I.
INTRODUCTION
Appellants Cameron Shuts and Gary Sterling represent a putative class of former and current residents of 16 separately licensed skilled nursing facilities that are in the business of providing long-term, 24-hour care for the elderly and disabled (hereafter plaintiffs).
Plaintiffs alleged that the inadequacy of the staffing levels at Covenant’s facilities was demonstrated by its noncompliance with the statutory mandate that a skilled nursing facility maintain a minimum numeric ratio of 3.2 nursing hours per patient per day (NHPPD). (See § 1276.5, subd. (a).) Covenant filed a demurrer, urging the court to dismiss this dispute because a skilled nursing facility’s obligation to provide its residents care at a level of 3.2 NHPPD is not enforceable by a private right of action. It argued that
In the published portion of this opinion we first conclude that while section 1276.5, subdivision (a), may not create a private right of action, section 1430, subdivision (b) does, thereby allowing plaintiffs to sue under this latter statute for a violation of section 1276.5, subdivision (a). As to the court’s invocation of the abstention doctrine, at this stage of the proceedings, it is not clear that adjudicating plaintiffs’ claims “would require a trial court to assume the functions of an administrative agency, or to interfere with the functions of an administrative agency. [Citations.]” (Alvarado v. Selma Convalescent Hospital (2007)
II.
FACTS AND PROCEDURAL HISTORY
The crux of plaintiffs’ FAC was their allegation that Covenant had a “duty under California law to provide sufficient nursing staff and related services.” Notwithstanding this duty, plaintiffs claimed that Covenant “persisted in [its] practice of understaffing their skilled nursing facilities throughout the Class Period,” which plaintiffs defined as December 15, 2006, through December 16, 2010. Plaintiffs alleged that Covenant’s “pattern and practice of systematically understaffing their facilities violates California law . . . .”
As noted, plaintiffs asserted three causes of action. The first cause of action was based on section 1430, subdivision (b), which authorizes a “current or former resident or patient of a skilled nursing facility” to “bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patients Bill of Rights ... or any other right provided for by federal or state law or regulation.” Section 1430, subdivision (b) authorizes statutory damages, attorney fees, and injunctive relief. It provides that “[t]he licensee shall be liable for up to five hundred
Plaintiffs’ section 1430, subdivision (b) claim is based on Covenant’s alleged violation of several provisions of state law, including the violation of plaintiffs’ right to reside in a facility that employs an “adequate number of qualified personnel,” as provided in the “Skilled Nursing and Immediate Care Facility Patient’s Bill of Rights” (§ 1599.1, subd. (a); see Cal. Code Regs., tit. 22, § 72527, subd. (a)(25)) (Patient’s Bill of Rights). Plaintiffs assert that in order to satisfy this obligation, Covenant must provide at least 3.2 NHPPD, the minimum number of actual nursing hours per patient required in a skilled nursing facility.
The allegations of the first cause of action also supported plaintiffs’ second and third causes of action based on violations of the UCL (Bus. & Prof. Code, § 17200 et seq.) and the CLRA (Civ. Code, § 1750 et seq.). As part of these two additional causes of action, plaintiffs claimed that the understaffing was systematically concealed and misrepresented to members of the general public, including plaintiffs and their families.
Plaintiffs purported to bring these claims on behalf of themselves and a putative class comprised of all persons who resided in one of Covenant’s facilities for “at least one day during which the respective facility did not provide at least 3.2 hours of direct nursing care per patient day.” Plaintiffs sought injunctive relief as well as statutory damages, restitution, and attorney fees. The FAC expressly disclaimed any intention to “seek damages for personal injuries, wrongful death or other resident-specific harm that may have been caused by inadequate staff.”
Covenant filed a demurrer. Covenant argued that each cause of action alleged in plaintiffs’ lawsuit was premised on a theory of noncompliance with the 3.2 NHPPD standard set out in section 1276.5, subdivision (a)—a
The trial court agreed with Covenant’s arguments and dismissed plaintiffs’ entire case without leave to amend on both grounds. The court’s judgment of dismissal was filed on June 13, 2011. This appeal followed.
III.
DISCUSSION
A. Standard of Review
As this division held in Paragon Real Estate Group of San Francisco, Inc. v. Hansen (2009) 178 Cal.App.4th 177 [
Plaintiffs suggest that this court should apply a de novo standard of review to the superior court’s discretionary dismissal under the equitable abstention doctrine. Normally, this court reviews a trial court’s exercise of its discretion to abstain from deciding a plaintiffs’ claims only for abuse of that discretion. (Klein v. Chevron U.S.A., Inc. (2012)
We emphasize the limited scope of the issues before us on appeal. Based on arguments made by Covenant in its demurrer, the trial court dismissed plaintiffs’ lawsuit without leave to amend based on two independent grounds: (1) no private right of action was created by section 1276.5, subdivision (a), to enforce the statute’s 3.2 NHPPD minimum staffing requirements and (2) the court found it “proper to exercise its discretion and abstain from adjudicating this alleged controversy.”
Given the bases for the court’s dismissal of plaintiffs’ FAC, we emphasize at the outset that we do not intend to decide whether the complaint fails to allege facts sufficient to state a cause of action for reasons that were not raised in Covenant’s demurrer or decided by the trial court. (See City of Industry v. City of Fillmore (2011)
B. Plaintiffs’ First Cause of Action Under Section 1430, Subdivision (b)
In support of its demurrer to plaintiffs’ first cause of action, Covenant relied heavily on Alvarado, supra,
On appeal, the Alvarado court generally held that courts have the discretion to abstain from providing equitable relief, such as restitution and injunctions, in cases requiring them to assume or interfere with an administrative agency’s function or to take on an unnecessary burden in monitoring or enforcing injunctive relief, where other, more effective remedies exist. (Alvarado, supra, 153 Cal.App.4th at pp. 1297-1298.) Thus, in Alvarado, the trial court acted within its discretion in abstaining from adjudicating the case because CDPH’s predecessor agency “has the power, expertise and statutory mandate to regulate and enforce” the 3.2 NHPPD staffing requirement set out in section 1276.5, subdivision (a). (
The trial court in this case acknowledged “that section 1430(b) creates a private right of action and that Plaintiffs have alleged statutory damages in connection with this claim.” However, the court indicated it was “not persuaded that Plaintiffs state[d] such a claim because the claim is still, as acknowledged by Plaintiffs, based in part on [the 3.2 NHPPD requirement imposed by] Health and Safety Code section 1276.5. In looking at the statute, it seems clear that the Legislature did not intend to create a private cause of action under section 1276.5. . . .” The court concluded that “despite Plaintiffs’ attempt to frame their claim under section 1430(b), the Court finds this claim fails because Plaintiffs cannot allege a private right of action based on a statute for which the Legislature did not intend to create one.”
In arguing that the court erred in sustaining Covenant’s demurrer, plaintiffs emphasize that their first cause of action was based on the private right of action created by section 1430, subdivision (b), a statute which was never invoked by the plaintiffs in Alvarado nor discussed in that opinion. Plaintiffs point out that by enacting section 1430, subdivision (b), the Legislature has specifically armed residents of skilled nursing facilities with a private right of action for violations of the Patient’s Bill of Rights, including the right to reside in a facility that “employ[s] an adequate number of qualified personnel to carry out all of the functions of the facility.” (§ 1599.1, subd. (a); see Cal. Code Regs., tit. 22, § 72527, subd. (a)(25).) Consequently, plaintiffs argue Alvarado is not dispositive of the issues on appeal, and does not deserve the great weight that the trial court placed upon it.
On this point we find Wehlage v. EmpRes Healthcare, Inc. (N.D.Cal. 2011)
The Wehlage court rejected the argument (made by Covenant in this case and found persuasive by the trial court) “that Plaintiff’s section 1430(b) claim ... to the extent it is based on allegations that [the skilled nursing facilities] violated section 1276.5(a)’s minimum staffing requirement, should be dismissed” because section 1276.5, subdivision (a) “does not provide a right of action under state law . . . .” (Wehlage, supra,
We agree with this analytical framework. As Wehlage makes clear, in order to bring a cause of action as provided by section 1430, subdivision (b), it is not necessary to demonstrate that the substantive statute or regulation being enforced—in this case section 1276.5, subdivision (a)—was itself intended to confer a private right of action; and the trial court erred in concluding otherwise. (Klein, supra,
Covenant argues that “the Legislature did not intend the nurse staffing mínimums set forth in [s]ection 1276.5[, subdivision ](a) to be among the rights enforceable under [s]ection 1430[, subdivision ](b)” because section 1276.5, subdivision (a) has “an aggregate, facility-wide focus” as opposed to an individual focus. This argument ignores the fact that section 1430, subdivision (b) authorizes plaintiffs to assert violations of rights conferred upon them by the Patient’s Bill of Rights in a civil action, many of which are expressed as aggregate, facility-wide obligations. (See, e.g., § 1599.1, subds. (a) [facility shall employ adequate staff], (c) [facility shall provide appropriate food], (d) [facility shall provide activity program], (e) [facility shall be clean], (f) [facility shall provide operating nurses’ call system].) Consequently, we are not concerned that the 3.2 NHPPD minimum staffing
The Wehlage court also considered and rejected Covenant’s alternate argument that abstention was appropriate because plaintiffs have asserted claims involving complex issues that only CDPH has the expertise to address. We agree with the assessment in Wehlage, supra,
To be sure, courts are hesitant to intervene in the absence of any legislative or regulatory guidance when a plaintiff essentially is asking the court to make an economic or policy judgment. (See, e.g., California Grocers Assn. v. Bank of America (1994)
Section 1276.5, subdivision (a) speaks in terms that are clearly mandatory, and states that notwithstanding “any other provision of law, commencing January 1, 2000, the minimum number of actual nursing hours per patient required in a skilled nursing facility shall be 3.2 hours . . . .” Consequently, the Legislature already has made the necessary policy judgment that is relevant to plaintiffs’ claims; and a skilled nursing facility’s obligation under section 1276.5, subdivision (a) is sufficiently specific for a court to competently determine whether such statutory guidance is being followed. (McKell v. Washington Mutual, Inc. (2006)
In upholding the use of the abstention doctrine, the Alvarado court concluded that compliance with the 3.2 NHPPD minimum staffing standard would require the court to make a series of factual findings that would be a “task better accomplished by an administrative agency than by trial courts.” (Alvarado, supra,
Importantly, since Alvarado was decided in 2007, the CDPH has made significant progress in providing administrative guidance on the 3.2 NHPPD standard, and how it should be calculated.
We note this will not be the first time courts have been called upon to adjudicate whether skilled nursing facilities have violated applicable staffing standards. In Conservatorship of Gregory (2000)
Here, the trial court clearly believed the proper recourse for residents of an understaffed skilled nursing facility was to seek “appropriate writ relief ... to compel the Department of Health Services to enforce section 1276.5.” Along these same lines, Covenant proposes that we stay plaintiffs’ action under the doctrine of primary jurisdiction for the purpose of allowing CDPH to decide whether Covenant is meeting the 3.2 NHPPD standard; and if a violation is found, CDPH can impose administrative penalties. (See Wolfe v. State Farm Fire & Casualty Ins. Co. (1996)
However, by enacting section 1430, subdivision (b), the Legislature specifically authorized skilled nursing facility residents themselves to bring
We also find it significant that when the Legislature amended section 1430, subdivision (b) in 2004, it expanded rather than narrowed the scope of the legislation to allow a private right to sue for damages, not just for a violation of the Patient’s Bill of Rights, but for a violation of “any other right provided for by federal or state law or regulation.” (Stats. 2004, ch. 270, § 2, pp. 3138-3139; see Fitzhugh, supra,
Furthermore, because the Legislature has made the remedies prescribed by section 1430, subdivision (b) cumulative to “any other remedy provided by law,” (id., subd. (c)) the arguments made by Covenant forewarning of the problems created by parallel private and administrative enforcement of the law—i.e., inconsistent rulings on calculating the 3.2 NHPPD standard and duplicative enforcement—have obviously been considered and rejected by our state lawmakers.
In any event, plaintiffs also note that unlike Alvarado, where the plaintiff solely sought equitable remedies under the UCL, their first cause of action seeks monetary damages and attorney fees, as well as equitable relief, as authorized by section 1430, subdivision (b).
In the end, given the “ ‘ “clear, understandable, unmistakable terms” ’ ” of section 1430, subdivision (b) indicating an intent to create a private right of action for violation of a current or former resident’s right to adequate staffing, our ultimate inquiry is simply one of reading and enforcing the statutory language. (Lu, supra,
C. Plaintiffs’ Second and Third Causes of Action under the UCL and CLRA
DISPOSITION
The judgment dismissing this action without leave to amend is reversed. The matter is remanded to the trial court for further proceedings consistent with this opinion. Costs on appeal are awarded to plaintiffs.
Reardon, J., and Rivera, J., concurred.
Respondents’ petition for review by the Supreme Court was denied November 14, 2012, S205528.
Notes
The first amended complaint indicates that Cameron Shuts brings this action in his capacity as “successor-in-interest and personal/Iegal representative” of Charles Shuts, deceased, a former resident of one of the skilled nursing facilities during the relevant time period. The other named plaintiff in the first amended complaint, Kent Sterling, is described as a conservatee and current resident of one of the skilled nursing facilities during the relevant time period, bringing this action by and through his conservator, Gary Sterling. We have adjusted the title used in this opinion in accordance with these undisputed facts and the corresponding relevant provisions of the California Style Manual.
Plaintiffs claim that the named defendants fit into two general categories: the licensees which purportedly own and operate the skilled nursing facilities, and the companies which own and control those licensees, directly or indirectly. Plaintiffs allege that there exists an “alter ego relationship between and among each of the Covenant Care Defendants” and “each of the acts attributable” to one facility “is also, as a matter of law, legally attributable” to all defendants.
All subsequent undesignated statutory references are to the Health and Safety Code.
Nursing hours, as used in section 1276.5, subdivision (a), is defined to mean “the number of hours of work performed per patient day by aides, nursing assistants, or orderlies plus two times the number of hours worked per patient day by registered nurses and licensed vocational nurses (except directors of nursing in facilities of 60 or larger capacity) . . . .” (§ 1276.5, subd. (b)(1).)
We have received numerous amicus curiae briefs to assist this court in deciding the issues presented by this appeal. Specifically, we have granted permission for the California Nurses Association, the AARP, the National Senior Citizens Law Center, and the California Association of Health Facilities to file amicus curiae briefs in support of-plaintiffs. We have also granted permission for EHC Management, LLC, and Beverly Healthcare-California, Inc., and related entities to file amicus curiae briefs in support of Covenant.
See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 507, pp. 571-572 [federal decisions on questions of state law can be persuasive authority].)
We consider the documents promulgated by the CDPH which were before the trial court when it made its ruling. In determining whether plaintiffs’ complaint plead a viable cause of action, we may “ ‘consider evidence outside the pleadings which the trial court considered without objection. [Citation.]’ [Citation.]” (Burnett v. Chimney Sweep (2004)
In fact, it is well settled that if a jury finds that a skilled nursing facility has violated applicable regulations, such determination entitles the plaintiff to a negligence per se jury instruction and it is an abuse of discretion for a trial court to refuse such an instruction. (See, e.g., Norman v. Life Care Centers of America, Inc. (2003)
Section 1430, subdivision (b), states in part: “The licensee shall be liable for up to five hundred dollars ($500), and for costs and attorney fees, and may be enjoined from permitting the violation to continue." In an argument raised for the first time on appeal, Covenant argues that the monetary relief provided by section 1430, subdivision (b) is, in reality, a civil penalty
See footnote, ante, page 609.