“Section 1430(b) 12 already provides an abundance of reasons for licensees not to transgress its health and safety 13 objectives, which includes the prospect of paying the other side’s attorney fees and costs and 14 suffering an injunction with its attendant fine for contempt of court.”
How later courts described this case
- “Section 1430(b) 12 already provides an abundance of reasons for licensees not to transgress its health and safety 13 objectives, which includes the prospect of paying the other side’s attorney fees and costs and 14 suffering an injunction with its attendant fine for contempt of court.”
Written by the judges who cited it.
The opinion
IN THE SUPREME COURT OF
CALIFORNIA
JANICE JARMAN,
Plaintiff and Appellant,
v.
HCR MANORCARE, INC., et al.,
Defendants and Appellants.
S241431
Fourth Appellate District, Division Three
G051086
Riverside County Superior Court
RIC10007764
August 17, 2020
Justice Chin authored the opinion of the Court, in which Chief
Justice Cantil-Sakauye and Justices Corrigan, Kruger, and
Groban concurred.
Justice Cuéllar filed a dissenting opinion, in which Justice Liu
concurred.
JARMAN v. HCR MANORCARE, INC.
S241431
Opinion of the Court by Chin, J.
Health and Safety Code1 section 1430, subdivision (b)
gives a current or former nursing care patient or resident the
right to bring a private cause of action against a skilled nursing
facility for violating certain regulations. The available remedies
include injunctive relief, costs and attorney fees, and “up to five
hundred dollars ($500)” in statutory damages. The question we
address is whether the monetary cap of $500 is the limit in each
action or instead applies to each violation committed.
For reasons that follow, we conclude that section 1430,
subdivision (b)’s $500 cap applies per action, not per regulatory
violation.
FACTUAL AND PROCEDURAL BACKGROUND
In early 2008, John Jarman, then 91 years old, fractured
his left hip after slipping and falling as he climbed out of a
swimming pool. After undergoing surgery to place a rod in his
leg, John2 was transferred from the hospital to Manor Care of
Hemet, CA, LLC, a skilled nursing facility of HCR ManorCare,
Inc. (collectively, Manor Care) on March 17, 2008. John could
1
All statutory provisions are to the Health and Safety Code
unless otherwise noted.
2
To avoid confusion, we refer to John Jarman by his first
name when discussing the facts leading up to the lawsuit. (See
post, p. 2 [explaining that John died after filing his lawsuit, and
is now represented by his daughter as successor in interest].)
1
JARMAN v. HCR MANORCARE, INC.
Opinion of the Court by Chin, J.
not move or get up on his own, and required full assistance with
daily activities, which included dressing, eating, toilet use,
hygiene, and bathing. During John’s three-month stay, Manor
Care staff allegedly often left him in soiled diapers, ignored
nurse call lights, and caused John to suffer other neglect and
indignities. John was discharged from Manor Care on June 16,
2008.
On April 26, 2010, John filed a complaint alleging three
causes of action, i.e., violations of the “Patients Bill of Rights”
(Health & Saf. Code, § 1430, subd. (b), citing Cal. Code Regs.,
tit. 22, § 72527); elder abuse and neglect; and negligence. The
complaint alleged that despite knowing that John was at “a high
risk for skin breakdown,” Manor Care failed to take
preventative measures and instead often left him in soiled
diapers; as a result, John suffered from significant skin
excoriation and bedsores which took over a year to heal after he
was discharged. It also alleged that John suffered from other
forms of abuse and neglect. John died before trial began, and
his daughter, Janice Jarman, represented him as his successor
in interest. References to “Jarman” are to both John and Janice
unless otherwise noted.
At the close of Jarman’s case in chief, Manor Care moved
to strike the request for punitive damages from the complaint.
The trial court denied the motion. On June 15, 2011, the jury
awarded Jarman $100,000 in damages and $95,500 in statutory
damages, i.e., $250 for each of the 382 violations. The jury also
answered “yes” to the question whether “[d]efendant engaged in
conduct that caused harm to the plaintiff with malice,
oppression or fraud.” Based on concerns regarding the
sufficiency of the evidence, the trial court later struck the
punitive damages claim.
2
JARMAN v. HCR MANORCARE, INC.
Opinion of the Court by Chin, J.
Manor Care subsequently made a motion for a partial
judgment notwithstanding the verdict, or alternatively, to
correct the judgment. Based on a complicated procedural
history not relevant to the issue here, the trial court’s judgment
was not entered until over three years later, on September 9,
2014. On remand, the trial court entered judgment against
Manor Care in the amount of $195,500 and subsequently
awarded Jarman $368,755 in attorney fees. Both Jarman and
Manor Care appealed.
The Court of Appeal agreed with Jarman that the trial
court erred in striking the jury’s finding that Manor Care acted
with malice, oppression, or fraud. It rejected Manor Care’s
claim that Jarman was limited to $500 in statutory damages,
and instead reasoned that the $500 cap applied to each cause of
action. The court remanded the matter to the trial court to
conduct further proceedings to determine the amount of
punitive damages Jarman was entitled to based on the 382
regulatory violations. (Jarman v. HCR ManorCare, Inc. (2017)
9 Cal.App.5th 807.) We granted review.
DISCUSSION
This state has long recognized nursing care patients as
“one of the most vulnerable segments of our population” and “in
need of the safeguards provided by state enforcement of patient
care standards.” (California Assn. of Health Facilities v.
Department of Health Services (1997) 16 Cal.4th 284, 295
(Health Facilities).) To that end, the Legislature enacted the
Long-Term Care, Health, Safety, and Security Act of 1973
(Long-Term Care Act or Act; § 1417 et seq.). Almost a decade
later, the Legislature enacted the Elder Abuse and Dependent
Adult Civil Protection Act (Elder Abuse Act; Welf. & Inst. Code,
3
JARMAN v. HCR MANORCARE, INC.
Opinion of the Court by Chin, J.
§ 15600 et seq.)), the specific purpose of which is “to protect a
particularly vulnerable portion of the population from gross
mistreatment in the form of abuse and custodial neglect.”
(Delaney v. Baker (1999) 20 Cal.4th 23, 33 (Delaney).)
This case turns on the interpretation of section 1430,
subdivision (b) (section 1430(b)), which is part of the Long-Term
Care Act. “Our fundamental task in interpreting a statute is to
determine the Legislature’s intent so as to effectuate the law’s
purpose. We first examine the statutory language, giving it a
plain and commonsense meaning. We do not examine that
language in isolation, but in the context of the statutory
framework as a whole in order to determine its scope and
purpose and to harmonize the various parts of the enactment.
If the language is clear, courts must generally follow its plain
meaning unless a literal interpretation would result in absurd
consequences the Legislature did not intend. If the statutory
language permits more than one reasonable interpretation,
courts may consider other aids, such as the statute’s purpose,
legislative history, and public policy.” (Coalition of Concerned
Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733,
737.)
In relevant part, section 1430(b) provides that a current or
former patient of a skilled nursing facility “may bring a civil
action against the licensee of a facility who violates any rights
of the resident or patient as set forth in the Patients Bill of
Rights in Section 72527 of Title 22 of the California Code of
Regulations, or any other right provided for by federal or state
law or regulation. . . . The licensee shall be liable for up to five
hundred dollars ($500), and for costs and attorney fees, and may
be enjoined from permitting the violation to continue . . . .”
(Italics added.) (Added by Stats. 1982, ch. 1455, § 1, p. 5599
4
JARMAN v. HCR MANORCARE, INC.
Opinion of the Court by Chin, J.
[adding subd. (b) to § 1430]; amended by Stats. 2004, ch. 270,
§ 2, p. 3139 [adding the term “current or former” patient and the
phrase “any other right provided for by federal or state law or
regulation”].)
The parties’ disagreement centers on the phrase, “[t]he
licensee shall be liable for up to five hundred dollars ($500).”
(§ 1430(b).) The statute does not explain how the $500 cap is
calculated. Is the cap applied to each violation committed, or is
$500 the maximum award of statutory damages in each lawsuit
brought? Manor Care argues that section 1430(b) “on its face”
authorizes a single maximum $500 award because the provision
states only that a resident may bring a “civil action,” and
nowhere mentions that the $500 cap applies “per violation” or
“per cause of action.” Significantly, Manor Care contends the
Legislature has included the term “per violation” or “each
violation” in other related contexts (e.g., §§ 1280.1, subd. (a)
[“per violation”], 1317.6, subd. (c) [“each violation”], 1548, subd.
(b) [”each violation”]), which suggests its omission from section
1430(b) was intentional. (See People v. Arriaga (2014) 58
Cal.4th 950, 960.)
For her part, Jarman maintains the provision is
ambiguous, i.e., it does not compel a conclusion that the
maximum award is $500, nor does it foreclose the alternative of
a $500 cap for each violation. Advancing a policy argument, she
asserts that unless the $500 cap is assessed for each violation,
a care facility could commit multiple violations “with impunity”
against a resident, knowing it would be liable for a total of only
$500. Jarman underscores that because the Long-Term Care
Act is a remedial statute, it must “be liberally construed on
behalf of the class of persons it is designed to protect.” (Health
5
JARMAN v. HCR MANORCARE, INC.
Opinion of the Court by Chin, J.
Facilities, supra, 16 Cal.4th at p. 295.) The respective amici
curiae largely echo these divergent arguments.
We agree that the language of section 1430(b) is far from
clear; even a careful parsing offers little insight. (Cf. Nevarrez
v. San Marino Skilled Nursing & Wellness Centre, LLC (2013)
221 Cal.App.4th 102, 131 (Nevarrez) [finding party’s reliance on
“syntax” of § 1430(b) to be “frustrated by the intervening
reference to ‘costs and attorney fees’ ”].)3 In the face of this
ambiguity, we look to the Long-Term Care Act as a whole, to
determine the legislative intent underlying section 1430(b).
(Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43
Cal.3d 1379, 1387 [“The words of the statute must be construed
in context, keeping in mind the statutory purpose, and statutes
or statutory sections relating to the same subject must be
harmonized, both internally and with each other, to the extent
possible.”].) We are mindful that “ ‘[t]hose who write statutes
seek to solve human problems. Fidelity to their aims requires
us to approach an interpretive problem not as if it were a purely
logical game, like a Rubik’s Cube, but as an effort to divine the
human intent that underlies the statute.’ ” (Burris v. Superior
Court (2005) 34 Cal.4th 1012, 1017.)
3
Although the statutory text does not clearly indicate
whether the Legislature intended a per-lawsuit or per-violation
$500 cap, the statutory text in any event does not support the
Court of Appeal’s conclusion that the cap applies per cause of
action. Further, to the extent the cause of action approach may
raise practical difficulties similar to those posed by the per
violation approach, which we discuss below (see post, at pp. 20–
21), we are persuaded that the $500 cap is better understood to
apply per lawsuit.
6
JARMAN v. HCR MANORCARE, INC.
Opinion of the Court by Chin, J.
With this perspective, we discuss the statutory scheme in
greater detail below.
A. Long-Term Care Act
The Long-Term Care Act is a “detailed statutory scheme
regulating the standard of care provided by skilled nursing
facilities to their patients.” (Kizer v. County of San Mateo (1991)
53 Cal.3d 139, 143 (Kizer); see § 1422, subd. (a) [legislative
findings and declarations].) The Act establishes a citation
system, an inspection and reporting system, and a provisional
licensing mechanism, all of which the Department of Public
Health (Department) is charged with administering. (§ 1417.1;
see Kizer, at p. 143.) “ ‘Under its licensing authority, the
Legislature has mandated standards to ensure quality health
care. The regulations establish that what the Legislature and
the Department are seeking to impose are measures that protect
patients from actual harm, and encourage health care facilities
to comply with the applicable regulations and thereby avoid
imposition of the penalties.’ ” (Health Facilities, supra, 16
Cal.4th at p. 295, quoting Kizer, at p. 148.)
Citations issued by the Department are “classified
according to the nature of the violation.” (§ 1424; see also
§ 1424.5, subd. (a).) Class “A” violations are violations that the
Department has determined present an imminent danger or a
substantial probability “that death or serious physical harm to
patients or residents of the long-term health care facility would
result therefrom.” (§ 1424, subd. (d).) Class “AA” violations are
Class A violations that are the “direct proximate cause” of a
patient’s death. (Id., subd. (c).) Class “B” violations are those
that “have a direct or immediate relationship to the health,
safety, or security of long-term health care facility patients or
7
JARMAN v. HCR MANORCARE, INC.
Opinion of the Court by Chin, J.
residents, other than class ‘AA’ or ‘A’ violations.” (Id., subd. (e).)
Class “C” violations are violations “relating to the operation or
maintenance of a skilled nursing facility which the Department
determines has only a minimal relationship to the health, safety
or security” of long-term care patients. (Cal. Code Regs., tit. 22,
§ 72701, subd. (a)(4); see Nevarrez, supra, 221 Cal.App.4th at
p. 131.)
With respect to the Long-Term Care Act’s inspection and
citation process, it operates “to encourage compliance with state
mandated standards for patient care and to deter conduct which
may endanger the well-being of patients.” (Kizer, supra, 53
Cal.3d at p. 150.) In effect, the scheme “serves to punish by
naming and shaming facilities that violate the law.” (State Dept.
of Public Health v. Superior Court (2015) 60 Cal.4th 940, 950; cf.
§ 1422, subd. (a) [legislative finding that inspections are the
“most effective means” to implement protective state policy].)
Although its authorization of civil penalties (see e.g., §§ 1424,
1424.5, 1425, 1428) has a “punitive or deterrent aspect,” the
Long-Term Care Act is nonetheless remedial and its central
focus is “preventative.” (Kizer, supra, 53 Cal.3d at pp. 147–148,
italics omitted.) With this administrative authority to license
and inspect facilities, issue citations, and impose civil penalties,
the Department serves as “the primary enforcer of standards of
care in the long-term care facilities of this state.” (Health
Facilities, supra, 16 Cal.4th at p. 305, fn. 7; see Kizer, supra, 53
Cal.3d at p. 142.)
B. Patients Bill of Rights
In addition to protective standards of care designed to
provide quality health care (see Health Facilities, supra, 16
Cal.4th at p. 295), nursing care patients are entitled to
8
JARMAN v. HCR MANORCARE, INC.
Opinion of the Court by Chin, J.
“fundamental human rights” set out in the Patients Bill of
Rights. (Cal. Code Regs., tit. 22, § 72527 [regulatory version];
§ 1599.1 [statutory version].) These rights include the right “[t]o
be free from discrimination” and the right “[t]o be free from
mental and physical abuse.” (Cal. Code Regs., tit. 22, § 72527,
subd. (a)(8), (10).) A nursing care patient is “[t]o be fully
informed” of the rights governing patient conduct, of all services
available in the facility and related charges, and of his or her
total health status. (Id., subd. (a)(1), (2), (3).) A patient must
also receive material information related to any proposed
treatment or procedure (id., subd. (a)(5)), and be encouraged to
voice grievances and suggest any changes to policies and
services (id., subd. (a)(7)). Certain rights in the Patients Bill of
Rights are also “expressed as aggregate, facility-wide
obligations.” (Shuts v. Covenant Holdco LLC (2012) 208
Cal.App.4th 609, 620 (Shuts), citing § 1599.1.) For instance, a
facility must employ an adequate staff, provide residents
appropriate food, support an activity program to encourage
residents’ self-care, and maintain an operating nurses’ call
system. (§ 1599.1, subds. (a), (c), (d), (f); see Shuts, at p. 620.)
When adopted by regulation in 1975 and later enacted into
statute in 1979, however, the Patients Bill of Rights did not
include its own mechanism for enforcement with respect to any
violations. (Health Facilities, supra, 16 Cal.4th at p. 302;
§ 1599.1; see Cal. Code Regs., tit. 22, §§ 72527, 72701, subd.
(a)(4); Nevarrez, supra, 221 Cal.App.4th at p. 135.) While
section 1430, subdivision (a) (section 1430(a); formerly section
1430) authorized the Attorney General or other interested party
to initiate private actions for damages or to seek an injunction
against a nursing care facility, its reach was limited.
9
JARMAN v. HCR MANORCARE, INC.
Opinion of the Court by Chin, J.
As discussed further below (see post, at pp. 16–17), section
1430(a) (formerly section 1430) applied only if the Department
failed to take action based on a facility’s class A or B violation
(§ 1424, subds. (c)–(e)), and the violation was not corrected to
the Department’s satisfaction. (§ 1430(a), added by Stats. 1973,
ch. 1057, § 1, p. 2093; see Health Facilities, supra, 16 Cal.4th at
p. 302.) By its terms, section 1430(a) does not extend to class C
violations. (See Nevarrez, supra, 221 Cal.App.4th at p. 131.)
C. Section 1430(b)
In 1982, the Legislature added subdivision (b) to section
1430 allowing “skilled nursing facility residents themselves to
bring actions to remedy violations of their rights rather than
forcing them to depend upon the [Department] to take action.”
(Shuts, supra, 208 Cal.App.4th at pp. 623–624.) Specifically,
section 1430(b) cross-referenced the Patients Bill of Rights (Cal.
Code Regs., tit. 22, § 72527), which in turn incorporated section
1599.1. (§ 1430(b), added by Stats. 1982, ch. 1455, § 1, p. 5599;
see § 1599 et seq., added by Stats. 1979, ch. 893, § 1, p. 3087.)
Legislative history supports the conclusion that section 1430(b)
was specifically enacted to create an enforcement mechanism for
violations that were not directly related to patient health and
safety. (See Nevarrez, supra, 221 Cal.App.4th at p. 135.) In
2004, the Legislature added language providing that the
violation of “any other right provided for by federal or state law
or regulation” may also be a basis for bringing an action.
(§ 1430(b), as amended by Stats. 2004, ch. 270, § 2.) Because
section 1430(b) “supplements administrative enforcement by
creating a private right of action under statutes and regulations
that do not themselves confer such a right,” it “apparently covers
a broader spectrum of violations than subdivision (a).”
(Nevarrez, supra, 221 Cal.App.4th at p. 132.)
10
JARMAN v. HCR MANORCARE, INC.
Opinion of the Court by Chin, J.
With this background in mind, we compare the language
of subdivisions (a) and (b) in section 1430.
1. Comparison with section 1430(a)
As a textual matter, while sections 1430(a) and 1424
authorize the imposition of a civil penalty for “each and every”
violation (§ 1424, subds. (d), (e)) and civil damages not exceeding
the civil penalties that could be assessed “on account of the
violation or violations” (§ 1430(a)), respectively, similar
language is tellingly absent from section 1430(b). Instead,
section 1430(b)’s phrase, “The licensee shall be liable for up to
five hundred dollars ($500),” has no unit of measurement to
which the $500 cap applies. This difference in terms between
the subdivisions suggests the Legislature intended to take a
different approach with respect to the $500 cap in section
1430(b). “When one part of a statute contains a term or
provision, the omission of that term or provision from another
part of the statute indicates the Legislature intended to convey
a different meaning.” (Cornette v. Department of Transportation
(2001) 26 Cal.4th 63, 73.)
In that regard, it bears emphasis that section 1430(b) is
“distinct from the administrative enforcement of the Act with
which section 1424 is concerned.” (Health Facilities, supra, 16
Cal.4th at p. 302.) For instance, section 1424 requires that the
Department consider certain “relevant facts” to determine the
amount of each civil penalty. (§ 1424, subd. (a); see State Dept.
of Public Health v. Superior Court, supra, 60 Cal.4th at p. 951
[consideration of specific factors must be made public].) These
specific facts include but are not limited to the “probability and
severity” of the violation’s risk to the patient’s “mental and
physical condition”; the patient’s “medical condition”; the
11
JARMAN v. HCR MANORCARE, INC.
Opinion of the Court by Chin, J.
patient’s “mental condition” and “history of mental disability or
disorder”; a facility’s “good faith efforts” to prevent violation
from occurring; and the facility’s “history of compliance with
regulations.” (§ 1424, subd. (a)(1)–(5).) Likewise, in a public
enforcement action brought under section 1430(a), the subject
violations and amount of monetary recovery “are expressly tied
to the administrative penalty scheme” under section 1424.
(Nevarrez, supra, 221 Cal.App.4th at p. 131; see § 1430(a)
[recoverable civil damages in private action “may not exceed the
maximum amount of civil penalties that could be assessed on
account of the violation or violations”].) Moreover, an
administrative enforcement action offers a facility certain
protections not found in an action brought against a facility
under section 1430(b). (See, e.g., § 1423, subd. (b) [Department
may issue only one citation for each statute or regulation
violated based on a single incident “[w]here no harm to patients,
residents, or guests has occurred”]; id., subd. (c) [no citation
issued for an “ ‘unusual occurrence’ ” if certain conditions are
met].)
In contrast, despite a wide range of patient rights (see
ante, at p. 10), section 1430(b) provides no guidance on how to
determine the monetary recovery for each violation. It does not
distinguish amongst these patient rights in terms of available
remedies for any violation. Unlike class B, A, and AA violations,
which increase in severity and resulting civil penalty according
to the nature of the violation (see Kizer, supra, 53 Cal.3d at
p. 142 [§ 1424, subds. (c), (d), (e)]), a violation of any of the rights
covered under section 1430(b) would be subject to the same $500
cap, the recovery of attorney fees and costs, and injunctive relief.
For example, the same $500 cap would apply if a nursing care
facility prohibits a patient from making private telephone calls
12
JARMAN v. HCR MANORCARE, INC.
Opinion of the Court by Chin, J.
(Cal. Code Regs., tit. 22, § 72527, subd. (a)(22)), or if the facility
subjects the patient to physical abuse (id., subd. (a)(10)). While
it is true that other provisions of the Long-Term Care Act
require the Department to determine the number of class AA,
A, and B violations a facility has committed (see dis. opn., post,
at pp. 7–9), section 1430(b) contains no indication that the
Legislature intended juries to exercise the same level of
enforcement discretion that the Department exercises in
administering the Act.
Moreover, many of the rights set out in the Patients Bill of
Rights appear to overlap with one another, making it difficult to
parse out what constitutes a separate and distinct violation for
purposes of section 1430(b). For instance, every patient has the
right “[t]o be treated with consideration, respect and full
recognition of dignity and individuality” (Cal. Code Regs., tit. 22,
§ 72527, subd. (a)(12); “[t]o meet with others and participate in
activities of social, religious and community groups” (id., subd.
(a)(15); “[t]o have visits from members of the clergy at any time”
(id., subd. (a)(19); and “[t]o have visits from persons of the
patient’s choosing at any time if the patient is critically ill” (id.,
subd. (a)(20). If a skilled nursing facility denied a resident’s
request to receive a visit from a pastor or priest, would this
denial constitute four separate violations of the rights above,
resulting in a $2000 award?
This difficulty in calculating any monetary award is
further exacerbated by the circumstance that section 1430(b)
“provides no notice as to what evidentiary facts constitute a
single continuing violation or separate violations of a patient’s
right, or whether a practice or a course of conduct gives rise to
one or more violations.” (Nevarrez, supra, 221 Cal.App.4th at
p. 136 [addressing due process concerns].)
13
JARMAN v. HCR MANORCARE, INC.
Opinion of the Court by Chin, J.
Given the range of rights secured by section 1430(b) and
the difficulty of distinguishing a series of violations from a
continuing violation, it seems fairly improbable that the
Legislature intended the $500 cap to be applied in a sliding-scale
fashion — with damages tied to the severity of the
misconduct — as the dissent suggests. (See dis. opn., post, at
pp. 10–11) Had the Legislature intended to craft section
1430(b)’s remedial provision this way, it likely would have
provided for a higher monetary cap and directed the jury to base
its award on the gravity of the harm, as it has done in other
contexts. (See, e.g., Civ. Code, § 1798.150, subd. (a)(2).)
These deficiencies, including the lack of textual guidance
and specificity, suggest that the Legislature did not focus on
calibrating any monetary relief to the nature of each patient
right and violation articulated in section 1430(b). As we explain
next, section 1430(b)’s legislative history further evinces the
Legislature’s intent that the dollar amount refers to the
recovery of the entire case, not per violation. (See Stats. 1982,
ch. 1455, § 1, p. 5599 [Sen. Bill No. 1930 (1981-1982 Reg.
Sess.)].)
2. Legislative history of section 1430(b)
When first introduced, Senate Bill No. 1930, which added
subdivision (b) to section 1430, provided that “[t]he licensee
shall be liable for up to two thousand five hundred dollars
($2,500) or three times the actual damages, whichever is greater,
and for costs and attorney fees, and may be enjoined from
permitting the violation to continue.” (Sen. Bill No. 1930 (1981-
1982 Reg. Sess.) as introduced Mar. 17, 1982.) Later, the
italicized language was amended to “damages according to
proof, punitive damages upon proof of repeated or intentional
14
JARMAN v. HCR MANORCARE, INC.
Opinion of the Court by Chin, J.
violations, and for costs and attorney fees, and may be enjoined
from permitting the violation to continue.” (Id., as amended
May 12, 1982, italics added.) A proposed revision subsequently
sought to allow recovery “ ‘for up to $500.00 or three times the
damages, whichever is greater, and for costs and attorney fees,
and may be enjoined from permitting the violation to
continue.’ ”(Felice Tanenbaum, Assistant to Sen. Nicholas
Petris, Sponsor of Sen. Bill No. 1930, letter to Bruce Yarwood,
Cal. Assn. of Health Facilities, July 7, 1982.) However, this
revision was not adopted. Lastly, the final version of the enacted
bill contains the language we see today, allowing recovery “for
up to five hundred dollars ($500).” (Stats. 1982, ch. 1455, § 1,
p. 5599.)
With little to no legislative material to the contrary,4 this
revision history suggests that the Legislature did not shift its
intent that the dollar figure in section 1430(b) represent a per
action amount. From the outset, the prescribed dollar amount,
i.e., initially set at two thousand five hundred ($2,500), referred
to the entire action, representing a floor for recovery if the actual
damages when tripled did not add up to $2,500. (Sen. Bill No.
1930 (1981-1982 Reg. Sess.) as introduced Mar. 17, 1982.) The
next revision removed the floor, and replaced it with a provision
for actual damages and the possibility of punitive damages. (Id.,
4
One minority analysis for the Assembly Committee on the
Judiciary stated the following: “For each violation the patient
could recover a maximum of $500 plus attorney fees at cost.”
(Assem. Com. on Judiciary, Minority Analysis of Sen. Bill No.
1930 (1981-1982 Reg. Sess.) as amended August 2, 1982, p. 1.)
Apart from this bare sentence, there is no other legislative
material supporting a per violation approach. (See Nevarrez,
supra, 221 Cal.App.4th at p. 133 [finding minority analysis
unpersuasive].)
15
JARMAN v. HCR MANORCARE, INC.
Opinion of the Court by Chin, J.
as amended May 12, 1982.) Though the revision was not made,
a subsequent proposal sought to reinstate the recovery floor, at
a lower $500 amount, as well as treble damages. Finally, the
enacted version preserved the $500 figure, but eliminated
recovery of any damages. (Stats. 1982, ch. 1455, § 1, p. 5599.)
Fairly read, each iteration of the remedial provision, for
example, the language “damages according to proof, punitive
damages upon proof of repeated or intentional violations” (Sen.
Bill No. 1930 (1981-1982 Reg. Sess.) as amended May 12, 1982),
was arguably crafted to encompass the entire action.
Contrary to Jarman’s and the dissent’s suggestion (see dis.
opn., post, at pp. 3–4), the inclusion of the term “the violation”
in the singular does not indicate that the $500 cap applied to
each violation, particularly when we consider the general rule of
statutory construction that “[t]he singular number includes the
plural, and the plural the singular.” (§ 13.) More to the point,
despite textual changes to the recovery of damages, every
version of the bill left unchanged language that a facility “may
be enjoined from permitting the violation to continue.” This
suggests that the inclusion of the phrase did not reflect what the
Legislature intended by the particular monetary cap.
Further, when section 1430(b) was added in 1982, section
1430(a) (formerly section 1430) provided (as it does today) that
in a private action involving class A or class B violations, the
amount of recoverable damages cannot “exceed the maximum
amount of civil penalties” that the Department could assess
long-term care facilities “on account of the violation or
violations.” (Stats. 1982, ch. 1455, § 1, p. 5599.) In 1982, the
monetary amounts for these penalties specified that the penalty
for class B violations, i.e., those relating to the health, safety, or
security of nursing care patients, ranged from $50 to $250 for
16
JARMAN v. HCR MANORCARE, INC.
Opinion of the Court by Chin, J.
“each and every violation.” (§ 1424, as amended by Stats. 1982,
ch. 1597, § 3, p. 6365; Nevarrez, supra, 221 Cal.App.4th at
p. 131, fn. 12; see Lackner v. St. Joseph Convalescent Hospital,
Inc. (1980) 106 Cal.App.3d 542, 547; see also § 1424.5, added by
Stats. 2000, ch. 451, § 25, pp. 3307–3308 [alternative, increased
fines for skilled nursing facilities or intermediate care
facilities].)
If we consider that the recovery for each class B violation
in a private action was at most $250 (§§ 1424, 1430(a)), that
would mean that a less serious class C violation under section
1430(b) — i.e., one that concerned the operation or maintenance
of a facility with only a “minimal relationship” to the health,
safety, and security of a patient — would have been worth twice
as much in terms of monetary redress as a class B violation. We
decline to regard this anomalous construction as one the
Legislature would have intended when it enacted section
1430(b). In that regard, the dissent’s suggestion that a public
enforcement action under section 1430(a) is “encumbered by
procedural constraints and special protections” (dis. opn., post,
at p. 8) makes it more peculiar that a larger award would be
available in private suits brought under subdivision (b). (See
also dis. opn., post, at pp. 12–13.)
Finally, the Legislature’s views on the import of section
1430(b)’s $500 cap, though expressed over 20 years after the cap
was added, are entitled to “due consideration.” (Western
Security Bank v. Superior Court (1997) 15 Cal.4th 232, 244.)
This legislative history reflects that the Legislature has
consistently interpreted the provision to provide a cap of $500
per lawsuit. In 2004, the last time the Legislature amended
section 1430(b), it expanded a nursing care patient’s right to
bring an action to include “any other right provided for by
17
JARMAN v. HCR MANORCARE, INC.
Opinion of the Court by Chin, J.
federal or state law or regulation.” (Stats. 2004, ch. 270, § 2.) In
adding this admittedly broad language, the Legislature
specifically affirmed that “[e]xisting law, which makes [skilled
nursing facilities and intermediate care facilities] liable for up
to $500 along with litigation costs, has been in effect since 1982.”
(Assem. Comm. on Health, Analysis of Assem. Bill No. 2791
(2003-2004 Reg. Sess.) as amended April 1, 2004, p. 1, italics
added.) Though the declaration is neither binding nor
conclusive in construing the provision, “the Legislature’s
expressed views on the prior import of its statutes are entitled
to due consideration” even if a “gulf of decades separates” the
legislative declaration and the earlier enactment. (Western
Security Bank, at p. 244.)5
D. Policy Arguments
Contrary to Jarman’s suggestion, we do not find that
limiting an award to $500 per lawsuit would render the statute
“toothless.” Section 1430(b) already provides “an abundance of
reasons for licensees not to transgress its health and safety
objectives,” which includes “the prospect of paying the other
side’s attorney fees and costs and suffering an injunction with
its attendant fine for contempt of court.” (Nevarrez, supra, 221
Cal.App.4th at p. 135.) Injunctive relief would help to ensure
that violations are not committed going forward, consistent with
the preventative purpose of the Long-Term Care Act. (See Kizer,
5
We observe that this 2004 legislation also proposed but did
not adopt an amendment “raising the maximum financial
remedy for rights violations from $500 to $5000.” (Assem.
Comm. on Health, Analysis of Assem. Bill No. 2791 (2003-2004
Reg. Sess.) as amended April 1, 2004, p. 2, italics added; see
Assem. Bill No. 2791 (2003-2004 Reg. Sess.) as amended May
11, 2004.)
18
JARMAN v. HCR MANORCARE, INC.
Opinion of the Court by Chin, J.
supra, 53 Cal.3d at pp. 147–148; see also Balisok, Cal. Practice
Guide: Elder Abuse Litigation (The Rutter Group 2019) ¶ 10:26
[“Perhaps the most important remedy specified in § 1430(b) is
injunctive relief”].) Even if a plaintiff’s recovery is limited to
injunctive relief or includes little to no monetary relief, the
potential for attorney fees and costs could still serve as a strong
deterrent. (See Nevarrez, supra, 221 Cal.App.4th at p. 135; see
City of Riverside v. Rivera (1986) 477 U.S. 561, 574 [in civil
rights action, fee award need not be proportionate to damages
amount when vindication of rights “cannot be valued solely in
monetary terms”].)
Nor do we find it absurd that section 1430(b) does not
authorize a nursing care resident to obtain up to $500 for each
violation a facility commits. Section 1430 itself declares that
“[t]he remedies specified in this section shall be in addition to
any other remedy provided by law.” (§ 1430, subd. (c), italics
added.) It “does not foreclose civil actions for damages by
patients who have been injured by a violation.” (Kizer, supra,
53 Cal.3d at p. 143; see id. at p. 150 [private action under
§ 1430(b) is one of several “alternative enforcement
mechanisms” of Long-Term Care Act]; see § 1430(a).) Put
another way, we conclude section 1430(b) was not intended to be
the exclusive or primary enforcement mechanism for residents
of long-term care facilities seeking compensation for harms
suffered in those facilities. (See Lemaire v. Covenant Care
California, LLC (2015) 234 Cal.App.4th 860, 867 [§ 1430(b) “is
not a substitute for the standard damage causes of action for
injuries suffered by residents of nursing care facilities”].) Tort
law has long provided remedies for individuals seeking
compensation for harm. And consistent with the objective to
provide comprehensive measures to protect nursing care
19
JARMAN v. HCR MANORCARE, INC.
Opinion of the Court by Chin, J.
patients who are often elderly, the Legislature has designed
additional protections that take various forms. (See Kizer,
supra, 53 Cal.3d at p. 150; Health Facilities, supra, 16 Cal.4th
at p. 305.)
For example, the Elder Abuse Act is specifically designed
to identify and address — through the imposition of enhanced
sanctions — the seriousness and frequency of neglect or abuse
committed against elderly individuals. (See Delaney, supra, 20
Cal.4th at p. 32 [Welf. & Inst. Code, § 15657 covers “forms of
abuse or neglect performed with some state of culpability
greater than mere negligence”]; Winn v. Pioneer Medical Group,
Inc. (2016) 63 Cal.4th 148, 160 [Welf. & Inst. Code, § 15657
“explicitly limited to physical abuse and neglect”].) In this case,
Jarman’s allegations of neglect (e.g., Manor Care’s “conduct was
reckless and outrageous” because its staff “acted in conscious
disregard of Mr. Jarman knowing that harm was eminent if it
didn’t change its conduct”) are typical of those that help form
the basis of an action under the Elder Abuse Act. (See Carter v.
Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th
396, 405–406 [compiling cases].) We do not opine on the validity
or likelihood of success of Jarman’s claim under the Elder Abuse
Act, however. We merely note that unlike the Elder Abuse Act
or, for that matter, traditional tort law causes of action like
negligence that are available to nursing care patients, section
1430(b)’s $500 cap does not appear to take into account the
severity of a facility’s misconduct, nor does it appear designed to
provide plaintiffs full compensation for harms suffered in those
facilities.
As this case amply demonstrates, a per violation approach
under section 1430(b) would present substantial practical
difficulties. The special verdict form here asked the jury, “How
20
JARMAN v. HCR MANORCARE, INC.
Opinion of the Court by Chin, J.
many times did Manor Care of Hemet violate any rights of
Jarman provided for by federal or state law or regulation?” and
“What is the total amount you find HCR MANOR CARE liable
for as a result of violating John Jarman’s rights?” The form
added that “[t]he amount awarded per right violation cannot
exceed $500 for each right violation occurrence.” (Italics added.)
The record reflects that the jury decidedly struggled with
how to calculate the number of violations Manor Care
committed. Ultimately, the jury answered “382” to the question
“[h]ow many times” Manor Care violated any of John Jarman’s
rights. As to the facility’s monetary liability, the jury concluded
every violation was worth $250 each, thus totaling $95,500.
Critically, there was no enumeration of which specific right (or
how many times each right) was violated.6
In concluding that section 1430(b) authorizes a $500 per
lawsuit cap, we see little risk of plaintiffs maneuvering around
this cap by filing multiple lawsuits. To the extent that
industrious counsel may craft pleadings to divide one case into
multiple cases for the sole purpose of recovering multiple $500
6
The dissent, too, does not resolve what counts as a
violation. (See dis. opn., post, at pp. 23–24.) This not only
underscores the difficulty of defining a “violation,” it also
undermines the dissent’s claim that interpreting the $500 cap
to apply per action “will radically reduce the financial incentive
for compliance under section 1430(b) of the Act.” (Dis. opn., post,
at p. 13.) After all, if innumerable violations of the same right
count as only one violation (see id., at pp. 21–22), then even on
the dissent’s view, the award authorized by section 1430(b) is
not “tied to the number and severity of violations” (dis. opn.,
post, at p. 14).
21
JARMAN v. HCR MANORCARE, INC.
Opinion of the Court by Chin, J.
awards, principles of claim and issue preclusion could limit such
attempts at manipulation. (See DKN Holdings LLC v. Faerber
(2015) 61 Cal.4th 813, 824–825.) Moreover, trial courts would
likely consider “inefficient or duplicative efforts” when
evaluating attorney fee requests. (Ketchum v. Moses (2001) 24
Cal.4th 1122, 1132.)
CONCLUSION
Undoubtedly, nursing care patients comprise a
particularly vulnerable segment of our population and deserve
the highest protections against any abuse and substandard
care.7 That said, we cannot and must not legislate by grafting
onto section 1430(b) a remedy that the Legislature has chosen
not to include. (See Cornette v. Department of Transportation,
supra, 26 Cal.4th at pp. 73–74 [courts “may not rewrite a
statute, either by inserting or omitting language, to make it
conform to a presumed intent that is not expressed”].) Instead,
we look to the Legislature, which has left the phrase (i.e., a
facility “shall be liable for up to five hundred dollars ($500)”)
unchanged for nearly 40 years, to make any necessary
adjustments or clarifications as it sees fit.
7
As the dissent recounts (see dis. opn., post, at pp. 1–2), a
global pandemic has gripped this state, causing immeasurable
suffering and death. And we have no reason to doubt that the
COVID-19 disease has disproportionately afflicted our state’s
nursing care facilities. That said, this unprecedented situation
does not bear on the question presented in this case, i.e., what
did the Legislature intend since 1982 when it limited a facility’s
monetary liability under section 1430(b) to $500, particularly
given the availability of other remedies. (See ante, at pp. 19–
20.)
22
JARMAN v. HCR MANORCARE, INC.
Opinion of the Court by Chin, J.
We reverse the Court of Appeal’s judgment,8 and remand
for further proceedings consistent with this opinion.
CHIN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
KRUGER, J.
GROBAN, J.
8
We do not reach the question whether Jarman is entitled
to punitive damages. Moreover, because the issue is not
implicated here, we do not address how the $500 cap in section
1430(b) would apply to lawsuits involving multiple plaintiff
patients.
23
JARMAN v. HCR MANORCARE, INC.
S241431
Dissenting Opinion by Justice Cuéllar
A global pandemic is afflicting California, burdening
millions and killing thousands from Imperial County to the
Oregon border. Nowhere has the pain of the COVID-19 virus
been more acutely felt than in our state’s nursing homes. (See,
e.g., Sciacca, The Mercury News (July 1, 2020) Hayward nursing
home’s large COVID-19 outbreak preceded by long history of
neglect and abuse, lawsuit claims
<https://www.mercurynews.com/2020/07/01/hayward-nursing-
homes-large-covid-19-outbreak-preceded-by-long-history-of-
neglect-and-abuse-lawsuit-claims/> [as of Aug. 13, 2020];
Ravani, S.F. Chronicle (July 3, 2020) Contra Costa DA alleges
elder abuse, sexual assault at troubled Orinda nursing home
<https://www.sfchronicle.com/bayarea/article/Contra-Costa-
DA-alleges-elder-abuse-sexual-15383492.php> [as of Aug. 13,
2020] [“The Contra Costa County district attorney’s office has
found evidence of elder abuse, including a suspected sexual
assault, at a 47-bed Orinda nursing home where nearly every
resident and many workers became infected with the
coronavirus in April”]; Wiener, CalMatters (June 15, 2020)
Who’s watching now? COVID-19 cases swell in nursing homes
with poor track records <https://calmatters.org/health/corona
virus/2020/06/nursing-homes-coronavirus-deaths-infections-
inspections-violations-kingston-california/> [as of Aug. 13, 2020]
[profiling a number of California nursing homes, including one
that has been labeled a “special focus facility,” which designates
JARMAN v. HCR MANORCARE, INC.
Cuéllar, J., dissenting
facilities that may face forcible closure, for a year and a half and
has now recorded 112 cases of COVID-19 among residents and
18 deaths]; see also, Cenziper et al., The Washington Post (Aug.
4, 2020) Nursing home companies accused of misusing federal
money received hundreds of millions of dollars in pandemic relief
<https://www.washingtonpost.com/business/2020/08/04/nursing
-home-companies-accused-misusing-federal-money-received-
hundreds-millions-dollars-pandemic-relief/> [as of Aug. 13,
2020].) The defendant in this case is no exception: At one of the
facilities run by defendant in Walnut Creek, California, 130
people are infected, and 12 have died. (Bauman, S.F. Chronicle
(July 20, 2020) Coronavirus: Outbreak at Walnut Creek nursing
home leaves 12 dead, 130 infected
<https://www.sfchronicle.com/bayarea/article/Coronavirus-
Outbreak-at-Walnut-Creak-nursing-15421482.php> [as of Aug.
13, 2020].1)
At the heart of this case is the Long-Term Care, Health,
Safety, and Security Act of 1973 (Health & Saf. Code, § 1417 et
seq.; hereafter Long-Term Care Act)2, a law enacted to help
protect vulnerable residents in nursing homes. It enshrines
rights such as freedom from mental and physical abuse, freedom
from psychotherapeutic drugs and physical restraints used for
patient discipline or staff convenience, the right “[t]o be fully
informed by a physician of his or her total health status,” and
the right to participate in the planning of medical treatment and
1
All Internet citations in this opinion are archived by year,
docket number, and case name at <http://www.courts.ca.gov/
38324.htm>.
2
All statutory references are to the Health and Safety Code
unless otherwise noted.
2
JARMAN v. HCR MANORCARE, INC.
Cuéllar, J., dissenting
to refuse experimental treatment. (Cal. Code Regs., tit. 22,
§ 72527.) Also included in the Long-Term Care Act is a remedy:
“A current or former resident or patient of a skilled nursing
facility . . . may bring a civil action against the licensee of a
facility who violates any rights of the resident or patient as set
forth in the Patients Bill of Rights in Section 72527 of Title 22
of the California Code of Regulations, or any other right
provided for by federal or state law or regulation. . . . The
licensee shall be liable for up to five hundred dollars ($500), and
for costs and attorney fees, and may be enjoined from permitting
the violation to continue.” (Health & Saf. Code, § 1430, subd. (b)
(section 1430(b).) That no right is meaningful without a remedy
makes the language of section 1430(b) especially important,
even if — as the majority agrees — it’s initially unclear whether
the reference to a “violation,” when read in isolation, limits a
plaintiff’s recovery to just $500 per lawsuit. What belies that
reading is the language, statutory structure, and history of this
provision. The provision’s purpose was to deter violations of the
“Patients Bill of Rights” and other provisions of the Long-Term
Care Act, and it effectuated that purpose by allowing patients to
seek compensation of up to $500 for each violation. Because the
majority’s reading deprives nursing home residents of an
important tool to deter and vindicate violations of their rights,
and otherwise fails to persuade, I dissent with respect.
I.
Where section 1430(b) limits liability to $500, it does so by
referring to “the violation” in the singular. (“The licensee shall
be liable for up to five hundred dollars ($500), and for costs and
attorney fees, and may be enjoined from permitting the violation
to continue.”) When aggrieved plaintiffs endure conditions
troubling enough to provoke a lawsuit seeking vindication of
3
JARMAN v. HCR MANORCARE, INC.
Cuéllar, J., dissenting
their rights under the Long-Term Care Act, they have reason to
cite more than one instance of known misconduct — making it
wildly improbable that most or even many lawsuits would ever
mention just a single instance of misconduct. So long as we live
in a world where patients rarely find only one of their rights has
been violated, single-violation lawsuits will be the exception.
The reference to a singular violation in the key sentence of the
statute therefore strongly implies that the $500 cap applies to a
single violation, not a civil action.
The majority points to the fact that other sections of the
act more explicitly reference multiple violations. Sections 1430,
subdivision (a) (section 1430(a)), and 1424 authorize the
imposition of a civil penalty for “each and every” violation
(§ 1424, subds. (d), (e)) and “on account of the violation or
violations” (§ 1430(a)). (Maj. opn., ante, at p. 11.) They note that
“similar language is tellingly absent from section 1430(b).”
(Ibid.) This distinction is hardly dispositive, because it’s not the
only difference between these provisions. Sections 1424 and
1430(a) concern an administrative civil penalty scheme, while
section 1430(b) creates a private right of action. Further, the
penalty scheme established by section 1424 did not exist for the
Patients Bill of Rights at the time section 1430(b) was enacted.
Because there was no administrative analog for subdivision (b),
this distinction in language seems less significant. Perhaps
more importantly, the text taken together with the structure
and legislative history of section 1430(b) evinces a legislative
purpose to protect the rights of nursing home residents. We
should be wary of an interpretation that strays so far from that
purpose, especially in light of the ambiguity of this text.
We can readily glean further support for this conclusion
from the legislative history. The only explanation of the
4
JARMAN v. HCR MANORCARE, INC.
Cuéllar, J., dissenting
application of the $500 limit to be found in the history of the bill
provides that “[f]or each violation the patient could recover a
maximum of $500 plus attorneys fees at cost. The patient could
also obtain an injunction against future violations.” (Assem.
Com. on Judiciary, Minority Analysis of Sen. Bill No. 1930
(1981-1982 Reg. Sess.) as amended Aug. 2, 1982, p. 1, italics
added.) While a minority committee report is undoubtedly not
dispositive, it was produced and available to lawmakers
contemporaneously with the debate and eventual legislative
passage of Senate Bill No. 1930 (1981-1982 Reg. Sess.) (Senate
Bill 1930). It’s the clearest statement on the question we are
asked to answer, and nothing in the legislative history directly
refutes it.
Ignoring this, the majority relies on a committee report
from legislation enacted more than 20 years later. (Maj. opn.,
ante, at pp. 17–18.) While we should consider this evidence,
“there is little logic and some incongruity in the notion that one
Legislature may speak authoritatively on the intent of an earlier
Legislature’s enactment when a gulf of decades separates the
two bodies.” (Western Security Bank v. Superior Court (1997) 15
Cal.4th 232, 244 (Western Security Bank).) It seems especially
incongruous to rely on the history of subsequently-enacted
legislation here, where the enacting Legislature provided a clear
statement on the meaning of the disputed language.
It’s likewise unpersuasive for the majority to seek mileage
from the fact that the Legislature hasn’t revised the cap. (See
maj. opn., ante, at p. 22.) Sure: the Legislature’s decision to
leave a law unchanged occasionally illuminates our reading of
statutes by helping us understand how another branch may
have construed a statute. But not even the Legislature that
enacted a statute — and even less, a different legislative
5
JARMAN v. HCR MANORCARE, INC.
Cuéllar, J., dissenting
majority years or decades later — gets to sidestep the courts by
having the final say on what a statute means. (See Western
Security Bank, supra, 15 Cal.4th at p. 244 [“[A] legislative
declaration of an existing statute’s meaning is neither binding
nor conclusive in construing the statute. Ultimately, the
interpretation of a statute is an exercise of the judicial power
the Constitution assigns to the courts”].) What’s more, that the
Legislature left section 1430(b) intact for decades no more
confirms that it embraced a per lawsuit cap than it supports the
opposite conclusion. Either way, subsequent legislative
majorities left ambiguous language intact, and what limited
inferences we can reasonably glean from that for purposes of our
interpretation do little to support the majority’s reading.
When legislators explained why they introduced or
otherwise supported the enactment of section 1430(b), their
explanations also fit a per-violation cap. The explicit purpose of
Senate Bill 1930 was to “protect and ensure the rights of people
residing in nursing homes.” (Sen. Com. on Judiciary, Rep. on
Sen. Bill No. 1930 (1981-1982 Reg. Sess.) as amended Apr. 26,
1982, p. 2 (hereafter Judiciary Committee Report).) Numerous
sources suggest the Legislature was concerned that violations
were underenforced in the preexisting legal regime. The bill’s
sponsor declared it “tragic” that “basic rights such as privacy in
medical treatment, freedom from mental and physical abuse,
accessibility to visitors, [and] ability to make confidential phone
calls” were violated without recourse. (Senator Nicholas Petris,
Opening Statement on Sen. Bill No. 1930 (1981-1982 Reg. Sess.)
as introduced Mar. 16, 1982; accord, Judiciary Com. Rep., supra,
at p. 2 [“Existing law authori[zing] the Attorney General . . . to
bring an action against a licensee” is “not sufficient to ensure a
patient her rights,” according to the bill’s author].)
6
JARMAN v. HCR MANORCARE, INC.
Cuéllar, J., dissenting
This history underscores why the purpose of the bill is
most sensibly understood to be primarily the protection of
nursing home residents’ rights with the goal of deterring
violations of those rights and providing recourse where
violations occur. A per violation cap is thoroughly in line with
this purpose. Contrastingly, under a per lawsuit cap, the
additional pressure to stop violating rights that a facility faces
from statutory penalties once it has violated one right is
effectively zero. A facility will face the same potential liability
whether it violates one right or one hundred. A cap of $500 per
lawsuit is clearly “not sufficient to ensure a patient her rights.”
(Judiciary Com. Rep., supra, at p. 2.)
Reviewing the legislative history, the majority notes that
the maximum recovery for a class B violation (which now ranges
from $100 to $1,000) was only $250 at the time of Senate Bill
1930’s passage. The majority contends that it would be
“anomalous” for the Legislature to simultaneously authorize a
maximum recovery of $500 for violations under section 1430(b).
(Maj. opn., ante, at p. 17.) When Senate Bill 1930 was enacted,
section 1430(b) did not allow patients to sue for “any other right
provided for by federal or state law or regulation,” (§ 1430(b)),
rather, suits were limited to violations of the Patients Bill of
Rights. (Stats. 1982, ch. 1455, § 1, p. 5599.) The majority
concludes that under a per violation theory, “a less serious class
C violation under section 1430(b) — i.e., one that concerned the
operation or maintenance of a facility with only a ‘minimal
relationship’ to the health, safety, and security of a patient —
would have been worth twice as much in terms of monetary
redress as a class B violation.” (Maj. opn., ante, at p. 17.)
But suits invoking section 1430(a) and those relying on
section 1430(b) are not equivalent enforcement mechanisms.
7
JARMAN v. HCR MANORCARE, INC.
Cuéllar, J., dissenting
Section 1430(a) empowers the Attorney General to bring suit,
creating a public enforcement scheme. Section 1430(b), on the
other hand, establishes a private right of action and thus a
private enforcement scheme. Portraying the private right of
action created by section 1430(b) and the power given to the
Attorney General to sue under section 1430(a) as equivalent, the
majority does not address the important differences between
public and private enforcement schemes. Public enforcement
tends to be encumbered by procedural constraints and special
protections. So it is, here: For example, at the time of section
1430(b)’s enactment, the Attorney General’s ability to seek any
civil penalties for a class B violation was limited: if a class “B”
violation was corrected within a specified time, “no civil
penalties shall be imposed.” (Stats. 1982, ch. 1597, § 3, p. 6365,
amending § 1424, subd. (b).) Today’s version of section 1430(a)
still includes the limitation that the Attorney General may bring
suit for class A and B violations, “[e]xcept where the state
department has taken action and the violations have been
corrected to its satisfaction.” (Italics added.) The “state
department” is further required to make a special finding that
the violation has a “direct or immediate relationship to the
health, safety, or security of long-term health care facility
patients” in order to pursue a class B violation (§ 1424, subd. (e);
Stats. 1982, ch. 1597, § 3, p. 6365), and an even more stringent
finding that “imminent danger that death or serious harm to the
patients” or “substantial probability that death or serious
physical harm to patients” in order to sue for a class A violation
(§ 1424, subd. (d); Stats. 1982, ch. 1597, § 3, p. 6365). The need
for procedural protections in the public scheme is unsurprising
given the range of consequences that attach to Class AA, A, or
B violations above and beyond the monetary penalty. Facilities
8
JARMAN v. HCR MANORCARE, INC.
Cuéllar, J., dissenting
with Class AA, A, or B violations are subject to increased state
inspections (§ 1422, subd. (b)(1)(A)) and must publish citations
in a consumer information system (§ 1422.5, subd. (a)(4)).
None of those restrictions or triggers for reputational
consequences is in section 1430(b), nor were they present when
it was enacted. Any qualifying nursing home patient may bring
a claim. When section 1430(b) was first enacted, those claims
were indeed limited to violations of rights in the Patients Bill of
Rights. (Stats. 1982, ch. 1455, § 1, p. 5599.) But many such
rights — made actionable by section 1430(b), though labeled
“class C” — are as serious as any for a nursing home resident:
they include the right to be free from mental and physical abuse,
to participate in the planning of medical treatment and to refuse
experimental treatment, and to be transferred or discharged
only for medical reasons or for nonpayment only with reasonable
notice. (Cal. Code Regs., tit. 22, § 72527.) What’s more, there’s
overlap between these and both class B and C violations because
of how the statutory scheme works. At the time Senate Bill 1930
was enacted, class B rights were those “which the state
department determines have a direct or immediate relationship
to the health, safety, or security of long-term health care facility
patients. . . .” (Stats. 1982, ch. 1597, § 3, p. 6365, amending §
1424.) Today, class B violations expressly include the Patients
Bill of Rights. (§ 1424, subd. (e) [“Unless otherwise determined
by the state department to be a class ‘A’ violation . . . , any
violation of a patient’s rights as set forth in Section[] 72527
[Patients Bill of Rights] . . . of Title 22 of the California Code of
Regulations, that is determined by the state department to
cause or under circumstances likely to cause significant
humiliation, indignity, anxiety, or other emotional trauma to a
patient is a class ‘B’ violation”].) What makes the class B
9
JARMAN v. HCR MANORCARE, INC.
Cuéllar, J., dissenting
violations more “serious” isn’t something inherent about the
kind of violation, but an additional finding by the agency — a
finding that’s simply not required for a private suit. Class A
violations work much the same way. The violations included in
section 1430(b) at the time of its passage are class C not because
they are inherently any less serious or because they couldn’t
have a “direct and immediate relationship to [] health” (§ 1424,
subd. (e)), but because no such finding is necessary for a private
suit under section 1430(b).
The majority reasons that suits under section 1430(b)
must be worth less than those under section 1430(a) because
they don’t require a finding that the violation is closely related
to the health and safety of nursing home residents. Not so,
because subdivisions (a) and (b) don’t necessarily reflect more or
less serious offenses. Instead, they create entirely distinct
enforcement schemes: one public and one private. With this
understanding, this structure — which includes not only the
caps for class B and class A offenses, but also requires certain
findings before those violations can be enforced, and previously
included a restriction on the imposition of civil penalties for
class B offenses — reflects the fact that the legislative process
evinces the special concern about what happens when the
government exercises its formidable power against a particular
facility.
Legislators who supported the Long-Term Care Act, of
course, may have sought to place some limitation on private
lawsuits to protect against fears of open-ended liability. A cap
of $500 per violation is well suited to this purpose, and may
reflect a judgment that this limit is high enough to protect
patient rights and provide recourse when rights are violated,
but low enough to create some limitation on liability. By
10
JARMAN v. HCR MANORCARE, INC.
Cuéllar, J., dissenting
creating a cap with no floor, the Legislature might reasonably
have been relying on juries to right-size damages to account for
how serious or minor a specific violation was.
It’s possible that a $500 per violation cap might have
created some counterintuitive results when class B violations
were limited to $250. A private suit for minor violations could
have yielded higher civil penalties than a public enforcement
suit for more serious offenses. But the possibility of such a suit
would depend on several assumptions: (1) the private suit
doesn’t implicate class A or B violations and only concerns
“milder” deficiencies, and (2) the per violation punishment
imposed is greater than $250 for all these mild deficiencies. It
would also ignore any differences in the reputational impact of
vigorous public enforcement relative to private enforcement.
The majority’s concern seems to boil down to a fear that patients
will be irresponsible in bringing suits, opening up nursing
homes to expansive liability for minor violations. Yet that
possibility arises whenever the Legislature creates a private
right of action for damages. Addressing this potential problem
is a policy choice better left to the Legislature.
A $500 per lawsuit cap will also place additional weight on
encumbered, resource-constrained public enforcement. This
concern motivated the passage of Senate Bill 1930; the bill’s
author explained that “since the State is making major cuts in
services to people, it is more important than ever to allow the
institutionalized individual the ability to protect their own
constitutional rights in the private sector.” (Judiciary Com.
Rep., supra, at p. 2.) Today, budget shortfalls as a result of the
COVID-19 pandemic likewise threaten the efficacy of public-
only enforcement models. (See, e.g. Associated Press (June 29,
2020) California’s budget has billions in cuts to close deficit
11
JARMAN v. HCR MANORCARE, INC.
Cuéllar, J., dissenting
<https://apnews.com/567bdaba2f74076b1fdcd603f18757ec> [as
of Aug. 13, 2020].) The majority’s decision today will
significantly hamper private efforts to fill what will no doubt be
a void created by the reduced public enforcement resources.
II.
A primary purpose of section 1430(b) is to protect patient
rights and deter violations. We have long recognized that the
threat of monetary penalties or damages can deter and prevent
wrongdoing. (See, e.g., In re Pedro T. (1994) 8 Cal.4th 1041,
1052 [“The purpose of the temporary increase in penalties under
the former law was to punish more severely, and thereby deter,
vehicle thefts”]; Peterson v. Superior Court (1982) 31 Cal.3d 147,
161 [“the award of punitive damages is a type of penalty imposed
to deter wrongful conduct”]; Williams v. Superior Court (2017) 3
Cal.5th 531, 545 [“The Legislature addressed these difficulties
by adopting a schedule of civil penalties ‘ “significant enough to
deter violations” ’ for those provisions that lacked existing
noncriminal sanctions”].) That increased penalties can advance
the cause of preventing offenses is an insight not only
commonplace in our own decisions, but in legislative discussions
and the relevant scholarly literature. (See, e.g., Lemley &
Reese, Reducing Digital Copyright Infringement Without
Restricting Innovation (2004) 56 Stan. L.Rev. 1345, 1418
[“Monetary penalties should be sufficiently large that the
possibility of having uploading challenged in the administrative
procedure serves to deter others from engaging in large-scale
uploading”]; Spence, The Shadow of the Rational Polluter:
Rethinking the Role of Rational Actor Models in Environmental
Law (2001) 89 Calif. L.Rev. 917, 918 [explaining the “traditional
view” that “environmental enforcement must aim to deter
violations through the imposition of penalties”]; Bus. & Prof.
12
JARMAN v. HCR MANORCARE, INC.
Cuéllar, J., dissenting
Code, § 5116, subd. (c) [“The board shall adopt regulations to
establish criteria for assessing administrative penalties based
upon factors, including . . . the level of administrative penalty
necessary to deter future violations of this chapter”]; Stats.
2000, ch. 102, § 1, pp. 1150–1151 [“The people enact the
Campaign Contribution and Voluntary Expenditure Limits
Without Taxpayer Financing Amendments to the Political
Reform Act of 1974 to accomplish all of the following
purposes[:] . . . [t]o enact increased penalties to deter persons
from violating the Political Reform Act of 1974”].) The potential
for a lawsuit worth as much as $500 per violation is a powerful
incentive to adhere to the requirements of the Long-Term Care
Act. The majority’s reading severely blunts that incentive, by
starkly reducing the financial rationale for compliance under
section 1430(b) of the act.
The majority insists that its reading does not render the
statute “ ‘toothless.’ ” (Maj. opn., ante, at p. 18.) “ ‘[T]he
prospect of paying the other side’s attorney fees and costs and
suffering an injunction’ ” are adequate to meet the purposes of
the statute, in the majority’s view. (Ibid., quoting Nevarrez v.
San Marino Skilled Nursing & Wellness Centre, LCC (2013)
221 Cal.App.4th 102, 135.) It makes little difference that the
majority leaves a few teeth awkwardly hanging in the mouth
after pulling most of them out, as availability of injunctive relief
and attorney fees are plainly insufficient to fulfill the statute’s
purpose to deter and remedy violations of nursing home
patients’ rights. A trial court decides on “the amount of
reasonable attorney fees by considering factors such as ‘ “the
nature of the litigation, its difficulty, the amount involved, the
skill required in its handling, the skill employed, the attention
given, the success or failure, and other circumstances in the
13
JARMAN v. HCR MANORCARE, INC.
Cuéllar, J., dissenting
case.” ’ ” (Nevarrez, at p. 129, italics added.) Indeed, Nevarrez
reversed a fee award under section 1430(b), reasoning that
“[w]hether that result includes an award of $7,000 or $500 will
be relevant on remand.” (Nevarrez, at p. 129.) Moreover, a $500
per lawsuit cap will encourage rational defendants to settle
lawsuits quickly because of the low potential liability they will
face by admitting wrongdoing. Facilities are thus likely to be
liable for only the nominal attorney fees accumulated during
short settlement negotiations. Attorney fees do not reliably or
predictably increase in response to additional or more serious
violations, making them an odd proxy of liability for
wrongdoing.
Injunctive relief likewise offers only limited protections
and benefits. While such relief is important for those who must
stay in the nursing facility, it is unavailable for residents who
change facilities or who pass away during the pendency of the
suit. The deterrent effect of section 1430(b) will now depend on
the position of the resident, not the culpability of the facility.
More foundationally, injunctions merely require the facility to
act in accordance with its preexisting legal obligations, blunting
their ability to serve as a deterrent to wrongdoing in the first
instance. “The injunction is little more than a cease and desist
order. The guilty party keeps his gains and is merely ordered
not to defraud people in the same way again.” (People v.
Superior Court (Jayhill) (1973) 9 Cal.3d 283, 289, fn. 3.)
Staffing — of particular relevance in this case — is a substantial
operational cost for many of these facilities. A facility could
reasonably conclude that the benefits of understaffing outweigh
the remote risk of an injunction.
Statutory penalties tied to the number and severity of
violations would fill this mismatch of incentives. Given the
14
JARMAN v. HCR MANORCARE, INC.
Cuéllar, J., dissenting
purpose of this statute to allow vulnerable nursing home
residents to better protect their own rights, the natural
conclusion is that the Legislature intended the $500 penalty to
serve as an additional deterrent to wrongdoing. The Legislature
has similarly added statutory penalties to other enforcement
schemes like the false advertising law and unfair competition
law where it finds that “the injunctive remedy was . . . an
ineffective deterrent against violations.” (See People v. Superior
Court (Olson) (1979) 96 Cal.App.3d 181, 191, citing Review of
Selected 1972 California Legislation, 4 Pacific L.J. 335, 342.)
There is simply no reason to believe the Legislature did not
intend the same in creating the $500 penalty for a violation
under the act enforced through section 1430(b).
The majority suggests this reading is “improbable”
because even a $500 per violation limit is too low to provide fully
compensatory damages. (Maj. opn., ante, at p. 14.) But, in an
attempt to have their cake and eat it too, they later contend that
the Legislature’s decision not to raise the cap from $500 to
$5,000 in 2004 is evidence that the cap applies on a per lawsuit
basis. (Id. at p. 18, fn. 5.) In doing so, they demand that a per
violation be at a precisely-calibrated level — one that doesn’t
even get defined by the majority — that’s not too low nor too
high, but just right. But there is no Goldilocks rule of statutory
interpretation, and we have no sensible justification for casting
aside the Legislature’s enforcement scheme because they didn’t
pick precisely the penalty amount that would have made this
case easier for us to resolve.
Justifying the drastic limitations on damages available for
claims under the Long-Term Care Act in their interpretation,
the majority also emphasizes that section 1430(b) remedies are
“ ‘in addition to any other remedy provided by law.’ ” (Maj. opn.,
15
JARMAN v. HCR MANORCARE, INC.
Cuéllar, J., dissenting
ante, at p. 19, quoting § 1430, subd. (c).) This reasoning is a
substantial departure from our prior precedent. Discussing the
Long-Term Care Act previously, we have declined to narrowly
construe its protections simply because other remedies remain
available. In Kizer v. County of San Mateo (1991) 53 Cal.3d 139,
we reasoned that “alternative enforcement mechanisms [like
the threat of a personal injury lawsuit] do not vitiate the need
for the statutory penalties.” (Id. at p. 150.) Later, in California
Association of Health Facilities v. Department of Health Services
(1997) 16 Cal.4th 284, we declined to find that the Elder Abuse
and Dependent Adult Civil Protection Act (Welf. & Inst. Code, §
15600 et seq.; hereafter Elder Abuse Act) marked a shift in
legislative enforcement priorities: “The addition of a new
statutory private right of action for elder abuse since our opinion
in Kizer does not change our view that the primary
responsibility for enforcing compliance with statutes and
regulations governing long-term health care facilities has been
given to the Department through its licensing, inspection, and
citation regime.” (California Assn., at p. 305.)
Nor does the Elder Abuse Act and the Long-Term Care Act
duplicate the protection this law — properly interpreted —
provides. The Elder Abuse Act allows for recovery only where a
plaintiff can prove “by clear and convincing evidence that a
defendant is liable for physical abuse . . . , neglect . . . , or
abandonment” and also is guilty of “recklessness, oppression,
fraud, or malice in the commission of this abuse.” (Welf. & Inst.
Code, § 15657.) This not an insubstantial burden. Damages,
however, can also be sizable: That act allows for the recovery of
damages up to $250,000. (Welf. & Inst. Code, § 15657; Civ.
Code, § 3333.2, subd. (b).) Section 1430(b) of the Long-Term
Care Act authorizes a much broader range of lawsuits: Patients
16
JARMAN v. HCR MANORCARE, INC.
Cuéllar, J., dissenting
may bring claims against any care provider who “violates any
rights of the resident or patient as set forth in the Patients Bill
of Rights in Section 72527 of Title 22 of the California Code of
Regulations, or any other right provided for by federal or state
law or regulation.” (§ 1430(b).) Section 1430(b) does not require
a plaintiff to prove that a defendant nursing home was also
guilty of recklessness, oppression, fraud, or malice. In line with
the lower required showing of proof, the Legislature provided for
lower maximum damages: only up to $500 per violation. The
majority’s interpretation eliminates the availability of any
meaningful damages remedy for acts not covered by the Elder
Abuse Act, and for cases where a plaintiff is unable to prove
recklessness, oppression, fraud, or malice.
Legislators, too, considered preexisting remedies as
inadequate to protect patient rights. The Senate Judiciary
Committee summary of the bill explained that according to the
bill’s author, existing law “is not sufficient to ensure a patient
her rights.” (Judiciary Com. Rep., supra, at p. 2.) The bill’s
sponsor declared it “tragic” that “basic rights such as privacy in
medical treatment, freedom from mental and physical abuse,
accessibility to visitors, [and] ability to make confidential phone
calls” were violated without recourse. (Senator Nicholas Petris,
Opening Statement on Sen. Bill No. 1930 (1981-1982 Reg. Sess.)
as introduced Mar. 16, 1982.)
The Legislature likewise rejected an argument by the
California Association of Health Facilities (CAHF), an amicus
curiae in this case, that the legislation was unnecessary because
existing legal remedies were sufficient. In explaining their
opposition to the bill, CAHF contended that “[u]nder existing
tort law, any guardian of any patient may bring suit against any
facility or its employees for harm caused to that patient as a
17
JARMAN v. HCR MANORCARE, INC.
Cuéllar, J., dissenting
result of the actions of the facility or its employees.” (CAHF,
Statement in Opposition to Sen. Bill 1930, May 4, 1982.) These
arguments did not carry the day when Senate Bill 1930 passed,
and it is odd to rely on them now to restrict recovery under
section 1430(b).
The majority’s reliance on a patient’s ability to obtain an
injunction and attorney fees under section 1430(b), as well as
their contention that other available legal remedies can provide
for adequately compensatory damages remedies, prompt the
more fundamental question: If all of that is true, what possible
purpose does damages of up to $500 per lawsuit serve? If the
$500 is a penalty, then a $500 per-lawsuit penalty is clearly
insufficient to serve the statute’s goal of deterring regulatory
violations. If the $500 is considered compensatory, a per-
lawsuit approach does not compensate residents for the
violations of many rights covered by section 1430(b). We should
be extremely wary of statutory constructions that render a word
or phrase useless. That is, in practical terms, exactly what the
majority’s construction of the $500 limitation achieves here.
III.
Crucial to the majority’s analysis is its apparent disquiet
that “a per violation approach under section 1430(b) would
present substantial practical difficulties.” (Maj. opn., ante, at p.
20.) But there’s a difference between recognizing that some
lines may need to be drawn to avoid having the wording of a
complaint be the sole determinant of what counts as a violation
and concluding that a sensible reading of the statute would
prove unworkable. The fact that the jury here found 382
violations — without ever being asked to specify what those
18
JARMAN v. HCR MANORCARE, INC.
Cuéllar, J., dissenting
violations were — no doubt increases the discomfort with the
notion of allowing for recovery on a per-violation basis.
We should not, however, allow bad facts to drive the
creation of bad law. The record demonstrates that the jurors in
this case were given little guidance on how to define a violation.
The special verdict form contained no enumeration of the
specific patient’s rights at issue in the case. Jarman’s closing
arguments did not reference specific patients’ rights. Some
specific rights were alleged in the pleadings, such as the right to
sufficient staffing (42 C.F.R. § 483.30), the right to remain free
from physical and mental abuse (Cal. Code Regs., tit. 22,
§ 72527, subd. (a)(10)), and the right to be treated with respect
and dignity in care of personal needs (id., subd. (a)(12)). But
aside from an expert witness discussing the Patients Bill of
Rights, it does not appear that particular violations were argued
to the jury, which gave it no benchmark to assess the number.
The jury submitted a note that indicated confusion about how to
calculate violations, and received little in the way of clarification
from the trial court.
Surely the solution to this problem — convenient though
it may be to the courts — is not to all but functionally eliminate
monetary penalties available to plaintiffs under the Long-Term
Care Act. A verdict form requiring the jury to specify which
violations it finds the defendant committed would go a long way
toward solving this problem. Requiring that juries make
findings that are sufficiently detailed to discern the basis for a
total award would eliminate the potential for factually
unsupported monetary awards based on some of the more
amorphous enumerated patients’ rights.
19
JARMAN v. HCR MANORCARE, INC.
Cuéllar, J., dissenting
Requiring juries to decide which violations defendant has
committed indeed opens the door to a more important concern:
how to define a violation under the act. The Patients Bill of
Rights defines rights that can overlap, such as the rights “[t]o
be treated with consideration, respect and full recognition of
dignity and individuality,” “[t]o meet with others and
participate in activities of social, religious and community
groups,” and “[t]o have visits from members of the clergy at any
time.” (Cal. Code Regs., tit. 22, § 72527, subds. (a)(12), (15) &
(19).) If a facility denied a resident’s request to have a visit from
her priest, would that one incident constitute three separate
violations of the above rights? And if a facility does not have
regular visitor hours established, has it violated the right to
have “daily visiting hours established” (id., subd. (a)(18)) every
day it fails to do so, or is that just one violation?
The majority’s approach avoids this problem for section
1430(b) suits — but only by creating another: eliminating a
meaningful damages remedy and undermining the statute’s
purpose to provide protection and recourse for nursing home
patients whose rights are violated. While the statute’s
ambiguity creates a thorny problem, we are not without tools to
solve it. We have addressed similar challenges in the context of
California’s landmark consumer protection law, the unfair
competition law. (Bus. & Prof. Code, § 17200 et seq.) Reading
that statute, it would likewise seem that a violation occurs every
time a misrepresentation is disseminated. (Bus. & Prof. Code, §
17200 [“[U]nfair competition shall mean and include any
unlawful, unfair or fraudulent business act or practice and
unfair, deceptive, untrue or misleading advertising and any
act prohibited by” the false advertising law].) Yet in Jayhill,
supra, 9 Cal.3d 283, this court defined a violation differently:
20
JARMAN v. HCR MANORCARE, INC.
Cuéllar, J., dissenting
“We determine what constitutes a ‘violation’ as that
term is used in [the Business and Professional Code]
section 17536. The Attorney General contends that
each misrepresentation by a defendant constitutes a
separate violation subject to a $2,500 civil penalty.
As the number of misrepresentations allegedly
committed by defendant Jayhill alone is no less than
25, under the Attorney General’s theory Jayhill
would be liable for a $62,500 penalty for each
customer solicited if the allegations were proved.
While the intent of section 17536 was to strengthen
the hand of the Attorney General in seeking redress
for violations of section 17500, it is unreasonable to
assume that the Legislature intended to impose a
penalty of this magnitude for the solicitation of one
potential customer. Rather, we believe the
Legislature intended that the number of violations
is to be determined by the number of persons to
whom the misrepresentations were made, and not
by the number of separately identifiable
misrepresentations involved. Thus, regardless of
how many misrepresentations were allegedly made
to any one potential customer, the penalty may not
exceed $2,500 for each customer solicited by a
defendant.”
(Id. at pp. 288–289, fn. omitted.) Why not employ similar
reasoning here to hold that, for example, failing to have regular
visitors’ hours established results in the violation of a single
right, even where the failure continues over multiple days or
weeks? Or to find that the Legislature intended the denial of
access to a priest to violate only the one right which applies
21
JARMAN v. HCR MANORCARE, INC.
Cuéllar, J., dissenting
directly to that circumstance: the right “[t]o have visits from
members of the clergy at any time” (Cal. Code Regs., tit. 22,
§ 72527, subd. (a)(19))?
Trial judges must likewise routinely determine whether a
defendant’s conduct constitutes a single violation or a
continuous, ongoing violation. They do so in a range of legal
contexts, from trespass (see Skokomish Indian Tribe v. U.S. (9th
Cir. 2005) 410 F.3d 506, 518 [“To show a continuing violation,
the plaintiff must demonstrate that the damage is ‘reasonably
abatable,’ . . . which means that ‘the condition . . . can be
removed “without unreasonable hardship and expense” ’ ”]; see
also Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1374 (dis. opn.
of Brown, J.) [“The instant case thus turns on the question of
whether Intel deserves a remedy for the continuing violation of
its rights. I believe it does, and as numerous cases have
demonstrated, an injunction to prevent a trespass to chattels is
an appropriate means of enforcement”]); to civil rights violations
under Title 42 United States Code section 1983 (see, e.g., Young
v. King County (9th Cir. 2003) 70 Fed. Appx. 939, 942 [to prove
a continuing violation, a plaintiff must show either a “system or
practice of discrimination” or that the “ ‘the alleged
discriminatory acts are related closely enough to constitute a
continuing violation’ ”]); to employment discrimination (see, e.g.,
Comm. Concerning Cmty. Improvement v. City of Modesto (9th
Cir. 2009) 583 F.3d 690, 702 [partially affirming grant of
summary judgment and upholding trial court finding that
violation was not ongoing for purpose of statute of limitations]).
Nowhere does the majority persuasively explain why such a
doctrine would not apply here.
What the majority does is suggest that the application of
a continuing violation theory or some other way of classifying
22
JARMAN v. HCR MANORCARE, INC.
Cuéllar, J., dissenting
some separate acts as a single violation would mean that
damages would no longer be scaled with wrongdoing. (Maj. opn.,
ante, at p. 21, fn. 6.) This is no more the case here than it would
be in the UCL context where we applied it in Jayhill. The fact
that certain actions, for example failing to have regular visitors’
hours, might be conceived of as one “violation” despite the fact
that it unfolds over multiple days does not mean that damages
would not increase with new or more severe harms. First,
certain rights should not be interpreted as a single, continuing
violation. The right to be free from mental and physical abuse
(Cal. Code Regs., tit. 22, § 72527, subd. (a)(10)), for example,
would clearly be violated multiple times by multiple instances
of abuse. Second, for ongoing violations, it seems likely that a
jury might be inclined to award damages closer to the $500 cap
where a violation continues over a long period of time. Finally,
a nursing home that, for example, does not inform a patient that
another resident or staff member has tested positive for COVID-
19 — arguably a violation of the right to “be fully informed . . . of
his or her total health status” (Cal. Code Regs., tit. 22, § 72527,
subd. (a)(3)) — and also administers unnecessary
psychotherapeutic drugs on the patient — likely a violation of
the right to be free from such drugs when used for patient
discipline or staff convenience — would be liable for both rights
violations. Continuing violations and grouping related
violations of the same right, as we do in the UCL context, are
but two theories that might help us define a “violation.”
Whichever variation on this violation-distinction theme
23
JARMAN v. HCR MANORCARE, INC.
Cuéllar, J., dissenting
resonates most is not for us to decide here,3 but it underscores a
broader point: that the challenge of counting violations is far
from inexorably doomed to failure.
Nor is it clear that the majority’s approach truly
eliminates the need to define a violation. The Attorney General
is still permitted to bring suit under section 1430(a), and such
suits, the majority acknowledges, allow for up to $1,000 for “each
and every” class B violation, and up to $10,000 for “each and
every” class A violation. (§ 1424, subds. (d) & (e).) Class B
offenses include violations of the Patients Bill of Rights that are
“determined by the state department to cause or under
circumstances likely to cause significant humiliation, indignity,
anxiety, or other emotional trauma to a patient.” (§ 1424, subd.
(e).) So courts will still need a way to differentiate between
violations for the purposes of at least suits for class B violations
under section 1430(a).
Even for private suits under section 1430(b), the majority’s
interpretation does not fully sidestep this issue. Claim and
issue preclusion, the majority contends, will likely block
attempts by plaintiffs to maneuver around the $500 per lawsuit
cap by filing multiple lawsuits. (Maj. opn., ante, at pp. 21–22.)
But to determine whether a claim is precluded, eventually a
court will need to decide whether certain conduct gave rise to a
violation, or multiple violations, of the Patients Bill of Rights.
A well-functioning Legislature does not sidestep
deliberation about statutory changes merely because a problem
is complex, or because it’s daunting to address every aspect of it.
3
Indeed, on the record before us we have no ability to do so.
The jury did not make findings as to what the 382 violations
were, so there is nothing for us to review.
24
JARMAN v. HCR MANORCARE, INC.
Cuéllar, J., dissenting
Nor does the executive branch refuse to enforce the law because
such enforcement might require difficult tradeoffs or nuanced
decision-making. Yet in today’s decision the majority risks
falling into an analogous trap: avoiding a demanding line-
drawing problem by conveniently reading it out of the statute,
and in the process, eviscerating a most compelling means
through which a vulnerable population can make nursing homes
take seriously their residents’ demands.
IV.
The Long-Term Care Act was enacted to protect the rights
of nursing home patients, and section 1430(b) serves as one of
its key remedial provisions. Even if one treats the language in
this provision as somewhat ambiguous, the relevant legislative
history and statutory structure are most consistent with the
conclusion that this provision created a new private
enforcement mechanism allowing penalties for violations to be
imposed in the amount of up to $500 per violation in damages.
Per-violation damages support the statute’s deterrent function,
and other private and public enforcement mechanisms are not
suited to fill the void created by the majority’s decision today.
The majority cautions that we must not legislate, as if any
disagreement with its penchant for construing the $500 limit on
the penalty against the licensee of a facility “who violates any
rights” (§ 1430(b)) as a per lawsuit cap would somehow entail
this court’s occupation of the State Capitol. (See maj. opn., ante,
at p. 22.) But it’s not “legislating” to recognize — as the majority
does — that the language of section 1430(b) is “far from clear,”
nor is it legislating to acknowledge that the statutory language
refers to “rights” in the plural, or to find no support in the
statute’s purpose or structural logic after (as the majority
25
JARMAN v. HCR MANORCARE, INC.
Cuéllar, J., dissenting
entreats us to) “look[ing] to the Long-Term Care Act as a whole”
for a reading that makes the penalty for violations almost purely
symbolic, sounding in the key of a faint whimper rather than a
remedy. (See maj. opn., ante, at p. 6.) That the Legislature can
“make any necessary adjustments” (id. at p. 22) — and given the
majority’s reading of the statute, probably should — follows
from its role under our Constitution. Equally plain is our own:
to make sense of how to read statutes that are “far from clear,”
and to do so in a way that makes sense of their language and
“effectuate[s] the law’s purpose.” (Id. at pp. 6, 4.)
While the majority identifies practical concerns with the
per-violation approach, the interpretation they select generates
problems of its own, and fails to fully address the
implementation issues they highlight. Section 1430(b) of the
Long-Term Care Act is best read to authorize private lawsuits
by nursing home patients for up to $500 per violation. That the
majority has chosen to reject this reading may prompt the
Legislature to repair the scheme and restore its more robust
deterrent effect — along with, perhaps, greater clarity about
defining violations when certain rights appear to overlap. But
there’s no basis for solving the majority’s practical concerns
about disentangling one violation from another by reading the
statute to permit — no matter the number of transgressions or
cumulative risk to nursing home residents’ lives — a single $500
penalty per lawsuit. With respect, I dissent.
CUÉLLAR, J.
I Concur:
LIU, J.
26
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Jarman v. HCR ManorCare, Inc.
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XX 9 Cal.App.5th 807
Rehearing Granted
__________________________________________________________________________________
Opinion No. S241431
Date Filed: August 17, 2020
__________________________________________________________________________________
Court: Superior
County: Riverside
Judge: Phrasel L. Shelton and Mac R. Fisher
__________________________________________________________________________________
Counsel:
Lanzone Morgan, Anthony C. Lanzone, Steffi A. Jose, Anna H. Cronk, Travis K. Siegel; Downey Brand
and Jay-Allen Eisen for Plaintiff and Appellant.
Braunhagey & Borden, Matthew Borden, Adam Shapiro; William Alvarado Rivera; Janssen Malloy and W.
Timothy Needham for AARP, AARP Foundation, Center for Medicare Advocacy, Consumer Attorneys of
California, Justice in Aging, The Long Term Care Community Coalition and The National Consumer
Voice for Quality Long-Term Care as Amici Curiae on behalf of Plaintiff and Appellant.
Anthony M. Chicotel for California Advocates for Nursing Home Reform, Inc., as Amicus Curiae on
behalf of Plaintiff and Appellant.
Petrullo, John Patrick Petrullo, Carolyn Wu, Grace Song, Isaiah Costas; Manatt, Phelps & Phillips, Michael
M. Berger, Barry S. Landsburg and Joanna S. McCallum for Defendants and Appellants.
Buchalter, Harry W.R. Chamberlain II and Robert M. Dato for Association of Southern California Defense
Counsel as Amicus Curiae on behalf of Defendants and Appellants.
Fred J. Hiestand, Erika C. Fank and Heather L. Wallace for The Civil Justice Association of California and
The California Chamber of Commerce as Amici Curiae on behalf of Defendants and Appellants.
Hooper, Lundy & Bookman, Mark E. Reagan and Jordan Kearney for California Association of Health
Facilities as Amicus Curiae on behalf of Defendants and Appellants.
Cole Pedroza, Curtis A. Cole and Cassidy C. Davenport for California Medical Association, California
Dental Association and California Hospital Association as Amici Curiae on behalf of Defendants and
Appellants.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Barry S. Landsberg
Manatt, Phelps & Phillips, LLP
2049 Century Park East, 17th Floor
Los Angeles, CA 90067
(310) 312-4000
Jay-Allen Eisen
Downey Brand, LLP
621 Capitol Mall, 18th Floor
Sacramento, CA 95814
(916) 444-1000