Judge: Katherine Chilton, Case: 22STLC03489, Date: 2023-05-15 Tentative Ruling

Case Number: 22STLC03489     Hearing Date: May 15, 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:         AG Arcadia LLC

MOTION FOR SUMMARY JUDGMENT

(CCP § 437c)

TENTATIVE RULING:

Defendant 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 April 21, 2023.                                    [   ] Late                      [   ] None

REPLY:                     Filed on April 28, 2023.                                    [   ] Late                      [   ] None

ANALYSIS:

I.                Background

On May 24, 2022, Plaintiff AG Arcadia LLC dba AG Arcadia LLC dba Huntington Drive Health and Rehabilitation (“Plaintiff” or “AG Arcadia”) filed an action against Defendant State of California, Health and Human Services Agency, Department of Public Health (“Defendant” or “Department”) to dismiss a citation and proposed assessment of civil penalties pursuant to Health and Safety Code § 1417, et seq.

On September 22, 2022, Defendant filed a General Denial to the Complaint.

On February 10, 2023, Defendant filed a Motion for Summary Judgment (“Motion”).  Plaintiff filed an Opposition to the Motion (“Opposition”) on April 21, 2023, and Defendant filed a Reply to the Opposition (“Reply”) on April 28, 2023.

On May 4, 2023, the Court, on its own Motion, continued the hearing on the Motion to May 15, 2023.  (5-4-23 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.  (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 Eric L. Springe, Deputy Attorney General with the Office of the Attorney General of California, and counsel for Defendant in the instant case.  (Springe Decl. ¶ 1.)  The declaration contains an attachment of the Complaint, which was filed on May 24, 2022.  (Ibid. at ¶ 3, Ex. A; Compl.)  Defendant states that the Complaint was served on Defendant, with a Notice of Acknowledgment, on August 23, 2022.  (Springe Decl. ¶ 4, Ex. B.)  Defendant has also attached Plaintiff’s Responses to Defendant’s Request for Admission, in which Plaintiff admits that the Complaint was not served before August 23, 2022.  (Ibid. at ¶ 6, Ex. C – RFAs # 1-3.)  Moreover, Plaintiff’s response to Defendant’s Special Interrogatories demonstrates that the Complaint was not served before August 23, 2022.  (Ibid. at ¶ 7, Ex. D.)

According to Defendant, “[t]he Department is entitled to judgment in its favor because AG Arcadia failed to comply with the jurisdictional time limitation period governing its citation appeal.”  (Mot. p. 6.)  While the deadline to serve the Complaint was August 22, 2023, Plaintiff admits that it was not served until August 23, 2022.  (Ibid. at pp. 6-7.)  Defendant argues that the language of the statute and supporting case law demonstrate 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. 6-8.)

            Plaintiff opposes Defendant’s Motion.  It does not dispute any of the statements set forth by Defendant in its Separate Statement; however, Plaintiff presents additional facts in opposition.  (Oppos. Sep. St.)  Plaintiff has submitted the declaration of Thomas A. Collins, its attorney of record in support of its Opposition to the Motion.  Collins explains that he experienced difficulties while filing the Complaint, “which delayed the issuance of the summons and prevented the deadline for service from being properly calendared.”  (Collins Decl. ¶¶ 4-8.)  On June 1, 2022, Counsel corrected typographical errors on the summons until it was finally accepted.  (Ibid. at ¶ 9.)  Thus, the “[t]he filing for purposes of service (where a completed summons needed) was not completed until June 16, 2022,” and the 90-day deadline should be calculated based on the date the summons was obtained.  (Ibid. at ¶¶ 9-10.)  Moreover, Defendant has also “engaged in conduct ignoring the statutory time requirements as set forth in the ACT,” including “failure to issue the citation for more than one year after its investigation was completed.”  (Ibid. at ¶ 11; see Compl.)

            Plaintiff argues that the Motion should be denied for the following reasons.  First, Defendant has not properly pled the affirmative defense of statute of limitations as “[n]owhere do the moving papers and evidence set forth defendant’s actual affirmative defense that is the basis of the MSJ set forth in its entirety.”  (Ibid. at pp. 5-6.)  Defendant’s statement in the General Denial that “Plaintiff has not complied with the statute of limitations and requirements in Health and Safety Code section 1428” does not have a factual basis and does not specify which subdivision of the statute applies.  (Ibid. at p. 6.)  Second, the Court’s authority under § 1428(b) is discretionary.  (Ibid. at p. 7.)  Section 1428(b) states that an action contesting a citation “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.”  Thus, the “shall” in the provision only applies to filing of the action, not service, and is consistent with the Court’s discretionary authority pursuant to § 583.210.  (Ibid.)  Plaintiff discusses the case law cited by Defendant and argues that these cases are distinguishable and inapplicable.  (Ibid. at p. 8.)  Third, Plaintiff states that there is an issue of fact whether the time for service had expired and whether service that is one day late is excusable.  (Ibid. at p. 5.)  Fourth, Defendant has not shown that it was prejudiced by the delay in service.  (Ibid. at p. 15.)

            In its Reply, Defendant argues that Plaintiff has not raised any triable issue of material fact in opposition to the Motion.  (Reply p. 2.)  Instead, “Plaintiff contorts issues of law to appear as issues of fact and improperly seeks relief under Code of Civil Procedure section 473 before any order has been entered.”  (Ibid.)  Plaintiff’s arguments that “compliance with the 90-day service period requirement is optional conflicts with controlling precedent and renders the statutory provision meaningless."  (Ibid.)  Defendant also requests that the Court deny the Opposition for filing it a day late.  (Ibid. at p. 3.)  The Court, in its discretion, does consider Plaintiff’s Opposition.  (Cal. Rules of Court, rule 3.1300(d).)

            Defendant also argues that it properly pled the affirmative defense set forth in § 1428.  Defendant argues that pursuant to Code of Civil Procedure § 458, it is only necessary to establish facts supporting the affirmative defense if Plaintiff exercised diligence in objecting to the affirmative defense.  (Ibid.)  However, Plaintiff never objected to Defendant’s affirmative defenses.  (Ibid.)  Defendant’s pleading of the statute of limitations defense provided sufficient notice to Plaintiff as subdivision (b) “is the only subsection in Health and Safety Code Section 1428 that governs the procedural requirements for a license-facility to maintain a civil appear of a class ‘A’ citation.”  (Ibid. at p. 4.)  Additionally, Defendant had communicated its intent to move for dismissal through a letter sent to Plaintiff on November 1, 2022.  (Ibid.; Supp. Dec. ¶ 3, Ex. A.)

            Defendant also reiterates its argument that the language of section 1428(b) indicates that “any action to contest a citation shall not be maintained unless both filing and service deadlines are met.”  (Reply p. 5.)  According to Defendant, “[t]his is the only interpretation that gives significance to every word of the provision and avoids a construction that would render the phrase ‘and served not later than 90 days after filing’ meaningless.”  (Ibid. at p. 5.)

            Defendant argues that Plaintiff’s statements do not demonstrate the existence of a triable issue of fact.  (Ibid.)  It is undisputed that Plaintiff filed the Complaint on May 24, 2022, and did not serve it until August 23, 2022; the date of issuance of a summons is “irrelevant” and “immaterial.”  (Ibid. at p. 7.)  Plaintiff’s reference to Code of Civil Procedure § 473(b) is not determinative as this section does not offer relief from mandatory deadlines.  (Ibid. at pp. 8-9.)  Finally, there is no requirement to show that Defendant was prejudiced by the delay in service.  (Ibid.)

The Court finds that Defendant has met its burden to show that there is no genuine issue of material fact regarding Plaintiff’s failure to serve the Complaint in accordance with the statute of limitations set forth in Health and Safety Code § 1428(b).  Plaintiff has not produced sufficient evidence in opposition to show that a triable issue of material fact does exist.

Plaintiff presents arguments regarding its failure to timely serve the Summons and Complaint as a result of the delay in the issuance of the summons.  However, the Complaint was filed on May 24, 2022, and should have been served within 90 days, per § 1428(b).  Even after the Summons was issued on June 16, 2022, Plaintiff had about two months to serve Defendant with the Summons and Complaint.

Plaintiff also disputes Defendant’s interpretation of § 1428(b), arguing that service within 90 days of filing the Complaint is discretionary.  However, the Court finds Defendant’s interpretation of this section, mandating the filing and service of the Complaint “no later than 90 days” after notification of intent to contest the citation to be accurate.

Finally, the Court finds that 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.  Plaintiff’s argument that Defendant did not cite the proper subsection in its General Denial – 1428(b) – is not relevant where, as here, there is only one subsection that relates to a limitation period so there is no confusion about which subsection applies.

For these reasons, the Court GRANTS Defendant’s Motion for Summary Judgment.

IV.           Conclusion & Order

For the foregoing reasons,

Defendant 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.