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

> California Court of Appeal · July 29, 2024

URL: https://www.frixlaw.com/law-library/cases/10486779

## Case

- **Court:** California Court of Appeal
- **Decided:** July 29, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10486779. Public record. Not legal advice.