Shin v. Office of the State Long-term Care Ombudsman CA2/1

Filed 7/29/24 Shin v. Office of the State Long-term Care Ombudsman CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

HAI-JIN SHIN, B330937

Plaintiff and Appellant, (Los Angeles County

Super. Ct. No. 22STCV19313)

v.

OFFICE OF THE STATE LONG-

TERM CARE OMBUDSMAN et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los

Angeles County, Douglas W. Stern, Judge. Affirmed.

Law Office of Hai-Jin H. Shin and Hai-Jin Helena Shin for

Plaintiff and Appellant.

Rob Bonta, Attorney General, Jodi L. Cleesattle, Assistant

Attorney General, Catherine A. Woodbridge and Kyle Da Silva,

Deputy Attorneys General, for Defendants and Respondents.

______________________

In June 2020, in the midst of the COVID-19 pandemic, Sun

Hyang Shin passed away while she was a resident of a skilled

nursing facility. Her daughter Hai-Jin Shin, as successor in

interest to Sun Hyang’s1 estate, filed suit against defendants and

respondents the Office of the State Long-Term Care Ombudsman

(the ombudsman) and the ombudsman’s local representative,

Wise & Healthy Aging (WHA). Hai-Jin alleged that the

defendants violated Sun Hyang’s constitutional right to due

process, and failed to fulfill their duty under Welfare and

Institutions Code2 section 9712.5, when they refused to

investigate Hai-Jin’s allegations that the skilled nursing facility

was mistreating Sun Hyang. Hai-Jin also claimed that the

defendants violated Sun Hyang’s Fourteenth Amendment right to

equal protection by failing to provide a translator to assist Sun

Hyang in executing a new advance healthcare directive

designating Hai-Jin as her agent for making healthcare decisions

on her behalf in place of Hai-Jin’s brother, Dong Won Shin.3 Hai-

Jin sought class action relief on behalf of all patients or residents

of skilled nursing facilities similarly situated to Sun Hyang.

Defendants demurred, and the trial court eventually

sustained the demurrer to Hai-Jin’s second amended complaint

without leave to amend. The trial court found that Hai-Jin had

failed to state a cause of action on her Fourteenth Amendment

claims because the Eleventh Amendment bars lawsuits against

1 We refer to members of the Shin family by their given

names to avoid confusion. We intend no disrespect.

2 Unless otherwise specified, subsequent statutory

references are to the Welfare and Institutions Code.

3 Dong Won is not party to this case.

2

states based on federal claims unless the state consents. The

court sustained the demurrer as to the state-law claims on the

grounds that section 9712.5 does not create a mandatory duty,

and that there is no private right of action for violations of equal

protection or due process under article I, section 7(a) of the

California Constitution unless the plaintiff’s claim is tied to an

established common law or statutory action. Hai-Jin contends

the trial court erred in reaching these conclusions, but we affirm

the sustaining of the demurrer without leave to amend as

explained below.4

FACTUAL BACKGROUND AND PRIOR PROCEEDINGS

Because this is an appeal from a demurrer, “ ‘we must

assume the truth of all facts properly pleaded by the plaintiff[ ],

as well as those that are judicially noticeable.’ [Citation.]”

(Heckart v. A-1 Self Storage, Inc. (2018) 4 Cal.5th 749, 753.)

Those facts are as follows.

Sun Hyang died at age 87 on June 12, 2020, at Country

Villa Wilshire Healthcare Center (the facility), a skilled nursing

facility in Los Angeles. Sun Hyang had been diagnosed with

multiple myeloma, a type of blood cancer, and had been a

resident at the facility since September 2018. During the same

month, Sun Hyang signed an advance healthcare directive

authorizing her son Dong Won “to make health care decisions for

me.”

4 Because we conclude the trial court properly sustained

the demurrer without leave to amend, we need not consider Hai-

Jin’s claim that the court erred by striking allegations pertaining

to class actions from the complaint.

3

During her treatment, Sun Hyang said on multiple

occasions that she wanted to go home and stay with Hai-Jin.

Although Dong Won could not override Sun Hyang’s wishes

regarding her treatment, Hai-Jin and Sun Hyang agreed that if

Sun Hyang executed a new directive appointing Hai-Jin as her

agent, this would facilitate Sun Hyang’s discharge from the

facility. In December 2018 or January 2019, with Hai-Jin’s help,

Sun Hyang filled out a new advance healthcare directive form

replacing Dong Won with Hai-Jin. Because an advance

healthcare directive by a patient at a skilled nursing facility “is

not effective unless a patient advocate or ombudsman . . . signs

the advance directive as a witness” (Prob. Code, § 4675, subd.

(a)), Sun Hyang did not sign the document immediately. Instead,

Hai-Jin asked a nurse at the facility to make sure Sun Hyang

signed the document the next time a representative of the

ombudsman5 visited.

On January 11, 2019, a representative of WHA phoned

Hai-Jin and told her that Sun Hyang had not signed the

document. According to the representative, Sun Hyang said she

wanted Dong Won, who was a doctor, to continue making medical

decisions on her behalf. Hai-Jin told Sun Hyang about the call,

and Sun Hyang stated that it “was a mistake.”

5 The ombudsman’s office, which is part of the Department

of Aging (§ 9710), is charged by statute with “[i]dentify[ing],

investigat[ing], and resolv[ing] complaints that are made by, or

on behalf of, residents of long-term care facilities.” (§ 9712.5,

subd. (a)(1).) The ombudsman may act “through representatives

of the office” (§ 9712.5), and has appointed WHA as a local

representative.

4

Hai-Jin told WHA representatives that Sun Hyang’s failure

to sign the new advance healthcare directive had been a mistake.

She requested that a representative return to the facility to

witness Sun Hyang signing the document. In addition, Hai-Jin

told WHA that the Korean language interpreter the ombudsman

had used—a woman named Stella, whom Dong Won had hired as

a caretaker for Sun Hyang at the facility—“was not a neutral

agent” because “she would lose a source of income if [Sun Hyang]

went home to” Hai-Jin. The representative refused to return to

the facility to re-visit this issue, and further stated WHA did not

have the financial resources to provide translators for patients

who lack proficiency in English. Hai-Jin told a WHA

representative “that [Sun Hyang] did not need a translator and

that she understood English.” However, ombudsman

representatives still refused to return to the facility to witness

another signing of the advance healthcare directive.

On May 31, 2019, Sun Hyang signed an advance healthcare

directive appointing Hai-Jin as her health care agent, but no

patient advocate or ombudsman witnessed the signing as

required by Probate Code section 4675, subdivision (a). When

Hai-Jin presented the facility with the document and requested

that Sun Hyang be discharged, the facility refused to do so.

In August 2019, Hai-Jin sent WHA photos showing Sun

Hyang in an emaciated condition, as well as videos in which Sun

Hyang said she wanted to go home. WHA refused to open a case

to investigate the facility for starvation and false imprisonment

of Sun Hyang, however. A WHA representative told Hai-Jin that

under the organization’s policy, when a resident of a skilled

nursing facility has an advance healthcare directive in place, only

the agent holding power of attorney may initiate a complaint

5

against the nursing facility. In the ensuing months, Hai-Jin

contacted both WHA and the ombudsman several more times, but

in each instance, the defendants refused to take action.

When the COVID-19 pandemic struck in March 2020 and

spread rapidly in nursing homes, Hai-Jin demanded that Sun

Hyang be released from the facility to protect her from the

disease, but the facility again refused. Hai-Jin learned more

than two years after Sun Hyang’s death that Sun Hyang had

been infected with the virus that causes COVID-19. Hai-Jin does

not allege that COVID-19 caused Sun Hyang’s death.

On June 13, 2022, Hai-Jin filed a complaint against the

defendants alleging a single cause of action for negligence. The

defendants demurred, arguing that state agencies are immune

from liability for common law torts, and that Hai-Jin had failed

to identify a statutory basis for liability. Before the trial court

ruled on the demurrer, Hai-Jin filed a first amended complaint

alleging causes of action for violation of Sun Hyang’s state and

federal constitutional rights to equal protection and due process,

and for violations of the defendants’ statutory duties under

section 9712.5. In the new complaint, Hai-Jin sought only

declaratory and injunctive relief. The defendants again

demurred, arguing that they are immune from liability and that

they owed no mandatory duty to Sun Hyang under the statute.

The trial court sustained the demurrer with leave to amend, and

Hai-Jin filed the operative second amended complaint that

expanded on her previous allegations but alleged the same causes

of action as before. The defendants demurred for a third time,

and the trial court sustained the demurrer without leave to

amend.

6

STANDARD OF REVIEW

“ ‘The purpose of a demurrer is to test the sufficiency of a

complaint by raising questions of law.’ [Citation.]” (Candelore v.

Tinder, Inc. (2018) 19 Cal.App.5th 1138, 1143.) “We review an

order sustaining a demurrer de novo, exercising our independent

judgment as to whether a cause of action has been stated as a

matter of law.” (Thompson v. Ioane (2017) 11 Cal.App.5th 1180,

1190.) In doing so, “ ‘[w]e assume the truth of the properly

pleaded factual allegations, [and] facts that reasonably can be

inferred from those expressly pleaded.’ [Citation.] But we do not

assume the truth of ‘contentions, deductions, or conclusions of

law.’ [Citation.] We liberally construe the complaint ‘with a view

to substantial justice between the parties,’ drawing ‘all

reasonable inferences in favor of the asserted claims.’

[Citations.]” (Liapes v. Facebook, Inc. (2023) 95 Cal.App.5th 910,

919.) “To survive a demurrer, the complaint need only allege

facts sufficient to state a cause of action . . . .” (C.A. v. William S.

Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

“[B]ecause we are reviewing the trial court’s ruling and not its

reasoning, we may affirm on any ground supported by the record

regardless of whether the trial court relied upon it.” (Doe v.

Roman Catholic Archbishop of Los Angeles (2016) 247

Cal.App.4th 953, 960.)

“When a demurrer is sustained without leave to amend, ‘we

decide whether there is a reasonable possibility that the defect

can be cured by amendment: if it can be, the trial court has

abused its discretion and we reverse; if not, there has been no

abuse of discretion and we affirm.’ [Citation.] Plaintiff has the

burden to show a reasonable possibility the complaint can be

amended to state a cause of action.” (Hamilton v. Greenwich

7

Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1609.)

“Where, however, amendment could not correct a deficiency in

the complaint or where the action is barred as a matter of law,

the demurrer is properly sustained without leave to amend.”

(State of California Auto. Dismantlers Assn. v. Interinsurance

Exchange (1986) 180 Cal.App.3d 735, 742.) “The issue of leave to

amend is always open on appeal, even if not raised by the

plaintiff.” (City of Stockton v. Superior Court (2007) 42 Cal.4th

730, 746.)

DISCUSSION

A. Hai-Jin Lacks Standing to Bring an Equal Protection

Claim

In her first cause of action, Hai-Jin alleged that the

defendants violated Sun Hyang’s Fourteenth Amendment right to

equal protection by refusing to provide a translator to help

witness the signing of a new advance healthcare directive.6 The

trial court sustained the defendants’ demurrer to this cause of

action on the ground that the Eleventh Amendment bars federal

lawsuits against a state unless the state consents to the suit.

Hai-Jin argues this was error because “[t]here is no . . . Eleventh

Amendment immunity from the guarantees of the [e]qual

6 Hai-Jin argued that the defendants’ actions also violated

her rights under article I, section 7 of the California Constitution.

The trial court sustained the demurrer to these claims on the

ground that there is no cause of action for a violation of this

provision “when such an action is not tied to an established

common law or statutory action.” (Julian v. Mission Community

Hospital (2017) 11 Cal.App.5th 360, 391.) Hai-Jin does not

challenge this conclusion on appeal, and we therefore do not

address it.

8

[p]rotection and [d]ue [p]rocess [c]lauses of the Fourteenth

Amendment.”

We requested supplemental briefing from the parties

regarding whether we may sustain the demurrer as to this cause

of action on a different ground, namely that Hai-Jin lacks

standing to bring an equal protection claim. We conclude that

Hai-Jin indeed lacks standing because she has not alleged that

Sun Hyang needed a translator to help her in signing an advance

healthcare directive. Instead, she has alleged the opposite—that

Sun Hyang did not need a translator. As a result, Hai-Jin has

not stated a cause of action because, even if the defendants had a

policy not to provide translators that denied equal protection to

patients who lack English proficiency, that policy did not injure

her.

“Standing is related to the requirement contained in Code

of Civil Procedure section 367 that ‘[e]very action must be

prosecuted in the name of the real party in interest, except as

otherwise provided by statute.’ (Code Civ. Proc., § 367.) The real

party in interest is generally the person who has the right to sue

under the substantive law.” (River’s Side at Washington Square

Homeowners Assn. v. Superior Court (2023) 88 Cal.App.5th 1209,

1225.) “Where someone other than the real party in interest files

suit, the complaint is subject to a general demurrer. (Code Civ.

Proc., § 430.10 . . . .)” (Estate of Bowles (2008) 169 Cal.App.4th

684, 690.)

As a general rule, a party has standing to sue and is the

real party in interest if he or she has “ ‘suffered or is about to

suffer an injury of sufficient magnitude reasonably to assure that

all of the relevant facts and issues will be adequately presented

to the adjudicator.’ ” (CashCall, Inc. v. Superior Court (2008) 159

9

Cal.App.4th 273, 286, quoting Holmes v. California Nat. Guard

(2001) 90 Cal.App.4th 297, 315.)

The requirement of a particularized injury as a basis for

standing “applies with as much force in the equal protection

context as in any other.” (United States v. Hays (1995) 515 U.S.

737, 743 [115 S.Ct. 2431, 132 L.Ed.2d 635].) Under this rule,

“even if a governmental actor is discriminating on the basis of [a

prohibited category], the resulting injury ‘accords a basis for

standing only to “those persons who are personally denied equal

treatment” by the challenged discriminatory conduct.’

[Citations.]” (Id. at pp. 743-744.) Thus, voters who sought to

challenge a state’s Congressional district map that allegedly

discriminated on the basis of race lacked standing to sue because

they did not reside in the districts that were allegedly the target

of racial gerrymandering. (Id. at p. 745.) By the same logic, a

plaintiff who was not a licensed contractor lacked standing to

challenge a transit agency’s affirmative action program for

awarding contracts on equal protection grounds. (Cornelius v.

Los Angeles County etc. Authority (1996) 49 Cal.App.4th 1761,

1771-1773.) Because he was not legally qualified to bid on

projects for the transit agency, the plaintiff could not claim to

have been injured by the manner with which the agency selected

the winning bids. (Ibid.)

In this case, Hai-Jin stated in her complaint that she told a

representative of WHA that Sun Hyang “did not need a

translator and that she understood English.” Because the

complaint does not allege that Sun Hyang needed a translator,

and cannot given Hai-Jin’s admission, Hai-Jin has failed to meet

this requirement. As a result, Hai-Jin lacks standing to assert

her first cause of action.

10

In her supplemental brief, Hai-Jin alleges that her

admission that Sun Hyang sufficiently understood English is not

dispositive because it represented only her own opinion.

According to Hai-Jin, the WHA representative believed otherwise

and refused to provide an independent translator. We do not see

how this alters the analysis. After Sun Hyang, in the presence of

her private caregiver and translator Stella, declined to sign the

advance healthcare directive the first time, Hai-Jin insisted that

WHA bring its own translator and return to the facility to

witness the signing again, even though in Hai-Jin’s view, Sun

Hyang did not need a translator to assist at all. This was a

dispute over the use of the ombudsman’s resources, not a matter

of equal protection. As we explain below, the ombudsman and

her representatives have discretion over how they exercise those

resources, and Hai-Jin does not allege that they did so in bad

faith.

B. The Due Process and State Law Claims Fail because

Section 9712.5 Does Not Create a Mandatory Duty to

Investigate Complaints

Hai-Jin’s second and third causes of action assert different

theories of liability, but both are based on the same alleged

misconduct. In her third cause of action, Hai-Jin alleged that

under section 9712.5, the defendants were required to investigate

her claims that the facility was starving and falsely imprisoning

Sun Hyang. In Hai-Jin’s view, the defendants’ alleged policy of

declining to investigate complaints brought by parties who do not

hold a power of attorney over a patient is a violation of their duty

under the statute. In her second cause of action, Hai-Jin alleged

that the defendants’ failure to investigate pursuant to their policy

denied Sun Hyang’s Fourteenth Amendment right to due process.

11

The trial court sustained the demurrer as to the third cause

of action on the ground that section 9712.5 does not impose a

mandatory duty on the defendants. Hai-Jin contends this was

error, but we disagree. Furthermore, because the statute did not

impose a mandatory duty on defendants to investigate Hai-Jin’s

claim once made without permitting consideration of any other

factors, we conclude that their failure to do so could not be a

violation of due process.

Hai-Jin’s argument for a mandatory duty under the statute

is based primarily on the text of section 9712.5, which states that

the ombudsman “shall . . . [¶] . . . [i]dentify, investigate, and

resolve complaints that are made by, or on behalf of, residents of

long-term care facilities.” (Id., subd. (a)(1), italics added.) But

although the term “shall” ordinarily signifies a mandatory duty,

“ ‘there are unquestionably instances in which other factors will

indicate that apparent obligatory language was not intended to

foreclose a governmental entity’s or officer’s exercise of discretion.

[Citations.]’ [Citation.]” (Bradley v. Lacy (1997) 53 Cal.App.4th

883, 889.)

Section 9712.5 states that “[i]f the office does not

investigate a complaint, the complainant shall be notified in

writing of the decision not to investigate and the reasons for the

decision.” (Id., subd. (a)(3).) This subdivision would be

unnecessary unless the ombudsman had discretion to choose not

to investigate every complaint. In the same way, district

attorneys retain the discretion not to initiate charges against

criminal suspects even though the Government Code states that

they “ ‘shall’ ” do so. (Taliaferro v. Locke (1960) 182 Cal.App.2d

752, 757, citing Gov. Code, § 26501.) Hai-Jin asserts no cause of

action for either the ombudsman or WHA failing to send her a

12

letter explaining the decision not to investigate her complaint,

and there is no cause of action on behalf of Sun Hyang against

the ombudsman for making that decision in the first place.

Hai-Jin’s claim also fails for another reason. Under section

9715, subdivision (a), “No representative of the office shall be

held liable for good faith performance of responsibilities under

this chapter.” Hai-Jin has never alleged or claimed that she

could allege that the ombudsman’s representatives acted in bad

faith.

DISPOSITION

The judgment is affirmed. Defendants are awarded their

costs on appeal.

NOT TO BE PUBLISHED

WEINGART, J.

We concur:

ROTHSCHILD, P. J.

KELLEY, J.*

 Judge of the San Luis Obispo County Superior Court,

assigned by the Chief Justice pursuant to article VI, section 6 of

the California Constitution.

13