Modification: Cal. Advocates for Nursing Home Reform v. Smith

CALIFORNIA ADVOCATES FOR NURSING HOME REFORM et al.,

Plaintiffs and Appellants,

v.

KAREN SMITH, as Director, etc.,

Defendant and Appellant.

No. A147987

(Alameda County

Super. Ct. No. RG13700100)

California Courts of Appeal

First Appellate District

Division Four

Filed August 21, 2019

Trial Judge: Hon. Evelio M. Grillo

Counsel

Morton P. Cohen; Law Offices of Amitai Schwartz and Amitai Schwartz for Plaintiffs and Appellants.

BraunHagey & Borden, Matthew Borden, and J. Noah Hagey for California Long Term Care Ombudsman Association as Amicus Curiae on behalf of Plaintiff and Appellants.

AARP Foundation Litigation and William Alvarado Rivera for AARP, AARP Foundation, National Consumer Voice for Quality Long-Term Care, and Justice in Aging as Amici Curiae on behalf of Plaintiffs and Appellants.

Disability Rights California, Katherine Mathews, Salma Enan, and Pamela Lew as Amicus Curiae on behalf of Plaintiff and Appellants.

ACLU Foundation Disability Rights Program, Claudia Center, and Susan Mizner; ACLU Foundation of Northern California and Alan L. Schlosser as Amici Curiae on behalf of Plaintiff and Appellants.

Xavier Becerra and Kamala D. Harris, Attorneys General, Julie Weng-Gutierrez, Senior Assistant Attorney General, Susan M. Carson, Supervising Deputy Attorney General, Joshua N. Sondheimer, Deputy Attorney General for Defendant and Appellant.

Cole Pedroza, Curtis A. Cole, and Cassidy C. Davenport for California Medical Association, California Dental Association, and California Hospital Association as Amici Curiae on behalf of Defendant and Appellant.

Hooper, Lundy & Bookman and Mark E. Reagan for California Association of Health Facilities as Amicus Curiae on behalf of Defendant and Appellant.

THE COURT:

It is ordered that the opinion filed herein on July 22, 2019, be modified as follows:

1. On page 7, in the sentence that starts, "Though the statute makes no mention," delete the words "at trial" so the sentence reads:

Though the statute makes no mention of the IDT reviewing capacity determinations, the Department presented evidence that IDT's can and do review capacity determinations made by attending physicians.

2. On page 11, in the second full paragraph, at the end of the second sentence ending in the phrase "may not be used for end of life decisions", insert the following as part of the same paragraph:

The court granted the requested writ of mandate in part, conditionally enjoining the enforcement of section 1418.8. (See Judgment filed January 27, 2016, § I, ¶ 1 (A) ["the use of Health and Safety Code section 1418.8 is prohibited to the extent that said section does not require the resident be adequately notified in writing"]; id., § II, ¶ (A) ["the use of Health and Safety Code section 1418.8 is prohibited for the administration of antipsychotic drugs to residents unless authorized pursuant to the procedures set forth in Probate Code 3200 et seq., except in emergency situations"]; id., § III, ¶ A ["the use of Health and Safety Code section 1418.8 is prohibited to make end of life decisions regarding the withholding or withdrawal of life-sustaining treatment for residents, except to the extent consistent with the resident's individual health care instructions, if any, and other wishes, to the extent known," subject to specified exceptions].)

3. On page 11, immediately following the above insert, begin a new paragraph that starts with the sentence "The judgment has been stayed pending this appeal."

4. On page 21, in footnote 6, in the second sentence beginning with "For decisions that strip a person",  replace the language "for nearly a century, dating back to" with the word "since".

5. On page 31, in the first paragraph continuing from page 30, in the sentence that starts with "In effect, as we read the statute," insert the phrase "as an agent" at the end of the sentence after the word "representative".

6. On page 42, in the second full paragraph, at the beginning of the second sentence, delete "Thus," and start the sentence with "The Legislature".

7. On page 55, delete the entirety of subsection 5, entitled " 5. The Superior Court's Decision" ending on page 56 with the language "needs in nursing homes", which will require renumbering of all subsequent subsections in part IV.G.

8. On page 59, in the first sentence of the first full paragraph that starts "We admit to alarm", change the words "submitted at trial" at the end of the sentence to "submitted to the trial court."

9. On page 70, after the end of the first full paragraph, ending in "That is what we have done", and before part "V. DISPOSITION", using the same formatting that appears throughout the opinion, insert the following new section, which will require that the subsequent "DISPOSITION" section be renumbered from V. to VI.:

V. THE APPROPRIATE FORM OF RELIEF

As we read the Superior Court's judgment, it granted a writ of traditional mandate and issued equitable relief in the form of an injunction. That is understandable, since injunctive relief was among the remedies the petitioners requested in their prayer for relief. (First Amended Verified Petition for Writ of Mandate, Declaratory Relief and Injunction, filed January 15, 2015, at p. 38, ¶ 5 [requesting that the court "[e]njoin [the Department] from permitting the use of Section 1418.8 by all California skilled nursing and intermediate care facilities"].) They had grounds to do so. Even though " ' "[a] traditional writ of mandate under Code of Civil Procedure section 1085 is a method for compelling a public entity to perform a legal and usually ministerial duty" ' " (Lippman v. City of Oakland, supra, 19 Cal.App.5th at p. 756, italics added), in appropriate circumstances injunctive relief is available in a mandamus proceeding. (County of Del Norte v. City of Crescent City (1999) 71 Cal.App.4th 965, 973 ["[t]he remedy [of permanent injunction] is available in a mandamus proceeding and is appropriate to restrain action which, if carried out, would be unlawful"].) But we have focused instead on petitioners' request for declaratory relief, which is another form of relief that may be issued in a mandamus proceeding. (Leahey v. Dept. of Water and Power (1946) 76 Cal.App.2d 281, 284.)

What we hold here, as explained above, is that rather than enjoining the use and enforcement of section 1418.8 on constitutional grounds, the appropriate remedial course was to adopt a saving construction of the statute by declaration. Not only is this remedial approach, in our view, more consistent with avoiding invalidation of statutes on constitutional grounds where reasonably possible, but it is also significant that we deal here with matters of administrative enforcement. Because "[m]andamus will not lie to control an exercise of discretion, i.e., to compel an official to exercise discretion in a particular manner" (California Hospital Assn. v. Maxwell-Jolly (2010) 188 Cal.App.4th 559, 570), we are reluctant to prescribe any particular approach to conformance with the judgment.

Concerned about enforceability, petitioners argue on petition for rehearing that "mandamus against a public officer is a more adequate remedy than declaratory relief, because it commands performance, while a declaratory judgment simply pronounces the duty to perform . . . ." (Berkeley Sch. Dist. v. City of Berkeley (1956) 141 Cal.App.2d 841, 845.) They contend that "[h]ow the judgment is implemented and enforced on remand will affect whether the procedural protections, which are so important to saving the statute from unconstitutionality, will be abstract aspirations or will actually benefit the 12,000 patients in need of these protections." And they request that we direct the superior court to retain jurisdiction to monitor the Director's implementation of the judgment.

We do not agree that the issuance of a writ is appropriate or necessary. To obtain a writ of mandate under Code of Civil Procedure section 1085, a petitioner must establish, among other things, " ' " '(1) [a] clear, present and usually ministerial duty upon the part of the respondent [citations]; and (2) a clear, present and beneficial right in the petitioner to the performance of that duty [citation].' " ' " (Rivera v. Kent (2019) 37 Cal.App.5th 529, 539 [directing reversal of judgment for writ of mandate where relevant statute and regulation did not impose ministerial duties upon agency].) A "ministerial duty" is a duty that is "required to be performed in a prescribed manner under the mandate of legal authority without the exercise of discretion or judgment." (County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 593.) Because we do not conclude that the Director has failed to comply with any ministerial duty, there is no basis for issuance of a writ.

Nor do we see the need for retention of continuing jurisdiction. We are satisfied that, as the Director points out in her answer to the petition for rehearing, all parties who are responsible for complying with section 1418.8, or with its enforcement---including the Director, petitioners, the nursing homes that utilize the statute, and any court called upon to resolve any pertinent dispute under the statute---will now "be well aware of and obliged to abide by or enforce the statute's requirements" as we interpret it. We also agree with the Director that our opinion together with the resulting judgment will "provide binding and clear direction" and that "nursing homes . . . will risk administrative sanction, monetary liability, and other potential consequences (including license suspension or revocation, payment suspension, or other adverse actions), for any failures to comply with [section 1418.8's] requirements."

There is no change in the judgment.

Appellants' petition for rehearing is denied.

Dated:____________________

_________________________, P. J.