Filed 6/25/26 Unity Healthcare Hospice v. Dept. of Public Health CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FOUR
UNITY HEALTHCARE HOSPICE, B343144
INC.
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. 23STCV09734)
v.
DEPARTMENT OF PUBLIC HEALTH
OF THE STATE OF CALIFORNIA
et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Peter Hernandez, Judge. Affirmed.
Khouri Law Firm and Michael J. Khouri for Plaintiff and Appellant.
Rob Bonta, Attorney General, Cheryl L. Feiner, Assistant Attorney
General, Maureen C. Onyeagbako and José Pablo Galán DeLaCruz, Deputy
Attorneys General, for Defendants and Respondents.
I. INTRODUCTION
Appellant Unity Healthcare Hospice, Inc. (Unity) brought a negligence
action against defendants Department of Public Health (Department) and
Public Health Director Tomas J. Aragon (Aragon). Unity claimed that due to
defendants’ negligent processing of its application for licensure of its hospice
facility, Unity was unable to obtain a license before a statewide moratorium
on the issuance of hospice licenses went into effect.
The trial court granted summary judgment for defendants. The court
found that Unity failed to identify a statutory basis for its negligence action,
and thus the Department and its employees were immune from tort liability
under the Government Claims Act (Gov. Code, § 810 et seq.).1
On appeal, Unity argues for the first time that section 815.6 provides a
basis for defendants’ liability. Because this argument was not presented
below and involves factual issues, it is forfeited on appeal; furthermore, the
argument fails on the merits. Thus, we affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Unity’s Application for Licensure
On March 1, 2021, Unity submitted an application for licensure of a
hospice agency to the Department. Unity’s proposed facility was located in
Thousand Oaks, in Ventura County. However, in its application, Unity
specified both its business address and the address of its proposed facility as
the same address in Westlake Village, which is in Los Angeles County. Unity
also submitted additional documents to the Department that listed the
address as in Westlake Village rather than in Thousand Oaks.
Over the next several months, the Department contacted Unity on
several occasions for additional information or clarification of information on
the application. Because the application specified a proposed service location
in Los Angeles County, the Department forwarded Unity’s application to the
Los Angeles District Office to conduct the licensure survey.
1 Unspecified section references are to the Government Code.
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B. The Statutory Moratorium
On October 4, 2021, the Legislature enacted Health and Safety Code
sections 1751.70 to 1751.85, imposing a five-year statewide statutory
moratorium on the issuance of any new licenses to operate a hospice agency,
effective January 1, 2022. (Stats. 2021, ch. 494, § 1.) Health and Safety Code
section 1751.75 provides that the Department may grant an exception to the
moratorium if the applicant shows a demonstrable need for hospice services
in the area where the applicant proposes to operate.
Pursuant to these provisions, on December 20, 2021, defendants sent a
letter to Unity stating that if Unity wished for the Department to continue
processing its licensing application despite the imminent statutory
moratorium, it would need to provide written documentation demonstrating
an unmet need for hospice services in its proposed service area by January
31, 2022. Otherwise, Unity’s application would be “automatically” withdrawn
due to the moratorium. Three days later, upon discovering that the facility
was located in Ventura County, defendants forwarded the application to the
Ventura County District Office for the required licensure survey.
Unity did not provide documentation demonstrating an unmet need for
hospice services in its proposed service area in response to the Department’s
December 20, 2021 request. Accordingly, by letter dated March 16, 2022, the
Department informed Unity that its application was automatically deemed
withdrawn, effectively denying the application.
C. Trial Court Proceedings
Unity filed its complaint against the Department and Aragon on May 1,
2023, alleging a single cause of action for negligence. The complaint alleged
that defendants delayed Unity’s application for hospice licensure by
erroneously sending the application to the Los Angeles District Office instead
of the Ventura County District Office for the required licensure survey and
that the delay prevented licensure before the statewide moratorium went into
effect. Unity did not allege any statutory grounds for said alleged negligence.
Defendants filed a motion for summary judgment. Defendants argued
that Unity’s failure to assert any statutory basis for liability defeated its
negligence claim against the Department because section 815 provides that a
public entity has immunity for any act or omission of the public entity or a
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public employee, “[e]xcept as otherwise expressly provided by statute.”
Defendants also argued that Aragon was immune from liability under section
820.8, which similarly provides that, “[e]xcept as otherwise provided by
statute, a public employee is not liable for an injury caused by the act or
omission of another person.”
Defendants further argued the Department had no vicarious liability
for the actions of its employees because its employees were immune from
liability under, inter alia, sections 821.2 (immunity with respect to licensure
applications) and 822.2 (immunity for misrepresentations unless made with
actual fraud, corruption, or actual malice). (See § 815.2, subd. (b) [“Except as
otherwise provided by statute, a public entity is not liable for an injury
resulting from an act or omission of an employee of the public entity where
the employee is immune from liability.”].)
Finally, defendants argued that statutory immunity applied to the
Department under section 818.4, which covers “injury caused by the issuance,
denial, suspension or revocation of, or by the failure or refusal to issue, deny,
suspend or revoke, any permit, license, . . . or similar authorization where the
public entity or an employee of the public entity is authorized by enactment
to determine whether or not such authorization should be issued, denied,
suspended or revoked.”
In opposition, Unity relied on section 815.2, subdivision (a), which
states, “A public entity is liable for injury proximately caused by an act or
omission of an employee of the public entity within the scope of his [or her]
employment if the act or omission would, apart from this section, have given
rise to a cause of action against that employee or his [or her] personal
representative.” Unity contended that this provision, alone, constituted an
exception to the immunity provision of section 815.2, subdivision (b). Unity
further argued that sections 818.4 and 821.2 did not apply because Unity was
“never denied a license,” but rather the application was deemed “withdrawn.”
Regarding section 822.2, Unity admitted that it was not alleging
misrepresentations by the Department’s employees but rather only that “the
Department staff was negligent in its processing of the approval of the
license.”
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On October 10, 2024, the trial court heard the motion for summary
judgment. The trial court granted defendants’ motion in a written ruling,
subsequently incorporated by reference into the judgment. The court rejected
Unity’s reliance on section 815.2, subdivision (a) as a basis for liability for the
Department and found that sections 818.4 and 821.2 immunized both the
Department and its employees for their refusal to issue the license. Finally,
the trial court found “no evidence that the requirements for the exception [to
the moratorium] were met much less attempted.”
The trial court entered judgment in favor of defendants, and Unity
timely appealed.
III. DISCUSSION
A. Standard of Review
This court reviews a trial court’s grant of summary judgment de novo,
applying the same standard as in the trial court. (Villalobos v. City of Santa
Maria (2022) 85 Cal.App.5th 383, 388 (Villalabos).)
Summary judgment is appropriate “if all the papers submitted show
that there is no triable issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c,
subd. (c).) “A defendant moving for summary judgment ‘bears the burden of
persuasion that “one or more elements of” the “cause of action” in question
“cannot be established,” or that “there is a complete defense” thereto.
[Citation.]’ ” (Villalobos, supra, 85 Cal.App.5th at p. 388, quoting Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the defendant carries
this burden, the burden of production shifts to the plaintiff “to make a prima
facie showing of the existence of a triable issue of material fact.” (Villalobos,
at p. 388.)
The appellate court “ ‘must presume the judgment is correct[,]’ ” and
the appellant carries the burden of “ ‘affirmatively [demonstrating] error’ ” in
that judgment. (Villalobos, supra, 85 Cal.App.5th at 388.) To carry that
burden, an appellant must “ ‘point out the triable issues the appellant claims
are present by citation to the record and any supporting authority. In other
words, review is limited to issues which have been adequately raised and
briefed.’” (Claudio v. Regents of the Univ. of Cal. (2005) 134 Cal.App.4th 224,
230.)
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B. Unity’s Argument on Appeal
On appeal, Unity does not raise the specific statutory grounds for
liability that it argued before the trial court. Instead, Unity asserts, for the
first time, that defendants are liable pursuant to section 815.6, which
imposes liability on a public entity for a failure to discharge a “mandatory
duty imposed by enactment.”2
As this argument was not made before the trial court, it is forfeited.
(See Pacific Lumber Co. v. State Water Resources Control Board (2006) 37
Cal.4th 921, 945, fn. 14 [plaintiff forfeited claim “by failing to develop it
before the trial court”].) In an appellate review of summary judgment, “‘[a]n
argument or theory will . . . not be considered if it is raised for the first time
on appeal. [Citation.]’” (People v. Venice Suites, LLC (2021) 71 Cal.App.5th
715, 724 (Venice Suites).) “‘A party is not permitted to change his position
and adopt a new and different theory on appeal. To permit him [or her] to do
so would not only be unfair to the trial court, but manifestly unjust to the
opposing litigant.’” (Ibid.)
“[A] reviewing court may exercise its discretion to reach the merits of a
newly raised issue in certain circumstances. [Citations.] For example, an
appellant may be permitted to change his or her theory when a question of
law alone is presented on the facts appearing in the record. In that case, the
opposing party is not required to defend for the first time on appeal against a
new theory that contemplates a controverted factual situation.” (Venice
Suites, supra, 195 Cal.App.3d at p. 724.)
Here, Unity’s section 815.6 theory does not present a question of law
alone, as it relies on various factual contentions: that by effectively denying
Unity’s application, defendants “jeopardize[d] the[] health and safety” of
people who needed hospice care; and that defendants “made the licensure
process more burdensome and costly for the California public including
2 Section 815.6 states: “Where a public entity is under a mandatory duty
imposed by an enactment that is designed to protect against the risk of a
particular kind of injury, the public entity is liable for an injury of that kind
proximately caused by its failure to discharge the duty unless the public
entity establishes that it exercised reasonable diligence to discharge the
duty.”
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members of low density or farming communities.” Because Unity did not
raise these factual contentions before the trial court, it cannot rely on them to
create a triable issue of fact on appeal.
We note briefly that, even if we were to reach the new argument raised,
Unity has not demonstrated error. Courts have construed the statutory duty
requirement under section 815.6 rather strictly, finding a mandatory duty
only if an enactment “ ‘affirmatively imposes the duty and provides
implementing guidelines.’” (County of Los Angeles v. Superior Court (2024)
107 Cal.App.5th 160, 178.) The California Supreme Court “has rejected
attempts by plaintiffs to find a mandatory duty based on an ‘implied duty’
read into a statute” and has held that a “ ‘general statement of public policy’
cannot serve as the basis for a mandatory duty under section 815.6.” (Tuthill
v. City of San Buenaventura (2014) 223 Cal.App.4th 1081, 1090.)
The enactments Unity relies on as providing a mandatory duty are
Health and Safety Code sections 131050 and 1745. Health and Safety Code
section 131050 merely transfers various responsibilities, including the
administration hospice licensing, from the Department of Health Services to
the Department of Public Health. Likewise, Health and Safety Code section
1745 merely sets forth legislative findings and intent. Neither section
imposes on the Department a specific affirmative duty of the Department
regarding applicants for licensure. Thus, Unity’s argument on appeal fails on
the merits.
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DISPOSITION
The judgment is affirmed. Respondents are entitled to recover their
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COGLIATI, J.*
We concur:
MORI, ACTING P. J.
TAMZARIAN, J.
* Judge of the Santa Cruz Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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