Judge: Stephen I. Goorvitch, Case: 22STCV38831, Date: 2023-07-11 Tentative Ruling

Case Number: 22STCV38831    Hearing Date: August 16, 2023    Dept: 39

Cucumber Holdings, LLC v. California Department of Public Health

Case No. 22STCV38831

Motion to Quash

            Plaintiff Cucumber Holdings, LLC (“Plaintiff”), which operates a skilled nursing facility, filed this action against the California Department of Public Health (“Defendant”).  On or about September 2, 2022, Defendant issued a citation based upon alleged violations of Title 42 of the United States Code and certain sections of the California Code of Regulations.  Defendant assessed a penalty of $25,000, which was trebled to $75,000.  Now, Plaintiff challenges the validity of the citation and penalty under Health and Safety Code section 1428, which states:

“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.”

(Health & Saf. Code, § 1428, subd. (b).) 

This action was filed on December 14, 2022, which meant that the summons and complaint had to be served on or before March 14, 2023.  The summons and complaint were filed on March 24, 2023.  The requirements of Health and Safety Code section 1428, subdivision (b) are jurisdictional.  (See York Healthcare & Wellness Centre LP v. State Dept. of Public Health (2019) 33 Cal.App.5th Supp. 20, 25.)  Plaintiff argues that section 1428 does not specify how to calculate the 90-day time period for service.  The statute is clear on its face: 90 days means 90 calendar days. 

            Based upon the foregoing, the Court orders as follows:

            1.         Defendant’s motion to quash is granted.

            2.         The case management conference is vacated. 

            3.         The Court orders the case to be dismissed with prejudice.

            4.         Defendant’s counsel shall provide notice and file proof of such with the Court.