Judge William A. Crowfoot, Case Number: 24NNCV05531, Date: 2025-06-06 Tentative Ruling

Judge: William A. Crowfoot, Case: 24NNCV05531, Date: 2025-06-06 Tentative Ruling

On November 1, 2024, plaintiff Four Seasons Healthcare & Wellness Center, LP (“Plaintiff”) filed this complaint to contest a citation and proposed assessment of civil penalty issued by defendant Department of Public Health of the State of California (“Defendant”). The citation at issue, No. 92-47441-0020321-F (“Citation”), is a Class “A” Citation with a proposed penalty assessment of $25,000 trebled to $75,000. Plaintiff alleges that the alleged violation did not occur and does not meet the criteria for a Class “A” violation. Plaintiff therefore requests a declaration that the citation was issued without cause and that it be dismissed.

On December 16, 2024, Defendant filed this demurrer on the grounds that the Complaint is barred by the statute of limitations established in Health and Safety Code section 1428 (b). (All statutory references below refer to the Health & Safety Code unless otherwise specified.)

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)

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.

Defendant requests the Court take judicial notice of the Citation, issued on June 14, 2024, a statutory notice provided by Plaintiff’s counsel, dated June 27, 2024, informing Defendant of Plaintiff’s intent to contest the validity of the Citation, a copy of the envelope that contained the notice, stamped “Received JUL 01 2024 CDPH Office of Legal Services”, as well as a copy of the Complaint in this action. The Request is GRANTED pursuant to Evidence Code section 452(c) and (d).

Defendant states that the Citation was issued on June 14, 2024, and Plaintiff informed it of its intent to challenge the Citation on June 27, 2024. Defendant argues that the Complaint is untimely, however, because it was filed on November 1, 2024, which is 125 days after Plaintiff’s notice of intent was served, not within 90 days as required by Section 1428(b). Defendant cites to Waterman Convalescent Hospital, Inc. v. State Department of Health Services (2002) 101 Cal.App.4th 1433, to argue that the statute of limitations period is jurisdictional. In Waterman, the court of appeal found that the plaintiff’s action was not time-barred because the 90-day statute of limitations period was equitably tolled. The Waterman court described how the plaintiff had requested a citation review conference (“CRC”), then withdrew that request after a delay and filed a complaint in court within 90 days of its withdrawal. (Id., p. 1442.) The Waterman court also noted the “relatively short time periods for the completion of all actions related to enforcement” and “the Legislature’s intent to ensure quick action” in order to collect penalties and correct violations since “[p]rompt resolution of alleged violations is critical to the DHS when the facility is in violation, and critical to the facility when it is not.” (Id. at 1439.)

In opposition, Plaintiff first argues that the Complaint does not allege any of the dates that Defendant identifies in its demurrer, therefore Defendant’s argument necessarily relies on facts outside the four corners of the Complaint and cannot be considered on demurrer. However, the Court is allowed to consider not only the matters on the face of the Complaint but also matters that are the subject of judicial notice.

Plaintiff also argues that the documents in Defendant’s request for judicial notice are also insufficient to establish the facts underlying Defendant’s demurrer because the copy of the Citation does not indicate the date the Citation was served on Plaintiff. This argument is unpersuasive because the date the Citation was served does not trigger the 90-day period to file a lawsuit. Therefore, the fact that it is indeterminable from the exhibits submitted in Defendant’s request for judicial notice is irrelevant.

Next, Plaintiff argues that statutory timeframes such as the 90-day service timeframe are not “mandatory or jurisdictional, unless a contrary intent is clearly expressed.” (Opp., pp. 5-6.) Plaintiff cites to Kizer v. Hillhaven, Inc. (1993) 19 Cal.App.4th 309, 318, in which the court of appeal examined section 1423 to determine whether the Department of Health’s complaint to enforce a citation should be dismissed because the citation was not served within 24 hours “after determining or having reasonable cause to determine that an alleged violation has occurred.” (Kizer, p. 309.) The Kizer court rejected the facility defendant’s argument in favor of dismissal by finding that the 24-hour requirement applicable to the Department was “directory” not “mandatory.” The Kizer court’s holding discussed whether a statutory requirement would invalidate a governmental action and concluded that the purpose of section 1423 was to “ensure that regulations are followed to maintain the health and safety of patients, that violations are corrected and that facilities are provided incentive to follow the regulations more carefully, through payment of fines in some cases.” The Kizer court reasoned that “[t]his purpose would not be served if [health facilities] were allowed to escape accountability or avoid the necessity of correction because of a delay in issuing the notice” because “[a] dismissal based on an arguably untimely service of a citation would defeat the purpose of the statute.” (Id., p. 318.) In reaching this conclusion, the Kizer court cited Edwards v. Steele (1979) 25 Cal.3d 406, 410 and stated, “One of the factors to be used in determining the Legislature’s probable intent is whether the statute contains a penalty for noncompliance with the time limitations.” (Id.) Plaintiff argues that Section 1428(b) does not contain any penalty for noncompliance with the 90-day timeframe for filing an action, despite containing penalties for other deadlines, such as dismissal for failure to file a case management statement within six months after the department files its answer; therefore, Plaintiff contends, the timeframe to file an action is not jurisdictional.

Recently, in Law Finance Group, LLC v. Key (2023) 14 Cal.5th 932, 950 (which is not cited by either party), the California Supreme Court considered whether a statute with mandatory language had jurisdictional consequences, stating, “[t]o establish that a particular filing deadline is jurisdictional, more is required.” Citing to the United States Supreme Court, the court continued, “Much as the high court has said of Congress, our Legislature ‘must do something special, beyond setting an exception-free deadline, to tag a statute of limitations as jurisdictional’ in the fundamental sense.” (Ibid. [citing United States v. Kwai Fun Wong (2015) 575 U.S. 402, 410.) After Law Finance was decided, the Second Appellate District, in Zurich American Ins. Co. v. Workers’ Comp. Appeals Bd. (2023) 97 Cal.App.5th 1213, 1221, analyzed a statutory time limit for the Workers’ Compensation Appeals Board in the Labor Code to act on a petition for reconsideration. The appellate court concluded that the deadline was jurisdictional because the statute explicitly stated that a petition is “deemed to have been denied” if the Workers’ Compensation Appeals Board fails to act on the petition within 60 days.

Here, Plaintiff persuasively argues that the 90-day filing deadline, while mandatory, is not jurisdictional since no penalty is attached to the 90-day filing requirement. As stated in Law Finance, there is a presumption that a filing deadline is non-jurisdictional and the existence of mandatory language does not necessarily transform the requirement into a jurisdictional one. (Law Finance, supra, 14 Cal.5th at p. 953.) While Section 1428(b) clearly contemplates relatively short deadlines in order to “ensure quick action,” unlike in Zurich, the lack of any penalty attached to Section 1428’s filing deadline, compared to the explicit penalty of dismissal provided for the failure to file a case management statement, shows that the Legislature did not intend to deprive the Court of jurisdiction. (Waterman, supra, 101 Cal.App.4th at p. 1439.)

Additionally, equitable considerations require the Court to allow Plaintiff’s action to proceed. (Law Finance, supra, 14 Cal.5th at p. 953.) Section 1428(b) provides a total of 195 days from the receipt of the Citation to serve the summons and complaint on the Department with three separate time periods (15 days to inform the department in writing of the intent to appeal, 90 days to file the Complaint, and 90 days to serve after filing), therefore it was sufficient to file the Complaint within this 195-day timeframe where there was no overall delay, Plaintiff timely gave notice of its intent to appeal the Citation, and there was no prejudice to Defendant. (Kizer, supra, 19 Cal.App.4th at p. 318-319.) As stated in Waterman, the short timeframes set forth by Section 1428 were “enacted to inure to the benefit of both [parties]”; for facilities, specifically, the statute would work to “quickly remove[] a cloud from [a facility’s] record that could result in a loss of business” or other difficulties. (Waterman, supra, 101 Cal.App.4th at pp. 1439-40.)

While Defendant argues in its reply brief that no equitable exceptions may be granted, its reliance on County of San Diego v. Department of Health Services (1991) 1 Cal.App.4th 656, 660-661, is unpersuasive. County of San Diego is inapposite because it involved the legislative intent behind Section 1428(c) and a requirement to file an “at issue memorandum” within a six-month limitation period. Importantly, the statute included the mandatory language: “The court shall dismiss the appeal…” (County of San Diego, supra, 1 Cal.App.4th at p. 661.) Moreover, the Court is not persuaded by the legislative history attached to the Declaration of Chase J. Whittaker showing amendments made in 2005; although the amendments eliminate language referring to “judicial relief”, the amendments relate only to the availability of citation review conferences, which were entirely removed from the statute. This is insufficient to overcome the presumption that the courts’ fundamental jurisdiction is unlimited or that equitable relief is available. (Law Finance, supra, 14 Cal.5th at p. 950; compare § 1428(b) with Code of Civil Procedure section 2030.300(c) [party “waives any right to compel a further response” unless notice given within 45 days of service of verified responses; see also CRC 8.104 [“[N]o court may extend the time to file a notice of appeal.”])

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.