Filed 1/27/15 Certified for Publication 2/23/15 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                                DIVISION SIX


ANA LEMAIRE, as Successor in Interest,                                   2d Civil No. B248672
etc.,                                                              (Super. Ct. No. 56-2010-00383376-
                                                                              CU-PO-VTA)
     Plaintiff and Respondent,                                              (Ventura County)

v.

COVENANT CARE CALIFORNIA, LLC,

     Defendant and Appellant.


                  Defendant Covenant Care California, LLC (Covenant) appeals a judgment
after jury trial in favor of plaintiff Ana Lemaire, successor in interest to Laura Clausen.
Lemaire was awarded $270,000 in statutory damages because Covenant violated
regulations requiring it to maintain complete and accurate medical records at its nursing
care facility. (Health & Saf. Code, § 1430, subd. (b).)1 We conclude, among other
things, that: 1) patients may sue nursing facilities under section 1430, subdivision (b) for
violation of federal and state regulations requiring complete and accurate health care
records, 2) statutory damages under section 1430, subdivision (b) may not exceed $500
per action, and 3) the award of attorney fees and costs must be redetermined on remand.
We reverse in part and affirm in part.



1
    All statutory references are to the Health and Safety Code unless otherwise stated.
                                            FACTS
              Laura Clausen suffered a stroke and was admitted to Covenant's skilled
nursing facility in 2010. After she died, Lemaire, her daughter, filed an action against
Covenant for wrongful death, elder abuse, and violation of "patients' rights" under section
1430, subdivision (b). Lemaire alleged: 1) Covenant was "chronically understaffed," 2)
her mother did not receive "appropriate care because there was not enough staff," and 3)
her mother died as "a result of . . . elder abuse, neglect and willful misconduct."
              In the patients' rights cause of action, Lemaire alleged six violations of the
California Code of Regulations. She said Covenant violated her mother's right "to have
nurses' notes be clear and legible, dated and signed . . . including narratives [on] how a
patient responds, eats, drinks, looks, feels, and reacts." (Cal. Code Regs., tit. 22, § 72547,
subd. (a)(5).) She requested statutory damages of $500 per violation "per day."
              At trial, Covenant claimed, "Nothing in [section 1430, subdivision (b)]
implies that the fine is to be expanded to include each violation of resident rights or for
every day it existed . . . ." It argued the jury should be instructed that a plaintiff "can
maintain an action for a violation for up to $500." The trial court overruled Covenant's
objections.
              The jury found against Lemaire on her wrongful death cause of action. It
rejected her claims that Covenant provided insufficient nursing staff and did not treat her
mother with respect and dignity.
              The jury found for Lemaire on the heath care records issues. It found
Covenant did not provide 1) "complete and accurate health records" and 2) "meaningful
and informative nurses' progress notes as often as the patient's condition warrants." It
found 468 violations of the first category, 72 in the second. It awarded $500 statutory
damages for each "violation." (§ 1430, subd. (b.) The trial court entered judgment
against Covenant for $270,000 as statutory damages. (§ 1430, subd. (b).) It awarded
Lemaire $841,842 in attorney fees and $26,327.45 in costs.




                                               2.
                                        DISCUSSION
                         The Scope of Section 1430, Subdivision (b)
              Covenant contends patients do not have a right to sue under section 1430,
subdivision (b) for violation of regulations requiring Covenant to have "complete and
accurate health records" and "meaningful and informative nurses' progress notes." It
claims these "regulations do not involve resident rights encompassed within the scope of
section 1430(b)." We disagree.
              Section 1430, subdivision (b) provides, in relevant part, "A current or
former resident or 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."
(Italics added.)
              Covenant has a restrictive view of the private right of action. But the
statutory language about the scope of that right is broad. It includes violation of any
"right provided for by federal or state law or regulation."
              This is also a remedial statute. It must therefore be "liberally construed on
behalf of the class of persons it is designed to protect." (California Assn. of Health
Facilities v. Department of Health Services (1997) 16 Cal.4th 284, 295.) Those
individuals are nursing care patients, "one of the most vulnerable segments of our
population." (Ibid.)
              The California Department of Public Health (CDPH) has authority to bring
actions against nursing facilities that violate federal and state law and regulations. But
the Legislature was aware that such enforcement could be "constrained by financial and
demographic pressures in the coming years." (Shuts v. Covenant Holdco LLC (2012) 208
Cal.App.4th 609, 624.)
              "[B]y enacting section 1430, subdivision (b), the Legislature specifically
authorized skilled nursing facility residents themselves to bring actions to remedy
violations of their rights rather than forcing them to depend upon the CDPH to take


                                               3.
action." (Shuts v. Covenant Holdco LLC, supra, 208 Cal.App.4th at pp. 623-624.) In
Shuts, the court concluded the private right of action was not limited to regulations that
expressly include a resident's right to sue for the particular regulatory violation. Instead,
it broadly extends to "a violation of 'any other right provided for by federal or state law or
regulation.'" (Id. at p. 624, italics added.)
               The duty to maintain accurate and complete health care records (Cal.Code
of Regs., tit. 22, § 72547, subd. (a)(5)) involves a patient's "right provided for by . . . state
law . . . ." (§ 1430, subd. (b).) "[I]t is the public policy of this state to ensure that long-
term health care facilities provide the highest level of care possible." (§ 1422, subd. (a).)
To meet this goal, the Legislature "mandated standards to ensure quality health care."
(Kizer v. County of San Mateo (1991) 53 Cal.3d 139, 148.) These include the statutory
duty on nursing care facilities to maintain complete and accurate health care records.
(§ 1427, subd. (a).) This duty is so important that where such records are not maintained,
a court may presume that the "treatment, or care has not been provided." (Ibid.)
Regulations were enacted to define the type of record keeping necessary to maintain
compliance with this statute.
               The regulations Covenant violated involve the duty to maintain nurses
health care records regarding: 1) the "[c]are and treatment of the patient," 2) monitoring
"changes in the patient's condition," and 3) "the patient's response to care and
treatments." (Cal. Code Regs., tit. 22, § 72547, subd. (a)(5).)
               Covenant contends: 1) these regulations involve only health record
regulatory compliance, 2) they do not involve any "rights" of residents of nursing care
facilities, and 3) a private right of action to enforce these regulations is not authorized
because these regulations do not contain express language mentioning such litigation.
We disagree.
               The absence of express language in the regulations about a private right of
action does not bar litigation to enforce regulatory compliance in this statutory scheme.
(Shuts v. Covenant Holdco LLC, supra, 208 Cal.App.4th at pp. 623-624.) "'Statutes
should be construed so as to be given a reasonable result consistent with the legislative


                                                4.
purpose.'" (Cossack v. City of Los Angeles (1974) 11 Cal.3d 726, 732-733.) "[T]hat
purpose should not be sacrificed to a literal interpretation." (Silberman v. Swoap (1975)
50 Cal.App.3d 568, 571.) Where the regulations directly involve the quality of patient
health care, they involve patients' rights that patients may enforce through litigation.
(Shuts, at pp. 623-624.)
              Here the duties imposed by the regulations that Covenant violated directly
affect the patient's right to proper diagnosis, treatment and care. Failure to maintain
complete health care records may lead to serious health and treatment consequences.
These regulations set standards for the conduct of the facilities. But they were enacted to
protect the patients who are the intended beneficiaries of regulatory compliance. (Kizer
v. County of San Mateo, supra, 53 Cal.3d at p. 148.) California regulations give the
nursing care patient the right to participate "in the total plan of care." (Cal. Code Regs.,
tit. 22, § 72527, subd. (a)(3) (Patients' Bill of Rights). But such a right and plan of care
cannot be implemented where the facility does not maintain proper medical records.
Consequently, the regulations involved in this action implement the statutory duty to
ensure "quality health care" by requiring adequate health care records for patients.
(Kizer, at p. 148; §§ 1422, subd. (a); 1427, subd. (a).)
              The "focus" of the private right of action is "to encourage regulatory
compliance and prevent injury." (Nevarrez v. San Marino Skilled Nursing & Wellness
Centre, LLC (2013) 221 Cal.App.4th 102, 135, italics added.) Lemaire's action furthers
these goals by enforcing regulations involving the rights of residents of nursing care
facilities. Covenant has not shown trial court error on this issue.
                               The Statutory Damage Award
              The judgment includes an award of statutory damages of $270,000. The
trial court concluded that a $500 statutory damages provision applied to each regulatory
violation.
              Covenant contends section 1430, subdivision (b) does not permit an award
of $500 damages for each violation. It claims the statute only allows a maximum $500
award for this action. We agree.


                                              5.
              Section 1430, subdivision (b) provides, in relevant part, "The suit shall be
brought in a court of competent jurisdiction. The licensee shall be liable for the acts of
the licensee's employees. 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.)
              Division Four of this district held the Legislature did not authorize a
statutory damage award of up to $500 per violation. (Nevarrez v. San Marino Skilled
Nursing & Wellness Centre, LLC, supra, 221 Cal.App.4th at p. 129.) It said, "[T]he
statute allows a single award of up to $500 per lawsuit." (Ibid., italics added.)
              Lemaire disagrees with Nevarrez. She claims the statutory language and
legislative history show lawmakers intended this statutory damages provision to be
applied to each violation. But the words of the statute do not support this result. The
phrase "up to five hundred dollars" refers to "the suit" to "be brought." It is a liability cap
for the action. Had the Legislature intended an award of statutory damages for each
violation it would have used the phrase "up to $500 per violation." (Nevarrez v. San
Marino Skilled Nursing & Wellness Centre, LLC, supra, 221 Cal.App.4th at p. 132.)
Such per violation language appears in other parts of this statute. "The absence of this
phrase from subdivision (b) supports the inference that the phrase was intentionally left
out . . . ." (Ibid.) Lemaire seeks to add it to the statute. But a court "'"'is not authorized
to insert qualifying provisions not included [in a statute] and may not rewrite the statute
to conform to an assumed intention which does not appear from its language.'"'"
(Cadlerock Joint Venture, L.P. v. Lobel (2012) 206 Cal.App.4th 1531, 1549.)
              Lemaire contends the legislative history supports her position. But this
claim was rejected in Nevarrez. After examining the legislative history, the court
concluded, "With the exception of the minority analysis for the Assembly Committee on
the Judiciary, no legislative history material on Senate Bill No. 1930 . . . (Senate Bill No.
1930), which added subdivision (b) to section 1430, suggests that the $500 maximum was
to be recovered per violation." (Nevarrez v. San Marino Skilled Nursing & Wellness
Centre, LLC, supra, 221 Cal.App.4th at p. 133, italics added.)


                                               6.
              Lemaire contends precluding recovery of damages for each violation would
undermine the goal of encouraging residents to exercise their private right of action under
the statute. But Nevarrez said, "[T]he argument that the $500 statutory maximum must
be applied on a 'per violation' basis in order to make private enforcement feasible does
not withstand scrutiny." (Nevarrez v. San Marino Skilled Nursing & Wellness Centre,
LLC, supra, 221 Cal.App.4th at p. 135.) The statute has an attorney fee provision that
"may generate substantial attorney fee awards irrespective of the amount the patient
actually recovers . . . ." (Ibid.) It also authorizes injunctive relief to stop violations. The
"focus" of the statute "is preventative." (Ibid.) It is not a substitute for the standard
damage causes of action for injuries suffered by residents of nursing care facilities.
Section 1430, subdivision (c) provides, "The remedies specified in this section shall be in
addition to any other remedy provided by law." (Italics added.)
              We also grant Covenant's request to take judicial notice. Covenant notes
that, in 1999, Assembly Bill No. 1160 was introduced to increase the statutory maximum
from $500 to $25,000. This proposed amendment did not pass.
              "As a general rule, unpassed legislation provides '"very limited guidance"'
when interpreting existing legislation." (Joannou v. City of Rancho Palos Verdes (2013)
219 Cal.App.4th 746, 761.) "However, in some circumstances it may be a reliable
indicator of existing legislative intent." (Ibid.)
              The proponents of Assembly Bill No. 1160 noted that "[e]xisting law"
made the licensee "liable for up to $500." Assembly Bill No. 1160 provided, in relevant
part, "This bill would authorize, instead, this civil action for violations of any rights of
the resident or patient as set forth under state and federal law and would increase the
maximum liability to $25,000." (Italics added.) This supports Covenant's position that
lawmakers intended the $500 figure to be a maximum liability cap.
              Consequently, where the statutory damage award exceeds the $500 limit, as
here, the damage award must be reversed. (Nevarrez v. San Marino Skilled Nursing &
Wellness Centre, LLC, supra, 221 Cal.App.4th at p. 129.)



                                               7.
                                 Attorney Fees and Costs
              Covenant contends that because the statutory damages award must be
reversed, the award of attorney fees and costs to Lemaire must also be vacated and
remanded. We agree.
              The trial court must consider various factors, including the "success or
failure" of the plaintiff's action in deciding the amount of attorney fees. (PLCM Group,
Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096.) Where there is a reversal of the award of
statutory damages, as here, "the trial court will need to redetermine the amount of
attorney fees solely based on the result achieved under section 1430, subdivision (b)."
(Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC, supra, 221
Cal.App.4th at p. 129.) The factor involving the reduced size of the statutory damages
"will be relevant on remand." (Ibid.)
              Covenant contends it should now be considered the prevailing party "and
entitled to its costs in the full amount of $102,851.69." But these issues must initially be
decided by the trial court on remand.
                                        Disposition
              The award of statutory damages under section 1430, subdivision (b)
exceeding the $500 limit is reversed and vacated. The attorney fee and cost awards are
vacated and remanded for redetermination by the trial court. In all other respects, the
judgment is affirmed. Costs on appeal are awarded in favor of Covenant.




                                           GILBERT, P. J.
We concur:


              YEGAN, J.



              PERREN, J.



                                             8.
                   Charles McGrath; Frederick H. Bysshe, Jr., Judges

                           Superior Court County of Ventura

                         ______________________________


             Beach Cowdrey Owen, LLP, Thomas E. Beach; Manatt, Phelps & Phillips,
LLP, Barry S. Landsberg, Joanna S. McCallum for Defendant and Appellant.
             Hooper, Lundy & Bookman, P.C., Mark E. Reagan, Felicia Y. Sze for
Amicus Curiae California Association of Health Facilities on behalf of Defendant and
Appellant.
             Johnson-Moore, Gregory L. Johnson, Jody C. Moore; McKenna Long &
Aldridge LLP, Aaron T. Winn, Christopher J. Healey for Plaintiff and Respondent.
             Balisok & Associates, Inc., Russell S. Balisok for Amicus Curia California
Advocates for Nursing Home Reform on behalf of Plaintiff and Respondent.




                                           9.
Filed 2/23/2015
                              CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              SECOND APPELLATE DISTRICT

                                         DIVISION SIX


ANA LEMAIRE, as Successor in Interest,                      2d Civil No. B248672
etc.,                                                 (Super. Ct. No. 56-2010-00383376-
                                                                 CU-PO-VTA)
     Plaintiff and Respondent,                                 (Ventura County)
                                                       ORDER CERTIFYING OPINION
v.                                                          FOR PUBLICATION
                                                       [NO CHANGE IN JUDGMENT]
COVENANT CARE CALIFORNIA, LLC,

     Defendant and Appellant.



THE COURT:
                  The opinion in the above-entitled matter filed on January 27, 2015, was not
certified for publication in the Official Reports. For good cause, it now appears that the
opinion should be published in the Official Reports and it is so ordered.
