County of San Diego v. Department of Health Services

I

ntroduction

This is an appeal from an order dismissing the County’s complaint filed in municipal court. The superior court appellate department, without rendering a written opinion, reversed the municipal court dismissal, but upon request of defendant state certified the case to this court for further consideration. We affirm the order of dismissal entered by the municipal court.

Facts and Procedural Background

This case arises from the imposition of a $500 civil penalty for patient abuse at Edgemoor Geriatric Hospital. The hospital is a “long-term health facility” operated by the County under a license issued by the Department. The licensing and administration of long-term health facilities are governed by the “Long-Term Care, Health, Safety, and Security Act of 1973” (the Act), contained in section 1417 et seq.

The Act contains provisions for the Department’s inspection of licensed health facilities (§ 1422) and issuance of citations and penalties for violations (§§ 1423, 1424). A licensee may contest citations by using an administrative appeals process and, if still dissatisfied, by then prosecuting a judicial appeal. (§ 1428, subd. (c).) The Act imposes special time limitations respecting both the administrative and judicial appeal processes. Of importance in this case is section 1428, subdivision (c)’s requirement that after a judicial appeal is at issue (i.e., after the answer has been filed by the Department) the appealing party must file an at issue memorandum within six months.

In this case the Department issued a citation alleging patient abuse at the hospital. After using the administrative review processes without satisfaction, the County as proprietor of the hospital filed its complaint seeking judicial review. After the Department answered the complaint, the County did not file an at issue memorandum within the next six months. The Department therefore filed a motion to dismiss the complaint. The County responded by (1) tendering a tardy at issue memorandum and (2) filing a request for relief from the six-month time limitation on the ground of excusable neglect of counsel, relying on Code of Civil Procedure section 473. The municipal court denied the County’s motion for relief and granted the Department’s motion to dismiss. Having transferred the case to this court, we review anew the order of the municipal court.

Discussion

The legal question certified to us is whether Code of Civil Procedure section 473 is available to a licensee who does not timely file an at issue memorandum as required by section 1428, subdivision (c). Section 1428, subdivision (c), provides in relevant part: “Notwithstanding any other provision of law, for those citations issued after January 1, 1988, a licensee prosecuting a judicial appeal shall file and serve an at issue memorandum pursuant to Rule 209 of the California Rules of Court by July 1, 1988, or within six months after the state department files its answer in the appeal, whichever is later. The court shall dismiss the appeal upon motion of the state department if the at issue memorandum is not filed by the facility within the period specified.” We conclude judicial relief from the six-month statutory time limitation was not available to the County.

A

The County contends the express language of section 1428, subdivision (c), authorizes judicial relief from the statute’s six-month limit for filing an at issue memorandum. The County relies on a portion of section 1428, subdivision (c), providing “the licensee may seek judicial relief from the time limits specified in this subdivision.” However, reasonably read, that language simply provides judicial relief is available for various time limits set forth in section 1428, subdivision (c), other than the six-month limitation for filing an at issue memorandum.

The statutory language cited by the County appears in a sentence of section 1428, subdivision (c), providing in its entirety: “If a licensee fails to notify the director in writing that he or she intends to contest the citation or the decision made by the director’s designee within the time specified in this subdivision, or fails to file a civil action within the time specified in this subdivision, the citation or the decision by the director’s designee after a citation review conference shall be deemed a final order of the state department and shall not be subject to further administrative review, except that the licensee may seek judicial relief from the time limits specified in this subdivision.” That sentence follows and refers to various time limits under section 1428, subdivision (c): e.g., the 15 business days after service of the citation during which the licensee must notify the Department’s director of its request for a citation review conference or of its intent to adjudicate the citation’s validity in the municipal court; the 15 business days after receipt of the decision of the citation review conference hearing officer during

which the licensee must inform the director of its intent to contest the decision; the 60 calendar days after the licensee informs the director of its intent to contest a citation during which the licensee must file its civil action; and the 60 calendar days after the licensee notifies the director of its intent to contest the decision of the citation review conference hearing officer during which the licensee must file its civil action. (§ 1428, subd. (c).) However, that sentence does not apply to the statute’s later provisions requiring dismissal of the licensee’s civil action if the licensee does not file and serve an at issue memorandum within six months after the Department files its answer in that action.

Where different language is used in different parts of a statute, we must presume the Legislature intended a different meaning and effect. (Charles S. v. Board of Education (1971) 20 Cal.App.3d 83 , 95 [ 97 Cal.Rptr. 422 ].) Here section 1428, subdivision (c)’s six-month time limit for filing the at issue memorandum is contained in a sentence beginning with the language: “Notwithstanding any other provision of law . . . .” (§ 1428, subd. (c), italics added.) Further, the sentence authorizing dismissal for failure to file a timely at issue memorandum contains the mandatory language: “The court shall dismiss the appeal . . . .” (§ 1428, subd. (c), italics added.) In sum, we conclude the plain meaning of the language itself of section 1428, subdivision (c), precluded the County from seeking judicial relief under Code of Civil Procedure section 473 for its failure to file an at issue memorandum within the statutory limitation period of six months after the Department answered the complaint.

B

Our construction of section 1428, subdivision (c), is buttressed by the legislative history. The last two sentences of section 1428, subdivision (c)—imposing a six-month limitation for filing an at issue memorandum and mandating dismissal for failure to comply with that time requirement—were added by amendment in 1987. (Stats. 1987, ch. 1161, § 2.5, p. 4096.) In determining legislative intent, we may examine legislative committee analyses and the Legislative Counsel’s Digest. (State Farm Mut. Auto. Ins. Co. v. Haight (1988) 205 Cal.App.3d 223 , 236-237 [ 252 Cal.Rptr. 162 ].)

In its May 1987 report, the Commission on California State Government Organization and Economy (the Little Hoover Commission) recommended enactment of legislation “to reduce the period of time that facilities have to contest ‘B’ citations, which now may take up to five years.” (Com. on Cal. State Gov. Organization and Economy Rep., New and Continuing

Impediments to Improving the Quality of Life and the Quality of Care in California’s Nursing Homes (May 1987) p. 3.) According to the commission, “B” citations were essentially “lost.” (Id. at p. 35.) The commission’s report stated: “Facilities may take as long as five years to bring ‘B’ citations to trial. The five-year period of time that facilities presently have to bring contested ‘B’ citations to trial serves only to delay the enforcement process which makes cases grow ‘stale’ and keeps too many contested citations in an unresolved status. Legislation should be enacted which reduces the period of time that a facility has to file a memo to set. A facility must serve a summons on the Director, within 60 days of the issuance of a citation or whenever a CRC [Citation Review Conference] decision is issued and file a memorandum to set within six months from the date that DHS/LCD [Department of Health Services/Licensing and Certification Division] and the AG [Attorney General] has responded to the facility’s summons. If a facility has not acted within this period the citation is final; if it carried an assessment, it then becomes due and payable. The present five-year period unnessarily [s/c] retards the judicial process and makes evidence needed for a fair hearing that much harder to gather or preserve.” (Id. at pp. 36-37.)

A report for the Assembly Committee on Aging and Long Term Care noted: “The Little Hoover Commission, in its May 1987 follow-up report on the implementation of the Nursing Home Patients Protection Act of 1984, identified a problem of ‘lost B’ citations. The burden of challenge to ‘B’ citations lies with facilities, who have five years to bring a case to trial. [1] The Commission expressed concern that these delays, and the fact that penalties are not being collected, may render the ‘B’ citation meaningless and have a chilling effect on enforcement efforts. Delays also can result in difficulties gathering or preserving evidence.” (Assem. Com. on Aging and Long Term Care, Analysis of Sen. Bill No. 73 (1987-1988 Reg. Sess.) as amended June 22, 1987, at p. 2.)

A report for the Senate Rules Committee stated: “This bill [Senate Bill No. 73] changes court procedures by which long-term care facilities can appeal ‘class B’ citations issued by the Department of Health Services. [1] Assembly Amendments revise the period for filing and serving of the intent to contest a citation, and require the courts to dismiss a citation appeal upon motion of the Department of Health Services if the issue memorandum is not filed by the facility within the period specified . . . .” (Sen. Rules Com., Analysis of Sen. Bill No. 73 (1987-1988 Reg. Sess.) as amended Aug. 24, 1987, italics in original.) The report identified the Little Hoover Commission as the source of the legislation and included the comments of the Assembly Aging and Long Term Care Committee about the Little Hoover Commission’s report.

of the client. Instead, counsel’s conduct was simply inexcusable. Under these circumstances, the County is charged with its counsel’s inexcusable neglect. (Lopez v. Superior Court, supra, 178 Cal.App.3d at p. 935.) In sum, there was no extrinsic fraud or mistake sufficient to warrant the court’s exercising its inherent equitable power to relieve the County from its failure to file a timely at issue memorandum.

On this record the municipal court properly dismissed the County’s lawsuit.

Disposition

The order of dismissal is affirmed.

Todd, J., and Froehlich, J., concurred.