Judge: Mark E. Windham, Case: 22STLC04625, Date: 2024-11-04 Tentative Ruling
Case Number: 22STLC04625 Hearing Date: November 4, 2024 Dept: 26
ICC Convalescent Corp. v. Cal. Dept. of Public
Health, et al.
MOTION
FOR SUMMARY ADJUDICATION
(CCP §
437c)
TENTATIVE RULING:
Defendant Department of Public Health’s Motion for Summary
Adjudication as to Plaintiff’s “Reasonable Licensee” Affirmative Defense is
DENIED.
ANALYSIS:
On May 23, 2024,
Plaintiff ICC Convalescent Corp. dba Imperial Care Center (“Plaintiff”) filed the
instant action against Defendant California Department of Public
Health (“Defendant”) and Does 1 to 15,
inclusive for 1) Order Dismissing Citation No. 92-39739-0017582-F;
and 2) Order Dismissing the Associated Civil Penalty of $25,000.00. Defendant
filed its general denial on October 18, 2022.
On July 23, 2024, Defendant filed the instant Motion for
Summary Adjudication. Plaintiff filed its opposition on September 19, 2024, and
Defendant replied on September 30, 2024.
Discussion
Request for Judicial Notice
Defendant requests that the Court
take judicial notice of the following:
1. Citation Number 92-39739-0017582-F
(Citation) issued to plaintiff on or about April 20, 2022.
2. Plaintiff’s complaint filed in this
action filed on July 12, 2022.
3. The court certified felony
complaint in the case entitled, The People of the State of California v.
Rafael Armando Moya, Los Angeles County Superior Court Case No. LA096516.
4.
The
court certified electronic docket for the case entitled, The People of the
State of California v. Rafael Armando Moya, Los Angeles County Superior
Court Case No. LA096516.
5. U.S. Dept. of Health and Human
Services, Center for Medicare and Medicaid Services, State Operations Manual,
Appendix PP, Guidance to Surveyors for Long Term Care Facilities, F600,
effective November 28, 2017 (SOM Appendix PP). Evidence Code Section 452(c);
Judges cannot take judicial
notice of hearsay statements asserted in court filings but can take judicial
notice of the existence of such documents. (Johnson & Johnson v. Superior Court (2011) 192
Cal.App.4th 757, 768; Williams v.
Wraxall (1995) 33 Cal.App.4th 120, 130, fn. 7 [judges may take
judicial notice of the existence of court documents, “but cannot take judicial
notice of the truth of hearsay statements in decisions or court files,
including pleadings, affidavits, testimony, or statements of fact.”].) The
Court also takes judicial notice of operations manual. (See Cicairos v.
Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 956, fn. 1 [Court of appeal took judicial
notice of Division of Labor Standards Enforcement manual as an official
government publication].) The request for judicial notice, therefore, is
granted pursuant to these limitations.
Evidentiary Objections
Defendant’s fail to comply with the mandatory format
requirements of California Rules of Court rule 3.1354, in that the objections
do not (1) identify the name of the document in which the specific material
objected to is located; (2) state the exhibit, title, page, and line number of
the material objected to; and (3) quote or set forth the objectionable
statement or material.” (Cal. Rules of Court rule 3.1354(b).) Nor are the
objections set forth in either of the two acceptable formats. (Cal. Rules of
Court rule 3.1354(b).) The objections, therefore, are overruled.
Allegations in the Complaint
Plaintiff alleges that
they are a skilled nursing facility and Defendant issued them a Class “A”
Citation and a penalty of $25,000.00 based upon an alleged violation of Title
42 of the Code of Federal Regulations sections 483.12(a)(1). Plaintiff alleges that
the Citation fails to meet the legal standards required to issue a Class “A”
citation, and that Plaintiff acted reasonably such that the citation and
penalty must be dismissed under Health & Safety Code, §§
1424, 1428. The citation alleges a Violation of 42 Code of Federal Regulations,
part 483.12(a)(1) (2016), for the sexual abuse of “Resident 1” by plaintiff’s
employee, Rafael Moya (Moya), on March 12, 2022. On December 29, 2022, Moya
pled guilty to violation of Penal Code 288, subdivision (b)(2), for a willful
and “forcible lewd or lascivious act” upon Resident 1 “while being a caretaker”
on March 12, 2022.
Propriety of Summary
Adjudication of Reasonableness Defense
“A party
may move for summary adjudication as to one or more causes of action within an
action, one or more affirmative defenses, one or more claims for damages, or
one or more issues of duty, if the party contends that the cause of action has
no merit, that there is no affirmative defense to the cause of action, that
there is no merit to an affirmative defense as to any cause of action, that
there is no merit to a claim for damages, as specified in Section 3294 of the
Civil Code, or that one or more defendants either owed or did not owe a duty to
the plaintiff or plaintiffs.” (Code Civ. Proc., § 437c, subd. (f)(1).) Here,
Defendant moves for adjudication of what it calls Plaintiff’s “reasonable
licensee defense” under Health and Safety Code section 1424, subdivision (d)(2).
Under the
statutory scheme, although the Department of Public Health is the defendant, it
is in the procedural posture of a plaintiff. Specifically:
“If an appeal is prosecuted under this section . . . the
department shall have the burden of establishing by a preponderance of the
evidence that (1) the alleged violation did occur, (2) the alleged violation
met the criteria for the class of citation alleged, and (3) the assessed
penalty was appropriate. The department shall also have the burden of
establishing by a preponderance of the evidence that the assessment of a civil
penalty should be upheld.
(Health
& Safety Code, § 1428, subd. (e).) “If the department establishes that
a violation occurred, the licensee shall have the burden of proving that the
licensee did what might reasonably be expected of a long-term health care
facility licensee, acting under similar circumstances, to comply with the
regulation.” (Health & Safety Code, § 1424, subd. (d)(2).) The California
Supreme Court has designated the burden on Plaintiff as the “reasonable
licensee defense.” (California Assn. of Health Facilities v. Department of
Health Services (1997) 16 Cal.4th 284, 288.) Accordingly, the Court finds
it is appropriate for Defendant to move for summary adjudication of Plaintiff’s
“reasonable licensee defense.”
Defendant’s
Initial Burden of Proof
Defendant
moves for Summary Adjudication as to Plaintiff’s “Reasonable Licensee” Defense
on the basis that Plaintiff Violated Title 42 of the Code of Federal
Regulations sections 483.12(a)(1) when their employee Moya assaulted a patient,
as Moya’s Plea of Nolo Contendere in violation of Penal Code 288 constitutes
“Sexual Abuse” under 42 C.F.R. section 483.12, subdivision (a)(1) and no
reasonable trier of fact could find Plaintiff and its agents acted reasonably
under the circumstances. “The [reasonable licensee] defense permits the
licensee to defend against the imposition of civil penalties not by showing
that the licensee reasonably delegated its duties to one of its agents, but
rather by showing that the licensee and its agents acted reasonably under the
circumstances, despite the fact that regulations were violated.” (California
Assn. of Health Facilities, supra, 16 Cal. 4th at 299.) Defendant argues
that because Moya was Plaintiff’s agent and his actions were undisputably
unreasonable, Plaintiff’s defense must fail.
Defendant presents the following facts as undisputed. On
April 20, 2022, the California Department of Public Health issued class “A”
citation no. 95-3148-0017330-S (Citation) and $25,000 civil monetary penalty
for Plaintiff’ violation of 42 Code of Federal Regulations 483.12(a)(1) that
occurred on March 12, 2022. (Motion, Separate Statement, Fact No. 1; RJN,
Springe Decl., Exh. 1.) The Citation alleges that on March 12, 2022, ICC's
employee, Moya, sexually abused Resident 1. (Motion, Separate Statement, Fact No.
2; RJN, Springe Decl., Exhs. 1, 3.) On March 12, 2022, Moya committed the
criminal offense of a forcible lewd or lascivious act on Resident 1, a
dependent adult, while being a caretaker, by use of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the Resident 1 or
another person, in violation of Penal Code 288, subdivision (b)(2). (Motion,
Separate Statement, Fact No. 4.; RJN, Springe Decl., Exhs. 4-5.) Finally,
Defendant contends it is undisputed that Moya was Plaintiff’s agent at the time
he committed the criminal offense of a forcible lewd or lascivious act on
Resident 1. (Motion, Separate Statement, Fact No. 5; RJN, Springe Decl., Exhs.
4-9.)
The final fact is the crux of this Motion. The Motion argues
that Plaintiff must be liable for the acts of its employees by pointing to Health
& Safety Code section 1430, which states: “The licensee shall be liable for
the acts of the licensee’s employees.” (Health & Safety Code, § 1430, subd.
(b)(1).) That section, however, pertains specifically to civil actions brought
by the former or current resident or patient against the licensee who violates
any rights of the resident or patient. (Health & Safety Code, § 1430, subd.
(b)(1).) Next, Plaintiff relies on California Assn. of Health Facilities v. Department of Health Services (1997) 16 Cal.4th 284, which sets
forth a detailed analysis of a licensee’s liability:
Turning to the meaning of section 1424’s reasonable licensee defense, we
observe that the statute must be read in light of the well-established rule of
nondelegable duties of licensees. The rule, akin to the rule of respondeat
superior in tort law, is that “ ‘ “[t]he licensee, if he elects to operate his
business through employees[,] must be responsible to the licensing authority
for their conduct in the exercise of his license....” By virtue of the
ownership of a ... license such owner has a responsibility to see to it that
the license is not used in violation of law.’ ” (Ford Dealers Assn. v.
Department of Motor Vehicles (1982) 32 Cal.3d 347, 360, 185 Cal.Rptr. 453, 650
P.2d 328 (Ford Dealers Assn.).) As we observed: “The settled rule that
licensees can be held liable for the acts of their employees comports with the
general law governing principal-agent liability. ‘An agent represents his
principal for all purposes within the scope of his actual or ostensible
authority....’ ” (Id. at p. 360, 185 Cal.Rptr. 453, 650 P.2d 328, citing
Civ.Code, § 2330.)
(California
Assn. of Health Facilities, supra, 16 Cal.4th at 295.) “The rule of
nondelegable duties for licensees is of common law derivation” and as such,
section 1424 of the Health and Safety Code must be read in conformity with the
common law, “unless its language “ ‘clearly and unequivocally discloses an
intention to depart from, alter, or abrogate the common-law rule concerning the
particular subject matter....’ [citation omitted].” (Id. at 297.) Therefore,
unlike section 1430, section 1424 “should be understood to be consistent with
the common law rule that licensees are responsible for the acts and omissions
of their agents.” (Id. at 299.)
However, this
rule alone does not answer the question of which actions of which employees
will be so imputed to the licensee. (Ibid.) Nor did California Assn.
of Health Facilities answer this question, as it was solely an action for
declaratory relief seeking interpretation of the reasonable licensee defense statute.
(Id. at 288-289.) Plaintiff argues that this case offers support for an
exception to the doctrine of nondelegable duties for licensees that is “akin to
the ‘scope of employment’ exception to the rule of respondeat superior
liability. Defendant is correct to point out that California Assn. of Health
Facilities did not hold that such an exception exists. (Id. at 305.)
However, the California Supreme Court also did not hold that such an exception
does not exist. And, in fact, Defendant’s analysis of Moya’s role as
Plaintiff’s agent is based on the doctrine of respondeat superior, for which a
scope of employment exception to liability exists. (Motion, p. 13:3-24.)
Defendant points to case law that holds “Under the rule of respondeat superior,
an employer is vicariously liable for the torts of its employees committed within
the scope of employment. (John R. v. Oakland Unified School Dist.
(1989) 48 Cal.3d 438, 447 [emphasis added].)
In John R.,
the California Supreme Court went on to state that “[w]hether a tort was
committed within the scope of employment is ordinarily a question of fact” but it
becomes a question of law when conflicting inferences cannot be drawn from the
facts. (Ibid.) Furthermore, when it comes to sexual conduct, the
presumption is that it is not within the scope of employment:
Courts have generally held that an employer is not liable under the
doctrine of respondeat superior for sexual assaults committed by an employee.
(3 Witkin, Summary of Cal. Law (11th ed. 2017) Agency and Employment, § 201, p.
263; but see Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 217 [285
Cal.Rptr. 99, 814 P.2d 1341] [city liable for assault by a police officer in
view of the considerable power and authority a police officer possesses].) But
a sexual tort will be considered to be within the scope of employment if “its
motivating emotions were fairly attributable to work-related events or
conditions.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital, supra 12 Cal.4th
at p. 301.)
(Samantha
B. v. Aurora Vista Del Mar, LLC (2022) 77 Cal.App.5th 85, 107-108.) Defendant
relies on the case of Samantha B. v. Aurora Vista Del Mar, LLC (2022) 77
Cal.App.5th 85, to argue that sexual abuse of a patient by a caretaker is a
tort that is committed in the scope of employment because “sexual exploitation
of the patients by employees is a foreseeable hazard arising from the
circumstances of the job.” (Samantha B. v. Aurora Vista Del Mar, LLC
(2022) 77 Cal.App.5th 85, 108.)
The Court
notes first, critically, that Samantha B., did not involve a motion for
summary judgment or adjudication. In fact, the Court of Appeals found that “[t]he
trial court erred in granting a judgment of nonsuit on the question” of whether
the employee was acting within the scope of employment. (Ibid.) Samantha
B., therefore, does not stand for the proposition that these circumstances
necessarily show that the caretaker’s assault was within the scope of
employment, only that such a finding is possible. Those specific circumstances included
(1) the employee helping patients with daily living activities; (2) the
employee being personally involved with the patients over an extended period of
time; and (3) the patients being vulnerable because they suffered from mental
or cognitive impairments. (Ibid.) The Court of Appeals also found that sexual
exploitation of the patients by employees is a foreseeable hazard that “was
exponentially increased by [the defendant’s] policies.” (Ibid.) Therefore,
even if Defendant can show that this case is analogous to Samantha B.,
that does not mean it has carried its burden to proof to show there is no
contrary inference.
Defendant
argues that this case is on par with the facts that gave rise to the subject
citation because the evidence shows Moya regularly worked the evening
shift and assisted Resident 1 with activities of daily living. (Motion, Separate
Statement; Fact No. 5; Springe Decl., Exhs. 8-9.) Exhibit 8 demonstrates that
Moya assisted Resident 1 with daily activities for five days over the course of
two months, in January and February 2022. That Moya performed caretaking duties
for Resident 1 for a few days in the two-month period before the assault does
not show sufficient personal involvement over an extended period of time. Nor
is there any showing in this case that Plaintiff’s policies increased that risk
of harm. The facts of this case are neither sufficiently analogous to that of
Samantha B., nor sufficient to overcome any contrary inference, for the Court
to find, as a matter of law, that the assault on Resident 1 was “within the
scope of employment.”
Based on the foregoing, Defendant has not carried its
initial burden of proof to demonstrate that Moya was Plaintiff’s agent within
the meaning of section 1424’s reasonable licensee defense, such that Plaintiff
cannot prove the reasonableness of its and its agents’ conduct.
Conclusion
Defendant Department of Public Health’s Motion for Summary
Adjudication as to Plaintiff’s “Reasonable Licensee” Affirmative Defense is
DENIED.
Court clerk to give notice.