Judge: Jon R. Takasugi, Case: 22STCV02519, Date: 2022-07-25 Tentative Ruling

Case Number: 22STCV02519    Hearing Date: July 25, 2022    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s motion to quash service of summons and dismiss this action is GRANTED.

On 1/21/2022, Plaintiff Washington Enterprises III, LLC dba St. Andrews Healthcare (Plaintiff) filed an action against the State of California, the Health and Human Services Agency, and the Department of Public Health to dismiss a citation and proposed assessment of civil penalties.

Now, Defendant California Department of Public Health (Defendant) moves to quash service of summons and complaint and to dismiss this action against it.

Discussion

            Defendant argues that Plaintiff’s Complaint is properly quashed and dismissed because Plaintiff failed to timely serve the summons and Complaint within 90 days of filing.

The Long-Term Care, Health, Safety, and Security Act of 1973 (Long-Term Care Act) (Health & Saf. Code, § 1417, et seq.) authorizes the Department to inspect skilled nursing facilities for compliance with statutes and regulations on patient care and to issue citations to noncomplying facilities. (§§ 1421, 1423.) The Long-Term Care Act serves to ensure that skilled nursing facilities “provide safe and secure environments for residents,” and that such facilities “have the highest quality of care possible.” (Stats. 2000, ch. 451, § 1, subd. (b).)

When the Department observes a violation of a statute or regulation, it issues a citation to the facility. (§ 1423.) Citations are classified according to the seriousness of the violation, with Class “AA” and Class “A” being the most serious. (§§ 1424, 1424.5.)

Licensees may appeal Class “AA” and “A” citations by filing a civil action in the Superior Court. (§ 1428, subd. (b).) Section 1428, subdivision (b), requires, among other things, that “[i]n order to perfect a judicial appeal of a contested citation, a licensee shall file a civil action,” which “shall be filed no later than 90 calendar days after a licensee notifies the director that he or she intends to contest the citation, and served no later than 90 days after filing.” (§ 1428, subd. (b), italics added.)

Here, Plaintiff filed its Complaint seeking judicial review and dismissal of Citation No. 91-44234-0017022-S in accordance with Health and Safety Code section 1428. (See Complaint, Exh. A.) Plaintiff also satisfied the first requirement of section 1428, subdivision (b), by filing its Complaint on January 21, 2022, which was within 90 days of notice of intent to adjudicate the citation. (Ibid.)

However, Plaintiff failed to meet the second requirement that it serve its complaint on the Defendant within 90 days after filing the Complaint because it served its Complaint after April 21, 2022. (See Exh. B.)

The requirement to file and serve the summons and complaint within the specified time limits under section 1428 are jurisdictional and require dismissal when a licensee fails to comply. In Demchuk v. State Dept. of Health Services (1991) 4 Cal.App.4th Supp. 1, the court held that dismissal is mandatory when a facility fails to meet the statutory service deadline. In that case, the nursing home filed a complaint to contest a citation, but failed to comply with the service deadline which was 60 days at that time. (Demchuk, supra, 4 Cal.App.4th Supp. 1 at pp. 3-4.) The facility sought judicial relief from missing the service deadline. (Id. at p. 4.) The court affirmed the dismissal of the case, finding that judicial relief was not permitted. (Id. at p. 5.)

In opposition, Plaintiff argues that it is entitled to estoppel or relief due to mistake  or excusable neglect. However, estoppel is unavailable because there was nothing the Defendant did that Plaintiff relied upon to delay its attempts at service. Relief is similarly unavailable because, as noted by Defendant in reply, the legislature expressly such provisions from Health and Safety Code section 1428. Moreover, even assuming such relief was available, Plaintiff  has not made an adequate showing of mistake or excusable neglect. As Defendant noted in reply:

The Department posted on its building doors and on its website the acceptable methods for service of summonses and complaints since the beginning of the pandemic. (See Exhs. C-E.) Plaintiff’s counsel’s declaration demonstrates that he knew, and certainly should have known, about those alternative available means for service on the Department, yet he opted to delay and attempt personal service through his attorney service, and despite the admitted importance, failed to follow-up with his attorney service as to the status of service. Likewise, because the Department was amenable to service, service was not “impossible, impracticable, or futile due to causes beyond the plaintiff’s control.” (Opp., pp. 8:11-9:7, relying on Code Civ. Proc., 583.240, subds. (a) and (d).) Finally, plaintiff’s counsel’s declaration, along with the attached reply exhibits, establish that counsel, and therefore St. Andrews, was well aware of the Department’s instructions on how to serve the Department with summons and complaints as far back as mid to late 2020, and that St. Andrews was more than capable of mailing or emailing the summons and complaint to the Department within 90-days after filing its complaint. As such, there is no basis for mistake or excusable neglect, even if such relief was available, which it is not

(Reply, 3: 1-14.)

            For the reasons set forth above, the Court finds dismissal required here.

            Based on the foregoing, Defendant’s motion to quash service of summons and dismiss this action is granted.

It is so ordered.

Dated:  July    , 2022

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

            Due to Covid-19, the court is strongly discouraging in-person appearances.  Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk.  The court encourages the parties wishing to argue to appear via L.A. Court Connect.  For more information, please contact the court clerk at (213) 633-0517.  Your understanding during these difficult times is appreciated.