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Date: 03-22-2019

Case Style: York Healthcare & Wellness Centre, LP v. State Department of Public Health

Case Number: BV 032739

Judge: Ricciardulli, J.

Court: Appellate Division of the Superior Court, States of California, County of Los Angeles

Plaintiff's Attorney: Ann Mary Olson, Jillian Somers Donovan

Defendant's Attorney: Xavier Becerra, Richard T. Waldow and Nicole J. Kau

Description: York Healthcare & Wellness Centre LP, dba York Healthcare & Wellness Centre (York)
was given a $20,000 citation by the State Department of Public Health (the Department) for
failing to properly care for one of the residents at its nursing care facility, and it appealed by
bringing a limited civil action under Health and Safety Code section 1428, subdivision (b)
(1428(b)). Because York failed to timely file a case management statement (CMS) within
six months of the filing of the Department’s answer, the trial court granted the Department’s
motion to dismiss and entered judgment against York. York appeals the judgment and, as
discussed below, we affirm.
The operative statute states, “Notwithstanding any other provision of law, a licensee
prosecuting a judicial appeal shall file and serve a [CMS] pursuant to Rule 212 of the California
Rules of Court within six months after the [D]epartment files its answer in the appeal,” and
provides that, if a timely CMS is not filed, the court must grant the Department’s dismissal
motion. (1428(b).) As York points out, California Rules of Court, rule 212 was repealed after
1428(b) was enacted.1
The rules that replaced rule 212, as presently drafted, state a CMS need
only be filed when courts set a case management conference (rule 3.725(a)) and allow courts to
exempt cases from having to conduct case management conferences (rule 3.720(b)). Pursuant
to the opt-out provision, the Los Angeles County Superior Court provided that conferences do
not have to be set in limited civil cases (Super. Ct. L.A. County, Local Rules, rule 3.23). York
maintains that, since the local rule does not require a case management conference be
conducted, it did not have to file a CMS, and the court erred in dismissing its appeal. York is
wrong.
The plain terms of 1428(b) show the reference to filing a CMS “pursuant to Rule 212 of
the California Rules of Court” was meant only to define the contents and timing of a CMS.
The repeal of rule 212 did not affect 1428(b)’s requirement that, “Notwithstanding any other
provision of law, a licensee prosecuting a judicial appeal shall file and serve a [CMS].” When
the Legislature in 2006 added to 1428(b) the requirement that an appealing facility file a CMS

1Unless otherwise specified, all further references to rules are to the California Rules of Court.
3
within six months of an answer or suffer dismissal, it did not intend to allow courts to exempt
cases from the timely filing and dismissal provisions. Although the rules were changed in 2013
to provide local courts may opt out, the new rules could not lawfully override the statute and
underlying legislative intent. We hold that, if a CMS is not filed within six months of the filing
of the Department’s answer, the court must grant the Department’s motion to dismiss a
facility’s action appealing a citation, even if a superior court’s local rule provides that a case
management conference is optional.
BACKGROUND
York was cited because in December 2014 its facility failed to properly address a
resident’s dehydration and severe constipation, and as a result of drugs it administered, the
resident developed an infection and had to be rushed to the hospital for treatment. The
Department investigated the incident and issued the $20,000 citation, and on July 12, 2016,
York filed its action appealing the citation. On October 3, 2016, the Department filed its
answer.
The filing of the answer triggered York’s duty to file a CMS within six months, by
April 3, 2017. However, York’s CMS was filed on May 16, 2017, over a month late. The
Department filed a motion to dismiss the case, maintaining the mandatory dismissal provision
of 1428(b) was applicable, and York filed an opposition to the motion arguing it was not
required to file a CMS and it only filed one “in an abundance of caution.” The court granted
the motion and entered judgment against York.
DISCUSSION
Because the issues in the appeal involve the interpretation of statutes and rules and not
any disputed facts, we exercise de novo review. (Ceja v. Rudolph & Sletten, Inc. (2013) 56
Cal.4th 1113, 1119.)
“Under settled canons of statutory construction, in construing a statute we ascertain the
Legislature’s intent in order to effectuate the law’s purpose. [Citation.] We must look to the
statute’s words and give them their usual and ordinary meaning. [Citation.] The statute’s plain
4
meaning controls the court’s interpretation unless its words are ambiguous.” (Green v. State of
California (2007) 42 Cal.4th 254, 260.)
A court “examine[s] the entire substance of the statute in order to determine the scope
and purpose of the provision.” (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1040.) If
statutory language is “susceptible to more than one reasonable interpretation,” the court looks
to “‘extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the
legislative history, . . . [and] the statutory scheme of which the statute is a part.” [Citation.]’
[Citations].” (Coburn v. Sievert (2005) 133 Cal.App.4th 1483, 1495-1496, fn. omitted.)
The Statutory Language
The text of 1428(b) provides, in relevant part, that “to perfect a judicial appeal of a
contested [class ‘A’] citation,[2]
a licensee shall file a civil action in the superior court in the
county in which the long-term health care facility is located. . . . Notwithstanding any other
provision of law, a licensee prosecuting a judicial appeal shall file and serve a case
management statement pursuant to Rule 212 of the California Rules of Court within six months
after the [D]epartment files its answer in the appeal. . . . [T]he court shall dismiss the appeal
upon motion of the [D]epartment if the case management statement is not filed by the licensee
within the period specified. . . .”
York owned a long-term healthcare facility licensee that was given a class “A” citation,
so 1428(b) governed the time limits applicable in its action appealing the citation. The statute
clearly indicated York was required to file a CMS or risk having the case dismissed. The term
“[n]otwithstanding any other provision of law” “declare[d] the legislative intent to override all
contrary law. [Citation.]” (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th
365, 383, fn. 17.) Contrary to York’s argument, the terms of the provision should not be

2
“Class ‘A’ violations are violations which the state [D]epartment determines present either
(1) imminent danger that death or serious harm to the patients or residents of the long-term health care
facility would result therefrom, or (2) substantial probability that death or serious physical harm to
patients or residents of the long-term health care facility would result therefrom.” (Health & Saf. Code,
§ 1424, subd. (d).) “A class ‘A’ citation is subject to a civil penalty in an amount not less than two
thousand dollars ($2,000) and not exceeding twenty thousand dollars ($20,000) for each and every
citation.” (Health & Saf. Code, § 1424.5, subd. (a)(2).)
5
interpreted as meaning rule 212 governs who is required to file the CMS. Rather, by stating
“[n]otwithstanding any other provision of law, a licensee prosecuting a judicial appeal shall
file and serve a [CMS] pursuant to Rule 212,” the provision specified the entity which must file
the CMS, and that specification is not affected by the reference to the rules discussing the
contents of a CMS and the procedures for filing one.
York maintains the words of 1428(b) alone do not dictate its scope, because rule 212
was repealed by the Judicial Council effective January 1, 2007 and was replaced by rules
allowing courts to opt out of requiring that CMS’s be filed. “‘“Where a statute is repealed and
all, or some, of its provisions are at the same time reenacted, the reenactment neutralizes the
repeal, and the provisions of the repealed act which are thus reenacted continue in force without
interruption.”’ [Citation.]” (Haines v. Department of Employment (1954) 125 Cal.App.2d 304,
306, italics added.) Since a rule has the force of law so long as there is no legislative direction
to the contrary (Iverson v. Superior Court (1985) 167 Cal.App.3d 544, 547-548), by analogy,
when a rule is repealed and replaced by a different rule, the replacement continues in effect in
lieu of the replaced rule. Yet this only means 1428(b) should be read to require that the content
and procedures for filing a CMS should be governed “pursuant to [the rules that replaced
rule 212].”
York points out the rules that replaced rule 212 (rule 3.720 et seq.), in their current form,
state the six-month deadline in 1428(b) for filing a CMS may never be triggered when a court
has opted to not require that a case management conference be conducted. Given that the terms
of the law do not reference the rules in order to specify who should file a CMS, the rule
changes were irrelevant to the requirement that a CMS be filed. To the extent there is any
ambiguity concerning the issue, the legislative scheme and its history definitively indicate the
Legislature did not intend to have the rules define who is required to file a CMS and allow
courts to opt out of the CMS filing requirement.
The Legislative Scheme
1428(b) is part of the Long-Term Care, Health, Safety, and Security Act of 1973. The
Act was enacted “to ensure that nursing home facilities in California provide safe and secure
6
environments for residents and their families and that they have the highest quality of care
possible.” (Stats. 1973, ch. 924, § 1(b)(1).) To further the goal of promoting healthy living
conditions for residents of facilities, including skilled nursing homes like the one owned by
York, the Legislature enacted a comprehensive set of regulations and provided citations should
be issued in the event facilities failed to comply. (See Health & Saf. Code, § 1417 et seq.)
The Legislature expressed its concern that citations be speedily adjudicated, providing,
“It is the intent of the Legislature in enacting this chapter to establish . . . a citation system for
the imposition of prompt and effective civil sanctions against long-term health care
facilities . . . .” (Health & Saf. Code, § 1417.1.) The interest in quickly resolving citations is
reflected in portions of the appeal provisions that set tight time limits for filing and processing
the action challenging the citation. (See, e.g., 1428(b) [a “licensee shall inform the director [of
the Department] in writing, within 15 business days of the service of the citation of the
licensee’s intent to adjudicate the validity of the citation . . . [and] [t]he action shall be filed no
later than 90 calendar days after a licensee notifies the director that he or she intends to contest
the citation, and served not later than 90 days after filing”].) The statute requires a court
expeditiously resolve an appeal, providing, “Actions brought under this chapter shall be set for
trial at the earliest possible date and shall take precedence on the court calendar over all other
cases except matters to which equal or superior precedence is specifically granted by law.
Times for responsive pleading and for hearing the proceeding shall be set by the judge of the
court with the object of securing a decision as to subject matters at the earliest possible time.”
(Health & Saf. Code, § 1428, subd. (i), italics added.)
Against this backdrop, it would be inimical to the Legislature’s intent to adopt an
interpretation of 1428(b) whereby the referenced rule dictates which entity should file a CMS,
thereby allowing courts by local rule to eliminate the requirement to file a CMS. It is true that
in Los Angeles the filing of a CMS is not used to set a trial date in limited civil cases. (See
Los Angeles County Superior Court Second Amended General Order In re Civil Limited
Jurisdiction Cases Calendared in Department 77 (Non-Collections Cases), effective as of
March 7, 2016, p. 1.) But, York’s assertion on appeal that the filing of a CMS “would serve no
7
purpose” is unfounded. The CMS provides a court with valuable information to ensure the case
is smoothly progressing towards trial, including informing the court of the parties’ progress in
conducting discovery and the motions parties expect to file. (See Judicial Council Forms,
form CM-110, required to be used as a CMS pursuant to rule 3.725(c).) Even if a case
management conference is not conducted, the filing of a CMS helps keep a case on the judge’s
radar, assisting in the “object of securing a decision . . . at the earliest possible time.”
(Health & Saf. Code, § 1428, subd. (i).)
1428(b)’s Legislative History
The predecessor statute to 1428(b) required an at-issue memorandum be filed within
six months of an answer and provided an appeal case must be dismissed upon department
motion if one was not timely filed.3
Senate Bill No. 73 in 1987 “‘change[d] court procedures
by which long-term care facilities can appeal . . . citations issued by the Department of Health
Services . . . [by] revis[ing] the period for filing and serving of the intent to contest a citation,
and requir[ing] the courts to dismiss a citation appeal upon motion of the Department of
Health Services if [an at-]issue memorandum is not filed by the facility within the period
specified . . . .’ [Citation.]” (County of San Diego v. Department of Health Services (1991) 1
Cal.App.4th 656, 662.) As amended in 1987, 1428(b) (then designated 1428(c)) provided, in
relevant part, “Notwithstanding any other provision of law, . . . a licensee prosecuting a judicial
appeal shall file and serve an at-issue memorandum pursuant to Rule 209 of the California
Rules of Court . . . within six months after the state [D]epartment files its answer in the
appeal . . . .” (Stats. 1992, ch. 1163, § 6, italics added.)
As explained by a bill analysis of the legislation which enacted 1428(b) (Assem. Bill
No. 1376 (AB 1376)), former rule 209 required an at-issue memorandum be filed in all civil
cases. (Sen. Com. on Health, Analysis of AB 1376 (2005-2006 Reg. Sess.), as introduced
June 8, 2005 (Sen. Com. on Health Analysis), p. 2; see New Cingular Wireless PCS, LLC v.
Public Utilities Com. (2016) 246 Cal.App.4th 784, 798 [it is appropriate to look to bill analyses

3Prior to 1428(b)’s enactment, an at-issue memorandum served the function of alerting a court
that a case was ready to be set for trial. (See Maximum Tech. v. Superior Court (1987) 188 Cal.App.3d
935, 937.)
8
in examining legislative intent].) But in 1995, the Judicial Council repealed the at-issue
memorandum for most cases, and added rule 212, specifying a CMS must be filed in civil
cases, informing a court of the status of an action. (Id. at p. 3.)
Effective January 1, 2006, by way of AB 1376, the Legislature amended 1428(b) to
delete the reference to rule 209 and replace it with rule 212. The analysis for the bill explained,
“As originally conceived, the at-issue memorandum was designed by the Judicial Council to be
a litigation management tool for all civil matters, which is now accomplished by the filing of
Case Management Statements. [¶] However, as codified in Section 1428 of the Health and
Safety Code, failure to file an at-issue memorandum is grounds for dismissal of a long-term
care facility’s case.” (Sen. Com. on Health Analysis, supra, at p. 2.) The analysis found “filing
at-issue memoranda in citation disputes has become a challenge because the court clerks are
resistant to accept the documents for filing because the clerks generally understand that these
memoranda are not required.” (Sen. Com. on Health Analysis, supra, at pp. 2-3; accord,
Assem. Com. on Health, Analysis of AB 1376 (2005-2006 Reg. Sess.), as introduced June 8,
2005, p. 2.) To ensure licensees continued to update courts with the status of cases, effective
January 1, 2006, the Legislature substituted “a case management statement” for “an at-issue
memorandum” and “rule 212” for “rule 209” in 1428(b). (Stats. 2005, ch. 56, § 1.)
When AB 1376 was signed into law, rule 212 provided its provisions applied “[i]n every
general case[4]
except complex cases and cases exempted [under rules inapplicable to actions
challenging healthcare facility citations]” (rule 212(a)), and “[i]n each case, the court must set
an initial case management conference to review the case” (rule 212(b)). The rule also set forth
the subjects that were to be considered at the conference, and required that a CMS be filed
“[n]o later than 15 calendar days before the date set for the case management conference.”
(Rule 212(e), (g).)5

4A “general civil case” was defined to include both unlimited and limited jurisdiction cases.
(See former rule 200.1(2).)
5The rule also provided, as rule 3.725(c) does, that parties must use form CM-110 when filing a
CMS. (See rule 212(g)(2).)
9
Critically, at the time AB 1376 enacted 1428(b), rule 212 did not allow courts to opt out
of its provisions. The fact that, under the rule referenced by the statute, courts lacked power to
opt out signaled an unmistakable intent by the Legislature when it enacted 1428(b) that the
CMS filing requirement and dismissal provisions apply regardless of any contrary trial court
practices.
Judicial Council and Local Court Actions
The Judicial Council, effective January 1, 2007, repealed rule 212 as part of a
wide-ranging revision of court rules. The revisions were based on a concern that the rules were
“not well organized and are difficult to use,” and were “not intended to make substantive
changes to the rules and standards . . . .” (Jud. Council of Cal., Admin. Off. of Cts., Rep. on
Reorganization of the California Rules of Court (June 15, 2006) (AOC Report), pp. 6-7.) The
report recommended adding rules 3.720 through 3.730, explaining “[t]hese rules are based
directly on current rule 212, which has become very lengthy.” (Id. at pp. 19-20.)
Rule 3.720 et seq., as adopted effective 2007, largely mirrored rule 212, including
stating that “[i]n each case, the court must set an initial case management conference to review
the case” (rule 3.722(a)); specifying the topics to be discussed at the conference (rule 3.727);
and providing a CMS must be filed “[n]o later than 15 calendar days before the date set for the
case management conference” (rule 3.725(a)). The version of the rules effective in 2007 did
not contain, as they did following a 2013 amendment and as they presently do, a provision
stating, “In any case in which a court sets an initial case management conference, the rules in
this chapter apply.” (Rule 3.720(c).) The 2007 rules also did not include parts added in 2013
that currently state, “A court by local rule may exempt specified types or categories of general
civil cases filed before January 1, 2020, from the case management rules in this chapter,
provided that the court has in place alternative procedures for case processing and trial setting
for such actions . . . .” (Rule 3.720(b).)
10
Los Angeles County Superior Court adopted a rule effective May 17, 2013 pertaining to
CMS’s in limited civil cases.6
Superior Court of Los Angeles County, Local Rules, rule 3.23
provides, in relevant part, “Pursuant to California Rules of Court, rule 3.720(b), all limited civil
cases . . . are exempted from the case management rules of [rules 3.720 et seq.].”
Effectuating the Legislature’s Intent
The Legislature did not amend 1428(b) after rule 212 was repealed in 2007. But, given
that the rules that replaced rule 212 were initially consistent with the repealed rule and were not
changed to allow courts to opt out of the CMS filing requirement until 2013, it would be
unwarranted to infer the Legislature acquiesced in the changes by failing to act. (See Grosset v.
Wenaas (2008) 42 Cal.4th 1100, 1117 [“[a]s a principle of statutory construction, legislative
inaction is a ‘slim reed upon which to lean’”].)
The statute, when it became effective in 2006, as now, provided, “Notwithstanding any
other provision of law, a licensee prosecuting a judicial appeal shall file and serve a [CMS]
within six months after the [D]epartment files its answer in the appeal” and, further, that “the
court shall dismiss the appeal upon motion of the [D]epartment if the case management
statement is not filed by the licensee within the period specified.” (1428(b).) The words used
by the Legislature, the surrounding statutory scheme, and the provision’s legislative history all
demonstrate the continuing intent that a CMS must be filed and that, if it is not, a case is
required to be dismissed upon the Department’s motion.
The fact that 1428(b) provides a CMS “pursuant to Rule 212 of the California Rules of
Court” has to be filed, and that the referenced rule no longer exists, is inconsequential. The
reference to the rule was not intended to specify who must file a CMS, and even if it did, there
is no indication that the Legislature intended to allow courts to opt out of the CMS filing
requirement.
The replacement of rule 212 with rules 3.720 through 3.730 by the Judicial Council in
2007 was “not intended to make substantive changes” (AOC Report, supra, at pp. 6-7), and

6Limited civil cases involve an amount in controversy of $25,000 or less. (Code Civ. Proc.,
§ 85, subd. (a).) Actions brought to appeal long-term healthcare facility citations are limited civil cases
when the citation does not exceed $25,000. (Code Civ. Proc., § 86.1.)
11
instead was guided by the assessment that rule 212 had “become very lengthy” (id. at p. 20).
As mentioned above, following 2013 amendments, rule 3.720 et seq. diverged from rule 212 in
substantive ways, specifying, for example, that a CMS need only be filed when a court sets a
case management conference and that local court rules may exempt cases from case
management rules. (See rule 3.720(b), (c).) Also, a local court rule in Los Angeles was added,
providing limited civil cases were exempt from case management rules. (Super. Ct. L.A.
County, Local Rules, rule 3.23.)
It does not appear the Judicial Council made changes to the rules intending to impact
1428(b), and the same is true for the local court rule. But, dispositively, even if it wanted to,
the Judicial Council did not have the power to give courts the option to ignore the timely filing
requirement and duty to dismiss by repealing and replacing rule 212. (See Cal. Const., art. VI,
§ 6, subd. (d) [“The rules adopted shall not be inconsistent with statute”].) Likewise, local
courts lack the authority to alter requirements in statutes. (Gov. Code, § 68070, subd. (a).)
In enacting 1428(b), the Legislature expected litigants to file a CMS consistent with
rule 212, which applied “[i]n every general case” challenging a citation. The Judicial Council
could not detract from the clear intent in 1428(b), that CMS’s be timely filed in all cases and
that appeals would be dismissed if they were not, by allowing courts to exempt themselves
from the requirement to conduct a case management conference. (See In re Abbigail A. (2016)
1 Cal.5th 83, 92 [“‘a rule is inconsistent with a statute if it conflicts with either the statute’s
express language or its underlying legislative intent’”].)
Penalties on some violations by long-term health care providers can be as high as
$100,000 per occurrence (for class “AA” violations involving skilled nursing facilities or
intermediate care facilities where death results in the offense), and generally otherwise range
from $1,000 to $25,000 per violation. (See Health & Saf. Code, §§ 1424, 1424.5.) There is no
indication the Legislature intended the CMS filing requirement to depend on the amount of a
fine imposed, as would be the case in courts like those in Los Angeles that created an
exemption for limited civil cases. There is also no indication of an intent to allow the CMS
filing requirement to vary from jurisdiction to jurisdiction based on a local court’s decision to
12
opt out. It is a bedrock principle that “[t]he literal language of enactments may be disregarded
to avoid absurd results and to fulfill the apparent intent of the framers. [Citations.]” (Amador
Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245.)
Interpreting 1428(b) to condition the CMS filing requirement based on the approval of the
superior court would be counterintuitive to the Legislature’s stated objective of efficiently and
expeditiously resolving citation appeals.
We construe 1428(b)’s requirement that a CMS be filed “pursuant to Rule 212 of the
California Rules of Court within six months after the department files its answer in the appeal”
to refer solely to the timely filing of a CMS using form CM-110 updating a bench officer of the
status of the case. The requirement to use this form was listed in rule 212(b)(5), and in
rule 3.725(c) when it was first added. The requirement also continues to be listed in the current
version of rule 3.725(c). We presume courts will consider the CMS’s in striving to resolve
facility appeals accurately and promptly in keeping with the goals of the statute, but note that
nothing in this opinion requires case management conferences must be conducted as part of that
process.

Outcome: The judgment is affirmed. The Department is to recover costs on appeal.

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