July 2022 Update
The temporary abatement of CCP §377.34 allows for postmortem general damages for pre-death pain and suffering in actions filed after January 1, 2022, but before January 1, 2026. See §§2.8, 2.10, 2.71, 2.76, 2.83A, 3.112B, 6.30, 6.47, 6A.40.
In Theresa D. v MBK Sr. Living, LLC (2021) 73 CA5th 18, the court found an arbitration agreement with an RCFE unenforceable because the resident’s daughter, who signed the agreement, had no power of attorney. See §§2.21, 3.65, 4.11, 5.39A.
In Gordon v Atria Mgmt. Co. (2021) 70 CA5th 1020, a resident was admitted to an RCFE for help with activities of daily living, rather than for healthcare. The power of attorney did not authorize healthcare decisions. The court held the agent’s agreement to arbitration was valid because it was not a healthcare decision. See §§2.21, 3.65, 4.11, 5.39A.
Classifications and associated civil penalties under Health & S C §1424 were amended, effective January 1, 2022. See full discussion in §2.41.
Health & Safety Code §1430(b) was amended to explicitly allow standing for legal representatives and successors in interest of SNF residents and to permit statutory damages per violation rather than per lawsuit, thereby reversing the holdings of Jarman v HCR ManorCare, Inc. (2020) 10 C5th 375 and Nevarrez v San Marino Skilled Nursing & Wellness Centre LLC (2013) 221 CA4th 102. See §§2.61, 3.59A, 6A.42.
A new section was added to chapter 2 to address remedies for violations of a patient’s right to inspect and copy medical records. See §2.67A.
In Mitchell v Los Robles Reg’l Med. Ctr. (2021) 71 CA5th 291, the court found professional negligence, not ordinary negligence, when a patient was injured from a fall after a nurse assessed her as able to walk safely unassisted. See §2.82.
In Saldana v Glenhaven Healthcare LLC (9th Cir 2022) 27 F4th 679, which involved a wrongful death suit against a nursing home, the Ninth Circuit held that the claims were not completely preempted under the PREP Act and remanded the case to state court. See §3.44A.
Assembly Bill 665 (Stats 2021, ch 468) added Health & S C §§1537.1, 1568.074, and 1569.319 to the code to require that RCFEs and other residential facilities serving adults, that have existing internet service, provide at least one internet-access device equipped with videoconferencing technology to be dedicated to resident use, thus allowing for virtual visits during visitor restrictions. See §4.42.
Actions under EADACPA should be interpreted liberally in favor of elders and dependent adults at risk of abuse. Ring v Harmon (2021) 72 CA5th 844. In this case, the court extended standing for this “special circumstance” of an elder who was both a beneficiary of the estate and the personal representative alleging financial abuse. See §§6A.2B, 6A.19.
Firearms prohibitions now also include ammunition. See discussion in §8.66.
Enforcement provisions of firearms prohibitions under Fam C §6306 were strengthened. See §8.82.
Beginning January 1, 2023, after notice and a hearing, the court may issue an order enjoining a party from abusing an elder or dependent adult by isolating them. Welf & I C §15657.03, operative January 1, 2023. See §8.30D.
The Judicial Council has revised the Request for Domestic Violence Restraining Order (Judicial Council Form DV-100). References to the DV-100 have been updated throughout chapter 8.
In determining which party is the most significant aggressor, the court must weigh the acts of the parties against each other, considering the parties’ respective claims of abuse in concert, not separately. K.L. v R.H. (2021) 70 CA5th 965, 979–980. See §8.67.
Effective July 1, 2023, or sooner if funding becomes available, petitions for domestic violence restraining orders and any filings related to those petitions may be submitted electronically during and after normal business hours. Fam C §§6306.5, 6307(a). See §8.69.
Enactment of Fam C §6308 enables a party or witness at a hearing on a petition for a domestic violence order to appear remotely. See §8.81.
In cases when personal service is not feasible, CCP §527.6 now grants courts authority to specify service by alternative means. See §8.109.