MYERS v. EASTWOOD CARE CENTER INC

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Court of Appeal, Second District, Division 2, California.

Beverlee A. MYERS, as Director of the State Department of Health Services, Plaintiff and Appellant, v. EASTWOOD CARE CENTER, INC., a California Corporation dba Lyncrest Convalescent Hospital, Defendant and Respondent.

Civ. 61910.

Decided: September 16, 1981

George Deukmejian, Atty. Gen., Anne S. Pressman, James E. Ryan, Deputy Attys. Gen., for plaintiff and appellant. Weissburg & Aronson, Inc., Peter Aronson, Gary S. Mobley, Los Angeles, for defendant and respondent.

The parties to this appeal are in agreement that the sole issue involved concerns when an action under the Long-Term Care, Health, Safety and Security Act of 1973 (“the Act”), Health and Safety Code sections 1417-1439, must be brought.1

For purposes of elucidating our disposition herein, we set out, substantially in the manner described by the parties in their respective briefs, a summary of pertinent portions of the Act, as follows.

Appellant is the director of the state agency charged with the responsibility of overseeing operations of long-term health care facilities, as defined, (s 1418) in the State of California. These facilities are subject to administrative regulations promulgated by the agency. (See 22 Cal.Admin.Code, s 72701, et seq.)

To insure compliance with these regulations and the statutes from which they are derived, the agency is authorized to enter and inspect long-term health care facilities at any time (s 1421), and is required to conduct at least two general inspections of each facility, and as many additional inspections as may be necessary, in every calendar year (s 1422).

If, during an inspection, the agency determines that a facility has violated a statute or administrative regulation so as to affect the health or safety of a patient in a prescribed fashion, the Act authorizes the agency to issue an “A” or “B” citation, depending on the level of seriousness, and to assess a civil penalty within the limitations of the Act (s 1424).

An intent of the Act is to provide a prompt method of resolving such citations. (s 1417.1) A citation must be issued promptly and within one day from the date of inspection. (22 Cal.Admin.Code, s 71715(a).) If the facility desires to contest the validity of a citation, it must notify the agency in writing within five days of receipt of the citation. (s 1428(a).) If it does not wish to contest, it may, of course, simply pay the penalty and correct the cause of it, if that is appropriate.

Upon receipt of a letter of contest, the Act requires the agency: (1) if requested by the facility, to hold an informal conference with the facility within five days (s 1428(a)), and (2) to immediately refer the matter to the Attorney General (s 1428(c).)

The informal conference is not subject to the Administrative Procedure Act, there is no right of cross-examination or confrontation of witnesses, and there is no impartial hearing officer. (See 22 Cal.Admin.Code, s 72721.)

After the conclusion of the conference, the designee of appellant who has presided at it may affirm, modify, or dismiss the citation or proposed assessment of civil penalty (s 1428(a).) If the matter is affirmed or modified the facility may then pay the penalty, if any, or, if still dissatisfied, may contest the decision within five days.

Upon receipt of a contest of the citation, the Attorney General is directed to promptly take action in the superior court. (s 1428(c).) If the agency fails to take appropriate action or the violations are not timely corrected, the Attorney General or any individual may initiate an action for injunction and/or civil damages equal to the amount of the citations. (s 1430.)

Enforcement actions in the superior court are required to be set for trial at the earliest possible date and are to be given precedence “with the object of securing a decision as to such matters at the earliest possible time.” (s 1428(f).)

Here, appellant's representatives completed an inspection of respondent's facility on June 22, 1979, at which time two class A and four class B citations were issued. The acts giving rise to the citations occurred prior to the date of inspection, some occurring as early as October, 1978. Following a subsequent inspection on June 27, 1979, a further class A citation, again based on earlier acts, was issued. Penalties assessed which were not obviated by correction compliance, amounted to $15,000.

The citations were contested but were upheld following conference, and this decision was likewise contested by respondent on August 15, 1979.

On July 21, 1980, appellant filed her complaint to enforce the citations and collect the penalties. Respondent's demurrer thereto was sustained by the trial court without leave to amend on the basis the causes pleaded were barred by the one-year statute of limitations found in Code of Civil Procedure section 340, subdivisions (1) and (2). The appeal is from the order dismissing the complaint. We affirm.

In addressing the issue present, appellant urges:

(1) A cause of action under the Act does not accrue until issuance of the conference decision or, in the alternative, until date of discovery of the acts which provide the basis for issuance of the citations;

(2) A four-year, rather than one-year, statute of limitations applies to citation enforcement actions; and

(3) An action to enforce citations and collect civil penalties is tolled until issuance of the conference decision.

That accrual of a cause of action under the Act occurs prior to issuance of a conference decision, contrary to appellant's suggestion, seems clear to us, first, from the consideration that in general such accrual arises in a context like that present when a wrongful act has been committed (see Avner v. Longridge Estates (1969) 272 Cal.App.2d 607, 616, 77 Cal.Rptr. 633; Collins v. County of Los Angeles (1966) 241 Cal.App.2d 451, 454-455, 50 Cal.Rptr. 586) and, second, because no impediment to the operation of that general rule is found in the language of the statute, which provides rather that:

“(c) If a licensee notifies the director that he intends to contest a citation, the director shall immediately notify the Attorney General. Upon such notification, the Attorney General shall promptly take all appropriate action to enforce the citation and recover the civil penalty prescribed thereon, and shall take such other action as he shall deem appropriate, in the superior court of the county in which the long-term health care facility is located.” (s 1428(c).)

Similarly, the second prong of appellant's initial contention, that it is the time of discovery and not the occurrence of the wrongful act which is the operative consideration triggering the statute of limitations, seems not well taken in view of the fact that that exception to the general rule arises only in cases where the nature of the act involved, e. g., fraud or professional malpractice, is thought to be such as to require the result. (See Collins v. County of Los Angeles, supra, 241 Cal.App.2d 451, 454-455, 50 Cal.Rptr. 586; see also People v. One 1951 Chevrolet (1958) 157 Cal.App.2d 301, 305, 320 P.2d 881; Dept. of Social Welfare v. Stauffer (1943) 56 Cal.App.2d 699, 704, 133 P.2d 692.) No such factors being present here, we are not persuaded to depart from the customary rule.

Having so decided we are likewise satisfied the one-year limitation provided for by Code of Civil Procedure section 340, subdivisions (1) and (2),2 rather than the four-year period permitted by Code of Civil Procedure section 343,3 is applicable here. (See People v. Grant (1942) 52 Cal.App.2d 794, 798, 127 P.2d 19.) In this regard, we find unconvincing the argument proferred by appellant that because civil penalties imposed under the Act are collected and held by appellant, they do not constitute a forfeiture to the people of this state.

Finally, we hold that there is no tolling of the statute of limitations during the pendency of the conference period, simply because the statute, as indicated previously, provides otherwise, such that, whatever action might be taken by a licensee in terms of contesting citations or the final decisions made by appellant, those actions do not forestall the ability of appellant to move forward in the superior court immediately upon receiving advice a contest is intended.

The order appealed from is affirmed.

FOOTNOTES

1.  All code references herein are to Health and Safety Code, unless otherwise indicated.

2.  “Within one year:1. An action upon a statute for a penalty or forfeiture, when the action is given to an individual, or to an individual and the state, except when the statute imposing it prescribes a different limitation;2. An action upon a statute, or upon an undertaking in a criminal action, for a forfeiture or penalty to the people of this state; * * *.“

3.  “An action for relief not hereinbefore provided for must be commenced within four years after the cause of action shall have accrued.”

ROTH, Presiding Justice.

COMPTON and BEACH, JJ., concur.