Procedure section 338 applies. The general rule, to the extent there is one, is that statutes that provide for recovery of an award in addition to the actual losses incurred by the plaintiff, such as double damages or treble damages, are considered penal in nature and governed by Code of Civil Procedure section 340, subdivisions (a) and (b). (TJX Cos. v. Superior Court (2008) 163 Cal.App.4th 80, 85.)  But the determination whether a statute is penal or remedial in nature “is rarely clear cut, for the same provision may be penal to the offender and remedial to the victim.” (MacManus v. A.E. Realty Partners (1983) 146 Cal.App.3d 275, 283, further appeal on other grounds.) Thus, the court must look to the intent and language of the statute in resolving the issue. (See e.g., Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1099-1100, 1103 [statute providing for “additional hour of pay” for failure to provide employee with meal or rest period described “wages,” rather than “penalty,” and thus was governed by three-year statute of limitations].)

The Long-Term Care, Health, Safety, and Security Act of 1973 (“Long-Term Care Act”; Health & Saf. Code, § 1417, et seq.) is a “detailed statutory scheme regulating the standard of care provided by skilled nursing facilities to their patients.” (Jarman v. HCR ManorCare, Inc. (2020) 10 Cal.5th 375, 383 [citing Kizer v. County of San Mateo (1991) 53 Cal.3d 139, 143].) The Long-Term Care Act establishes a citation system, an inspection and reporting system, and a provisional licensing mechanism, all of which the Department of Public Health (Department) is charged with administering. (Jarman v. HCR ManorCare, Inc., supra, 10 Cal.5th at p. 383.)  In 1982, the Legislature added subdivision (b) to Section 1430 allowing “skilled nursing facility residents themselves to bring actions to remedy violations of their rights rather than forcing them to depend upon the [Department] to take action.” (Id. at p. 385.)

The remedies under Section 1430, subdivision (b) are limited to $500 and injunctive relief. (Id. at pp. 388-392 [statutory damages in actions brought by current or former nursing care patients or residents against a skilled nursing facility or intermediate care facility for violation of any federal or state law or regulation are capped at $500].) The California Supreme Court determined that this limit was per action, not per regulatory violation.  (Id. at p. 392.)

After Jarman v. HCR Manor Care, Inc., the Legislature amended the statute. Section 1430, subdivision (b)(1) now provides in relevant part that:

(A) For violations that occurred prior to March 1, 2021, the licensee shall be liable for up to five hundred dollars ($500) and for costs and attorney’s fees, and may be enjoined from permitting the violation or violations to continue.

(B) For violations that occur on or after March 1, 2021, the licensee shall be liable for up to five hundred dollars ($500) for each violation, and for costs and attorney’s fees, and may be enjoined from permitting the violation or violations to continue.

Here, the alleged violation occurred prior to March of 2021.  Decedent died on January 8, 2021. (See generally Complaint.) Plaintiff is limited to $500 if she shows that Defendants violated any rights of the resident or patient as set forth in sections 72527 or 73523 of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation. (Health & Saf. Code, § 1430, subd. (b)(1)(A).)

The California Supreme Court clarified that while Section 1430, subdivision (a) may provide for damages, Section 1430, subdivision (b) does not. (Jarman v. HCR ManorCare, Inc., supra, 10 Cal.5th at p. 385.)  Here, the Supreme Court specifically held that the statute is remedial. Jarman concluded that “[a]lthough its authorization of civil penalties (see e.g., §§ 1424, 1424.5, 1425, 1428) has a ‘punitive or deterrent aspect,’ the Long-Term Care Act is nonetheless remedial and its central focus is “preventative.” (Id. at pp. 383–384 [citing Kizer v. County of San Mateo, supra, 53 Cal.3d at pp. 147–148], emphasis added.)  Thus, Section 1430, subdivision (b) is remedial and not punitive.  The three-year statute of limitations applies. (See Murphy v. Kenneth Cole Productions, Inc., supra, 40 Cal.4th at pp. 1099-1100.)  Plaintiffs’ second cause of action is not barred by the statute of limitations.

To the extent Defendants seek to attack Plaintiff’s demand for injunctive relief, it has not been properly brought in a demurrer.  (Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1561-1562.)  The demurrer as to this cause of action is overruled.

Within 15 days, Defendants shall file answers to the Complaint.

Plaintiff shall give notice of the ruling.