RCCA-Westwood v. Dept. of Public Health CA3

Filed 9/9/14 RCCA-Westwood v. Dept. of Public Health CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----

RCCA-WESTWOOD, C069836

Plaintiff and Appellant, (Super. Ct. No. SCV26833)

v.

DEPARTMENT OF PUBLIC HEALTH,

Defendant and Respondent.

Plaintiff RCCA-Westwood, a licensed long-term care facility, sought judicial
review after being cited for health and safety violations by defendant Department of
Public Health (DPH) and losing its initial administrative appeal in a “citation review
conference” (CRC). (Health & Saf. Code, § 1424 et seq.1) The trial court granted
summary judgment to DPH on the ground that plaintiff failed to file its lawsuit within the
statutory deadline of the applicable statute, former section 1428 (Stats. 2005, ch. 56,

1 Undesignated statutory references are to the Health and Safety Code.

1
§ 1).2 Plaintiff appeals from the judgment, arguing the trial court misconstrued former
section 1428 and abused its discretion in denying plaintiff relief from untimeliness under
former section 1428 or Code of Civil Procedure section 473.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff is a licensed long-term care facility subject to regulation by DPH under
the Long-Term Care, Health, Safety, and Security Act of 1973 (§ 1417 et seq.). The Act
establishes a citation system “for the imposition of prompt and effective civil sanctions
against long-term health care facilities in violation of the laws and regulations of this
state, and the federal laws and regulations as applicable . . . .” (§ 1417.1.) Funds
collected from imposition of monetary sanctions, after offset of DPH costs, are used for
the protection of long-term care residents. (§ 1417.2.)
On January 15, 2009, DPH issued plaintiff a Class “A”3 citation with a $10,000
penalty. The citation said plaintiff failed to ensure that Client A’s rights were protected
when he was not provided specified care and services and was subjected to neglect
between October 3, 2006 and October 30, 2006.

2 The Legislature has since amended section 1428 to eliminate the administrative
appeal process (Stats. 2011, ch. 729, § 5), but the former version of the statute continues
to apply to this case by virtue of current section 1428, subdivision (m), which provides:
“If a licensee exercises its right to a [CRC] prior to January 1, 2012, the [CRC] and all
notices, reviews, and appeals thereof shall be conducted pursuant to this section as it read
on December 31, 2011. (Stats. 2011, ch. 729, § 5.)
3 Class “A” refers to violations that 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.”
(§ 1424, subd. (d).)

2
 On January 21, 2009, plaintiff submitted a timely request to DPH for a CRC under
former section 1428, subdivision (b).4
On December 14, 2009, the administrative hearing officer, as the designee of the
DPH director, issued a decision upholding the citation and penalty assessment. (Former
§ 1428, subd. (a).)

4 At the time, former section 1428, subdivision (b) offered licensees three options to
challenge a Class “A” or “AA” citation: (1) an administrative appeal [the CRC] before
pursuing a judicial appeal, (2) a judicial appeal after the CRC, and (3) a direct appeal to
the superior court without a CRC. That same subdivision provided the time limitation for
seeking a judicial appeal after the CRC and without a CRC. Pursuant to former section
1428, subdivision (b), all options required that the licensee provide DPH notice of its
intent to contest the citation.
In pertinent part, subdivision (b), provided: “. . . [T]he licensee may . . . within 15
business days after service of the citation, notify the director in writing of his or her
request for a [CRC]. The licensee shall inform the director in writing, within 15 business
days of the service of the citation or the receipt of the decision of the director’s designee
after the [CRC], of the licensee’s intent to adjudicate the validity of the citation in the
superior court in the county in which the long-term health care facility is located. In
order to perfect a judicial appeal of a contested citation, a licensee shall file a civil
action in the superior court in the county in which the long-term health care facility is
located. The 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, or no later than 90 days after
the receipt of the decision by the director’s designee after the [CRC], and served not
later than 90 days after filing. . . .” (Stats. 2005, ch. 56, § 1, italics added.) Under this
former version, if the licensee chose to go directly to court, the deadline for filing was 90
days after giving notice of intent to contest to the director, while if the licensee chose the
CRC option first, then a subsequent court complaint would have to be filed within 90
days after the CRC decision. (Waterman Convalescent Hospital, Inc. v. State Dept. of
Health Services (2002) 101 Cal.App.4th 1433, 1438) [holding that where a request for
CRC is withdrawn--a circumstance not addressed by the statute--the limitations period
does not begin to run until the request for CRC is withdrawn].)
The current version completely eliminates the CRC process and states, “. . . The
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. . . .” (§ 1428, subd. (b).)

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 On December 22, 2009, plaintiff gave DPH timely notice that plaintiff would
appeal the citation in superior court.
On March 25, 2010, plaintiff filed the complaint. Plaintiff acknowledges it filed
the complaint 11 days late under former section 1428, subdivision (b) (see fn. 4, ante),
which required plaintiff to file the complaint within 90 days after receipt of the CRC
decision. According to a declaration by Michael Cutchshaw, vice-president for Res-Care,
Inc., which operated RCCA-Westwood: “Due to an inadvertent error in the processing
and handling of the information regarding this Citation by its staff which resulted in the
paperwork being misfiled and misdirected, there was a short delay in transmitting the
information and paperwork regarding this Citation to [plaintiff’s] outside counsel.”
On May 26, 2010, DPH filed an answer asserting as an affirmative defense that the
complaint was untimely under former section 1428.
The following year, on April 6, 2011, DPH moved for summary judgment on the
ground that the complaint was barred by the 90-day statute of limitations in former
section 1428, subdivision (b). (See fn. 4, ante.) DPH’s separate statement of undisputed
facts included the following facts admitted by plaintiff in discovery: (1) plaintiff
received the CRC decision on December 14, 2009, and (2) plaintiff filed its complaint on
March 25, 2010, which was 101 days after receiving the CRC decision.
On April 21, 2011, plaintiff filed an ex parte application for an order shortening
time for a hearing on a motion for judicial relief from the time limits under former Health
and Safety Code section 1428, subdivision (e),5 and Code of Civil Procedure section

5 Former section 1428, subdivision (e), stated in pertinent part, “If an appeal is
prosecuted under this section, including an appeal taken in accordance with Section
100171 [administrative appeal of CRC decision to administrative law judge], the
department shall have the burden of establishing by a preponderance of the evidence that
(1) the alleged violation did occur, (2) the alleged violation met the criteria for the class
of citation alleged, and (3) the assessed penalty was appropriate. The department shall
also have the burden of establishing by a preponderance of the evidence that the

4
473.6 The court set the motion for relief to be heard before the summary judgment
motion.
Plaintiff submitted its vice-president’s declaration attesting that plaintiff missed
the deadline because of “inadvertent error in the processing and handling of the
information regarding this Citation by its staff which resulted in the paperwork being
misfiled and misdirected.” The declaration asserted that pursuant to former section
1428.2, DPH was supposed to conduct a CRC within 35 days of a request, but DPH
delayed more than eight months. Plaintiff’s lawyer submitted a declaration asserting that,
despite section 1423, which required DPH to issue any citation within three days of
completing its investigation, DPH did not issue the citation until three years after its
investigation and several months after its notice of intent to cite.
Plaintiff argued in its motion for relief from the time limits that it missed the
deadline by only a small amount of time, due to its inadvertent mistake in misfiling and
misdirecting the paperwork, and substantially complied with section 1428, because it
filed the complaint before expiration of the time to serve the complaint, and it timely
served the complaint on DPH. Plaintiff argued DPH would not be prejudiced by the
grant of relief, because DPH itself broke all of the statutory timelines for its own actions,

assessment of a civil penalty should be upheld. If a licensee fails to notify the director in
writing that he or she intends to contest the citation, or the proposed assessment of a civil
penalty therefor, or the decision made by the director’s designee, after a [CRC], within
the time specified in this section, the decision by the director’s designee after a [CRC]
shall be deemed a final order of the department and shall not be subject to further
administrative review, except that the licensee may seek judicial relief from the time
limits specified in this section. . . . .” (Stats. 2005, ch. 56, § 1, italics added.)
6 Code of Civil Procedure section 473, subdivision (b), provides in pertinent part:
“The court may, upon any terms as may be just, relieve a party or his or her legal
representative from a judgment, dismissal, order, or other proceeding taken against him
or her through his or her mistake, inadvertence, surprise, or excusable neglect.
Application for this relief . . . shall be made within a reasonable time, in no case
exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . .”

5
including a 30-day delay in issuing its CRC decision, whereas plaintiff merely missed
one “inconsequential” deadline. Plaintiff argued these delays were DPH’s “own doing”
but failed to submit any evidence. Plaintiff argued DPH “should be estopped from
raising [plaintiff’s] noncompliance with the filing deadline . . . because of its own far
greater non-compliance with timing deadlines . . . .” No authority supporting an estoppel
was cited. Plaintiff argued the trial court should allow the case to be tried on the merits
rather than be dismissed on “an inconsequential technicality.”
DPH opposed relief, arguing section 1428, subdivision (e) afforded judicial relief
only from administrative timelines relating to the requirement that the licensee give DPH
notice of intent to contest the citation, assessment, or CRC decision, not the limitations
period for filing a complaint in court. DPH noted plaintiff presented no evidence that the
delays in the citation and CRC process were caused by DPH rather than plaintiff, and no
evidence of any objection by plaintiff--which was the party that had the most to gain
from delay since it would not have to pay the $10,000 penalty assessment until all
litigation was complete under section 1424, subdivision (e). DPH said its own delays did
not violate any statute of limitations, but rather timelines for administrative action, the
violation of which did not invalidate its administrative action,7 and plaintiff’s remedy
was to seek mandate to compel compliance with the administrative timelines, which
plaintiff of course did not do because plaintiff benefited from the delay, postponing the
day when it would have to pay the penalty assessment. DPH also argued that equitable
relief from a statute of limitations is not available under Code of Civil Procedure section
473 but, even if it was available, it should not be granted because plaintiff waited more
than a year after DPH’s answer was filed and did not seek relief until the summary

7 While DPH cited authority for this proposition, the motion for relief did not seek
an order declaring the citation invalid. Rather, plaintiff argued DPH’s noncompliance
should estop it from opposing a grant of relief to plaintiff.

6
judgment motion was filed. DPH argued the patients protected under the Act would be
prejudiced if the court granted relief.
Plaintiff filed a reply, which offered no explanation for its delay in seeking relief,
but instead simply argued that the six-month period for seeking relief from a dismissal or
judgment under Code of Civil Procedure section 473 would not begin to run until the
opposing party filed a motion for dismissal or took some action to have judgment
entered.
On July 29, 2011, after a hearing, the trial court issued its order denying plaintiff’s
motion for relief, stating (1) former section 1428, subdivision (e)’s reference about
judicial relief from the timelines applied only to the administrative timelines related to
filing a notice of intent to contest the citation or penalty assessment or CRC decision, not
to the deadline for filing the complaint in court, and (2) even assuming the statute
permitted judicial relief from the 90-day limitations period, such relief would be
permissive and the trial court would decline to grant it. The court stated: “Plaintiff has
been on notice that Defendant was asserting the complaint was not timely filed since May
25, 2010, when Defendant[] filed its answer. Plaintiff has provided no explanation, much
less a reasonable explanation, for its delay of more than one year in seeking relief from
that 90-day filing deadline since being put on notice of Defendant’s assertion of the
statute of limitation[s] as an affirmative defense. Although not controlling, the court
finds that the six-month period for relief under CCP § 473 is a valid basis for finding that
Plaintiff’s one-year delay in seeking relief was unreasonable. Thus, the court declines to
grant Plaintiff relief from the 90-day deadline under Health and Safety Code section
1428(e), assuming that the court has authority to grant such relief in the first place.”
Meanwhile, on June 28, 2011, the date of the hearing on the motion for relief,
plaintiff filed an opposition to the summary judgment motion, on the grounds that the
time limit for filing the court complaint was inconsequential where the complaint was
filed before expiration of the time for service of the complaint, and the complaint was

7
timely served, and the trial court should grant relief. The opposition to summary
judgment also reiterated points made in the motion for relief.
DPH filed a reply brief in support of summary judgment, arguing that plaintiff had
admitted the material facts showing the complaint was untimely, and the trial court had
denied the motion for relief.
The trial court granted summary judgment to DPH on the ground that the
complaint was barred by the 90-day limitations period for filing the complaint. The trial
court reiterated its determination that the “judicial relief” afforded by former section
1428, subdivision (e), did not apply to the deadline for filing the complaint and, even if
the court had discretion to grant relief it would decline to do so.
The trial court entered judgment.
DISCUSSION
I. Standards of Review
Interpretation of a statute presents a question of law, which we review de novo.8
(People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.)
We also apply de novo review to summary judgment. (Kahn v. East Side Union
High School Dist. (2003) 31 Cal.4th 990, 1003.) A motion for summary judgment should
be granted if the submitted papers show that “there is no triable issue as to any material
fact,” and that the moving party is entitled to judgment as a matter of law. (Code Civ.
Proc., § 437c, subd. (c).) A defendant meets his burden of showing that a cause of action
has no merit if he shows that there is a complete defense. (Code Civ. Proc., § 437c, subd.

8 DPH cites authority that an agency’s interpretation of statutes within its
administrative jurisdiction is given presumptive value due to the agency’s presumed
expertise. However, that rule applies when an agency takes administrative action based
on the agency’s interpretation of a statute. (Yamaha Corp. of America v. State Bd. of
Equalization (1998) 19 Cal.4th 1, 7-8.) The issue here--judicial application of a statute of
limitations for filing a court complaint--is not a matter for which we defer to agency
expertise.

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(p)(2).) On appeal, “ ‘First, we identify the issues raised by the pleadings, since it is
these allegations to which the motion must respond; secondly, we determine whether the
moving party’s showing has established facts which negate the opponent’s claims and
justify a judgment in movant’s favor; when a summary judgment motion prima facie
justifies a judgment, the third and final step is to determine whether the opposition
demonstrates the existence of a triable, material factual issue.’ ” (Waschek v. Dept. of
Motor Vehicles (1997) 59 Cal.App.4th 640, 644.)
We review the trial court’s denial of discretionary relief under an abuse of
discretion standard, which requires that we determine whether the trial court exceeded all
bounds of reason under the circumstances. (State Farm Fire & Casualty Co. v. Pietak
(2001) 90 Cal.App.4th 600, 610 (State Farm).)
II. Former Section 1428
A. Statutory Construction
Plaintiff contends that it was entitled to judicial relief under former section 1428,
subdivision (e) for its failure to file its complaint in superior court within the 90-day time
limit specified in former section 1428, subdivision (b). We disagree. We conclude that
the judicial relief provided by the Legislature in former section 1428, subdivision (e)
applies only to a licensee’s failure to provide notice to DPH of its intent to contest the
citation or penalty assessment or CRC decision within the time periods specified to
provide such notice.
“Statutes of limitations are generally regarded as inflexible and are enforced
regardless of personal hardship, and although some limitations statutes provide for an
extension of the limitations period on a showing of good cause, ‘where the statute lacks
an explicit provision for extension, “. . . it must be inferred the Legislature did not intend
to permit relief on grounds of good cause or under [Code of Civil Procedure] section 473.
[Citation.]” ’ [Citation.]” (Sprague v. County of San Diego (2003) 106 Cal.App.4th 119,
135.) Former section 1428, subdivision (b) (see fn. 4, ante) contained a statute of

9
limitations, by stating, “In order to perfect a judicial appeal of a contested citation, a
licensee shall file a civil action in the superior court . . . . The action shall be filed no
later than . . . 90 days after the receipt of the [CRC] decision . . . .”
Plaintiff argues judicial relief from this filing deadline was afforded by former
section 1428, subdivision (e) (see fn. 5, ante) which provided that “If a licensee fails to
notify the director in writing that he or she intends to contest the citation, or the proposed
assessment of a civil penalty therefor, or the decision made by the director’s designee,
after a [CRC], within the time specified in this section, [the CRC decision] shall be
deemed a final order of the department and shall not be subject to further administrative
review, except that the licensee may seek judicial relief from the time limits specified in
this section.” (Italics added.) At the time in question, the time limits for notifying the
director of intent to contest a Class “A” citation, penalty assessment, or CRC decision
were set forth in former section 1428, subdivision (b). ( Stats. 2005, ch. 56, § 1.)
Plaintiff argues that because the Legislature used the word “section” rather than
“subdivision,” in former section 1428, subdivision (e), judicial relief is available for any
of the time limits in former section 1428, which includes subdivision (b)’s 90-day limit
for filing a complaint. Plaintiff argues, “The Legislature clearly expressed its intention
for judicial discretion to reach beyond subdivision (e) when it used the words ‘this
section,’ which can only mean Section 1428 as a whole.” Plaintiff claims its
interpretation is supported by the Legislature’s action in 1993, changing the word from
“subdivision” to “section.” We reject plaintiff’s interpretation, which overlooks both the
language of subdivision (e) and the history of the statute.
Plaintiff’s interpretation asks us to focus myopically on the single word “section.”
To do so would be inconsistent with the rule of statutory construction which provides that
the meaning of a statute cannot be determined from a single word; the words must be
construed in context. (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.)

10
 “Where, as here, the issue presented is one of statutory construction, our
fundamental task is ‘to ascertain the intent of the lawmakers so as to effectuate the
purpose of the statute.’ [Citations.] We begin by examining the statutory language
because it generally is the most reliable indicator of legislative intent. [Citation.] We
give the language its usual and ordinary meaning, and ‘if there is no ambiguity, then we
presume the lawmakers meant what they said, and the plain meaning of the language
governs.’ [Citation.] If, however, the statutory language is ambiguous, ‘we may resort to
extrinsic sources, including the ostensible objects to be achieved and the legislative
history.’ [Citation.] Ultimately we choose the construction that comports most closely
with the apparent intent of the lawmakers, with a view to promoting rather than defeating
the general purpose of the statute. [Citations.] Any interpretation that would lead to
absurd consequences is to be avoided. [Citation.]” (Allen v. Sully-Miller Contracting
Co. (2002) 28 Cal.4th 222, 227.)
In our view, the language of the statute is unambiguous. The provision for
“judicial relief” in former section 1428, subdivision (e) must be read in context with the
entire subdivision. (Lungren v. Deukmejian, supra, 45 Cal.3d at p. 735 [words must be
construed in context]; White v. County of Sacramento (1982) 31 Cal.3d 676, 680
[qualifying phrases are to be applied to the phrases immediately preceding and not others
more remote].) In context, it is clear that the provision for judicial relief from time limits
refers to the time limits for the licensee to give written notice to the DPH director.
As can be seen, the text of subdivision (e) of former section 1428 (see fn. 5, ante)
is about “appeals” (both administrative and judicial) of DPH decisions, the burden of
proof in such appeals, and the consequence of a licensee’s failure to give timely written
notice to the DPH director. The subdivision specifies that “appeals” includes an appeal

11
pursuant to section 100171,9 which authorizes administrative appeal of a CRC decision in
a hearing before an administrative law judge (ALJ)--an option available for Class “B”
violations. Under former section 1428, subdivision (c),10 there are two types of
administrative “appeals” for Class “B” citations--a request for a CRC and a section
100171 administrative appeal of an adverse CRC decision. Former section 1428,
subdivision (b), authorizes “judicial appeal” of Class “A” (like the citation at issue here)
or “AA” citations. Subdivision (e) of former section 1428 encompasses both judicial
appeals and administrative appeals. Whether the licensee pursues judicial appeal or
administrative appeal, the statute in both instances requires that the licensee give written
notice within 15 business days to the DPH director (former § 1428, subds. (b), (c)).

9 Section 100171 provides in part: “Notwithstanding any other provision of law,
whenever the department is authorized or required by statute, regulation, due process . . .
or a contract, to conduct an adjudicative hearing leading to a final decision of the director
or the department, the following shall apply: [¶] (a) The proceeding shall be conducted
pursuant to the administrative adjudication provisions of [Chapter 4.5 or 5 of the
Government Code]. [¶] (b) Notwithstanding Section 11502 of the Government Code,
whenever the department conducts a hearing under [Chapter 4.5 or 5 of the Government
Code], the hearing shall be conducted before an [ALJ] selected by the department and
assigned to a hearing office that complies with the procedural requirements [of Chapter
4.5 of the Government Code commencing with Section 11400]. . . .”
10 Former section 1428, subdivision (c), states licensees who want to contest a Class
“B” citation “may request, within 15 business days after service of the citation, a [CRC],
by writing the director or the director’s designee of the licensee’s intent to appeal the
citation through the [CRC]. If the licensee wishes to appeal the citation which has been
upheld in a [CRC], the licensee shall, within 15 working days from the date the [CRC]
decision was rendered, notify the director or the director’s designee that he or she wishes
to appeal the decision through the procedures set forth in Section 100171 or elects to
submit the matter to binding arbitration in accordance with subdivision (d). The [ALJ]
may affirm, modify, or dismiss the citation or the proposed assessment of a civil penalty.
The licensee may choose to have his or her appeal heard by the [ALJ] or submit the
matter to binding arbitration without having first appealed the decision to a [CRC] by
notifying the director in writing within 15 business days of the service of the citation.”
(Italics added.)

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 The third sentence in subdivision (e) of former section 1428 governs what occurs
if a licensee fails to provide the required notice. (See fn. 5, ante.) “If a licensee fails to
notify the director in writing that he or she intends to contest the citation, or the proposed
assessment of a civil penalty therefor, or the decision made by the director’s designee,
after a [CRC], within the time specified in this section, the decision by the director’s
designee after a [CRC] shall be deemed a final order of the department and shall not be
subject to further administrative review, except that the licensee may seek judicial relief
from the time limits specified in this section.” The sentence speaks only of failure to give
timely written notice to the director and then states that the consequence for this failure is
that the CRC decision is deemed final and not subject to further administrative review,
unless the court grants relief from the time limits “in this section.” Thus, judicial relief is
for untimely written notice to the director. Nothing in the sentence or the subdivision
says anything about untimely filing of court action.
The flaw in plaintiff’s reasoning is its focus on the word “section” rather than
“time.” In context, the second reference to “time “ in the third sentence relates to the first
reference to “time” in the same sentence. The first reference to the words “time” and
“section” is in the phrase “within the time specified in this section,” which expressly
refers only to the time for giving written notice to the DPH director. The second
reference in the same sentence to the words “time” and “section”--that the licensee may
seek judicial relief from the “time limits specified in this section”--clearly relates to the
preceding phrase of time deadlines for giving written notice to the DPH director.
The legislative history of section 1428 confirms our interpretation that subdivision
(e) provides judicial relief for the untimely filing of the required written notice. We may
consider legislative history to confirm our interpretation of an unambiguous statutory
provision. (Kulshretha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 613,
fn. 7; County of San Diego v. Dept. of Health Services (1991) 1 Cal.App.4th 656, 661
[plain meaning of former § 1428, subd. (c), precluded county from seeking judicial relief

13
for failure to timely file at-issue memorandum, and construction was buttressed by
legislative history].)
Before legislative amendments in 1988, former section 1428, subdivision (a)
(pertaining to Class “A” and Class “AA” violations) and subdivision (c) (pertaining to
Class “B” violations), required a licensee to give written notice within five business days
to the DPH director of intent to challenge the citation or CRC decision and, as to Class
“B” citations, required the licensee to file a lawsuit within 60 days of the notice to
challenge the CRC decision, and stated that if the licensee failed to meet these time
limits, the citation or CRC decision was deemed final and not subject to further
administrative review.11 (Stats. 1987, ch. 1161, § 2.5, p. 4098.) Another sentence of the
same subdivision required dismissal of a court action if the licensee failed to file a timely
at-issue memorandum in court no later than six months after the department filed its
answer. (Ibid.)
In Summit Care-California v. State Dept. of Health Services (1986) 186
Cal.App.3d 1584 (Summit Care), the court indicated the five-day limit, if construed as a
statute of limitations beyond the scope of judicial relief, might be unconscionably brief in
violation of due process. (Id. at pp. 1588-1590.) The court stated it would be appropriate
for trial courts to have discretion under Code of Civil Procedure section 473 to grant
relief from the five-day limit, but the relief granted in that case was reversed because the
licensee was dilatory in seeking relief. The court “hoped” the Legislature would
reconsider the five-day limit. (Id. at p. 1590.)

11 At that time, Class “A” citations were handled differently. The licensee was not
required to file a court action. If the licensee challenged the citation or the CRC decision,
the Attorney General was required to file a court action to enforce the citation. (Stats.
1987, ch. 1161, § 2.5, p. 4097.)

14
 In express response to Summit Care, the Legislature amended section 1428 in
1988 (Stats. 1988, ch. 84, § 1), extending the five-day limit to 15 business days and
adding a provision for judicial relief from the time limits both for written notice to the
director and for filing a court action, as to Class “B” citations, but not from the failure to
file a timely at-issue memorandum.12 (County of San Diego v. Dept. of Health Services,
supra, 1 Cal.App.4th 656 [judicial relief from time limits in subdivision (c) did not apply
to time limit for filing at-issue memorandum in different sentence of subdivision (c)].)
The 1988 amendments also added the reference to judicial relief from the 15-day limit in
subdivision (a), which pertained to Class “A” citations. (Stats. 1988, ch. 84, § 1, p. 377.)
The legislative history of the 1988 amendments reads, “Currently [before the 1988
amendments], the law requires any licensee wishing to contest a decision of a citation
review committee or a decision against the licensee, to notify the Director of Health
Services in writing within five days. Failure to make such notice deems the citation or
decision final and not subject to further administrative review. The sponsors argue that
such a limited response time unfairly curtails their right to due process. [¶] This [1988]
legislation relates to a recent appellate decision in Summit Care of California [supra, 186

12 The 1988 version of section 1428, subdivision (c), stated, “. . . If a licensee fails to
notify the director in writing that he or she intends to contest the citation or the decision
made by the director’s designee within the time specified in this subdivision, or fails to
file a civil action within the time specified in this subdivision, the citation or the decision
by the director’s designee after a [CRC] shall be deemed a final order of the state
department and shall not be subject to further administrative review, except that the
licensee may seek judicial relief from the time limits specified in this subdivision. . . .
Notwithstanding any other provision of law, for those citations issued after January 1,
1988, a licensee prosecuting a judicial appeal shall file and serve an at issue
memorandum pursuant to Rule 209 of the California Rules of Court by July 1, 1988, or
within six months after the state department files its answer in the appeal, whichever is
later. The court shall dismiss the appeal upon motion of the state department if the at
issue memorandum is not filed by the facility within the period specified.” (Stats. 1988,
ch. 84, § 1, pp. 378-379, italics added.)

15
Cal.App.3d 1584], challenging the five day limit. The court found the limit
‘unconscionably brief’ and observed that in a number of situations, rigid adherence to this
limit could work an injustice. The court expressed the belief that facilities should be
allowed to show good cause for late filings.” (Sen. Com. on Health and Human Services,
Analysis of Sen. Bill No. 860 (1987-1988 Reg. Sess.), as introduced Mar. 3, 1987, p. 1.)
The Summary Digest stated, “[A] facility may contest a citation issued by the
department, or the civil penalty assessed because of that citation, by seeking a [CRC] or
by appealing a decision made after a [CRC]. These appeals must be made, however,
within 5 business days of service of the citation or receipt of the [CRC] decision,
respectively. In addition a [CRC] must be held within 5 business days of its request. [¶]
This bill would, instead, extend these time limits to 15 business days. [¶] This bill would
also specify that when the time limit for an administrative appeal seeking a [CRC], or
seeking to appeal a decision made after that conference has not been met, the licensee
may seek judicial relief from those time limits pursuant to specified existing judicial
procedures.” (Leg. Counsel’s Dig., Sen. Bill No. 860, Stats. 1988, ch. 84, § 1 (1987-1988
Reg. Sess.) Summary Dig., pp. 31-32.)
In 1992, the Legislature amended section 1428 to remove the language providing
judicial relief from failure to file a timely court action.13 As we shall discuss, although

13 The 1990 version of the statute was quoted in a case cited by both parties--
Demchuk v. State Dept. of Health Services (1991) 4 Cal.App.4th Supp. 1. In that case,
the appellate department of Napa County Superior Court held that section 1428’s
provision for judicial relief from time limits specified “in this subdivision” did not
authorize judicial relief from the time limit on service of a complaint, because the time
limit for service was not one of the time limits specified in the subdivision. (Id. at pp. 4-
5.) At the time, the statutory language provided in pertinent part, “If a licensee fails to
notify the director in writing that he or she intends to contest the citation or the decision
made by the director’s designee within the time specified in this subdivision, or fails to
file a civil action within the time specified in this subdivision. . . .” (Stats. 1990, ch. 1133,
§ 2, p. 4731, italics added; see also Demchuk, supra, 4 Cal.App.4th Supp at p. 4.)

16
that provision related to Class “B” violations, we conclude that its deletion from the
statutory scheme by the Legislature is telling.
“ ‘As a general rule, in construing statutes, “we presume the Legislature intends to
change the meaning of a law when it alters the statutory language [citation], as for
example when it deletes express provisions of the prior version [citation].” ’ ” (Quarry v.
Doe I (2012) 53 Cal.4th 945, 984 [express legislative provision for exceptions to
limitations period necessarily excludes other exceptions].) The Legislature’s deletion of
a specific provision in a statute “ ‘is most persuasive to the conclusion that the act should
not be construed to include the omitted provision.’ ” (People v. Soto (2011) 51 Cal.4th
229, 245.)
The 1990 version of section 1428 contained separate procedural provisions for
Class “A” and Class “B” violations. For Class “A” violations, section 1428, subdivision
(a) provided that if the licensee failed to notify DPH of intent to contest a CRC decision,
the CRC decision was deemed final and not subject to further administrative review,
except that the licensee could seek judicial relief from the time limits specified in “this
subdivision,” i.e., former section 1428, subdivision (a). (Stats. 1990, ch. 1133, § 2,
pp. 4729-4730.) The licensee was not required to file an action in court to appeal the
CRC decision. Instead, if a licensee challenged a CRC decision, the Attorney General
was required to file a court action for judicial enforcement of the penalty (Stats. 1990, ch.
1133, § 2, pp. 4729-4730). The 1990 version of former section 1428, subdivisions (a)
and (b) contained no time limits for filing a court action.

Plaintiff here argues in effect that Demchuk is not controlling because the statute has
since been amended to change “subdivision” to “section.” While we acknowledge that
published opinions of superior court appellate departments are not binding on this court
(Carter v. Cohen (2010) 188 Cal.App.4th 1038, 1049), we believe the court in Demchuk
correctly concluded that judicial relief related only to the actions referenced in the
beginning of the above quoted sentence, i.e., notification of the intent to contest the
citation or the director’s decision or, at that time, filing a civil action, within the specified
time.

17
 For the less serious Class “B” violations (§ 1424, subd. (e)), the 1990 version of
section 1428, subdivision (c) required the licensee to perfect a judicial appeal by filing a
civil action in municipal court (Stats. 1990, ch. 1133, § 2, pp. 4730-4731). The 1990
version of subdivision (c) of section 1428 further provided: “. . . If a licensee fails to
notify the director in writing that he or she intends to contest the citation or the decision
made by the director’s designee within the time specified in this subdivision, or fails to
file a civil action within the time specified in this subdivision, the citation or [CRC
decision] shall be deemed a final order of the state department and shall not be subject to
further administrative review, except that the licensee may seek judicial relief from the
time limits specified in this subdivision [(c)]. . . .” (Stats. 1990, ch. 1133, § 2, p. 4731
(Sen. Bill No. 1967), italics added.)
In 1992, the Legislature amended section 1428 to relieve the Attorney General of
the burden of initiating court action for Class “A” violations.14 (Stats. 1992, ch. 1163,
§ 6, p. 5439-5443; Legis. Counsel’s Dig., Sen. Bill No. 1570 (1991-1992 Reg. Sess.)
Stats. 1992, Summary Dig., p. 503.) The 1992 statute provided in subdivision (b) that, in
order to perfect a judicial appeal on Class “A” violations, the licensee had to file a civil
action in municipal or superior court no later than 90 days after receipt of the CRC
decision. (Stats. 1992, ch. 1163, § 6, p. 5440.) That subdivision said nothing about
judicial relief for failure to meet this time limit.

14 The legislative history shows the purpose of the 1992 amendment was to
streamline the citation appeals process, because “The present system places the burden on
the Attorney General’s office to pursue court action when [a licensee] appeals a fine.
This has resulted in long delays, uncollected fines, and a citation process that does not
deter poor performance in [licensed facilities].” (Sen. Com. on Health and Human
Services, Staff Analysis of Sen. Bill No. 1570 (1991-1992 Reg. Sess.) Apr. 8, 1992, p. 2;
see also, Legis. Counsel’s Digest, Sen. Bill No. 1570 (1991-1992 Reg. Sess.) Stats. 1992,
Summary Dig., p. 503.)

18
 For Class “B” violations, the 1992 statute provided in Health and Safety Code
former section 1428, subdivision (c) that challenges to a CRC decision would be heard
before an ALJ under Welfare and Institutions Code section 14123 (governing
participation in Medi-Cal). (Stats. 1992, ch. 1163, § 6, p. 5440.) The 1992 version of
subdivision (d) said that a licensee dissatisfied with the ALJ’s decision regarding a Class
“B” violation could seek judicial review in administrative mandamus or could submit the
matter to binding arbitration. (Stats. 1992, ch. 1163, § 6, pp. 5440-5441.) Subdivision
(e) of Health and Safety Code section 1428 said that, if a licensee opted for the ALJ
hearing, DPH would have the burden of proof, and if a licensee failed to notify the
director of intent to contest a citation or CRC decision “within the time specified in this
subdivision,” the CRC decision was deemed final and not subject to further
administrative review, “except that the licensee may seek judicial relief from the time
limits specified in this subdivision. . . .” (Stats. 1992, ch. 1163, § 6, p. 5441, italics
added.) Thus, the 1992 amendment deleted the provision extending the possibility of
judicial relief for failing to file a timely court action, which in any event had only applied
to Class “B” violations, not a Class “A” violation like the one at issue in our case. (Stats.
1992, ch. 1163, § 6, p. 5441 (Sen. Bill No. 1570.) The Legislature did not graft that
provision for judicial relief into the newly established provision for judicial appeals of
Class “A” violation citations.
Accordingly, applying the rule of statutory construction that a statute should not
be construed to include a provision deleted by the Legislature (Quarry v. Doe I, supra, 53
Cal.4th at p. 984; People v. Soto, supra, 51 Cal.4th at p. 245), the Legislature’s deletion
of the specific provision for judicial relief from untimely filing of a civil action from a
previous version of section 1428 supports the conclusion that the version of the statute at
issue here should not be construed to include the omitted provision.
We also observe that the time limits and the provision for judicial relief from the
time limits were once both in the same subdivision. Legislative amendments split them

19
up into different subdivisions, thus necessitating the later change from “subdivision” to
“section.” A review of additional text from the 1990 version of section 1428, subdivision
(c) will better illustrate our point.
The 1990 version stated: “If a licensee desires to contest a class “B” citation or
proposed assessment of a civil penalty therefore, the licensee shall within 15 business
days after service of the citation (1) notify the director in writing of his or her request for
a [CRC] with the designee of the director . . .; or (2) notify the director in writing of the
licensee’s intent to adjudicate the validity of the citation in the municipal court . . . . If
the licensee desires to contest a decision made after the [CRC], the licensee shall inform
the director in writing within 15 business days after he or she receives the decision by the
director’s designee. In order to perfect a judicial appeal of a contested citation, a licensee
shall file a civil action in the municipal court . . . . The action shall be filed no later than
60 calendar days after a licensee notifies the director that he or she intends to contest a
citation, and served no later than 60 days after filing. In the event a [CRC] is held, the
action shall be filed no later than 60 calendar days after a licensee notifies the director of
his or her intent to contest the decision of the director’s designee and served no later than
60 days after the filing. . . . If a licensee fails to notify the director in writing that he or
she intends to contest the citation or the decision made by the director’s designee within
the time specified in this subdivision, or fails to file a civil action within the time
specified in this subdivision, the citation or CRC decision shall be deemed final and not
subject to further administrative review, except that the licensee may seek judicial relief
from the time limits specified in this subdivision.” (Stats. 1990, ch. 1133, § 2, p. 4731
(Assem. Bill No. 3536).)
As can be seen, the time limits were set forth in the same subdivision as the
provision for judicial relief. When this was the case, the use of the word “subdivision”
certainly made sense. However, in 1992, in addition to establishing new procedures for
Class “A” violations--including establishing the time limits specified in subdivision (b) at

20
issue here--the Legislature moved the provision concerning judicial relief for the failure
to meet specified time limits into subdivision (e) and retained the time limits for Class
“B” violations in subdivision (c). (Stats. 1992, ch. 1163, § 6, pp. 5439-5441 (Sen. Bill
No. 1570).) The newly established subdivision (e) provided that if the licensee failed to
notify the director of its intent to contest the citation, penalty assessment, or CRC
decision “within the time specified in this subdivision,” then the DPH decision was
deemed final “except that the licensee may seek judicial relief from the time limits
specified in this subdivision.” (Stats. 1992, ch. 1163, § 6, p. 5441 (Sen. Bill No. 1570).)
The use of the word “subdivision” in the 1992 version of subdivision (e) was apparently
drafter’s oversight; it made no sense given that the time limits had been set forth in
former section 1428, subdivisions (b) and (c). That oversight was corrected in the 1993
amendment referenced by plaintiff, where the Legislature changed “subdivision” to
“section.” (Stats. 1993, ch. 930, § 2, p. 5248 (Sen. Bill No. 560); see People v. Birkett
(1999) 21 Cal.4th 226, 241, fn. 16 [anomaly in Penal Code statute was apparent result of
drafting oversight].) That this was merely a correction of an apparent drafting oversight
is evidenced by the legislative history, which indicates that technical and nonsubstantive
changes were intended by the 1993 amendments. The legislative history shows,
“According to the sponsor, SB 560 is a technical clean-up bill which corrects and
clarifies specific language from SB 1570 [the 1992 legislation] that dealt with the long-
term health care regulatory process. SB 560 proposed changes are consistent with the
language and intent agreed upon during the bill negotiation process last year.”15 (Sen.

15 The legislative history of the 1993 amendments states that the 1992 legislation
revised the statute so that a judicial action could be filed in municipal or superior court
for “AA” or “A” citations, and that “B” citations could be appealed administratively
before or after a CRC, but the 1992 amendments “failed to conform the filing times for
contesting a citation in court with the period for filing an appeal against an unfavorable
administrative adjudication of a contested citation. [¶] In addition, clarification is needed
as to when the 15-day period to request a citation review begins and when treble penalties

21
Com. on Health and Human Services, Staff Analysis of Sen. Bill No. 560 (1993-1994
Reg. Sess.), as introduced Mar. 1, 1993, p. 1.) “Non-substantive or technical changes are
made to conform the statutes to existing law, not to change the law.” (In re Chavez
(2004) 114 Cal.App.4th 989; see also id. at pp. 995, 997-998 [legislative history
describing amendments as non-substantive supported court’s conclusion that amendments
corrected drafting error].)
Nothing in the legislative history of the 1993 amendment suggests that the change
from “subdivision” to “section” was intended to add judicial relief from untimely filing
of a court action. In our view, adding judicial relief from the failure to timely file a court
action must be considered a substantive change, especially when that change would have
the effect of reinstating judicial relief the Legislature had eliminated from the statutory
scheme just the year before.
Thus, that former subdivision (e) of section 1428 in effect at the times relevant to
the instant case referred to judicial relief from time limits specified in this “section”
rather than “subdivision” was merely a necessary consequence of the fact that no time
limits at all were specified in subdivision (e). This is the obvious explanation why former
subdivision (e) in effect here referred to time limits specified in this “section” rather than
“subdivision.” And as the language of subdivision (e) makes clear, the time limits
referred to “in this section” are only those time limits related to the requirement that
licensee provide the director notice of its intent to contest the citation or the civil penalty
assessment or CRC decision. (See fn. 5, ante.)
Although our construction of a statute turns on legislative intent at the time of
enactment rather than subsequent legislative action (Guillen v. Schwarzenegger (2007)
147 Cal.App.4th 929, 938-939), our interpretation of former section 1428, subdivision (e)

for multiple violations . . . apply.” (Assem. Com. on Health, Analysis of Sen. Bill No.
560 (1993-1994 Reg. Sess.), as amended May 3, 1993, p. 2.)

22
as disallowing judicial relief from the deadline for filing suit, also comports with
subsequent legislative action, in that the Legislature in 2011 amended section 1428 to
completely eliminate the CRC administrative appeal process, including the provision
relating to judicial relief from the failure to meet the time limits associated with that
process. As in the previous incarnation, there is a mechanism for judicial appeal of the
citation, but there is no provision for judicial relief in the current statute for failure to file
a complaint within the mandated time period. (Stats. 2011, ch. 729, § 5.)
The legislative history of the 2011 amendment shows the Legislature eliminated
the CRC process because of the perception that licensees were using it to stall finality of
citation and attendant penalty assessments. “At the request of the Joint Legislative Audit
Committee, the California State Auditor produced an audit report in June of 2010,
examining DPH. According to the State Auditor report, state law specifies that LTC
[long-term care] facilities are not required to pay monetary penalties on contested
citations that have not been resolved. LTC facilities may contest a monetary penalty by
requesting an appeal through the CRC process in which an independent hearing officer
from DPH’s Office of Legal Services makes a determination on whether to uphold,
modify, or dismiss the citation. Because of DPH’s staffing issues and workload
priorities, more than 600 citations, with corresponding monetary penalties amounting to
nearly $5 million, were awaiting a CRC as of February 2010. According to DPH, delays
in the CRC process may encourage LTC facilities to appeal citations and request CRCs as
a way to delay paying their monetary penalties.” (Sen. Rules Com., Off. of Sen. Floor
Analyses, 3d reading analysis of Assem. Bill No. 641 (2011-2012 Reg. Sess.) as amended
Aug. 23, 2011.)

23
 We conclude the version of section 1428 in effect at the relevant times here did
not authorize the trial court to grant judicial relief from the deadline for filing the
complaint.16
B. Abuse of Discretion
The trial court ruled that even if it had discretion under section 1428 to grant relief
from plaintiff’s failure to file its complaint within the statute of limitations, it would not
grant such relief here, because plaintiff did not promptly seek relief when served with the
answer asserting the affirmative defense of the statute of limitations and did not file its
motion for relief until a year later, after DPH filed its summary judgment motion.
Assuming the trial court had the discretion to grant the relief plaintiff requests, we
conclude it did not abuse its discretion in refusing to do so.
The test for abuse of discretion is whether the trial court exceeded the bounds of
reason based on the circumstances. (State Farm, supra, 90 Cal.App.4th at p. 610.) The
burden is on plaintiff as appellant to show abuse of discretion. (Ibid.)
On appeal, as in the trial court, plaintiff seeks to deflect from its own failings by
focusing on DPH’s tardiness in meeting deadlines for its own administrative actions.
However, plaintiff fails to offer any authority or analysis for the argument that since DPH
missed administrative deadlines, plaintiff can miss the deadline for filing a complaint in
superior court. The matter is therefore forfeited. (Dabney v. Dabney (2002) 104
Cal.App.4th 379, 384 [appellate court may disregard points unsupported by analysis or
authority].) Moreover, the argument fails on the merits. While a public agency is subject

16 DPH views plaintiff as making a frivolous argument that the 90-day period for
filing a complaint should be added to the 90-day period for serving the complaint,
creating a new 180-day period for filing and serving the complaint, which plaintiff met.
We do not view plaintiff’s appellate brief as making this argument, which of course
would contravene the express language of the statute. Rather, plaintiff argues
discretionary relief was appropriate because plaintiff substantially complied with the
combined filing and service time limits and DPH was not prejudiced.

24
to estoppel from the assertion of a statute of limitations, estoppel generally involves
misrepresented or concealed facts. (Jordan v. City of Sacramento (2007) 148
Cal.App.4th 1487, 1496 [city was not estopped from asserting limitations defense against
tort claimant].) “The estopped party must either misrepresent or conceal material facts
with knowledge of the true facts (or gross negligence as to them) and with the intent that
another who is ignorant of the facts will rely on the misrepresentation or
concealment . . . .” (Ibid.) Here, plaintiff does not claim that DPH misrepresented or
concealed any facts, and plaintiff fails to cite any legal principle that would apply here.
Furthermore, in order for plaintiff to meet its burden on appeal to show the trial
court abused its discretion, plaintiff must confront the trial court’s reason for denying
relief--that plaintiff was dilatory in seeking relief. Plaintiff fails to do so.
Plaintiff complains the trial court injected Code of Civil Procedure section 473’s
six-month timeline for seeking relief, whereas Health and Safety Code former section
1428 contains no such limit, and in any event the six months should start when the
opposing party takes some action based on the missed time limit, here the summary
judgment motion. However, plaintiff ignores that the trial court said the six-month limit
was “not controlling.” It appears that the trial court referenced the six-month limit
merely as a legislative determination of the outside limits of reasonable delay. More
importantly, the trial court denied discretionary relief because plaintiff was dilatory. The
papers filed in the trial court contain no explanation why plaintiff did not act sooner. The
record on appeal does not include a reporter’s transcript of the court hearing, so we
presume plaintiff offered no explanation at the hearing. (State Farm, supra, 90
Cal.App.4th at p. 610 [appellant has burden to provide adequate record on appeal, and to
the extent the record is inadequate, we make all reasonable inferences in favor of the
judgment].) Plaintiff’s opening brief on appeal offers no explanation for why it did not
seek relief promptly after receiving DPH’s answer asserting the statute of limitations
defense. Plaintiff’s reply brief on appeal claims that, after filing the complaint in March

25
2010, it “was required to obtain new counsel,” who substituted into the case in March
2011. We do not consider new points raised for the first time in a reply brief. (Garcia v.
McCutchen (1997) 16 Cal.4th 469, 482, fn. 10.) Moreover, plaintiff does not say when it
had to obtain new counsel but instead apparently hopes we will assume that it took
plaintiff a whole year to find a new lawyer and that the former lawyer could not or would
not file a motion for relief, even though the former lawyer filed other motions, such as a
December 2010 application for an order to continue the trial date.
Plaintiff’s failure to confront the trial court’s conclusion that it was dilatory
renders moot plaintiff’s argument that relief would not prejudice DPH.
We conclude plaintiff fails to show grounds for reversal based on section 1428.
III. Denial of Relief Under Code of Civil Procedure Section 473
Plaintiff argues the trial court abused its discretion in denying relief under Code of
Civil Procedure section 473. (See fn. 6, ante.) We disagree.
Code of Civil Procedure section 473 “ha[s] been interpreted to exclude relief from
default caused by failure to comply with the statute of limitations. [Citations.] . . .
‘Statutes of limitation[s] “ ‘are, of necessity, adamant rather than flexible in
nature . . . .’ ” When the Legislature has decided to introduce an element of flexibility in
a particular instance, it has expressly provided for extension of the limitation period on a
showing of good cause, and courts have interpreted the “good cause” standard as
equivalent to a showing under section 473. . . . In the absence of such a specific
provision for extension, it must be inferred the Legislature did not intend to permit relief
on grounds of good cause or under section 473.’ ” (Castro v. Sacramento County Fire
Protection District (1996) 47 Cal.App.4th 927, 930 (Castro); see id. at pp. 933-934.)
In Castro, this court held this rule foreclosing relief for violations of the statute of
limitations applied not only to the discretionary relief, but also to a 1992 amendment
concerning the mandatory relief commanded by Code of Civil Procedure section 473
when the plaintiff’s attorney submits a sworn affidavit attesting to his or her mistake,

26
inadvertence, surprise, or neglect. (Code Civ. Proc., § 473, subd. (b).) To allow relief
under Code of Civil Procedure section 473 would “create a loophole through which a
plaintiff may escape the bar of the statute of limitations. Statutes of limitations are a
fundamental aspect of our legal system. They are ‘ “vital to the welfare of society and
are favored in the law.” ’ [Citation.] ‘Statute[s] of limitations traditionally play a valid
role in laying stale causes to rest and providing finality and repose without the need for
any court adjudication. [Citations.]’ ” (Castro, supra, 47 Cal.App.4th at p. 933.)
Citing this court’s decision in Castro, the court in Life Savings Bank v. Wilhelm
(2000) 84 Cal.App.4th 174, held that Code of Civil Procedure section 473 “does not
provide relief from such errors that result in the running of the applicable statute of
limitations. [Citations.]” (Id. at p. 177.)
Accordingly, relief is not available to plaintiff under Code of Civil Procedure
section 473. Even if it were available, the trial court said it would still deny discretionary
relief, and plaintiff fails to show any abuse of discretion, as we have already explained.
Plaintiff has repeatedly asserted the public policy favoring disposition of a case on
its merits. However, the public policy for the repose provided by statutes of limitations is
equally strong. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 396.) And the Legislature
has repeatedly indicated its intent to expedite the process for violations such as those
alleged to have been committed here.
We conclude plaintiff fails to show reversible error regarding the trial court’s
denial of relief from the failure to file the complaint within the statute of limitations.
Plaintiff’s complaint was untimely, and DPH was entitled to summary judgment on that
ground.

27
 DISPOSITION
The judgment is affirmed. DPH shall recover its costs on appeal. (Cal. Rules of
Court, rule 8.278.)

MURRAY , J.

We concur:

BLEASE , Acting P. J.

28
Mauro, J., Concurring

I concur with the majority opinion except for part II.A. Although I do not adopt
the analysis interpreting Health and Safety Code former section 1428, subdivision (e) in
part II.A of the majority opinion, it makes no difference to the result. As the majority
opinion explains in part II.B, even if Health and Safety Code former section 1428,
subdivision (e) were interpreted in the manner urged by plaintiff (a point we need not,
and I do not, decide), the trial court would have discretion to deny the requested relief.
And here, the trial court confirmed in no uncertain terms that it would exercise its
discretion to deny the requested relief in any event. As the majority opinion explains, the
trial court did not abuse its discretion in denying relief.

MAURO , J.

1