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Nevarrez v. San Marino Skilled Nursing & Wellness Centre

California Court of Appeals, Second District, Fourth Division

November 4, 2013

SAMUEL NEVARREZ, Plaintiff and Respondent,

APPEAL fro a judgment of the Superior Court of Los Angeles Country No. GC045033, C. Edward Simpson, Judge.

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Niddrie, Fish & Addams and Michael H. Fish for Defendant and Appellant San Marino Skilled Nursing and Wellness Centre, LLP.

Wilson Getty, William C. Wilson and Mary P. Miller; Boudreau Williams and Jon R. Williams for Defendant and Appellant Country Villa Service Corp.

Hooper, Lundy & Bookman, Mark E. Reagan, Scott J. Kiepen and Felicia Y Sze for California Association of Health Facilities as Amicus Curiae on behalf of Defendants and Appellants.

Manatt, Phelps & Phillips, Barry S. Landsberg, Joanna S. McCallum and Andrew H. Struve for Covenant Care California, LLC as Amicus Curiae on behalf of Defendants and Appellants.

Moran Law, Michael F. Moran and Lisa Trinh Flint; Esner, Chang & Boyer, Stuart B. Esner, Andrew N. Chang and Holly N. Boyer for Plaintiff and Respondent.

McKenna Long & Aldridge, Charles A. Bird and Aaron T. Winn for AARP, California Advocates for Nursing Home Reform, Consumer Attorneys of California, Consumer Federation of California, Center for Medicare Advocacy, Inc., Congress of California Seniors, and the National Senior Citizens Law Center as Amici Curiae on behalf of Plaintiff and Respondent.



San Marino Skilled Nursing and Wellness Centre, LLP (San Marino) and Country Villa Service Corp. (Country Villa) appeal from a judgment after a jury verdict in favor of Samuel Nevarrez[1] on theories of negligence, elder abuse based on reckless neglect (Welf. & Inst. Code, § 15657),

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and violation of the Patient’s Bill of Rights (Health & Saf. Code, § 1430, subd. (b); Cal. Code Regs., tit. 22 § 72527).[2] We find no error in the trial court’s rejection of appellants’ jury instruction on clear and convincing evidence and in its refusal to instruct the jury with respect to state regulations on the use of restraints in nursing homes. However, we conclude the court abused its discretion in admitting into evidence a class A citation and a statement of deficiencies issued by the state Department of Public Health (DPH) against San Marino.[3] Because the erroneous admission of the citation prejudiced the jury verdict on negligence and elder abuse, we reverse that portion of the verdict and the related award of damages. The evidentiary error did not affect the jury verdict on the Patient’s Bill of Rights, and we affirm that portion of the verdict. But we reverse the monetary award, which exceeds the amount authorized by Health and Safety Code section 1430, subdivision (b). We also reverse the award of attorney fees and remand the case for further proceedings consistent with this opinion.


Country Villa operates nursing homes in California, including San Marino, a licensed nursing home. Country Villa and San Marino have a management contract for operation of the nursing home.

Nevarrez was 79 years old when he was admitted to San Marino for rehabilitation on March 13, 2009. He was alert, but had difficulty standing and walking and was at a high risk of falling. Between March 20 and April 24, Nevarrez fell nine times while at the nursing home. His falls usually occurred when he tried to get out of bed and go to the bathroom.

After the first fall, Nevarrez was assessed as having “[p]oor safety awareness/judgment, ” “[u]nsteady/poor gait, ” “attempt[ing] to function beyond ability, ” and “climb[ing] out of bed/chair.” The recommended measures were “[b]ed in lowest position, ” “[t]oileting program” (which required assisting Nevarrez with going to the bathroom every two hours or as needed), and “drug regimen review.”

Nevarrez fell a second time on April 4. He then was additionally assessed as being “forgetful, ” “impulsive, ” and poor at utilizing a safety device. It was recommended that his walker be kept within reach. After his third fall, on April 10, a lap belt “self-release” and a bed alarm were added. Two days later, Nevarrez fell twice on the same day. A bedside commode with a urinal was

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added, as well as a tab alarm in bed. Since Nevarrez had lost his balance trying to unzip his pants, it was suggested the family provide pants with a Velcro closure.

On April 19, Nevarrez fell for the sixth time. Padded pants were recommended, but he refused to wear them. It was noted he was “very adamant with transferring and ambulating without assistance.” The bedside commode was discontinued because Nevarrez refused to use it. After the seventh fall, on April 21, it was noted that Nevarrez was confused. A wheelchair alarm was added. He was to be monitored visually around the clock, but his room was not visible from the nurses’ station. Nevarrez reported he fell again on April 23. The existing interventions were continued.

At about 1 a.m. on April 24, nurse De La Victoria and head nurse Cabral heard Nevarrez’s bed alarm sound. By the time the nurses reached his room two minutes later, Nevarrez already was using the toilet. While nurse De La Victoria was shutting off the alarm, and head nurse Cabral stood in the doorway, Nevarrez lost his balance, hit his head on the wall, and fell. After this fall, he had to undergo brain surgery for a subdural hematoma, and later suffered a stroke. He was readmitted to San Marino between July and September 2009, and fell twice during his second stay at the facility.

In April 2010, Nevarrez filed a complaint alleging elder abuse under Welfare and Institutions Code section 15600 et seq., negligence, violation of Health and Safety Code section 1430, subdivision (b), willful misconduct, and violation of Penal Code section 368.

The case went to trial on the first three causes of action, and in March 2011, the jury returned a special verdict. On the cause of action for violation of the Patient’s Bill of Rights, brought under Health and Safety Code section 1430, subdivision (b), the jury found the facility was inadequately staffed on six occasions and failed to provide Nevarrez with material information on eight occasions. The jury found Nevarrez was not subjected to physical or mental abuse. On the negligence claim, the jury found San Marino and Country Villa each 40 percent negligent and Nevarrez 20 percent comparatively negligent. On the elder abuse claim, the jury found, by clear and convincing evidence, that Nevarrez’s injuries were the result of reckless neglect, but it did not find fraud, malice or oppression. The jury awarded Nevarrez $1, 191, 007.90 for past medical expenses, $200, 000 for future medical expenses, and $3, 000, 000 in general damages.

Several post-verdict motions were filed. In April 2011, the court awarded Nevarrez $7, 000 as “penalties” against San Marino ($500 for each of the 14 violations of Health and Safety Code section 1430, subdivision (b) the jury had found and

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$952, 142.50 in attorney fees. The court denied appellants’ motions to reduce the non-economic damages to the $250, 000 cap under the Medical Injury Compensation Reform Act (Civ. Code, § 3333.2) and to reduce the economic damages to amounts actually paid. After judgment was entered in May 2011, appellants moved for a new trial and judgment notwithstanding the verdict. The court denied these motions at a hearing in July 2011, but no minute order was filed.

This timely appeal followed. Appellants have joined in each other’s briefs.



A party is entitled to request that the jury be instructed correctly on any theory of the case that is supported by substantial evidence. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 [34 Cal.Rptr.2d 607, 882 P.2d 298] (Soule).) An erroneous refusal to instruct the jury is reversible if it is probable that the error prejudicially affected the verdict. (Id. at p. 580.)

A. Clear and Convincing Evidence Instruction

The trial court instructed the jury with CACI No. 201 that “[c]ertain facts must be proved by clear and convincing evidence which is a higher burden of proof. This means that the party must persuade you that it is highly probable that the fact is true.” The court refused appellants’ proposed instruction, which read: “Clear and convincing evidence requires a finding of high probability that the evidence be so clear as to leave no substantial doubt; sufficiently strong as to command the unhesitating assent of every reasonable mind.” Appellants argue the trial court’s refusal to give their proposed instruction was prejudicial error requiring reversal of the elder abuse verdict, to which the higher burden of proof applied. We disagree.

Specifically, appellants contend the phrase “highly probable that the fact is true” in CACI No. 201 is misleading and unnecessarily limited without the additional language they proposed. The additional language was derived from In re Angelia P. (1981) 28 Cal.3d 908 [171 Cal.Rptr. 637, 623 P.2d 198], where the California Supreme Court explained: “‘Clear and convincing’ evidence requires a finding of high probability. This standard is not new. We described such a test, 80 years ago, as requiring that the evidence be ‘“so clear as to leave no substantial doubt; sufficiently strong to command the unhesitating assent of every reasonable mind.”’ [Citation.] It retains validity today.” (Id. at p. 919, italics added.) Appellants argue the trial court was

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required to instruct the jury with the full description of the clear and convincing evidence standard set out in In re Angelia P.

Courts have rejected similar arguments directed at BAJI No. 2.62, which defines clear and convincing proof as “evidence of such convincing force that it demonstrates, in contrast to opposing evidence, a high probability of the truth of the fact[s] for which it is offered as proof[, ]” without the additional language from In re Angelia P., supra, 28 Cal.3d 908. (See People v. Mabini (2001) 92 Cal.App.4th 654, 662 [112 Cal.Rptr.2d 159] (Mabini); Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1165 [74 Cal.Rptr.2d 510]; Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847–850 [60 Cal.Rptr.2d 780] (Mattco Forge); Roberts v. Ford Aerospace & Communications Corp. (1990) 224 Cal.App.3d 793, 804 [274 Cal.Rptr. 139].)

In Mabini, the court explained that, in the early 1990’s, Division Three of this appellate district had criticized BAJI No 2.62 in dicta. (Mabini, supra, 92 Cal.App.4th at p. 660, citing Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 332–333 & fn. 29 [5 Cal.Rptr.2d 594]; DuBarry Internat., Inc. v. Southwest Forest Industries, Inc. (1991) 231 Cal.App.3d 552, 566 [282 Cal.Rptr. 181]; In re Marriage of Weaver (1990) 224 Cal.App.3d 478, 487, fn. 8 [273 Cal.Rptr. 696].) In a 2-1 decision in Mattco Forge, supra, 52 Cal.App.4th 820, 849, Division Three changed its position, finding that the more stringent language of In re Angelia P., supra, 28 Cal.3d 908, would impose “a burden approaching the criminal burden, proof beyond a reasonable doubt.” In Mabini, at page 662, Division Six of our district agreed with this analysis, and so do we. Appellants’ reliance on the criticism of BAJI No. 2.62 that the majority in Mattco Forge disavowed is unwarranted.

As the Mabini court explained: “The key element of clear and convincing evidence is that it must establish a high probability of the existence of the disputed fact, greater than proof by a preponderance of the evidence. Our Supreme Court recognized the importance of this element in In re Angelia P., supra, 28 Cal.3d at page 919: ‘“Clear and convincing” evidence requires a finding of high probability.’ More recently, our Supreme Court stated, ‘Evidence of a charge is clear and convincing so long as there is a “high probability” that the charge is true. [Citations.]’ (Broadman v. Commission on Judicial Performance (1998) 18 Cal.4th 1079, 1090 [77 Cal.Rptr.2d 408, 959 P.2d 715].) In support of its statement, the court cited In re Angelia P., supra, 28 Cal.3d at page 919, and BAJI No. 2.62. (Broadman v. Commission on Judicial Performance, supra, 18 Cal.4th at p. 1090.)” (Mabini, supra, 92 Cal.App.4th at p. 662.) The Mabini court concluded that “‘[w]ithout an additional mandate from the Supreme Court or the Legislature, BAJI No. 2.62 remains a correct instruction. [Citation.]’” (Id. at p. 663, quoting Mattco Forge, supra, 52 Cal.App.4th at p. 849.)

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We decline to hold that CACI No. 201 should be augmented to require that “the evidence must be ‘so clear as to leave no substantial doubt’ and ‘sufficiently strong as to command the unhesitating assent of every reasonable mind.”’ Neither In re Angelia P., supra, 28 Cal.3d 908, nor any more recent authority mandates that augmentation, and the proposed additional language is dangerously similar to that describing the burden of proof in criminal cases. (Mattco Forge, supra, 52 Cal.App.4th at p. 849.) The trial court did not err in rejecting it.

B. Instructions on the Use of Restraints

Nevarrez argued at trial that he should have been restrained by a device fastening him to his bed or by the installation of side rails on the bed. The facility administrator testified that side rails are considered a restraint when used to prevent a person who can walk from getting out of bed. The interdisciplinary team which met after each of Nevarrez’s falls considered side rails and other restraints inappropriate during his first stay at San Marino since he was competent and could walk independently. The attending physician testified he did not recommend restraints or side rails. He explained that restraints cause more problems than they solve, such as agitation and skin ...

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