Judge: Curtis A. Kin, Case: 23STCP02700, Date: 2024-03-07 Tentative Ruling
Case Number: 23STCP02700 Hearing Date: March 7, 2024 Dept: 82
DEMURRER & MOTION TO STRIKE
Date: 3/7/24
(1:30 PM)
Case: Anberry Nursing and
Rehabilitation Center v. Tomas J. Aragon, MD, DrPH (23STCP02700)
TENTATIVE RULING:
Respondents Tomas J. Aragon, M.D., California Department of
Public Health, Michelle Baass, and California Department of Health Care
Services’ Demurrer to Amended Petition for Writ of Mandate is OVERRULED.
Respondents Tomas J. Aragon, M.D., California Department of
Public Health, Michelle Baass, and California Department of Health Care
Services’ Motion to Strike Portions of Amended Petition for Writ of Mandate is DENIED.
I.
DEMIRRER TO VERIFIED AMENDED PETITION
A.
Second Cause of Action: Writ of Mandate Pursuant to
CCP § 1085
A writ of mandate pursuant to Code of Civil Procedure
section 1085 is available when (1) the petitioner has “no plain, speedy, and
adequate alternative remedy;” (2) the respondent has “a clear, present and
usually ministerial duty to perform;” and (3) the petitioner has “a clear,
present and beneficial right to performance.” (Conlan v. Bonta (2002)
102 Cal.App.4th 745, 751-52.)
Respondents contend that CCP § 1085 is inapplicable to an
adjudicatory decision. However, petitioner can seek administrative mandamus
under CCP § 1094.5 and traditional mandamus in the same action. In Conlan v.
Bonta (2002) 102 Cal.App.4th 745, the petitioners were denied Medi-Cal
benefits after hearings. (Conlan, 102 Cal.App.4th at 748.) The Court of
Appeal held that petitioners could challenge the decision of the administrative
hearings pursuant to CCP § 1094.5. (Id. at 752.) In addition, because
petitioners contended the Department of Health Services “failed to act as
required by law in failing to establish procedures for direct reimbursement of
amounts owed recipients for covered services obtained prior to acceptance into
the Medi–Cal program,” the Court of Appeal held that CCP § 1094.5 did “not
preclude a broader challenge to agency conduct or procedures alleged to breach
the agency's statutory obligations” under CCP § 1085. (Ibid., citing Timmons
v. McMahon (1991) 235 Cal.App.3d 512.)
Petitioner Anberry Nursing and Rehabilitation Center alleges
that the California Department of Public Health (“CDPH”) enforced an
underground regulation pursuant to which skilled nursing facilities that had
been granted a staffing waiver of the minimum 3.5 direct care hours per patient
day under Health and Safety Code § 1276.65(c)(1)(B) still had to meet the 3.2
nursing hours per patient day (“NHPPD”) standard under Health and Safety Code §
1276.5(a). (FAP ¶¶ 6, 69, 73, 91, 112; see Naturist Action Com. v.
Department of Parks & Recreation (2009) 175 Cal.App.4th 1244, 1250 [“If
an agency adopts a regulation without complying with the APA requirements it is
deemed an ‘underground regulation’ (Cal.Code Regs., tit. 1, § 250) and is
invalid”].) Petitioner further alleges that, even if the 3.2 NHPPD requirement
applied, the CDPH also improperly relied on an All Facilities Letter (“AFL”) to
exclude from meeting that requirement nursing hours performed by nurse
assistants who were not participating in an approved training program. (FAP ¶¶ 7,
9, 80-83, 96, 97, 113.) Where a party challenges an “‘overarching,
quasi-legislative policy set by an administrative agency’ … rather than a
specific discretionary administrative decision,” the party may seek traditional
mandate relief under CCP § 1085. (Clovis Unified School Dist. v. Chiang
(2010) 188 Cal.App.4th 794, 809, quoting Californians
for Native Salmon etc. Assn. v. Department of Forestry (1990) 221
Cal.App.3d 1419, 1429.)
Here, petitioner challenges an administrative decision
upholding the imposition of a $25,000 penalty on it based on purported failure
to comply with staffing requirements. (FAP ¶¶ 11, 66, 101, 102 & Ex. A.) Petitioner
also contends that CDPH had and unwritten policy or underground regulation to apply
a 3.2 NHPPD standard, irrespective of whether the facility had an individual
waiver from the staffing requirements. (FAP ¶¶ 70, 73, 112.) In accordance with
Conlan and Clovis, under CCP § 1085, petitioner may challenge CDPH’s
purported underground regulation or policy of enforcing the 3.2 NHPPD standard against
facilities that had received a staffing waiver.
In opposing the demurrer, respondents argue there is no
policy or underground regulation to challenge under CCP § 1085, because
petitioner’s allegations of an underground regulation are contrary to law and
must therefore be disregarded on demurrer. (Demurrer at 12, citing V.C. v.
Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499, 506 [when
evaluating demurrer to the pleading “we may disregard allegations that are
contrary to law”].) More specifically, respondents
argue that the AFLs upon which the CDPH hearing officer relied are purportedly
statutorily exempt from the Administrative Procedures Act (“APA”), pursuant to Health
and Safety Code § 1276.66(d). (Demurrer at 13:2-7.) That is not
necessarily so. The hearing officer
relied upon AFL 20-21.1 and AFL 21-11, which were respectively enacted on June
26, 2020, and March 17 2021. (Pet. Ex. A
at 9 [Final Decision of CDPH Hearing Officer].)
Section 1276.66(d) became effective on January 1, 2023. (§ 1276.66(f).) Respondents fail to persuade at this juncture
that section 1276.66(d) should apply retroactively to exempt pre-existing AFLs
from the requirements of the APA. Therefore,
petitioners have sufficiently alleged underground regulations in the form of AFL
that did not comply with the requirements of the APA. (Gov. Code §§ 11340.5(a),
11350.)
Respondents also argue that the 3.2 NHPPD standard is not an
underground regulation because it is established by a statute (H&S §
1276.5(a)) and not an AFL. (Demurrer at 13:8-13.) This misunderstands petitioner’s
contention. Petitioner does not
challenge the 3.2 NHPPD standard set forth in section 1276.5(a) itself. Rather, petitioner challenges CDPH’s
application of an AFL to impose the 3.2 NHPPD requirement, even though
petitioner had obtained a staffing waiver. (FAP ¶¶ 2, 5, 6, 52, 54, 85, 90.) As
alleged by petitioner, AFL 21-11 cannot impose a 3.2 NHPPD standard, because it
refers to a 3.2 direct care hours per patient day (“DHPPD”) standard and says
nothing about 3.2 NHPPD requirements. (FAP ¶ 90.) Section 1276.5, by contrast,
imposes a 3.2 NHPPD requirement, not a 3.2 DHPPD requirement. (FAP ¶ 91.) Further, petitioner alleges that AFL 21-11
cannot be enforced against it in any event, because the guidance in AFL 21-11 was
issued on March 17, 2021, after the audit period. (FAP ¶¶ 85, 96.)
Based on the foregoing allegations, petitioner sufficiently
alleges that CDPH failed to act as required by law in having implemented a
policy or practice that reads participation in an approved training program as
a requirement for hours to count in a calculation of a facility’s NHPPD. (FAP ¶
95.) Petitioner also sufficiently alleges that CDPH failed to act as required
by law by retroactively applying AFL 21-11 toward the audit period. (FAP ¶ 96.)
Petitioner states a cause of action for CCP § 1085 writ relief.
Respondents also rely on Woods v. Superior Court (1981)
28 Cal.3d 668, where the city declared that certain apartments were
uninhabitable and required the tenants to vacate. (Woods, 28 Cal.3d at 672.)
The tenants applied to the county department of social welfare for relocation
benefits. (Ibid.) After an administrative hearing, where the tenants
presented testimony and arguments, the director of social services denied the
tenants’ claims on the ground that housing relocation funds were unauthorized
by departmental regulations. (Ibid.) The tenants sought a writ of
mandamus pursuant to CCP § 1094.5. The director demurred to the petition, contending
that the proper method to review the validity of a departmental regulation was
traditional mandamus under CCP § 1085 or declaratory relief under CCP § 1060. (Id.
at 672-73.)
The California Supreme Court held that, under CCP § 1094.5,
the tenants may seek review of the denial of their applications for benefits
while challenging the validity of the departmental regulations at the same
time. (Woods, 28 Cal.3d at 677-78.) Even though the validity of
administrative regulations was at issue, the tenants’ claims were denied in an
adjudicatory hearing, where a rule was applied to a specific set of facts. (Id.
at 676.) The high court held that, under CCP § 1094.5, the trial court may find
an abuse of discretion if the director applied invalid regulations to the
tenants. (Id. at 678; see also Verdugo Hills Hospital, Inc. v.
Department of Health (1979) 88 Cal.App.3d 957, 962-63 [finding that in
administrative mandamus proceeding, “validity of an administrative regulation,
in whole or in part, as applied to a petitioner in an administrative mandamus
proceeding, may be challenged therein by that petitioner where the basis of the
challenge is that the regulation or some portion thereof is not a reasonable
interpretation of the statute ... and is therefore void”].)
Woods is not dispositive here. In Woods, the statutory scheme at
issue allowed for presentation of questions of law before the agency and review
of the agency’s decision pursuant to CCP § 1094.5. (Woods, 28
Cal.3d at 674-75 [Welfare and Institutions Code § 10950 requires “fair
hearing,” where legal issues can be raised, for appeal of application for
public social services; Welfare and Institutions Code § 10962 allows for
judicial review of final decision, including questions of law, under CCP §
1094.5].) Here, by contrast, petitioner alleges that it was barred from raising
disputes of law, including whether CDPH could exclude nursing assistant hours
from the calculation of NHPPD, during the administrative hearing pursuant to
AFL 22-08. (FAP ¶¶ 45, 61, 115 & Ex. F at 3.) Further, the statutes
governing petitioner’s staffing do not explicitly provide for review under CCP
§ 1094.5. Because, during the administrative hearing, petitioner could not
dispute the legality of imposition of a 3.2 NHPPD standard despite a staffing
waiver, Woods is inapplicable as alleged. Petitioner is not limited to
CCP § 1094.5 in challenging the imposition of a 3.2 NHPPD standard.
The demurrer to the second cause of action is OVERRULED.
B.
Third Cause of Action: Declaratory Relief Pursuant to
CCP § 1060
Respondents demur to the third cause of action for
declaratory relief on the ground that such relief is not available for review
of an administrative decision. (See Pacific Coast Medical Enterprises v.
Department of Benefit Payments (1983) 140 Cal.App.3d 197, 203-04 [finding
that writ of mandate pursuant to CCP § 1094.5, not declaratory relief, is
appropriate vehicle of review of adjudicatory decision made by agency]; City
of Pasadena v. Cohen (2014) 228 Cal.App.4th 1461, 1467 [“Declaratory relief
also cannot be joined with a writ of mandate reviewing an administrative
determination”]; Department of Health Care Services v. Office of
Administrative Hearings (2016) 6 Cal.App.5th 120, 155-56 [“[W]hile
declaratory relief is appropriate to establish rights between parties ‘in cases
of actual controversy’ (Code Civ. Proc., § 1060), it is not an appropriate
means to obtain judicial review of an administrative decision”].)
However, under Native Salmon, declaratory relief is
available because an actual controversy exists concerning the enforcement of
the 3.2 NHPPD staffing requirement despite the issuance of a staffing waiver
and CDPH’s interpretation and application of statutes concerning nursing hours
and direct care hours. The Court of Appeal in Native Salmon found that
declaratory relief was available because the appellants “challenge[d] not a
specific order or decision, or even a series thereof, but an overarching,
quasi-legislative policy set by an administrative agency.” (Native Salmon,
221 Cal.App.3d at 1429.) Here, petitioner challenges not only the administrative
decision but also the policy of imposing a 3.2 NHPPD standard, despite the
granting of a staffing waiver, as an underground regulation. (FAP ¶¶ 73,
77-80.) Petitioner has alleged an actual controversy over a quasi-legislative
policy.
The demurrer to the third cause of action is OVERRULED.
II.
MOTION TO STRIKE PORTIONS OF VERIFIED AMENDED
COMPLAINT
Respondents move to strike paragraphs and certain words in
paragraphs 13, 24, 30, 44, 47, 48, 59-65, 69-71, 80, 89-95, and 97 to the
extent that they are incorporated into the first cause of action. Respondents
contend that, with respect to the demurrer to the initially filed Petition, the
Court only granted leave to amend as to the second and third causes of action. Respondents
point out that paragraph 98 incorporates the newly added paragraphs into the
first cause of action.
Under CCP § 436, the Court has discretion to strike
irrelevant, false, or improper matter in a pleading, or parts of a pleading
that do not conform with the laws of California. (CCP § 436 [“The court may,
upon a motion made pursuant to Section 435, or at any time in its discretion,
and upon terms it deems proper . . . .”].) Here, the Court exercises this
discretion and declines to strike the paragraphs specified in the notice of
motion. The paragraphs challenged by respondents are relevant background information
pertaining to the administrative proceedings.
The motion to strike is DENIED.