This case was last updated from Los Angeles County Superior Courts on 11/15/2019 at 01:09:17 (UTC).

BURLINGTON CONVALESCENT HOSPITAL, INC. VS CALIFORNIA DEPARTMENT OF PUBLIC HEALTH

Case Summary

On 05/16/2018 a Other case was filed by BURLINGTON CONVALESCENT HOSPITAL, INC against CALIFORNIA DEPARTMENT OF PUBLIC HEALTH in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******7311

  • Filing Date:

    05/16/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

GEORGINA T. RIZK

 

Party Details

Plaintiff

BURLINGTON CONVALESCENT HOSPITAL INC. DBA BURLINGTON CONVALESCENT HOSPITAL

Defendant

CALIFORNIA DEPARTMENT OF PUBLIC HEALTH

Attorney/Law Firm Details

Plaintiff Attorney

TYLER ELIZABETH PLOTT

Defendant Attorney

SONDHEIMER JOSHUA NATHAN

 

Court Documents

Affidavit (name extension) - Affidavit Defendants Evidence In Opposition To Plaintiffs Motion For Summary Judgment Or, In The Alternative, Summary Adjudication

9/26/2019: Affidavit (name extension) - Affidavit Defendants Evidence In Opposition To Plaintiffs Motion For Summary Judgment Or, In The Alternative, Summary Adjudication

Objection (name extension) - Objection to Evidence Submitted In Support Of Plaintiffs Motion For Summary Judgment Or, In The Alternative, Summary Adjudication

9/26/2019: Objection (name extension) - Objection to Evidence Submitted In Support Of Plaintiffs Motion For Summary Judgment Or, In The Alternative, Summary Adjudication

Declaration (name extension) - Declaration of Service by Overnight Courier

9/26/2019: Declaration (name extension) - Declaration of Service by Overnight Courier

Affidavit (name extension) - Affidavit Defendants Appendix Of United States Department Of Health And Human Services Departmental Appeals Board Authorities

9/26/2019: Affidavit (name extension) - Affidavit Defendants Appendix Of United States Department Of Health And Human Services Departmental Appeals Board Authorities

Opposition (name extension) - Opposition To Plaintiffs Motion For Summary Judgment Or, In The Alternative, Summary Adjudication

9/26/2019: Opposition (name extension) - Opposition To Plaintiffs Motion For Summary Judgment Or, In The Alternative, Summary Adjudication

Declaration (name extension) - Declaration Plaintiff's Appendix of Non-California Authorities

10/4/2019: Declaration (name extension) - Declaration Plaintiff's Appendix of Non-California Authorities

Reply (name extension) - Reply Reply to Defendant's Opposition to Plaintiff's Motion for Summary Judgment

10/4/2019: Reply (name extension) - Reply Reply to Defendant's Opposition to Plaintiff's Motion for Summary Judgment

Stipulation and Order (name extension) - Stipulation and Order Stipulation and [Proposed] Order Continuing Trial

11/5/2019: Stipulation and Order (name extension) - Stipulation and Order Stipulation and [Proposed] Order Continuing Trial

Separate Statement - Separate Statement

7/26/2019: Separate Statement - Separate Statement

Motion for Summary Judgment - Motion for Summary Judgment

7/26/2019: Motion for Summary Judgment - Motion for Summary Judgment

Affidavit (name extension) - Affidavit Plaintiffs Exhibits Filed In Support Of Motion For Summary Judgment, Or In The Alternative Summary Adjudication

7/26/2019: Affidavit (name extension) - Affidavit Plaintiffs Exhibits Filed In Support Of Motion For Summary Judgment, Or In The Alternative Summary Adjudication

Answer

8/6/2018: Answer

Summons - on Complaint

5/16/2018: Summons - on Complaint

Civil Case Cover Sheet

5/16/2018: Civil Case Cover Sheet

Complaint

5/16/2018: Complaint

Notice of Case Assignment - Limited Civil Case

5/16/2018: Notice of Case Assignment - Limited Civil Case

14 More Documents Available

 

Docket Entries

  • 05/19/2021
  • Hearing05/19/2021 at 10:30 AM in Department 94 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 04/06/2020
  • Hearing04/06/2020 at 08:30 AM in Department 94 at 111 North Hill Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 12/10/2019
  • Hearing12/10/2019 at 10:30 AM in Department 94 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 11/05/2019
  • DocketStipulation and Order Stipulation and [Proposed] Order Continuing Trial; Filed by: California Department of Public Health (Defendant); As to: Burlington Convalescent Hospital, Inc. (Plaintiff)

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  • 11/05/2019
  • DocketUpdated -- Stipulation and Order Stipulation and [Proposed] Order Continuing Trial: Filed By: California Department of Public Health (Defendant); Result: Granted; Result Date: 11/05/2019

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  • 11/05/2019
  • DocketPursuant to written stipulation, Non-Jury Trial scheduled for 11/13/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94 Not Held - Continued - Stipulation was rescheduled to 04/06/2020 08:30 AM

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  • 10/07/2019
  • DocketNotice Re: Continuance of Hearing and Order; Filed by: Clerk

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  • 10/07/2019
  • DocketThere being no judge available this date, Hearing on Motion for Summary Judgment scheduled for 10/10/2019 at 10:30 AM in Stanley Mosk Courthouse at Department 94 Not Held - Continued - Court's Motion was rescheduled to 12/10/2019 10:30 AM

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  • 10/04/2019
  • DocketReply Reply to Defendant's Opposition to Plaintiff's Motion for Summary Judgment; Filed by: Burlington Convalescent Hospital, Inc. (Plaintiff)

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  • 10/04/2019
  • DocketReply to Defendant's Separate Statement in Opposition to Plaintiff's Motion for Summary Judgment; Filed by: Burlington Convalescent Hospital, Inc. (Plaintiff)

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12 More Docket Entries
  • 01/22/2019
  • DocketCase Management Statement; Filed by: Burlington Convalescent Hospital, Inc. (Plaintiff)

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  • 08/06/2018
  • DocketAnswer; Filed by: California Department of Public Health (Defendant)

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  • 07/03/2018
  • DocketProof of Personal Service; Filed by: Burlington Convalescent Hospital, Inc. (Plaintiff); As to: California Department of Public Health (Defendant); Service Date: 06/26/2018; Service Cost: 65.41; Service Cost Waived: No

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  • 05/16/2018
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 05/16/2018
  • DocketSummons on Complaint; Issued and Filed by: Clerk

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  • 05/16/2018
  • DocketCivil Case Cover Sheet; Filed by: Burlington Convalescent Hospital, Inc. (Plaintiff)

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  • 05/16/2018
  • DocketComplaint; Filed by: Burlington Convalescent Hospital, Inc. (Plaintiff); As to: California Department of Public Health (Defendant)

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  • 05/16/2018
  • DocketCase assigned to Hon. Georgina T. Rizk in Department 94 Stanley Mosk Courthouse

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  • 05/16/2018
  • DocketNon-Jury Trial scheduled for 11/13/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 05/16/2018
  • DocketOrder to Show Cause - Failure to File Proof of Service scheduled for 05/19/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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Tentative Rulings

Case Number: 18STLC07311    Hearing Date: March 05, 2020    Dept: 26

Burlington Convalescent Hospital v. California Department of Public Health, et al.

MOTION FOR SUMMARY JUDGMENT AND/OR ADJUDICATION

(CCP § 437c)

TENTATIVE RULING:

Plaintiff Burlington Convalescent Hospital, Inc., dba Burlington Convalescent Hospital’s Motion for Summary Judgment, or in the alternative, Summary Adjudication, is DENIED.

ANALYSIS:

This action relates to Plaintiff’s challenge of a citation issued by Defendant California Department of Public Health with respect to a patient at Plaintiff’s facility. Plaintiff is a long-term, elder care center against which Defendant issued a Class “A” Citation and $16,000.00 penalty for violation of 42 Code of Federal Regulations parts 483.25 and 483.25, subpart (h).

Plaintiff filed this action on May 16, 2018 and Defendant Answered on August 6, 2018. Plaintiff filed the instant Motion for Summary Judgment, or in the alternative, Summary Adjudication[1], on July 26, 2019. Defendant filed its opposition on September 26, 2019, and Plaintiff replied on October 4, 2019.

Discussion

Plaintiff filed the instant action as a challenge to Citation No. 91-2974-0013878-F under Cal. Health & Safety Code section 1428.

(e) If an appeal is prosecuted under this section, including an appeal taken in accordance with Section 100171, the department shall have the burden of establishing by a preponderance of the evidence that (1) the alleged violation did occur, (2) the alleged violation met the criteria for the class of citation alleged, and (3) the assessed penalty was appropriate. The department shall also have the burden of establishing by a preponderance of the evidence that the assessment of a civil penalty should be upheld. If a licensee appeals a contested citation or the assessment of a civil penalty, no civil penalty shall be due and payable unless and until the appeal is terminated in favor of the department.

(f) In assessing the civil penalty for a violation, all relevant facts shall be considered, including, but not limited to, all of the following:

(1) The probability and severity of the risk which the violation presents to the patient's or resident's mental and physical condition.

(2) The patient's or resident's medical condition.

(3) The patient's or resident's mental condition and his or her history of mental disability.

(4) The good faith efforts exercised by the facility to prevent the violation from occurring.

(5) The licensee's history of compliance with regulations.

(Cal. Health & Saf. Code, § 1428, subds. (e), (f).) As the party bringing the instant Motion for Summary Judgment, or in the alternative, Summary Adjudication, although the named plaintiff, Plaintiff must show that Defendant cannot establish by a preponderance of the evidence that (1) the alleged violation did occur, (2) the alleged violation met the criteria for the class of citation alleged, and (3) the assessed penalty was appropriate.

In support of its Motion, Plaintiff argues that it was erroneously cited for failures with respect to the care of patient (hereinafter “Resident 1”) that are solely attributable to an independent, third-party, non-emergency transport company, G & H Non-Emergency Medical Transportation, LLC (“G & H”). Plaintiff argues it cannot be responsible for care provided to Resident 1 while in the care of G & H, a common carrier licensed by City of Los Angeles – Board of Transportation Commissioners and regulated by Los Angeles Department of Transportation. Defendant disputes Plaintiff’s legal contention that its duty of care does not extend to transportation off site, even when the vehicle is not owned or operated by the care facility.

In analyzing the scope of Plaintiff’s duty of care, the Court begins with the regulation in question. The relevant version of 42 Code of Federal Regulations part 483.25, subpart (h) states:

Accidents. The facility must ensure that—

(1) The resident environment remains as free of accident hazards as is possible; and

(2) Each resident receives adequate supervision and assistance devices to prevent accidents.

(42 C.F.R. § 483.25, subd. (h).) Plaintiff cites to two authorities in support of its position. First, the Centers for Medicare and Medicaid Services’ State Operations Manual (“SOM”), which it concedes is not binding, but contends individuals engaged in regulatory compliance issues in skilled nursing settings commonly refer to the SOM as an authoritative statement of CMS’s (and its state agency, Defendant’s) interpretation of its regulations. According to the SOM, the purpose of the “Accidents” regulation is to ensure that the facility provides an environment that is free from accident hazards over which the facility has control, such as the resident’s rooms, bathrooms, hallways, dining areas, lobby, outdoor patios, therapy areas and activity areas. The Court notes that Plaintiff fails to provide a copy of the SOM or its relevant parts, nor provide authority for its contention that skilled care facilities rely on the SOM as authoritative. (See Motion, p. 11:5-12.) The Court, therefore, declines to rely on this non-legal authority. Plaintiff also cites to a Fourth Circuit case reviewing an administrative law judge’s determination that a citation and penalty was appropriate. However, the Court finds Liberty Nursing and Rehabilitation Center-Mecklenburg County v. Leavitt (4th Cir. 2008) 294 Fed.Appx. 803, 804 n. 2 to be somewhat helpful regarding that facts of this case. The Fourth Circuit Court of Appeals held that “Because 42 C.F.R. § 483.25(h)(1) (2008) speaks of the residents' environment, it is to be interpreted as broadly as is necessary to protect residents in all locations under the facility's control, including facility vehicles. It would be incongruous to hold that residents travel at their own risk when the facility to which they have entrusted their care transports them off-site.” (Ibid.) While the facts of that case involved transportation in a facility vehicle, while this action involved transportation in a non-facility vehicle, the Fourth Circuit Court of Appeals’ reference to environments under the facility’s control, suggests that the charging regulation is applicable only to those environments over which the facility has authority. This federal authority, while not binding, is persuasive.

In opposition, Defendant cites to rulings by the United States Department of Health and Human Services’ (“HHS”) Departmental Appeals Board, which hears appeals in matters involving citations issued by HHS, through CMS, for violations of the same regulations enforced by Defendant here. Defendant concedes that the HHS Departmental Appeals Board’s rulings are not binding, but are entitled to substantial deference. (Thomas Jefferson Univ. v. Shalala (1994) 512 U.S. 504, 512.) In Fort Madison Health Center (H.H.S. 2011) DAB No. 2403, 2011 WL 3800220, the HHS Departmental Appeals Board ruled that the facility’s responsibility extended to situations where it arranged for transportation either through its own vehicle and driver, or contracted for a vehicle and driver through a separate entity. (Fort Madison Health Center (H.H.S. 2011) DAB No. 2403, 2011 WL 3800220, *7.) This reasoning is reiterated and relied on another analogous HHS Departmental Appeals Board ruling: St. Michael’s Nursing Center (CCN: 23-5610) (H.H.S. 2009) DAB No. CR2038, 2009 WL 4731043 at *8.

Based on the foregoing authorities, the Court is persuaded that Plaintiff’s duty of care to Resident 1 extended to a vehicle being used for transportation at Plaintiff’s request, regardless of ownership of the vehicle and control of the driver. In light of this determination, the Court now considers the facts at issue in this case.

As an initial matter, the Court finds that Defendant’s evidentiary objections to the exhibits submitted in support of the Motion are valid. The exhibits are submitted without a sufficient declaration demonstrating the authenticity of the documents. The only supporting declaration is that of Plaintiff’s attorney, Shilpa R. Dharwadkar, who offers no statement regarding her knowledge of the authenticity or accuracy of the documents submitted. (Motion, Dharwadkar Decl., ¶¶1-17.) The evidentiary objections, therefore, are sustained. (Cal. Evid. Code, § 1400 et seq.) Without evidence to support its Motion, Plaintiff cannot carry its burden of demonstrating that Defendant cannot establish by a preponderance of the evidence that (1) the alleged violation did occur, (2) the alleged violation met the criteria for the class of citation alleged, and (3) the assessed penalty was appropriate.

Even assuming the Court were to consider the evidence in support of the Motion, Plaintiff has not shown Defendant cannot prove the above facts. It is undisputed that Resident 1 was admitted to Plaintiff’s facility on January 8, 2016 for care associated with her end stage renal disease. (Motion, Separate Statement of Facts No. 2; Exhs. B, C.) Resident 1’s physician ordered that she was to receive dialysis treatment on Mondays, Wednesday, and Fridays at 8:30 am in DaVita Avalon Dialysis Center (“DaVita”). (Motion, Separate Statement of Facts No. 4; Exh. D.) On August 29, 2016, Resident 1 was loaded, in her wheelchair, into G & H’s van by G &H’s driver. (Motion, Separate Statement of Facts No. 15; Exh. I; Exh. J, p. 85:16-25.) During the drive to DaVita, Resident 1 fell out of her wheelchair and onto the floor of the transport vehicle. (Motion, Separate Statement of Facts No. 18; Exh. I; Exh. J, pp. 32:2-3, 45:12-46:20.) This incident is the basis for the Citation issued by Defendant to Plaintiff on March 8, 2018. (Motion, Separate Statement of Facts No. 23; Exh. A.) In opposition, Defendant also presents evidence that Resident 1 was at risk of falls and injuries as a result, which was known to Plaintiff. (Opp., Separate Statement of Fact Nos. 24-33; Exhs., 2, 3, 5; Exh. 9, pp. 26:14-27:3, 64:24-65:18, 66:8-18, and 67:8-11.) To the extent Plaintiff objects to this evidence as irrelevant, the objections are overruled.

Plaintiff offers no explanation as to who arranged the transportation of Resident 1 through G & H. Its Motion passively contends that “G & H Non-Emergency Medical Transportation, LLC (“G & H”) was identified as the “common carrier” non-medical transport company who would transport Resident 1 from Burlington to DaVita for her dialysis appointments.” (Motion, Separate Statement of Facts No. 4.) This offers no information as to who made the arrangements with G & H. As explained in Fort Madison Health Center (H.H.S. 2011) DAB No. 2403, the long-term care facility has a duty of care to the resident under 42 Code of Federal Regulations, part 483.25, subpart (h), even when it contracted with the independent transportation company. (Fort Madison Health Center (H.H.S. 2011) DAB No. 2403, 2011 WL 3800220, *7.)

All the facts offered regarding G & H’s separate corporate existence, therefore, are irrelevant to whether Defendant had authority to issue a citation for an incident that occurred during G & H’s transportation of Resident 1 in G & H’s vehicle. Under the facts presented by Plaintiff, it has not shown that Defendant lacked the authority to issue a citation based on the incident with in G & H’s vehicle on August 29, 2016. In its Reply, Plaintiff attempts to distinguish the HHS Departmental Appeals Board rulings cited in the opposition by raising numerous facts not set forth in the moving papers. In particular, Plaintiff disputes that it contracted with G & H and that it merely arranged for Resident 1’s transportation. (Reply, pp. 4:8-5:18.) The Court takes issue to Plaintiff attempt to factually distinguish the cases on which Defendant relies, first because Plaintiff did not raise these rulings in its Motion and now springs new facts regarding its relationship with G & H on Defendant. More crucially, however, is Plaintiff lack of any supporting evidence with its Reply to show that the facts asserted therein are true. (Code Civ. Proc., § 473, subd. (c); Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 81 (“[i]n ruling on the motion the court must ‘consider all of the evidence’ and ‘all’ of the ‘inferences' reasonably drawn therefrom.”].)

Conclusion

Plaintiff Burlington Convalescent Hospital, Inc., dba Burlington Convalescent Hospital’s Motion for Summary Judgment, or in the alternative, Summary Adjudication, is DENIED.

Defendant to give notice.


[1] Plaintiff’s Motion for Summary Adjudication is procedurally defective because it fails to include a Notice of Motion. “A motion for summary adjudication tenders only those issues or causes of action specified in the notice of motion, and may only be granted as to the matters thus specified. The movant must “state[ ] specifically in the notice of motion and ... repeat[], verbatim, in the separate statement of undisputed material facts,” “the specific cause of action, affirmative defense, claims for damages, or issues of duty” as to which summary adjudication is sought. (Former Cal. Rules of Court, rule 342(b); see now Cal. Rules of Court, rule 3.1350(b).)” (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 743-744.)

Case Number: 18STLC07311    Hearing Date: December 10, 2019    Dept: 94

MOTION FOR SUMMARY JUDGMENT/ADJUCATION

(CCP § 437c)

TENTATIVE RULING:

Plaintiff Burlington Convalescent Hospital, Inc. d/b/a Burlington Convalescent Hospital’s Motion for Summary Judgment is PLACED OFF CALENDAR. The parties are to coordinate in Department 1 for transfer to a Writs and Receivers Department.

BACKGROUND: Action against the California Department of Public Health for violation of the Long-Term Care, Health, Safety, and Security Act of 1973 (Health and Safety Code § 1417 et seq.) stemming from a citation and civil penalty issued by the Department against Plaintiff.

REQUEST FOR RELIEF: Grant Plaintiff summary judgment in the form of an order to dismiss the Citation and corresponding civil penalty in its entirety on the ground that the Department abused its discretion in issuing the citation because the findings were not supported by the evidence.

OPPOSITION: Filed September 26, 2019

REPLY: Filed October 4, 2019

ANALYSIS AND ORDER:

On May 16, 2018, Plaintiff Burlington Convalescent Hospital (“Plaintiff”) commenced this action against Defendant California Department of Public Health (“Defendant”) based on the allegation that Defendant abused its discretion in issuing a citation and corresponding civil penalty against Plaintiff for violation of 42 C.F.R. §§ 483 and 483.25. Defendant issued the citation following an incident where Plaintiff’s Resident sustained an injury in transport to a dialysis center while allegedly under the care of Plaintiff. Plaintiff alleges that Defendant’s findings are not supported by the evidence and the citation is not supported by the findings. (Plaintiff’s Compl., ¶ 28.) The Complaint seeks relief in the form of (1) an order dismissing Citation No. 91-2974-0013878-F and (2) an order dismissing the assessed civil penalty of $16,000.

Plaintiff filed the instant Motion for Summary Judgment on July 26, 2019. Defendant opposed on September 26, 2019, and Plaintiff filed a reply on October 4, 2019.

The Court notes that the action is not proper in the present Department because the Complaint and pleadings indicate that Plaintiff seeks a writ of administrative mandamus. (Plaintiff’s Compl., ¶ 6.) CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. (Topanga Ass’n for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514 15.) The pertinent issues under section 1094.5 are “whether the respondent has proceeded without, or in excess of, its jurisdiction; whether there was a fair trial; and whether there was a prejudicial abuse of discretion.” (CCP §1094.5(b).) An abuse of discretion is established “if the respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence.” (CCP §1094.5(c).) The Writs and Receivers departments at the Los Angeles Superior Court are the proper departments for this action.

Accordingly, the Court orders the parties to coordinate a transfer to a Writs and Receivers department.

Moving party to give notice.