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 sect i on 333 3 .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 stat ed.2

. Samantha B. and Danielle W

. ( Plaintiffs ) are former patien ts 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 Ab use Act

. The jury found for P laintiffs and awarded substantial noneconomic damages against both defendants, as well as punitive damages against the management

company. W e affirm.
FACTS Aurora Vista Del Mar, LLC (Aurora) is a licensed acute psychiatric h ospital . 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

respo nsibility for all service pro grams.”
Aurora Hires Valencia In July 2011, Aurora hired Juan Valencia as a mental
health worker. Th e duties of a mental health worker inc lude 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 as ked whether he had been arrested for a crime requiring registration as a sex offender. He answered no. In fact, V alencia had been arrested in 198 9 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 consume r 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 c ertified nursing assistants (CNA ’s),
instead of unlicensed mental health workers, it would have had notice of any such prior c onviction. 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 worker s

. ” 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 pa tient. Thereafter, all Valencia4

. 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 co untertransference even
meant.” Policy on Access to Patients
It is Auror a’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 mo st of the time at the nursing station. The nurse cannot see into the patients’ room s 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 menta l 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 me n tal capacity to consent to sex. Valencia engaged in sexual relations with all three individually while they
were at Aurora. Valencia became known among hos pital workers as “Rapey
Juan.” A worker reported the nickname to the supervising nurse. The nurse’s response was to roll he r 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, recommend ed to
Aurora’s CEO that the hospital increase education to improve therapeutic boundaries. The CEO said that corpora te, meaning Signature

, would not pay for it . Berkin testified there were other
incidents while she was at Aurora in which a staff member
i nterreacted sexually with a patient. Patient Vulnerability Patients in an acute psychiatric hospital are vulnerable

. Their mental disorder s may impair their judgment

. Some suffer from cognitive impairments similar to dementia. Some patients
receive med ications that render them tempo rarily 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 e ach patient was rated for “acuity” between one and four, with f o ur being the most acute. The entire unit was rated for acuity ba sed on an aggregation of

scores of the individual patients. A formula would be applied to the unit’s acuity rating to determin e 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
Auror a 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. Th e next day a student nurse saw Valencia and the plaintiff together at a party. They appeared to be romantically involved. Aurora suspen ded 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 pati ent 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 di d not know whether anyone did.
The C E O 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 di scharged from Aurora on March 6

, 2013. She filed the instant action ag ainst Aurora and Valencia in February 2015, within two years of her discharge. In June 2015, she added Signature to her complai nt. She alleged sexual assault; intentional i nfliction of emotional distress; and violation of Civil Code section 51.9, sexual harassment in a professional relationship. S he 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 Novembe r 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 con stituting dependent adult abuse and that they acted with recklessness. The jury found that Signature acted with malice or op pression,
but t hat 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 t o 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 P laintiffs’ causes of action
are time

- barred and their damages limited under MI CRA.
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

recove ry 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 pr ovider 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 discove red, the injury, whichever occurs first.”
A “health care provider ” is any person licensed to provide
health care service s including a health facility. (Code Civ. Proc.

, § 340.5, subd. (1).) “P rofessional 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 a nd 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 t hat if MICRA applies, their action is barred by the time l imitations in Code of Civil Procedure section 340.5. They contend, however, that MICRA does not apply. Instead, they cl aim the Elder Abuse Act applies. Unlike
MI C RA, the Elder Abuse Act has a fou r

- 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 de pendent adults. ” (§ 15600, subd. (j).)
S ection 156 57 , 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 Secti on 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 t he plaintiff reasonable attorney’s
fees and costs.

. . .”
T he L egislature 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 n egligence 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 ac tion, 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 E lder Abuse Act, the

cour t rejected the defendant’s argument that “ ‘based on

. . . professional ne gligence ,’ used in section 156 57.2
, 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 evi dence 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 ‘inj urious’ 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 the11

. 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 precauti ons’ 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
Eld er 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 ap plicable to Elder Abuse Act].) Here, as in Delaney , the jury found both professional negligence and reckless neglect. Under Delaney , the P laintiffs are not bound by the laws specifically applicable to professional negligence. That includes MICR A 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
Aur ora and Signature contend that as a matter of law
P laintiffs 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 suppo r ted by substantial
evidence. They hop e to prevail by presenting a view of the evidence in a light most favorable to themselves. But that is not
h ow we view the evidence

. Because P laintiffs must prove elder abuse by clear and convincing evidence, the standard is “whether the record, viewed

a s 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 tri er 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 part y, 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
saf ety 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. P rime Healt hcare
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 or13

. dependent adult’s basic needs.” But to the extent Carter c an 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

ev idence shows A urora and Signature were reckless in their failure to protect. (b) Reckless

“ Reckless ness ” 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 rise s 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

menta l health workers. If they did not know before the B ravo inc ident, 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

co nclude 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 unlicense d mental health workers. Aurora and Signature knew or should have known that their ability to do background checks on such workers is limited

. In stead, they could have hired CNA ’s who are trained, licensed

, and fingerprinted

, and subject to unlimited bac kground checks. Valencia’s training was minimal , consisting of a three

- to five

- minute talk and two days of following another worker14

. around. Aurora employees did not know what
countertransference is. Valencia was never tested to see if he
knew what it w as. 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 i s not sufficient. The hospital is consist ently
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

ma le worke r s were allowed 20 minutes alone with a vulnerable female psychiatric patient in a room secluded from view would by itself suppo r t a finding of recklessness. This is not a case of a momentary failure in an otherwise
sufficient syst em. Valencia wa s allowed to pre y 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

. T he flaws in A urora 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,”

t he reaction was a shrug. There is more than ample evidence to15

. support a finding of recklessness under the clear and convincing
standard.
III
Instructions
Aurora and Signature challeng e several jury instructions. (a) Duty to Investigate Regarding Valenc ia’s prior arrest and conviction, the trial court instructed the jury:
“Pen al Code section 290 is the Sex O ffender Registration Act, which includes a list of sex crimes for which registration as a sex offender is required.
“Those crimes include Penal Cod e 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 tha t 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 p e r son in this state, including limite d liability companies, has a fundamental and necessary right to access public records. Publi c records include county courthouse criminal history records. “The Department of Justice mainta ins criminal history
information

. State summary criminal history i nformation means
the ma s ter record of information compiled by the Attorney General pertaining to criminal history of a pe rson, such as dates
of arrest.”16

. Aurora and Sign a ture contend that they had no right, and therefore no duty

, to search for criminal rec ords more than seven

years o l d. 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 arre st or conviction
that ante da tes 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 emp lo yment 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 employe r 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,

s ubdivision ( 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 o f the public record.17

. ( Id.

, § 6252, subd. (e ); see Central Valley Ch. 7th Step Foundation, Inc. v. Younger (1989) 21 4 Cal.App.3d 145, 158 [r ecords 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 justi fi able
interest ].)
Aurora and Signature argue that Labor Code section 432.7,
subdivision (f)(1)(A) only permits a health facility t o 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 th a t Aurora and Signature
had the duty to inspect the public record; on ly that they ha d the right to. Aurora and Signature argue tha t the instructions run
counter to former C alifornia Code of Regulations, t itle 2, section 7287.4, subdivision (d)(1)(B). 3 T hat 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 o r statutorily eradicated. ” ( Ibid. )

3 Former California Code of Regulations, title 2, section 7 2 87.4 was in effect when Valencia was hi red. 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 ha d 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 di smissed 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 nu rse

- 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 instru ction is taken verbatim from California Code of Regulations , title 22, section 70217, subdivision (a)(13). Aurora’s own expert testified that title 22 regulati ons apply to Aurora. Aurora argues the instruction is not supported by expert testimony . Auror a points to the testimony of its experts that the regulation applies only to a psy chiatric unit and not to a free

standing psychiatric hospital as Aurora.
Bu t section 70217 of the California Code of R egulations applies by its terms t o all hospitals . It m akes no distinction
be tween psychiatric units in free

- standing psychiatric hospitals and psychiatric units in other types of hospitals. By the p lain terms of the regulation, it applies to Aurora. No expert testimony is required to support it.19

. (c) Refuse d 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 M ar o r Signature Health made an y reports of
the events involving Juan Valencia to the Joint Commission (JCAHO), California Department of Public Health (CDPH) or any
other law enf orcement 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
Excess ive Damages Aurora and Signature contend the damages are excessive

. Aurora and Signature argue that all the compensatory damages awarded to P laintiffs are noneconomic damages. Aurora and Signature rely on sect ion 15657, subdivisio n (b) for the proposition that P laintiffs’ 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 recoverabl e 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 33 3 3.2, subdivision (b), part of MICRA,
limits noneconomic dam ages to $250,000. But under the Elder Abuse Act, that limitation does no t apply to living P laintiffs.20

. Code of Civil Procedure section 377.34 4 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

sen ten ce. Thus, the second sen tence of the subdivision, limiting
the amount of noneconomic damages, only applies to the first

sentence relating to causes of action brought on behalf of
decedent s. Because in this action the P laintiffs 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 i s 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

su ccessor 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 bee n 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 en titled 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 tha t 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 supportabl e 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 scal d ed the child, causing severe injuries. A jury awarded substantial damages to the ch ild, finding the grandmother 1 percent at fault and the county 99 percent at fault. Although Scott concluded that placi ng only 1 percent of the
fault on the grandmother was unsupported, the court had no problem with placing the great majority of the fault o n 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 faile d 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 t ort fea sor was more responsible for an injury than an int entional tortfeasor. ( Rosh

, at

p. 1233.)
H ere Aurora and S ignature 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 Damage s 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 consciou s 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 the23

. 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.” ( I talics added.)
Here there is clear and convi n cing ev idence that Signature was personally guilty of oppression and malice. Und e r Signature’s management agreement with Aurora, Si gnature agreed to provide “[d]aily operational direction and management” and “[c]linical responsibility for all service program s.” The jury could reasonably conclude that it was Signature that set the poli ci es 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.
Indee d, a single incident illustrates both Signature’s control and its willful and conscious disregard for the safety of
others. After th e Bravo incident, Aurora’s then director of clinical
services recommended increased education of employees on
clinical boun daries. 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 polici es that resulted in harm to P laintiffs.24

. Plaintiffs’ Appeal
VII (a) Respondeat Superior
P laintiffs 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 deeme d 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 emplo yee. (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 theo ry 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. 4 th 854, 860.) The cause of action is based on the harm suffered as opposed to a specific legal theory25

. 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, t he 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,”

w hich are merely ways of stating the same cause of action differently. ( Bay Cities Paving & G rading, Inc.

, supra , 5 C a l.4th
at p. 860, fn. 1.) (b) Ratification Plaintiffs contend the trial court erred in ruling that
Aurora did not r a tify Valencia’s misconduct by failing to investigate or respond to allegations of the m isconduct.
B ut P laintiffs’ ratification count has the same limitation as their respondeat superior coun t. It is simply an alternative way of pleading the same cause of action. P laintiffs suffered the same harm no matter on what legal theory recovery is sought.
DISPOSITION
T he judgment is affi rmed. C osts are awarded to P lai ntiffs.
CERTIFIED FOR PUBLICATION.

GILBERT, P. J.
We concur:

YEGAN, J. PERREN, J.26

. Kevin G. DeNoce, Judge

Superior Court County of Ventura

______________________________

L aw O ffice of D avid F eldman and David Feldma n for Plaintiffs and Appe llants. 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 an d Appellants. Cole Pedroza, Curtis A. Cole and Cassidy C. Dav enport for California Medical Association, California Dental Association,
and California Hospital Association as Amici Curiae on behalf of Defendants and Appellants.