Judge: Katherine Chilton, Case: 21STLC07253, Date: 2023-02-21 Tentative Ruling

Case Number: 21STLC07253     Hearing Date: February 21, 2023    Dept: 25

PROCEEDINGS:      MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:   Defendant State of California, Health and Human Services Agency, Department of Public Health

RESP. PARTY:         Geri Care V, LLC

MOTION FOR SUMMARY JUDGMENT

(CCP § 437c)

TENTATIVE RULING:

Plaintiff State of California, Health and Human Services Agency, Department of Public Health’s Motion for Summary Judgment is GRANTED.

SERVICE: 

[X] Proof of Service Timely Filed (CRC 3.1300)             OK

[X] Correct Address (CCP 1013, 1013a)                                     OK

[X] 75/80 Day Lapse (CCP 12c and 1005 (b))                     OK

OPPOSITION:          Filed on February 7, 2023.                                    [   ] Late                      [   ] None

REPLY:                     Filed on February 14, 2023.                                    [   ] Late                      [   ] None

ANALYSIS:

I.                Background

On October 5 2021, Plaintiff Geri Care V, LLC, dba Wellsprings Post Acute Center (“Plaintiff”) filed an action against Defendant State of California, Health and Human Services Agency, Department of Public Health (“Defendant” or “Department”) to dismiss citation and proposed assessment of civil penalties pursuant to Health and Safety Code § 1417, et seq.

On February 9, 2022, Defendant filed a General Denial to the Complaint.

On July 19, 2022, Plaintiff’s Stipulation and Order for Protective Order was rejected for failure to submit a redline copy.  (7-19-22 Notice of Rejection.)

On November 29, 2022, Defendant filed a Motion for Summary Judgment (“Motion”).  Plaintiff filed an Opposition to the Motion (“Opposition”) on February 7, 2023, and Defendant filed a Reply to the Opposition (“Reply”) on February 14, 2023.

On January 17, 2023, Defendant filed a Notice of Related Case.  The Court found that the instant case and Case No. 22STLC07569 are related within the meaning of California Rules of Court, rule 3.300(a) and 21STLC07253 is the lead case.  (1-31-23 Minute Order.)

II.              Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law.  (Code Civ. Proc. § 437c(c).)  The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition.  (Villa v. McFerren (1995) 35 Cal.App.4th 733, 742-743.)  Thus, “the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519 (citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.).  When a defendant seeks summary judgment, he/she must produce admissible evidence showing “that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.”  (Code Civ. Proc., § 437c(p)(2).)  The moving party’s “affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts” and the courts must construe the evidence in support of the opposing party, resolving any doubts in favor of the opposing party.  (Hayman v. Block (1986) 176 Cal.App.3d 629, 639; Scalf, 128 Cal.App.4th at 1519; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden.  (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832, 840.)  Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial.  (Code Civ. Proc. § 437c(p).)  The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162.)  Summary judgment must be granted “if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden-shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute.  (Code Civ. Proc., § 437c(f)(1).)  “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (Ibid.)

III.            Discussion

Defendant seeks a court order granting summary judgment in its favor and against Plaintiff “on the grounds that there are no material issue of fact in dispute and defendant is entitled to judgment in its favor on all claims as a matter of law.”  (Mot. p. 2.)  Specifically, Defendant argues that the action is barred by the statute of limitations set forth in Health and Safety Code § 1428(b), which requires a complaint to be served within 90 days of filing.  (Ibid.)

            Health and Safety Code § 1428, states as follows:

(a)   If the licensee desires to contest a citation or the proposed assessment of a civil penalty therefor, the licensee shall use the processes described in subdivisions (b) and (c) for classes “AA,” “A,” or “B” citations.

(b) If a licensee intends to contest a class “AA” or a class “A” citation, the licensee shall inform the director in writing, within 15 business days of the service of the citation of the licensee's intent to adjudicate the validity of the citation in the superior court in the county in which the long-term health care facility is located. In order to perfect a judicial appeal of a contested citation, a licensee shall file a civil action in the superior court in the county in which the long-term health care facility is located. The action 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 not later than 90 days after filing. Notwithstanding any other provision of law, a licensee prosecuting a judicial appeal shall file and serve a case management statement pursuant to Rule 212 of the California Rules of Court within six months after the department files its answer in the appeal. Notwithstanding subdivision (d), the court shall dismiss the appeal upon motion of the department if the case management statement is not filed by the licensee within the period specified. The court may affirm, modify, or dismiss the citation, the level of the citation, or the amount of the proposed assessment of the civil penalty.

Defendant has submitted the declaration of Gregory A. Schnitzer, Deputy Attorney General with the California Office of the Attorney General, and counsel for Defendant in the instant case.  (Schnitzer Decl. ¶ 1.)  The declaration does not provide any evidence in support of the Motion; however, it contains an attachment of the Complaint in this case.  (Ibid. at ¶ 2, Ex. A.)  The Complaint was filed on October 5, 2021.

Defendant has also submitted a declaration from Samantha Bibel, Senior Legal Analyst at the California Department of Public Health’s Office of Legal Services.  (Bibel Decl. ¶ 1.)  As Attorney of the Day (“AOD”) on January 18, 2022, Bibel was responsible for monitoring the Department’s email box.  (Ibid. at ¶ 3.)  On that day, she saw an email from Thomas Collins, Esq., sent on Sunday, January 16, 2022, with an attached summons and complaint initiating a lawsuit by Geri Care V, LLC against Defendant.  (Ibid. at ¶¶ 3, 5, Ex. B.)  In accordance with Defendant’s policy, Bibel sent an email acknowledging receipt of the email and attached documents.  (Ibid. at ¶ 4.)

Defendant states that the Complaint challenges a Class “A” citation with a $20,000 civil penalty, issued on or about July 2, 2021.  (See Compl.)  Plaintiff provided timely written notice of its intent to adjudicate the matter on July 8, 2021.  (Compl. ¶ 9.)  The instant lawsuit was filed on October 5, 2021.  (See Compl.)  On January 16, 2022, Plaintiff served Defendant with the Summons and Complaint.  (Bibel Decl. ¶ 5, Ex. B.)  According to Defendant, “[t]here is no dispute that [Plaintiff] filed its complaint, contesting the Department’s Class “A” citation and $20,000 civil penalty, on October 5, 2021, and served it on Sunday, January 16, 2022, thereby serving it 13 days past the limitations period.”  (Mot. p. 3.)  Therefore, the action is barred by the statute of limitations.  (Ibid.)  Defendant argues that “[t]hese limits demonstrate the legislative purpose of collecting penalties and correcting violations quickly.”  (Ibid. at pp. 6, 8.)  Furthermore, the language of the statute and supporting case law demonstrates that these statutory deadlines are mandatory, and the trial court does not have the authority to relieve a party from these deadlines.  (Ibid. at pp. 6-7.)

            Plaintiff opposes Defendant’s Motion, arguing that Defendant did not meet its burden of proof for summary judgment.  (Oppos. p. 2.)  Specifically, Defendant “(i) did not allege the specific language it used to raise the affirmative defense in its General Denial/Answer, (ii) Defendant CDPH did not quote the language of the Affirmative Defense it is relying on, (iii) Defendant CDPH did not show a copy of the Affirmative Defense of the Statute of Limitations it in its exhibits, (iv) Defendant CDPH did not make mention of the specific language of the Affirmative Defense of the Statute of Limitations in its supporting declarations; and (v) Defendant CDPH did not identify the specific language of the Affirmative Defense of the Statute of Limitations or make mention of it in its Separate statement of Undisputed Facts. It is moving party’s obligation to prove that they properly raised the defense to meet their initial burden of proof.”  (Ibid. at p. 4.)  Moreover, Defendant “did not factually plead the statute of limitations at all… and [n]o evidence has been submitted or argued in the MSJ that it did.”  (Ibid. at p. 5.)  Defendant should also be “estopped from raising any time related argument because defendant ignored all of its legal time limitations as required by statute and caused plaintiff great prejudice thereby.”  (Ibid.)  Plaintiff states that Defendant did not comply with statutory requirements in issuing the citation, including issuing the citation almost four years after the investigation was completed, instead of 24 hours as required by Health and Safety Code § 1423.  (Ibid. at pp. 6-8.)  As a result, Plaintiff states that equitable estoppel “arises, not from the language of the statute, but from the equitable principle that a person will not be permitted to profit from that person’s own wrongdoing in a court of justice.”  (Ibid. at p. 9.)

            In its Reply, Defendant argues that Plaintiff’s opposition fails to show that Defendant is not entitled to summary judgment as Plaintiff does not dispute serving the Complaint thirteen (13) days after the deadline.  (Reply p. 2.)  Plaintiff “offers no factual evidence or legal authorities to establish that they complied with Health and Safety Code section 1428, subdivision (b), which is fatal to plaintiff’s Complaint.”  (Ibid.)  Defendant also argues that the Opposition should be stricken because it was served by electronic transmission without Defendant’s consent and thus “deprived the Department of proper service for which it could reply.”  (Ibid. at pp. 2-3.)  Defendant reiterates that dismissal for failure to serve the Complaint timely is “mandatory; there is no discretion to avoid a dismissal if the complaint is not timely served” as demonstrated by the “mandatory language at nearly every turn.”  (Ibid. at p. 3.)  Furthermore, Plaintiff’s argument that Defendant did not plead the affirmative defense of statute of limitations “is false and easily disproven” as the following statement was included in the General Denial “Plaintiff has not complied with the statute of limitations and requirements in Health and Safety Code section 1428.”  (See General Denial.)  Defendant has “pled the correct code section in its General Denial and relied upon it for its defense.”  (Ibid. at p. 4.)

            Defendant also states that “Plaintiff attempts to conflate legislative intent regarding service requirements with non-existing statutes relating to the timeliness of the issuance of a citation.”  (Ibid. at pp. 5-6.)  These statements are “irrelevant to the issue of [Plaintiff’s] failure to timely serve its complaint on the Department” and do not disprove that Defendant is entitled to summary judgment.  (Ibid.)  Finally, Plaintiff’s assertion that Defendant should be estopped from moving for summary judgment based on equitable estoppel “is meritless.”  (Ibid. at p. 7.)  Equitable estoppel “allows for a party to be estopped from asserting the statute of limitations as a defense to an admittedly untimely action because his conduct has induced another into forbearing suit within the applicable limitations period.”  (Ibid. at p. 8, citing Battuello v. Battuello (1998) 64 Cal.App.4th 842, 847–848.)  Here, Defendant did not engage in any conduct that induced Plaintiff to withhold service of the complaint.  (Ibid.)

When a defendant seeks summary judgment, he/she must produce admissible evidence showing “that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.”  (Code Civ. Proc., § 437c(p)(2).)  Here, Defendant has shown that there is no genuine issue of material fact regarding Plaintiff’s failure to file the Complaint in accordance with the statute of limitations set forth in Health and Safety Code § 1428(b).  Defendant has properly asserted an affirmative defense in its General Denial regarding the statute of limitations and has presented facts undisputed by Plaintiff that the Complaint was not served timely.  Thus, Defendant has met its burden and is entitled to summary judgment.

Defendant’s Motion for Summary Judgment is GRANTED.

IV.           Conclusion & Order

For the foregoing reasons, Plaintiff State of California, Health and Human Services Agency, Department of Public Health’s Motion for Summary Judgment is GRANTED.

Moving party is ordered to give notice.