Janice Jarman v. HCR Manorcare, Inc.

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].)

JARMAN v. HCR MANORCARE, INC.

Opinion of the Court by Chin, J.

2

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.

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Opinion of the Court by Chin, J.

3

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,

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Opinion of the Court by Chin, J.

4

§ 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

JARMAN v. HCR MANORCARE, INC.

Opinion of the Court by Chin, J.

5

[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

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Opinion of the Court by Chin, J.

6

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.

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Opinion of the Court by Chin, J.

7

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

JARMAN v. HCR MANORCARE, INC.

Opinion of the Court by Chin, J.

8

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

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Opinion of the Court by Chin, J.

9

“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.

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Opinion of the Court by Chin, J.

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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.)

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Opinion of the Court by Chin, J.

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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

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Opinion of the Court by Chin, J.

12

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

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13

(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].)

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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

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15

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].)

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16

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

JARMAN v. HCR MANORCARE, INC.

Opinion of the Court by Chin, J.

17

“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

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Opinion of the Court by Chin, J.

18

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.)

JARMAN v. HCR MANORCARE, INC.

Opinion of the Court by Chin, J.

19

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

JARMAN v. HCR MANORCARE, INC.

Opinion of the Court by Chin, J.

20

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

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Opinion of the Court by Chin, J.

21

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).

JARMAN v. HCR MANORCARE, INC.

Opinion of the Court by Chin, J.

22

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.)

We reverse the Court of Appeal’s judgment,8 and remand for further proceedings consistent with this opinion.