SAMUEL NEVARREZ, Plaintiff and Respondent, v. SAN MARINO SKILLED NURSING AND WELLNESS CENTRE, LLC, et al., Defendants and Appellants.
No. B235372
Second Dist., Div. Four
Nov. 4, 2013
221 Cal. App. 4th 102
Niddrie, Fish & Addams and Michael H. Fish for Defendant and Appellant San Marino Skilled Nursing and Wellness Centre, LLP.
Wilson Getty, William C. Wilson, Mary P. Miller; Boudreau Williams and Jon R. Williams for Defendant and Appellant Country Villa Service Corp.
Hooper, Lundy & Bookman, Mark E. Reagan, Scott J. Kiepen and Felicia Y Sze for California Association of Health Facilities as Amicus Curiae on behalf of Defendants and Appellants.
Manatt, Phelps & Phillips, Barry S. Landsberg, Joanna S. McCallum and Andrew H. Struve for Covenant Care California LLC as Amicus Curiae on behalf of Defendants and Appellants.
Moran Law, Michael F. Moran, Lisa Trinh Flint; Esner, Chang & Boyer, Stuart B. Esner, Andrew N. Chang and Holly N. Boyer for Plaintiff and Respondent.
McKenna Long & Aldridge, Charles A. Bird and Aaron T. Winn for AARP, California Advocates for Nursing Home Reform, Consumer Attorneys of California, Consumer Federation of California, Center for Medicare Advocacy, Inc., Congress of California Seniors and the National Senior Citizens Law Center as Amici Curiae on behalf of Plaintiff and Respondent.
OPINION
EPSTEIN, P. J.—San Marino Skilled Nursing and Wellness Centre, LLP (San Marino), and Country Villa Service Corp. (Country Villa) appeal from a judgment after a jury verdict in favor of Samuel Nevarrez1 on theories of negligence, elder abuse based on reckless neglect (
Country Villa operates nursing homes in California, including San Marino, a licensed nursing home. Country Villa and San Marino have a management contract for operation of the nursing home.
Nevarrez was 79 years old when he was admitted to San Marino for rehabilitation on March 13, 2009. He was alert, but had difficulty standing and walking and was at a high risk of falling. Between March 20 and April 24, Nevarrez fell nine times while at the nursing home. His falls usually occurred when he tried to get out of bed and go to the bathroom.
After the first fall, Nevarrez was assessed as having “[p]oor safety awareness/judgment,” “[u]nsteady/poor gait,” “attempt[ing] to function beyond ability,” and “climb[ing] out of bed/chair.” The recommended measures were “[b]ed in lowest position,” “[t]oileting program” (which required assisting Nevarrez with going to the bathroom every two hours or as needed), and “drug regimen review.”
Nevarrez fell a second time on April 4. He then was additionally assessed as being “forgetful,” “impulsive,” and poor at utilizing a safety device. It was recommended that his walker be kept within reach. After his third fall, on April 10, a lapbelt “self-release” and a bed alarm were added. Two days later, Nevarrez fell twice on the same day. A bedside commode with a urinal was
On April 19, Nevarrez fell for the sixth time. Padded pants were recommended, but he refused to wear them. It was noted he was “very adamant with transferring and ambulating without assistance.” The bedside commode was discontinued because Nevarrez refused to use it. After the seventh fall, on April 21, it was noted that Nevarrez was confused. A wheelchair alarm was added. He was to be monitored visually around the clock, but his room was not visible from the nurses’ station. Nevarrez reported he fell again on April 23. The existing interventions were continued.
About 1:00 a.m. on April 24, nurse De La Victoria and head nurse Cabral heard Nevarrez‘s bed alarm sound. By the time the nurses reached his room two minutes later, Nevarrez already was using the toilet. While nurse De La Victoria was shutting off the alarm, and head nurse Cabral stood in the doorway, Nevarrez lost his balance, hit his head on the wall, and fell. After this fall, he had to undergo brain surgery for a subdural hematoma, and later suffered a stroke. He was readmitted to San Marino between July and September 2009, and fell twice during his second stay at the facility.
In April 2010, Nevarrez filed a complaint alleging elder abuse under
The case went to trial on the first three causes of action, and in March 2011, the jury returned a special verdict. On the cause of action for violation of the Patients Bill of Rights, brought under
Several postverdict motions were filed. In April 2011, the court awarded Nevarrez $7,000 as “penalties” against San Marino ($500 for each of the 14 violations of
This timely appeal followed. Appellants have joined in each other‘s briefs.
DISCUSSION
I
A party is entitled to request that the jury be instructed correctly on any theory of the case that is supported by substantial evidence. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 (Soule).) An erroneous refusal to instruct the jury is reversible if it is probable that the error prejudicially affected the verdict. (Id. at p. 580.)
A. Clear and Convincing Evidence Instruction
The trial court instructed the jury with CACI No. 201 that “[c]ertain facts must be proved by clear and convincing evidence which is a higher burden of proof. This means that the party must persuade you that it is highly probable that the fact is true.” The court refused appellants’ proposed instruction, which read: “Clear and convincing evidence requires a finding of high probability that the evidence be so clear as to leave no substantial doubt; sufficiently strong as to command the unhesitating assent of every reasonable mind.” Appellants argue the trial court‘s refusal to give their proposed instruction was prejudicial error requiring reversal of the elder abuse verdict, to which the higher burden of proof applied. We disagree.
Specifically, appellants contend the phrase “highly probable that the fact is true” in CACI No. 201 is misleading and unnecessarily limited without the additional language they proposed. The additional language was derived from In re Angelia P. (1981) 28 Cal.3d 908, where the California Supreme Court explained: “‘Clear and convincing’ evidence requires a finding of high probability. This standard is not new. We described such a test, 80 years ago, as requiring that the evidence be “‘so clear as to leave no substantial doubt‘; ‘sufficiently strong to command the unhesitating assent of every reasonable mind.“’ [Citation.] It retains validity today.” (Id. at p. 919, italics added.) Appellants argue the trial court was
Courts have rejected similar arguments directed at BAJI No. 2.62, which defines clear and convincing proof as “evidence of such convincing force that it demonstrates, in contrast to opposing evidence, a high probability of the truth of the fact[s] for which it is offered as proof,” without the additional language from In re Angelia P., supra. (See People v. Mabini (2001) 92 Cal.App.4th 654, 662 (Mabini); Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1165; Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847-850 (Mattco Forge); Roberts v. Ford Aerospace & Communications Corp. (1990) 224 Cal.App.3d 793, 804.)
In Mabini, the court explained that, in the early 1990‘s, Division Three of this appellate district had criticized BAJI No. 2.62 in dicta. (Mabini, supra, 92 Cal.App.4th at p. 660, citing Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 332-333 & fn. 29; DuBarry Intemat., Inc. v. Southwest Forest Industries, Inc. (1991) 231 Cal.App.3d 552, 566; In re Marriage of Weaver (1990) 224 Cal.App.3d 478, 487, fn. 8.) In a two-to-one decision in Mattco Forge, supra, 52 Cal.App.4th 820, 849, Division Three changed its position, finding that the more stringent language of In re Angelia P., supra, 28 Cal.3d 908, would impose “a burden approaching the criminal burden, proof beyond a reasonable doubt.” In Mabini, at page 662, Division Six of our district agreed with this analysis, and so do we. Appellants’ reliance on the criticism of BAJI No. 2.62 that the majority in Mattco Forge disavowed is unwarranted.
As the Mabini court explained: “The key element of clear and convincing evidence is that it must establish a high probability of the existence of the disputed fact, greater than proof by a preponderance of the evidence. Our Supreme Court recognized the importance of this element in In re Angelia P., supra, 28 Cal.3d at page 919: “‘Clear and convincing’ evidence requires a finding of high probability.’ More recently, our Supreme Court stated, ‘Evidence of a charge is clear and convincing so long as there is a “high probability” that the charge is true. [Citations.]’ (Broadman v. Commission on Judicial Performance (1998) 18 Cal.4th 1079, 1090.) In support of its statement, the court cited In re Angelia P., supra, 28 Cal.3d at page 919, and BAJI No. 2.62. (Broadman v. Commission on Judicial Performance, supra, 18 Cal.4th at p. 1090.)” (Mabini, supra, 92 Cal.App.4th at p. 662.) The Mabini court concluded that “[w]ithout an additional mandate from the Supreme Court or the Legislature, BAJI No. 2.62 remains a correct instruction. [Citation.]” (Id. at p. 663, quoting Mattco Forge, supra, 52 Cal.App.4th at p. 849.)
B. Instructions on the Use of Restraints
Nevarrez argued at trial that he should have been restrained by a device fastening him to his bed or by the installation of side rails on the bed. The facility administrator testified that side rails are considered a restraint when used to prevent a person who can walk from getting out of bed. The interdisciplinary team which met after each of Nevarrez‘s falls considered side rails and other restraints inappropriate during his first stay at San Marino since he was competent and could walk independently. The attending physician testified he did not recommend restraints or side rails. He explained that restraints cause more problems than they solve, such as agitation and skin tears. Side rails increase the risk of injury for patients who are able to get over them and then fall from the higher level of the side rails rather than the level of the bed.4
Nevarrez‘s expert testified that restraints, such as padded side rails, should have been implemented during the first stay at San Marino, and the failure to do so, or to formally require a written refusal of a restraint, fell below the standard of care. There was conflicting evidence whether restraints were discussed with Nevarrez and his family and whether he or the family refused them. But it was undisputed that he did not sign the form to formally refuse a restraint.
Appellants’ special jury instructions Nos. 6 through 9 tracked the language of state regulations on the use of restraints. No. 6: “Restraints shall only be used with a written order of a licensed healthcare practitioner acting within the scope of his or her professional licensure.” (Former Cal. Admin. Code [now
The trial court rejected these instructions on the ground that the use-of-restraint regulations did not “rise to the level of law.” This was incorrect. A party may “base instructions on relevant state or federal regulations” since “[l]ike statutes, applicable regulations are a ‘factor to be considered by the jury in determining the reasonableness of the conduct in question.‘” (Conservatorship of Gregory (2000) 80 Cal.App.4th 514, 523.)
The court was correct to question whether all use-of-restraint regulations were relevant. Instruction No. 6, that restraints should be ordered by a physician, was relevant in light of the physician‘s refusal to order them during Nevarrez‘s first stay at the facility. But without any evidence of an emergency or of treatment requiring restraints, it is unclear why instruction No. 9 was relevant. Similarly unclear is the relevance of instruction No. 7, on acceptable forms of restraints, which does not list bed rails even though there was testimony that bed rails are considered a form of restraint. Appellants argue their “theory of defense was in particular the subject of” instruction No. 8, “[r]estraints of any type shall not be used . . . . as a substitute for more effective medical and nursing care, or for the convenience of staff.” While this language may be relevant, the proposed instruction quoted the full language of the regulation, which also prohibits the use of restraints as punishment. (
“‘Although a party is entitled to instructions on his theory of the case, if reasonably supported by the pleadings and the evidence, instructions must be properly selected and framed. The trial court is not required to give instructions which are not correct statements of the law or are incomplete or misleading.’ [Citation.]” (Conservatorship of Gregory, supra, 80 Cal.App.4th at p. 522.) Unlike Nevarrez‘s instructions on negligence per se, which incorporated particular regulations that appellants were claimed to have violated, appellants’ instructions were not properly framed as instructions on regulatory compliance. Limited as they were to the text of the use-of-restraint regulations, the proposed instructions were incomplete and misleading.
Respondent cites the proposition that, to be complete, instructions on regulatory compliance must make clear that such compliance is not a complete defense. (See Dragash v. Western Pac. R. R. Co. (1958) 161 Cal.App.2d 233, 241-242 [error to refuse plaintiff‘s instruction that defendant‘s statutory compliance is not complete defense]; Pennington v. Southern Pac. Co. (1956) 146 Cal.App.2d 605, 613 [same].) Appellants argue the cases show it was “incumbent upon” Nevarrez to seek clarifying instructions. That may have been the case had the court actually given appellants’ use-of-restraint instructions. (See Carrau v. Marvin Lumber & Cedar Co. (2001) 93 Cal.App.4th 281, 296-297 [objection or qualifying instruction required to avoid waiver when jury instruction incomplete].) But the court was not required to give the use-of-restraint instructions if they were incomplete, and the doctrine of waiver does not apply. The instruction that following a custom and practice does not excuse unreasonable conduct did not independently supply the missing element of appellants’ instructions, since customs and practices do not necessarily derive from statutes and regulations.
We conclude that the court did not err in rejecting appellants’ proposed jury instructions based on the use-of-restraint regulations. Some of the
II
Appellants argue the entire jury verdict was tainted by the erroneous admission into evidence of the citation issued by the DPH. We review a trial court‘s ruling on the admissibility of evidence for abuse of discretion. (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1111.) The error is reversible if it resulted in a miscarriage of justice. (Id. at p. 1114.)
A. Citation
San Marino self-reported Nevarrez‘s April 24, 2009 fall to the DPH, and a DPH investigator issued a class A citation and a statement of deficiencies on March 2, 2010. Under the Long-Term Care, Health, Safety, and Security Act of 1973 (
The citation included the nursing home‘s plan of correction, as well as the investigator‘s review of Nevarrez‘s records, three staff declarations, and an exit interview with the facility‘s administrator. It also included the investigator‘s conclusion that the April 24, 2009 fall could have been averted had staff answered Nevarrez‘s alarm right away and that it caused Nevarrez to sustain a subdural hematoma which required an emergency craniotomy and hospitalization.
B. Trial Court Proceedings
Nevarrez moved in limine to admit the citation into evidence. He argued it was admissible to establish negligence per se under Norman v. Life Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233 (Norman), and it fell within the exception to the hearsay rule for official records. (
At the hearing on the motions in limine, appellants’ counsel argued the DPH investigator‘s opinions and conclusions improperly encroached on the jury‘s role as a fact finder. The court noted it was “troubled by the admissibility of the actual citation” and intended to look into the issue further. It granted appellants’ motion in limine to preclude the parties’ experts from expressing opinions whether appellants violated any particular statute or regulation. The next day, the court granted Nevarrez‘s motion in limine to introduce the citation, ordering only that any hearsay statements within it be redacted. The court stated its ruling was consistent with Norman, supra, 107 Cal.App.4th 1233, where a DHS representative testified to his finding of violations at a nursing home. Appellants’ counsel questioned whether, under the court‘s ruling, the DPH investigator would be allowed to testify about his opinion that the violation of the federal regulation satisfied the requirement for a class A citation. The court responded it would “have to take that up . . . more in the context of the testimony.”
The court overruled the objection, ruling the citation admissible under
The citation was redacted to remove references to the three staff declarations. The plan of correction, the reference to the exit interview with the facility‘s administrator, and the investigator‘s opinions and conclusions were not redacted. The citation was referenced repeatedly during the examination of various witnesses, and was the cornerstone of the closing argument by Nevarrez‘s counsel. Counsel claimed generally: “[T]he state came in and investigated the facts, . . . [DPH] came in and conducted their investigation, exhibit one in this case is the class A citation. . . . Credibility of the evidence on liability or fault, we have the state‘s class A citation the highest citation that can be delivered against a nursing home in a live plaintiff. If the defense wanted to challenge that, this is the place to do it. Call witnesses, subpoena the investigator from DPH . . . [The] class A citation is an official document and it‘s just like we had somebody up there repeating it 20 times over . . . .”
Counsel argued the citation “already determined” there were violations of the Patients Bill of Rights. He also argued there was negligence per se “because of the class A and the deficiency.” The jury was given a negligence
In their motions for a new trial and judgment notwithstanding the verdict, appellants argued the citation did not meet the official record exception requirements in
C. Analysis
1. Abuse of Discretion
“‘A court abuses its discretion if its ruling is “so irrational or arbitrary that no reasonable person could agree with it.” [Citation.] A court‘s discretion also is limited by the applicable principles of law. [Citation.]” (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 187.)
In initially ruling that the citation was admissible, the court relied on Norman, supra, 107 Cal.App.4th 1233. That reliance was misplaced. Norman held the trial court in that case erred in refusing to give a negligence per se instruction when that instruction was supported by a DHS investigator‘s testimony that he found the defendant nursing home had violated certain regulations. (Id., at pp. 1243, 1247-1248.) The Norman court did not address the admissibility of the DHS investigator‘s testimony. A case is not authority for a proposition the court did not consider. (In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388.) Although the DHS investigator was allowed to testify to his conclusions, Norman does not render such testimony per se admissible. Similarly, in Sababin v. Superior
Respondent argues the citation is admissible under the official records exception. (
Respondent argues the trustworthiness of the citation was established by the custodian of records, and the statutory presumption that official duties are properly performed (
The most prejudicial parts of the citation were the investigator‘s conclusions and the plan of correction, since the rest was either redacted, cumulative to other evidence adduced at trial, or not hearsay. There was no justification for not ordering the plan of correction redacted. Under
As to the investigator‘s opinions and conclusions, appellants relied on Pruett v. Burr (1953) 118 Cal.App.2d 188, 201 to argue that “[n]otwithstanding the general mle that public records and reports are
The court admitted the citation on the assumption that the investigator‘s opinions were admissible because they were based on the investigator‘s own observations. This assumption was inconsistent with the court‘s ruling that the citation be redacted to remove any hearsay. That ruling indicated the investigator‘s opinions were not solely or primarily based on his own observations or on admissible hearsay.
The court assumed the investigator would have been allowed to testify to his opinions at trial. This assumption was inconsistent with the court‘s ruling that the parties’ experts could not testify whether a statute or regulation had been violated. Admissible expert opinion testimony is not objectionable just because it embraces the ultimate issue to be decided by the trier of fact. (See
In ruling that the parties’ experts could not testify that appellants violated any particular laws, the court apparently agreed that such testimony would be an improper legal conclusion and would interfere with the jury‘s function as fact finder. The correctness of this ruling has not been challenged. Whether or not the DPH investigator qualified as an expert witness, there would have been no rational basis for treating him any differently than the parties’ expert witnesses with respect to offering an opinion that San Marino violated the law.
Additionally, the admission of the class A citation created the risk that it would be used to establish not only that a regulation was violated for purposes of negligence per se, but to insinuate, as Nevarrez‘s counsel did, that appellants must be liable because “the state” issued San Marino “the highest citation that can be delivered against a nursing home,” short of a citation based on a resident‘s death. Appellants initially objected under
2. Prejudice
A miscarriage of justice occurs if, based on the entire record, including the evidence, it is reasonably probable the jury would have reached a result more favorable to appellants absent the error. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 [16 Cal.Rptr.3d 374, 94 P.3d 513].) ” ’ “[P]robability” in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.’ [Citation.]” (Ibid.)
Appellants argue the citation was used to establish their liability on all three causes of action. We examine the alleged prejudicial effect on each cause of action separately.
a. Violation of the Patients Bill of Rights
One alleged violation was of the right to be “free from mental and physical abuse.” (
Another alleged violation was of
The third alleged violation was of the right “[t]o receive all information that is material to an individual patient‘s decision concerning whether to accept or refuse any proposed treatment or procedure. The disclosure of material information for administration of physical restraints . . . shall include the disclosure of information listed in Section 72528(b).” (
There is no indication that the citation played any role in the jury‘s findings under the Patients Bill of Rights. The citation was not based on a violation of a right set forth in the Patients Bill of Rights, and the jury apparently rejected the invitation by Nevarrez‘s counsel to defer to the citation, relying instead on other evidence counsel highlighted in his closing argument. We find no prejudice under the circumstances. Since appellants do not challenge the jury verdict with regard to the Patients Bill of Rights on any other ground, we affirm that verdict.
b. Negligence
Under the negligence per se doctrine, negligence is presumed if “(1) [the defendant] violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to [the plaintiff]; (3) the death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and (4) the [plaintiff] . . . was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (
Each of the negligence per se instructions given in this case incorporated either a regulation or a statute that Nevarrez claimed appellants had violated. These included three state regulations and one state statute: “Each facility shall employ sufficient nursing staff to provide a minimum of 3.2 nursing hours per patient day” (
As to each negligence per se instruction, the jury was told: “If you decide that San Marino Skilled Nursing and/or Country Villa violated this law, and two, that the violation was a substantial factor in bringing about the harm, then you must find that San Marino Skilled Nursing and/or Country Villa was negligent unless you also find that the violation was excused. If you find that San Marino Skilled Nursing and/or Country Villa did not violate this law, or that the violation was not a substantial factor in bringing about the harm, or if you find the violation was excused, then you still must decide whether San Marino Skilled Nursing and/or Country Villa was negligent in light of the other instructions.”
In closing argument, Nevarrez‘s counsel referred the jury to the citation, arguing that DPH, which “has nurses and doctors” who work up, review and issue citations, already had found a regulatory violation, so that the “negligence issues have largely been determined for you.” Similarly, counsel argued DPH already had determined the issue of causation. The jury found appellants negligent, but the special verdict form does not indicate under what theory.
The DPH investigator‘s findings were that the facility failed to visually monitor Nevarrez around the clock, contrary to his care plan, and failed to respond to his personal alarm in a timely manner. These findings were not overwhelmingly supported by the evidence. Rather, the evidence was in dispute whether around-the-clock visual monitoring was part of Nevarrez‘s care plan at the time of his ninth fall, on April 24, 2009. The facility administrator testified visual monitoring was an unusual measure that was implemented for 24 hours after the April 21 fall. It was not listed among the intervention measures to be continued after the April 23 fall. Appellants’ expert testified that the standard of care did not require constant monitoring.
Also disputed was whether the nurses’ response on April 24 was inappropriate. Appellants’ expert testified the two-minute response by two staff members was prompt. Nurse De La Victoria testified Nevarrez already was using the toilet and appeared to be stable on his feet when staff arrived. The expert testified the decision not to approach “a male resident standing at the commode urinating” was “a nursing judgment.” The jury‘s ability to assess the credibility and weight to be given this testimony was compromised since it was told that, in the citation, “the state” already had determined the issue of negligence. As used by Nevarrez‘s counsel, the citation in essence shifted responsibility for decision on this issue to the state agency. (See Summers, supra, 69 Cal.App.4th 1155, 1182-1183 [witness‘s expression of general belief how case should be decided is inadmissible legal conclusion, of no value to trier of fact, and shifts responsibility for decision to witness].)
Of the other negligence per se theories, one was based on a violation of the right to be free from mental and physical abuse. (
We conclude the citation tainted the verdict on negligence, and we reverse that part of the verdict, along with the jury award of damages.8
c. Elder Abuse
“The Elder Abuse Act makes certain enhanced remedies available to a plaintiff who proves abuse of an elder, i.e., a ‘person residing in this state, 65 years of age or older.’ (
The jury found neglect and recklessness by clear and convincing evidence. Respondent argues the citation was merely cumulative and the jury verdict was overwhelmingly supported by other evidence. We agree with appellants that it begs the question why Nevarrez‘s counsel relied so heavily on the citation and urged the jury to do the same if the evidence were indeed overwhelming.
Respondent‘s claim that the facility never assisted Nevarrez on his trips to the bathroom is not supported by the record, which indicates that he was provided with “limited assists” on transfers from his bed “to the chair to the wheelchair to the toilet.” As we have discussed, the appropriateness of using restraints during Nevarrez‘s first stay at the facility was disputed, as was the promptness and appropriateness of the two nurses’ response on the night of his ninth fall. Whether the facility was understaffed also was disputed, as was the relevance of understaffing and other alleged violations, to Nevarrez‘s injury. As with negligence, a finding of causation was required for elder abuse, and Nevarrez‘s counsel argued to the jury that the DPH already had determined the issue of causation.
We conclude that the erroneous admission of the citation tainted the jury verdict on elder abuse, and we reverse that portion of the verdict.9 We also reverse the court‘s award of $952,142.50 in attorney fees. Although the court noted the award was authorized for violations of both the Elder Abuse Act (
III
At the outset we deal with respondent‘s argument that the excessiveness of the award is not an issue properly before us. It was raised as part of Country Villa‘s challenge that attorney fees were too high because they were based in part on the $7,000 award. Respondent contends Country Villa lacked standing to make that claim. Although Country Villa is not a named defendant in the
Respondent also contends the amount of attorney fees did not depend on the amount awarded under
A. The Language
Our statutory analysis begins with the plain language of the statute, and if that language is unambiguous, the inquiry ends there. (Pineda v. Bank of America, N.A. (2010) 50 Cal.4th 1389, 1394 [117 Cal.Rptr.3d 377, 241 P.3d 870].)
Appellants contend we should not read the phrase “per violation” into
B. Statutory Scheme
Section 1430 is part of the Long-Term Care Act, which also sets up the administrative enforcement scheme we discussed with regard to the class A citation issued in this case. Under that scheme, violations directly related to health, safety or security are class B violations. Those presenting imminent danger or substantial probability of death or serious injury are class A violations, which become class AA violations if they cause death. (
Thus, Indeed, it is a reason not to do so. When subdivision (b) was added to section 1430, administrative penalties were expressly to be assessed “for each and every violation.” (See Lackner, supra, 106 Cal.App.3d at p. 547.) The absence of this phrase from subdivision (b) supports the inference that the phrase was intentionally left out of that subdivision, especially in light of the regularity with which it appears in penalty provisions throughout the Health and Safety Code. The Long-Term Care Act provides a comprehensive scheme for the attainment of its objectives, including both public and private remedies. The fact that the private monetary remedy is not greater reflects a legislative choice with respect to that remedy, rather than a basis for a court to enhance the statutory scheme. As we shall discuss, the $500 monetary remedy is not the only and certainly not the costliest of the private remedies. The prevailing party also is entitled to attorney fees, which, depending on the case, may far exceed the amount paid to the plaintiff. The parties and amici curiae have asked us to take judicial notice of a large quantity of materials from the legislative record, which they claim With the exception of the minority analysis for the Assembly Committee on the Judiciary, no legislative history material on Senate Bill No. 1930 (1981-1982 Reg. Sess.) (Senate Bill No. 1930), which added subdivision (b) to section 1430, suggests that the $500 maximum was to be recovered per violation. (Compare Assem. Com. on Judiciary, Minority Analysis of Sen. Bill No. 1930 (1981-1982 Reg. Sess.) as amended Aug. 2, 1982, p. 1 [“For each violation the patient could recover a maximum of $500 plus attorney fees at cost.“] with Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1930 (1981-1982 Reg. Sess.) as amended Aug. 2, 1982, p. 1 [stating that in “action for damages,” licensee “would be liable for damages up to $500 and for costs and attorney fees“]; Legis. Counsel‘s Dig., Assem. Amend. to Sen. Bill No. 1930 (1981-1982 Reg. Sess.) Aug. 12, 1982, p. 1 [stating only that licensee was made liable for up to $500].) Respondent and the AARP amici curiae argue the enrolled bill report prepared by the California Department of Aging shows the amount recoverable under Senate Bill No. 1930 was unrestricted and could exceed the maximum for a class A violation. The California Department of Aging commented that the bill created “a more meaningful private right of action . . . by not restricting damages to the present amounts for ‘A’ or ‘B’ citations,” without specifying either of these amounts or the $500 limit in Senate Bill No. 1930. (Cal. Dept. of Aging, Enrolled Bill Rep. on Sen. Bill No. 1930 (1981-1982 Reg. Sess.) prepared for Governor Brown (Aug. 25, 1982) p. 1.) In contrast, the enrolled bill report by the Department of Legal Affairs specified that the licensee “would be liable for damages up to $500 and for costs and attorney fees.” (Dept. of Legal Affairs, Enrolled Bill Rep. on Sen. Bill No. 1930 (1981-1982 Reg. Sess.) prepared for Governor Brown (Aug. 30, 1982) p. 1.) To the extent that the California Department of Aging suggested recovery under Senate Bill No. 1930 could exceed the then $5,000 maximum for a class A violation, the suggestion was incorrect because the Respondent and the AARP amici curiae also rely on the Assembly Republican analysis of Assembly Bill No. 2791 (2003-2004 Reg. Sess.) (Assembly Bill No. 2791) to argue that in 2004 the Legislature rejected an increase of the $500 limit to $5,000 precisely because the increase was “per violation.” (See Assem. Com. on Health, Republican Analysis of Assem. Bill No. 2791 (2003-2004 Reg. Sess.) as amended Apr. 1, 2004, p. 1 [opposing increase from $500 to $5,000, as a 1,000 percent increase for each violation].) The analysis for the Assembly Committee on Health does not include the phrase “per violation.” (See Assem. Com. on Health, Republican Analysis of Assem. Bill No. 2791 (2003-2004 Reg. Sess.) as amended Apr. 1, 2004, p. 1 [characterizing $500 as “a licensee‘s maximum civil liability for resident rights violations“].) The legislative history of the 2004 bill does not show definitively that the Legislature rejected the increase because it was “per violation.” Even if it did, a legislative declaration of an existing statute‘s meaning is neither binding nor conclusive in construing the statute, especially “when a gulf of decades separates the two bodies.” (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 244 [62 Cal.Rptr.2d 243, 933 P.2d 507].) In determining the Legislature‘s intent, we also may consider the statute‘s purpose and public policy. (Cortez v. Abich (2011) 51 Cal.4th 285, 292 [120 Cal.Rptr.3d 520, 246 P.3d 603].) Respondent and the AARP amici curiae urge us to interpret The Long-Term Care Act provides an abundance of reasons for licensees not to transgress its health and safety objectives, and the additional private remedy in The “per violation” approach, as applied in a private action under Respondent and the AARP amici curiae‘s reliance on Gallamore v. Workers’ Comp. Appeals Bd. (1979) 23 Cal.3d 815, 823 [153 Cal.Rptr. 590, 591 P.2d 1242] and Davison v. Industrial Acc. Com. (1966) 241 Cal.App.2d 15, 18 [50 Cal.Rptr. 76] is misplaced. These cases authorized successive penalties for unreasonable delays in payment of workers’ compensation benefits, but only after notice. The administrative enforcement provisions of the Long-Term Care Act provide for notice. Under Appellants invite us to conclude that, under the primary rights theory, a single statutory cause of action arises regardless of the number of violations of the Patients Bill of Rights. They rely exclusively on Miller v. Collectors Universe, Inc. (2008) 159 Cal.App.4th 988 [72 Cal.Rptr.3d 194] (Miller). That case construed ” ‘Under the primary right theory, “a cause of action consists of 1) a primary right possessed by the plaintiff, 2) a corresponding primary duty devolving upon the defendant, and 3) a delict or wrong done by the defendant which consists in a breach of such primary right and duty. [Citation.] Thus, two actions constitute a single cause of action if they both affect the same primary right.” [Citation.]’ ” (Miller, supra, 159 Cal.App.4th at p. 1004.) The primary right theory is used to determine whether more than one cause of In Appellants also fail to identify the common primary right that may be at issue in all cases brought under We conclude that the $500 maximum in The judgment is affirmed solely as to the jury‘s verdict on the Patients Bill of Rights. In all other respects the judgment is reversed. The case is remanded to the trial court for further proceedings consistent with this opinion. Appellants are entitled to their costs on appeal. Willhite, J., and Suzukawa, J., concurred. Respondent‘s petition for review by the Supreme Court was denied February 11, 2014, S215327.C. Legislative History
D. Other Considerations