Filed 12/20/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

SAMANTHA B. et al.,

 Plaintiffs and Appellants,

v.

AURORA VISTA DEL MAR, 

LLC, et al.,

 Defendants and Appellants.

2d Civ. No. B302321

(Super. Ct. No. 56-2015-

00464635-CU-PO-VTA)

(Ventura County)

Civil Code section 3333.2, known as the Medical Injury 

Compensation Reform Act of 1975 (MICRA), limits noneconomic 

damages to $250,000 based on professional negligence. Here we 

decide this limitation does not apply to plaintiffs’ causes of action 

under the Elder Abuse and Dependent Adult Civil Protection Act 

(Elder Abuse Act). (Welf. & Inst., § 15600 et seq.)1

1 All statutory references are to the Welfare and 

Institutions Code unless otherwise stated.
2.

Samantha B. and Danielle W. (Plaintiffs) are former 

patients at an acute psychiatric hospital.2 While residing at the 

hospital, they suffered sexual abuse by a hospital employee. 

They brought this action against the hospital and its 

management company, alleging professional negligence and 

breach of the Elder Abuse Act. The jury found for Plaintiffs and 

awarded substantial noneconomic damages against both 

defendants, as well as punitive damages against the management 

company.

We affirm.

FACTS

Aurora Vista Del Mar, LLC (Aurora) is a licensed acute 

psychiatric hospital. Aurora is wholly owned by Signature 

Healthcare Services, LLC (Signature). Both entities are wholly 

owned by Dr. Soon Kim, who owns 11 similar hospitals 

nationwide.

Signature has a management agreement with Aurora. 

Among other tasks, Signature agreed to provide “[d]aily 

operational direction and management” and “[c]linical 

responsibility for all service programs.” 

Aurora Hires Valencia

In July 2011, Aurora hired Juan Valencia as a mental 

health worker. The duties of a mental health worker include 

seeing that patients do not harm themselves or others, keeping

patients in a safe environment, and helping patients with daily 

living activities. Mental health workers are not licensed.

2 Plaintiff C.F. is no longer a party to this action. This 

court dismissed her appeal pursuant to the stipulation of the 

parties on October 18, 2021.
3.

When Valencia was hired, he was given a form in which he 

was asked whether he had been arrested for a crime requiring 

registration as a sex offender. He answered no.

In fact, Valencia had been arrested in 1989 for sexual 

penetration with a foreign object (Pen. Code, § 289, subd. (b)) and 

unlawful sexual intercourse with a minor (id., § 261.5, subd. (c)). 

Sexual penetration with a foreign object requires registration, 

but intercourse with a minor does not. (Id., § 290, subd. (c).) He 

pled guilty to sexual intercourse with a minor and the other 

charge was dismissed. The court reduced Valencia’s conviction to 

a misdemeanor and dismissed it in 2008.

Aurora retained an investigative consumer reporting 

agency to conduct a background check on Valencia. Such 

agencies are prohibited from reporting an arrest or conviction

that antedates the report by more than seven years. (Civ. Code, 

§ 1786.18, subd. (a)(7).) The agency did not report Valencia’s 11-

year-old arrest or conviction.

Had Aurora hired certified nursing assistants (CNA’s), 

instead of unlicensed mental health workers, it would have had 

notice of any such prior conviction. CNA’s are fingerprinted and 

licensed.

Training

To be a mental health worker, no license, experience, 

education, or training is required. As one former Aurora 

employee put it, “one day they work at McDonalds, the next day 

they are mental health workers.” Aurora gave Valencia two days 

of orientation.

The orientation included three to five minutes on 

countertransference, that is, the tendency of a caregiver to form 

an emotional bond with a patient. Thereafter, all Valencia 
4.

needed to do was sign a form on patient and staff interactions 

and relationships once a year. Staff were not tested to see if they 

understood patient boundaries.

Plaintiffs’ expert testified, “If you read the depositions of 

multiple staff at the facility, nursing staff, nursing assistants or 

they call them ‘psyche techs’ at that facility, it was very clear that 

they had no idea what transference or countertransference even 

meant.” 

Policy on Access to Patients

It is Aurora’s policy to allow male mental health workers to 

be alone with female patients in their rooms for up to 20 minutes 

as long as the door to the room is open.

Jamie Tallman, an Aurora psychiatric nurse, testified that

the charge nurse for the unit spends most of the time at the 

nursing station. The nurse cannot see into the patients’ rooms

from the nursing station. One must go into the room to see what 

is happening there. Walking up and down the hallway is not 

enough. The charge nurse relies on the mental health workers 

for information on the patients.

Valencia Sexually Violates Plaintiffs

Plaintiffs were patients at Aurora in 2013 during the time 

Valencia worked there. Each was suffering from psychosis and 

did not have the mental capacity to consent to sex. Valencia 

engaged in sexual relations with all three individually while they 

were at Aurora.

Valencia became known among hospital workers as “Rapey 

Juan.” A worker reported the nickname to the supervising nurse. 

The nurse’s response was to roll her eyes and say something like 

“[w]hat are you going to do?”
5.

Bravo Incident

In 2004, an Aurora male employee named Bravo sexually 

molested a 17-year-old female patient. Theresa Berkin, who was 

at that time Aurora’s director of clinical services, recommended to 

Aurora’s CEO that the hospital increase education to improve 

therapeutic boundaries. The CEO said that corporate, meaning 

Signature, would not pay for it. Berkin testified there were other 

incidents while she was at Aurora in which a staff member 

interreacted sexually with a patient.

Patient Vulnerability

Patients in an acute psychiatric hospital are vulnerable. 

Their mental disorders may impair their judgment. Some suffer 

from cognitive impairments similar to dementia. Some patients 

receive medications that render them temporarily unconscious. 

Plaintiffs’ expert testified that sexual assaults of mental patients 

are a known foreseeable risk.

Understaffing

Mark Martinez was a mental health worker at Aurora from 

2011 to 2014. He testified that each patient was rated for 

“acuity” between one and four, with four being the most acute. 

The entire unit was rated for acuity based on an aggregation of 

scores of the individual patients. A formula would be applied to 

the unit’s acuity rating to determine the appropriate staffing 

level. Martinez testified the unit was consistently understaffed. 

He said he was on his own with 16 to 24 patients. He complained 

to the nursing supervisor, the staffing coordinator, and to anyone 

who would listen, to no avail.

Psychiatric nurse Tallman worked at Aurora from 2010 to 

2014. She testified the hospital was frequently understaffed. 

She complained to the director and assistant director of nursing.
6.

Judy Pittacora, a licensed psychiatric technician, worked at 

Aurora from 2003 to 2014. She testified the units were more 

often than not understaffed. She said her supervisors would 

cross out the acuity number she assigned to a patient and lower 

it to lower the number of staff needed. Understaffing had an 

impact on her ability to supervise mental health workers. The 

workers were often on their own with patients. She complained 

about understaffing to her supervisors but was told that is how 

the hospital CEO wanted it. She quit because of understaffing. 

She was afraid she was going to lose her license.

Failure to Report

Danielle W. was discharged from Aurora on November 29, 

2013. The next day a student nurse saw Valencia and the 

plaintiff together at a party. They appeared to be romantically 

involved. Aurora suspended Valencia and, after a two-day 

investigation, terminated him on December 12, 2013.

Aurora’s CEO testified that Valencia was terminated only 

for being with a former patient at a party. The CEO did not 

suspect there had been any wrongdoing while the patient was 

hospitalized, even though the patient had been discharged only

the day before the party. She did not interview Valencia, the 

hospital staff, or the former patient to see if any wrongdoing 

occurred while the former patient was hospitalized. She did not 

know whether anyone did.

The CEO admitted that about a month after Valencia’s 

termination she learned Valencia’s conduct with the former

patient at the party was sexual in nature. She also admitted that 

Aurora had a duty to report such an incident to the California 

Department of Public Health but did not do so for one year. 
7.

Aurora only reported Valencia’s misconduct after it became 

public knowledge.

Procedure

Samantha B. was discharged from Aurora on March 6, 

2013. She filed the instant action against Aurora and Valencia in 

February 2015, within two years of her discharge. In June 2015, 

she added Signature to her complaint. She alleged sexual 

assault; intentional infliction of emotional distress; and violation 

of Civil Code section 51.9, sexual harassment in a professional 

relationship. She also alleged negligence in hiring, supervising,

and retaining Valencia and dependent adult abuse under the 

Elder Abuse Act against Aurora. (§ 15600 et seq.)

Danielle W. was discharged from Aurora on November 29, 

2013. She filed a similar action within two years, in August

2015. C.F. was discharged from Aurora on April 29, 2013. She 

filed a similar action more than two years later in June 2015.

Verdict and Judgment

The jury found that Aurora and Signature were negligent 

in hiring, supervising, and retaining Valencia. The jury also 

found that Signature and Valencia committed acts constituting 

dependent adult abuse and that they acted with recklessness. 

The jury found that Signature acted with malice or oppression, 

but that Aurora did not.

The jury awarded C.F. $6.5 million; Samantha B. $3.75 

million; and Danielle W. $3 million, all in noneconomic damages. 

The jury allocated 30 percent fault to Signature, 35 percent fault 

to Aurora, and 35 percent fault to Valencia. The jury awarded 

each plaintiff $50,000 in punitive damages.
8.

DISCUSSION

Aurora and Signature’s Appeal

I

MICRA’s Limitation of Actions

Aurora and Signature contend Plaintiffs’ causes of action 

are time-barred and their damages limited under MICRA.

MICRA is a legislative scheme that is intended to reduce 

the cost of medical malpractice insurance by, among other 

matters, limiting the time for plaintiffs to bring their causes of 

action for professional negligence and limiting the amount of 

recovery for noneconomic damages. (Western Steamship Lines, 

Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100, 111.) 

Code of Civil Procedure section 340.5, a part of MICRA, 

provides in part: “In an action for injury or death against a 

health care provider based upon such person’s alleged 

professional negligence, the time for the commencement of action 

shall be three years after the date of injury or one year after the 

plaintiff discovers, or through the use of reasonable diligence 

should have discovered, the injury, whichever occurs first.”

A “health care provider” is any person licensed to provide 

health care services including a health facility. (Code Civ. Proc.,

§ 340.5, subd. (1).) “Professional negligence” means “a negligent 

act or omission to act by a health care provider in the rendering 

of professional services, which act or omission is the proximate 

cause of a personal injury or wrongful death, provided that such 

services are within the scope of services for which the provider is 

licensed and which are not within any restriction imposed by the 

licensing agency or licensed hospital.” (Id., subd. (2).)

A plaintiff’s noneconomic damages are limited under 

MICRA to $250,000. (Civ. Code, § 3333.2, subd. (b).)
9.

Plaintiffs appear not to contest that if MICRA applies, their 

action is barred by the time limitations in Code of Civil Procedure 

section 340.5. They contend, however, that MICRA does not 

apply. Instead, they claim the Elder Abuse Act applies. Unlike 

MICRA, the Elder Abuse Act has a four-year statute of 

limitations. (§ 15657.7.)

Elder Abuse Act

Unlike MICRA, which is designed to discourage medical 

malpractice suits, the Elder Abuse Act enables “interested 

persons to engage attorneys to take up the cause of abused 

elderly persons and dependent adults.” (§ 15600, subd. (j).)

Section 15657, subdivision (a) provides, in part: “Where it 

is proven by clear and convincing evidence that a defendant is 

liable for . . . neglect as defined in Section 15610.57, or 

abandonment as defined in Section 15610.05, and that the 

defendant has been guilty of recklessness, oppression, fraud, or 

malice in the commission of this abuse, the following shall apply, 

in addition to all other remedies otherwise provided by law: [¶] 

(a) The court shall award to the plaintiff reasonable attorney’s

fees and costs. . . .”

The Legislature has made it clear that professional 

negligence and the Elder Abuse Act are separate and distinct. 

Section 15657.2 provides: “Notwithstanding this article, any 

cause of action for injury or damage against a health care 

provider, as defined in Section 340.5 of the Code of Civil

Procedure, based on the health care provider’s alleged 

professional negligence, shall be governed by those laws which 

specifically apply to those professional negligence causes of 

action.”
10.

In Delaney v. Baker (1999) 20 Cal.4th 32, our Supreme 

Court discussed the relationship between section 15657, 

establishing a cause of action for elder abuse, and section 

15657.2, exempting causes of action for professional negligence 

from causes of action under section 15657. There plaintiff’s 88-

year-old mother died in a nursing home due to neglect. Plaintiff 

sued the nursing home and its administrators alleging negligence 

and elder abuse. The jury found for plaintiff on both causes of 

action. In the elder abuse cause of action, the jury found the 

defendants were reckless. The jury awarded damages and the 

court awarded attorney fees under the Elder Abuse Act. 

(§ 15657, subd. (a).)

In upholding the award under the Elder Abuse Act, the 

court rejected the defendant’s argument that “ ‘based on . . . 

professional negligence,’ used in section 15657.2, applies to any 

actions directly related to the professional services provided by a 

health care provider.” (Delaney v. Baker, supra, 20 Cal.4th at 

p. 35.) Instead, the court distinguished between professional 

negligence and reckless neglect. The court stated: 

“In order to obtain the remedies available in section 15657, 

a plaintiff must demonstrate by clear and convincing evidence 

that defendant is guilty of something more than negligence; he or 

she must show reckless, oppressive, fraudulent, or malicious 

conduct. The latter three categories involve ‘intentional,’ ‘willful,’ 

or ‘conscious’ wrongdoing of a ‘despicable’ or ‘injurious’ nature. 

[Citations.]

“ ‘Recklessness’ refers to a subjective state of culpability 

greater than simple negligence, which has been described as a 

‘deliberate disregard’ of the ‘high degree of probability’ that an 

injury will occur (BAJI No. 12.77 [defining ‘recklessness’ in the 
11.

context of intentional infliction of emotional distress action]); see 

also Rest.2d Torts, § 500.) Recklessness, unlike negligence, 

involves more than ‘inadvertence, incompetence, unskillfulness, 

or a failure to take precautions’ but rather rises to the level of a 

‘conscious choice of a course of action . . . with knowledge of the 

serious danger to others involved in it.’ ” (Delaney v. Baker, 

supra, 20 Cal.4th at pp. 31-32, quoting Rest.2d Torts, § 500, com. 

(g), p. 590.) 

The court concluded that because the jury found reckless 

neglect, and not merely professional negligence, plaintiff was not 

bound by the laws applicable to professional negligence but could 

avail herself of the enhanced remedies of section 15657 of the 

Elder Abuse Act. (Delaney v. Baker, supra, 20 Cal.4th at p. 35; 

see also Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 

771 [Code of Civil Procedure section 425.13, applicable to 

punitive damages in actions based on “professional negligence,” 

not applicable to Elder Abuse Act].)

Here, as in Delaney, the jury found both professional 

negligence and reckless neglect. Under Delaney, the Plaintiffs 

are not bound by the laws specifically applicable to professional

negligence. That includes MICRA and the one-year limitation of 

actions contained therein. Although Plaintiffs’ cause of action 

based on professional negligence may be barred by the statute of 

limitations, their cause of action for elder abuse is not.

II

Substantial Evidence of Elder Abuse

Aurora and Signature contend that as a matter of law 

Plaintiffs have failed to establish a right of recovery for elder 

abuse.
12.

Aurora and Signature’s contention amounts to nothing 

more than that the judgment is not supported by substantial 

evidence. They hope to prevail by presenting a view of the 

evidence in a light most favorable to themselves. But that is not 

how we view the evidence.

Because Plaintiffs must prove elder abuse by clear and 

convincing evidence, the standard is “whether the record, viewed 

as a whole, contains substantial evidence from which a 

reasonable trier of fact could have made the finding of high 

probability demanded by this standard of proof.” 

(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005.) We must 

affirm if any reasonable trier of fact could have made the 

required findings. (Ibid.) The standard necessarily requires that 

we give appropriate deference to a view of the evidence most 

favorable to the judgment and not view the evidence in a light 

most favorable to the losing party, as Aurora and Signature seem 

to suggest. 

(a) Neglect

Aurora and Signature contend that as a matter of law there 

is no evidence of neglect. Section 15610.57, subdivision (b)(3) 

defines “neglect” as including “[f]ailure to protect from health and 

safety hazards.” 

It is beyond dispute that Valencia was a hazard to the 

health and safety of female patients under Aurora and 

Signature’s care, and that they failed to protect those patients 

from that hazard.

Aurora and Signature cite Carter v. Prime Healthcare 

Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407, for the 

proposition that neglect occurs only where the defendant “denied 

or withheld goods or services necessary to meet the elder or 
13.

dependent adult’s basic needs.” But to the extent Carter can be 

read as holding that neglect does not include the failure to 

protect from health and safety hazards, we decline to follow it as 

directly conflicting with section 15610.57, subdivision (b)(3).

The only question here is whether clear and convincing

evidence shows Aurora and Signature were reckless in their 

failure to protect.

(b) Reckless

“Recklessness” means the deliberate disregard of the high 

degree of probability that an injury will occur. (Delaney v. Baker, 

supra, 20 Cal.4th at p. 31.) It rises to the level of a conscious 

choice of a course of action with knowledge of the serious danger 

to others. (Id., at pp. 31-32.)

Aurora and Signature were well aware that their female 

patients were particularly vulnerable to sexual predation by male 

mental health workers. If they did not know before the Bravo

incident, they certainly knew thereafter. Aurora and Signature 

are sophisticated parties. They are part of an organization that 

operates 11 psychiatric hospitals nationwide. It is reasonable to 

conclude that they know how to operate in a manner that 

protects their patients from sexual predation. Yet Aurora and 

Signature adopted policies that exposed their patients to a high 

degree of risk of sexual predation.

One such policy was to hire unlicensed mental health 

workers. Aurora and Signature knew or should have known that 

their ability to do background checks on such workers is limited. 

Instead, they could have hired CNA’s who are trained, licensed,

and fingerprinted, and subject to unlimited background checks.

Valencia’s training was minimal, consisting of a three- to 

five-minute talk and two days of following another worker 
14.

around. Aurora employees did not know what 

countertransference is. Valencia was never tested to see if he 

knew what it was. After the Bravo incident, Aurora’s director of

clinical services recommended that the hospital increase

education to improve therapeutic boundaries. Aurora’s CEO told 

her that Signature would not pay for it.

Hospital policy allowed a male worker up to 20 minutes 

alone with a female patient in her room. The charge nurse 

cannot see inside the rooms from her station. One must enter 

into the room to see what is happening inside. Even walking 

down the hallway is not sufficient. The hospital is consistently 

understaffed. Supervisors change patients’ acuity ratings to 

justify understaffing. A reasonable conclusion is that 

understaffing prevents workers from noticing what other workers 

are doing. The situation is perfect for a sexual predator. That 

male workers were allowed 20 minutes alone with a vulnerable 

female psychiatric patient in a room secluded from view would by 

itself support a finding of recklessness.

This is not a case of a momentary failure in an otherwise

sufficient system. Valencia was allowed to prey upon three 

different women. It is reasonable to conclude that had Valencia 

not been improvident enough to be seen at a private party with a 

woman who had been discharged the day before, he would have 

continued to work at Aurora and claim other victims.

The flaws in Aurora and Signature’s policies were so 

obvious that the jury could conclude that they intentionally 

turned a blind eye to the high probability of harm. Even when 

Aurora was informed that Valencia was known as “Rapey Juan,” 

the reaction was a shrug. There is more than ample evidence to 
15.

support a finding of recklessness under the clear and convincing

standard.

III

Instructions

Aurora and Signature challenge several jury instructions.

(a) Duty to Investigate

Regarding Valencia’s prior arrest and conviction, the trial 

court instructed the jury:

“Penal Code section 290 is the Sex Offender Registration 

Act, which includes a list of sex crimes for which registration as a 

sex offender is required.

“Those crimes include Penal Code section 289(a) sexual 

penetration with another person who is under 18 years of age.

“An investigative consumer reporting agency may not make 

or furnish any investigative consumer report containing records 

of arrest or conviction of a crime that are more than seven years 

old. . . .

“An employer that does not use the services of an 

investigative consumer reporting agency is not limited by how far 

back they may go in collecting an applicant’s criminal history.

“Every person in this state, including limited liability 

companies, has a fundamental and necessary right to access 

public records. Public records include county courthouse criminal 

history records.

“The Department of Justice maintains criminal history 

information. State summary criminal history information means 

the master record of information compiled by the Attorney 

General pertaining to criminal history of a person, such as dates 

of arrest.”
16.

Aurora and Signature contend that they had no right, and 

therefore no duty, to search for criminal records more than seven 

years old.

Aurora and Signature rely on the Investigative Consumer 

Reporting Agencies Act. (Civ. Code, § 1786 et seq.) The act 

prohibits an investigative consumer reporting agency from 

furnishing a report containing a record of arrest or conviction

that antedates the report by more than seven years. (Id., 

§ 1786.18, subd. (a)(7).) But the act applies only to investigative 

consumer reporting agencies. Nothing prevents Aurora or 

Signature from going beyond seven years to search for arrests 

and convictions.

In fact, Labor Code section 432.7 recognizes the special 

need of health care facilities to conduct employment background 

investigations to protect the safety of their patients. Subdivision

(a) of the section prohibits an employer from asking an employee 

to disclose any arrest that did not result in a conviction or any 

conviction that has been dismissed or sealed. But subdivision 

(f)(1)(A) of Labor Code section 432.7 provides, in part: “[T]his 

section does not prohibit an employer at a health facility, as 

defined in Section 1250 of the Health and Safety Code, from 

asking an applicant for employment . . . the following: [¶] (A)

With regard to an applicant for a position with regular access to

patients, to disclose an arrest under any section specified in

Section 290 of the Penal Code.” Labor Code section 432.7,

subdivision (f)(1)(A) places no time limit on the search.

Nor were Aurora and Signature confined to using

investigative consumer reporting agencies. Every person has the

right to inspect any public record. (Gov. Code, § 6253, subd. (a).) 

Records of arrests and convictions are part of the public record. 
17.

(Id., § 6252, subd. (e); see Central Valley Ch. 7th Step

Foundation, Inc. v. Younger (1989) 214 Cal.App.3d 145, 158

[records of arrests kept by the California Department of Justice

for offenses specified in Penal Code section 290 are discoverable

by health facility pursuant to Labor Code section 432.7]; see also

Weaver v. Superior Court (2014) 224 Cal.App.4th 746, 749-750

[various documents filed and received by the court represent the

official work of the court in which the public has a justifiable

interest].)

Aurora and Signature argue that Labor Code section 432.7,

subdivision (f)(1)(A) only permits a health facility to inquire; it

does not impose a duty to inquire. That is true enough. But a

health facility has a duty to keep its patients safe. The trial

court’s instructions tell the jury it can decide whether Aurora and

Signature breached the duty to provide safety by, among other

matters, failing to conduct a full investigation as the law permits. 

The court did not instruct the jury that Aurora and Signature

had the duty to inspect the public record; only that they had the

right to.

Aurora and Signature argue that the instructions run 

counter to former California Code of Regulations, title 2, section 

7287.4, subdivision (d)(1)(B).3 That subdivision begins, “Except 

as otherwise provided by law (e.g., . . . Labor Code Section 

432.7),” it is unlawful for an employer to inquire of an applicant 

regarding any conviction for which the record has been “judicially 

ordered sealed, expunged or statutorily eradicated.” (Ibid.)

3 Former California Code of Regulations, title 2, section 

7287.4 was in effect when Valencia was hired. It was 

renumbered without substantive change on October 3, 2013, as 

California Code of Regulations, title 2, section 11017.
18.

First, the regulation is expressly subject to Labor Code 

section 432.7. Even if the regulation had contained no such 

expression, an administrative regulation could not override the 

Labor Code.

Second, Valencia’s conviction was not sealed, expunged, or 

statutorily eradicated. It was reduced to a misdemeanor 

pursuant to Penal Code section 17(b) and dismissed pursuant to 

Penal Code section 1203.4.

The trial court’s instructions were accurate.

(b) Staffing Ratios

Aurora and Signature contend the trial court erred in 

instructing with a staffing regulation.

The trial court instructed: “The licensed nurse-to-patient 

ratio in a psychiatric unit shall be 1 to 6 or fewer at all times. 

For purposes of psychiatric units only, licensed nurse[s] also 

include psychiatric technicians in addition to licensed vocational 

nurses and registered nurses.” 

The instruction is taken verbatim from California Code of 

Regulations, title 22, section 70217, subdivision (a)(13). Aurora’s 

own expert testified that title 22 regulations apply to Aurora.

Aurora argues the instruction is not supported by expert 

testimony. Aurora points to the testimony of its experts that the 

regulation applies only to a psychiatric unit and not to a freestanding psychiatric hospital as Aurora.

But section 70217 of the California Code of Regulations 

applies by its terms to all hospitals. It makes no distinction 

between psychiatric units in free-standing psychiatric hospitals 

and psychiatric units in other types of hospitals. By the plain 

terms of the regulation, it applies to Aurora. No expert testimony

is required to support it.
19.

(c) Refused Remedial Instruction

Aurora and Signature contend the trial court erred in 

refusing the following proposed instructions: “When considering 

the question of negligence, you must not consider whether or not 

Aurora Vista Del Mar or Signature Health made any reports of 

the events involving Juan Valencia to the Joint Commission

(JCAHO), California Department of Public Health (CDPH) or any 

other law enforcement or licensing agency.” 

But the obvious purpose of regulations requiring such 

reports is to protect patient safety. Aurora’s failure to make a 

timely report is simply evidence of a lack of concern for patient 

safety. It is relevant to show neglect, that is, the failure to 

protect patients from health and safety hazards. The trial court 

did not err in refusing the proposed instruction.

IV

Excessive Damages

Aurora and Signature contend the damages are excessive.

Aurora and Signature argue that all the compensatory

damages awarded to Plaintiffs are noneconomic damages. 

Aurora and Signature rely on section 15657, subdivision (b) for 

the proposition that Plaintiffs’ noneconomic damages are limited 

to $250,000 each.

Section 15657, subdivision (b) provides: “The limitations 

imposed by Section 377.34 of the Code of Civil Procedure on the 

damages recoverable shall not apply. However, the damages 

recovered shall not exceed the damages permitted to be recovered 

pursuant to subdivision (b) of Section 3333.2 of the Civil Code.” 

Civil Code section 3333.2, subdivision (b), part of MICRA, 

limits noneconomic damages to $250,000. But under the Elder 

Abuse Act, that limitation does not apply to living Plaintiffs.
20.

Code of Civil Procedure section 377.344 prohibits damages 

for noneconomic loss in actions on behalf of decedents. The first 

sentence of section 15657, subdivision (b) provides that the 

limitation of section 377.34 does not apply to actions under the 

Elder Abuse Act. The second sentence of the subdivision begins 

with “However.” (§ 15657, subd. (b).) It modifies the first 

sentence. Thus, the second sentence of the subdivision, limiting 

the amount of noneconomic damages, only applies to the first 

sentence relating to causes of action brought on behalf of 

decedents. Because in this action the Plaintiffs are alive, the 

limitation of noneconomic damages in section 15657, subdivision

(b) does not apply.

The Elder Abuse Act provides enhanced remedies for 

victims. A prevailing plaintiff is entitled to an award of attorney 

fees. (§ 15657, subd. (a).) A deceased victim’s successor is 

entitled to an award of some noneconomic damages. (Id., subd. 

(b).) There is no basis for interpreting the Elder Abuse Act as 

restricting an award of damages for those fortunate enough to 

have survived the abuse.

4 Code of Civil Procedure section 377.34 provides: “In an 

action or proceeding by a decedent’s personal representative or 

successor in interest on the decedent’s cause of action, the 

damages recoverable are limited to the loss or damage that the 

decedent sustained or incurred before death, including any 

penalties or punitive or exemplary damages that the decedent 

would have been entitled to recover had the decedent lived, and 

do not include damages for pain, suffering, or disfigurement.”
21.

V

Fault Allocation

Aurora and Signature contend that they are entitled to a 

new trial because there is no substantial evidence to support the 

fault allocation.

We review an apportionment of fault for substantial

evidence. (Scott v. County of Los Angeles (1994) 27 Cal.App.4th 

125, 147.) Aurora and Signature argue that there is no basis in 

the evidence for allocating only 30 percent fault to Valencia, the 

person who played the most direct and active role in the injury. 

Aurora and Signature cite Scott for the proposition that an 

apportionment of fault is not supportable when it overlooks or 

minimizes the fault of the party who plays the most direct and 

culpable role in the injury. (Citing id., at p. 148.) 

But that is not what Scott says. In Scott, the county’s 

department of children’s services placed a child in the home of 

her grandmother. The grandmother intentionally scalded the 

child, causing severe injuries. A jury awarded substantial 

damages to the child, finding the grandmother 1 percent at fault 

and the county 99 percent at fault.

Although Scott concluded that placing only 1 percent of the 

fault on the grandmother was unsupported, the court had no 

problem with placing the great majority of the fault on the county 

that failed to protect the child. Scott said the circumstances 

resemble those in Rosh v. Cave Imaging Systems, Inc. (1994) 26 

Cal.App.4th 1225, 1238, where the court declined to disturb a 

jury’s apportionment of 25 percent fault to an assailant who 

deliberately shot plaintiff and 75 percent fault to the employer’s 

private security company who failed to protect him. (Scott v. 

County of Los Angeles, supra, 27 Cal.App.4th at p. 148, fn. 16.) 
22.

Rosh expressly rejected the defendant’s contention that no 

reasonable person could conclude a negligent tortfeasor was more 

responsible for an injury than an intentional tortfeasor. (Rosh, at 

p. 1233.)

Here Aurora and Signature are sophisticated parties who 

should know how to operate a psychiatric hospital to assure the 

safety of their patients. Instead, they operated the hospital 

recklessly and maliciously to make what happened almost 

inevitable. First, it was Bravo; then it was Valencia. If the 

perpetrator had not been Valencia, it would have been someone 

else. The jury correctly attributed 70 percent of the fault to 

Aurora and Signature.

VI

Punitive Damages

Signature contends the punitive damages award must be 

struck because there is no clear and convincing evidence of malice 

or oppression.

Exemplary damages may be awarded where the plaintiff 

proves by clear and convincing evidence that the defendant has 

been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, 

subd. (a).) “Malice” means conduct which is intended by the 

defendant to cause injury to the plaintiff or despicable conduct 

which is carried on by the defendant with a willful and conscious 

disregard of the rights or safety of others. (Id., subd. (c)(1).) 

“Oppression” means despicable conduct that subjects a person to 

cruel and unjust hardship in conscious disregard of that person’s 

rights. (Id., subd. (c)(2).)

Signature relies on Civil Code section 3294, subdivision (b). 

That subdivision provides: “An employer shall not be liable for 

[exemplary] damages . . . based upon acts of an employee of the 
23.

employer, unless the employer had advance knowledge of the 

unfitness of the employee and employed him or her with a 

conscious disregard of the rights or safety of others or authorized 

or ratified the wrongful conduct for which the damages are 

awarded or was personally guilty of oppression, fraud, or malice. 

With respect to a corporate employer, the advance knowledge and 

conscious disregard, authorization, ratification or act of 

oppression, fraud, or malice must be on the part of an officer, 

director, or managing agent of the corporation.” (Italics added.)

Here there is clear and convincing evidence that Signature 

was personally guilty of oppression and malice. Under 

Signature’s management agreement with Aurora, Signature 

agreed to provide “[d]aily operational direction and management” 

and “[c]linical responsibility for all service programs.” The jury 

could reasonably conclude that it was Signature that set the 

policies that made sexual predation of patients almost inevitable, 

and that in setting those policies, it acted willfully and with a 

conscious disregard for the safety of others.

Indeed, a single incident illustrates both Signature’s 

control and its willful and conscious disregard for the safety of 

others. After the Bravo incident, Aurora’s then director of clinical

services recommended increased education of employees on 

clinical boundaries. Aurora’s CEO told her that Signature would 

not pay for it.

Moreover, Dr. Kim owns both Signature and Aurora. The 

jury could reasonably conclude that the owner was well aware of 

the policies that resulted in harm to Plaintiffs.
24.

Plaintiffs’ Appeal

VII

(a) Respondeat Superior

Plaintiffs contend the trial court erred in not allowing the 

jury to consider whether Valencia was acting within the course 

and scope of his employment.

Under the rule of respondeat superior, an employer is 

vicariously liable for the torts of its employees committed within 

the scope of employment. (John R. v. Oakland Unified School 

Dist. (1989) 48 Cal.3d 438, 447.) An employer may be vicariously 

liable for willful, malicious, even criminal acts, of an employee 

that are deemed to be committed within the scope of employment, 

even though the employer has not authorized such acts. (Ibid.)

Courts have generally held that an employer is not liable 

under the doctrine of respondeat superior for sexual assaults 

committed by an employee. (3 Witkin Summary of Cal. Law 

(11th ed. 2017) Agency and Employment, § 201, p. 263; but see

Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 217 [city 

liable for assault by a police officer in view of the considerable 

power and authority a police officer possesses].)

We need not, however, make a determination of Aurora’s 

liability under the doctrine of respondeat superior. We have 

upheld Aurora’s direct liability under the Elder Abuse Act. 

Plaintiffs have suffered the same harm whether the theory of 

recovery is breach of the Elder Abuse Act or respondeat superior.

California has adopted the “primary rights” theory under 

which the invasion of one primary right gives rise to a single 

cause of action. (Bay Cities Paving & Grading, Inc. v. Lawyers’ 

Mutual Ins. Co. (1993) 5 Cal.4th 854, 860.) The cause of action is 

based on the harm suffered as opposed to a specific legal theory 
25.

asserted by the plaintiff. (Ibid.) Even where there are multiple 

legal theories upon which recovery might be predicated, one 

injury gives rise to only one claim for relief. (Ibid.)

Plaintiffs’ complaint against Aurora is based on a single 

primary right, the right as dependent adults to be free from 

sexual exploitation by Aurora’s employees while under Aurora’s 

care. The various theories of recovery, whether breach of the 

Elder Abuse Act or respondeat superior, are pleading “counts,” 

which are merely ways of stating the same cause of action 

differently. (Bay Cities Paving & Grading, Inc., supra, 5 Cal.4th 

at p. 860, fn. 1.)

(b) Ratification

Plaintiffs contend the trial court erred in ruling that 

Aurora did not ratify Valencia’s misconduct by failing to 

investigate or respond to allegations of the misconduct.

But Plaintiffs’ ratification count has the same limitation as

their respondeat superior count. It is simply an alternative way 

of pleading the same cause of action. Plaintiffs suffered the same 

harm no matter on what legal theory recovery is sought.

DISPOSITION

The judgment is affirmed. Costs are awarded to Plaintiffs.

CERTIFIED FOR PUBLICATION.

GILBERT, P. J.

We concur:

YEGAN, J. PERREN, J.
26.

Kevin G. DeNoce, Judge

Superior Court County of Ventura

______________________________

Law Office of David Feldman and David Feldman for 

Plaintiffs and Appellants.

Horvitz & Levy, Andrea M. Gauthier, Bradley S. Pauley; 

Kendall Brill & Kelly, Nicholas F. Daum; Beach Law Group,

Thomas E. Beach, Mindee J. Stekkinger and Molly M. Loy for 

Defendants and Appellants.

Cole Pedroza, Curtis A. Cole and Cassidy C. Davenport for

California Medical Association, California Dental Association, 

and California Hospital Association as Amici Curiae on behalf of 

Defendants and Appellants.