Filed 12/21/22 ; Modified and Certified for Pub. 1/ 20 / 23 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

STATE OF CAL IFORNIA ex rel. MARY LYNN RAPIER et al.

, Plaintiff s and Appellants

,

v.

ENCINO HOSPITAL MEDICAL CENTER et al.

, Defendant s and Respondent s

. B 302426 , B303196
( Los Angeles County Super. Ct. No. BC 641254 )

APPEAL S from a judgment and post

- judgment order of the Superior Cour t of Los Angeles County, Wil liam F. Fahey, Judge.
Affirmed. California Department of Insurance, J. Scott McNamara

, Assistant Chief Counsel, Nicholas G. C a mpins and Sara Kim
Dan ielson

, Trial Attorney s , for Plai ntiff and Appellant State of
California

. Waters Kraus & Paul, Gary M. Pau l, Michael L. Armitage, Charles S. Siegel, Kay Gunderson Reeves; Bartlett Barrow, Brian2 P. Barrow and Jennifer L. Bartlett for Plaintiff an d Appellant Mary Lynn Rapier. Knox Ricksen, Thomas E. Fraysse and Taylor T. Steele for
Anti

- Fraud Alliance as Amicus Curiae on behalf of Plaintiffs and Appellants. Katten Muchin Rosenman, Ryan M. Fawaz and Christopher B. Maciel for The Coalition Against In surance Fraud
as Amicus Curiae on behalf of Plaintiffs and Appellants. Jacklyn DeMar; Goldberg Kohn, Roger A. Lewis, W. Kyle Walther; Rukin Hyland & Riggin and Valerie Brender for Taxpayers Against Fraud Education Fund as Amicus Curiae on
behalf of Plaintiffs and Appellants. King & Spalding, Peter A

. Strotz

, Paul R. Johnson, James
W. Boswell and Michael E. Paulhus for De fendants and Respondents.

_______________ This proceeding arises out of a qui tam action against
Prim e Healthcare Services

— Encino Hospital, LLC ( Encino Hospital) and others to impose civil penalties for violation of the
Insurance Fraud Prevention Act (IFP A) , Insurance Code section 1871 et seq. The State of California and r elator Mary Lynn Rapier appeal f rom a judgment entered after a bench trial i n which the court found insufficient evidence supported their allegation s that defendants engaged in insurance fraud by billing insurers for services performed in a detox center for which they had no appropriate license , and by employing a referral agency to steer patients to the center . We affirm the judgment

.3 BACKGROUND Encino Hospital was licensed by the Depar tment of Public
Health (sometimes CDPH) as a general acute care hospital ( sometimes G ACH)

. SRCC Asso ciates, LLC was formed to operate a long

- ter m detox facilit y

. Through a m anagement s ervices a greement, Encino Hospital engaged SRCC Associates to manage a nd operate Serenity Recovery Center (Serenity) at the hospital

, under the hospital ’ s direction and con trol , to provide acute (i.e., short

- term)
dr ug and alcohol detoxification services. Serenity operated at Encino Hospital from November 3, 2015, to Januar y 31, 2019. The program provide d no long

- term or outpatient services.

A. Complaint
O n November 18, 2 016, Mary Lynn Rapier filed this qui

tam act ion 1 on behalf of the People of the State of California, alleging employment

- related claims and various violat ions of the Insurance Code against 10 defendants

. Rapier filed t he complaint in the name of the State of California, under seal, as required by s tatute (Ins. Code, § 1871.7, subd. (e)), but the superior court unsealed it on February 5, 2018, when the
Cali fornia Department of Insurance (CDI) elected to intervene.

1 “ ‘ Qui tam is short for the Latin phr ase qui tam pro domino rege quam pro se ipso in hac parte sequitur , which means

“ who pursues this action on our Lord the King ’ s behalf as well as his own. ” ’ ” ( San Francisco Unified School Dist

. ex rel. Contreras

v. Laidlaw Transit, Inc. (2010) 182 Cal.A pp.4th 438, 442, fn. 2; Vermont Agency of Natural Resources v. U

. S

. ex rel. Stevens (2000) 529 U.S. 765, 768, fn. 1.)4 (We will refer to the CDI and the State of California interchangeably.) From that poi nt forward, CDI had “ the primary responsibility for prosecuting th e action. ” (Ins. Code

, § 1871.7 , subd. (f) (l).) 2 On May 2, 2018, the CDI filed a first amended complaint alleging employment and insurance fraud claims against 17
defendants. The trial co urt ordered arbitration as to the employment claims but stayed arbitration pending the outcome
at trial of the insurance fraud claims

. On November 9, 2018, CDI filed the operative second amended complaint, which was eventually pared down to allege a

cause of action for “ illegal patient steering

, ” in violation of subdivision (a) of section 1871.7, and a cause of ac tion for

“ submission of false claims ” in violation of subdivision (b) of that
section . CDI alleged th e causes of action against six defendants: Encino Hospital, Prime Healthcare Services, Inc., and Prime Healthcare Foundation, Inc. (collectively Prime ) ; and SRCC Associates, its principal, Jonathan Lasko, and JNL Management, LLC (collectively SRCC).
O f no te in this paring down process , the trial co urt ruled
that no triable issue of material fact existed as to whether Encino Hospital was properly licensed b y the California Department of
Public Health as a general acute care hospital

. The CDI alleged that al though Encino Hospital was properly licensed as a general acute care hospital, it could not legally operate a medical detoxification facility because it h ad no separate license as a chemical dependency recovery hospital (sometimes CDRH)

. The CDI alleged t hat in billing for detox

2 Undesignated Statutory references will be to the Insurance Code.5 services for which they had no proper license, defendants knowingly submitted at least 1
, 858 fraudulent insurance claims

, requiri ng an award of damages of at least $57,678,436 before trebling

. CDI further alleged that Serenity empl oyed a referring party to funnel patients to its program in exchange for Serenity discharging acute

- care patients to chronic

- care facilities affiliated
wi th the referring party. The parties engaged in some law and motion proceedings
which we will describe in the discussion portion of this opinion as they become pertinent.
B. Trial A bench trial commenced on June 19, 2019, at which CDI presented the testimon y of multiple witnesses and introduced
about 50 exhibits.
Jonathan Lasko , SRCC Associates ’ principal, t estified that
in 2014 he became involved in the medical detoxification business
in Florida. He came to California in 2015 , formed SRCC Associates, and e ntered into a m anagement s ervices a gree m ent with Encino Hospital . Lasko testified the management serv ices agreement was a lengthy and detailed co ntract that “ went back
and forth ” between the lawyers . Lasko d eferred to his lawyers regarding all licensing issues.
Lasko testified that SRCC Associates set up Serenity ’s detox program on the third floor of En cino Hospital

, and began operations i n Novem ber 2015. The hospital made 28 beds available for the program. In 2016, Lasko hired Rapier as the
director o f Serenity’s clinical services. Serenity obtained patients through an in

- house marketing

program and through referrals from such entities as Aid in6 Recovery, LLC (AIR), a call center. There was no written agreement between Serenity and AIR, and Serenity did not pay
for referrals. Serenity ’ s patients , who were admitted only with a doctor ’ s approval , were provided 24

- hour inpatient care

, usually sta y ing for three to seven days. S erenity was not a lock

- down fac i lity ; its patients could leave at any time. M ost patients preplanned their
transfer to a long

- t e rm residential treat m ent facility after the ir stay at Serenity. Lasko testified that a predete rmined discharge plan was sometimes necessary because patients undergoing acute
detoxification were unable to make sensible long

- term decisions. The patients ’ medical expenses were covered by insurance companie s or other providers , whom Encino Hospital b illed.
Lasko testified that based on the advice of his attorneys, Serenity did not need its own license to ope rate a detox program at Encino Hospital. He never heard anything different from CDI or the Department of Public Health. Serenity closed its prog ram in early 2019. He also testified that it was “very” common in the industry for detox patients to arrive w ith a predetermined discharge location.
Roland Santos

, the Chief Nursing Officer for Sherman
Oaks Hos pital, testified as a hospital licensing exp ert. He stated
that Encino Hospital is licensed by the Department of Public Health as a g eneral a cute c are h o spital , and Serenity could operate under the ho spital ’ s license . Santos testified this was confirmed by Eric Stone, a program manager for the Dep artment of Public Health, who informed Santos that medical detoxification was an inpatient service that could be provided in a hospital ’ s general acute care beds.7 Dr. Robert Waldman , a physician specializ ing in a ddiction
medicine

, agreed with Lasko ’ s testi mony that the pr o per treatment plan for addicts was to start with a short

- term detox

program followed by trans fer to a long

- term residential program, usually for 30 to 60 days

, followed by even longer outpatient

treatment. However, Waldman opined that a p ati e nt should not start a detox program with a pre plan ned discharge scenario , nor obtain a discharge plan from a ny referral service , but should
choose a long

- term residential plan with the help of the acute

care center’s “ interdisciplinary team

. ” However, Wa l dman
admitted that there was no agreed upon standard as to when a long

- term referral plan should be made

, that “there would be differing opinions among doctors” as to when discharge planning should begin, and that patients in detox ‘‘ may not be willing to be
steered ” as to a proper discharge plan

. Em Garcia, the Chief Nursing Officer and Administrator
for Enc ino Hospital , testified that the h ospital had provided detox services before its relationship with Ser enity

, and did so after Serenity left. He d id not believe that Serenity needed its own separate license , and in fact Encino Hospital ha d management

agree ments with other unlicensed groups which provide d licensed professional services in the hospital, incl uding for emergency treatment, rehabilitatio n services, anesthesiology

, and occupational therapy

. Garcia testified that in late 2016, after the Serenity

p rogram had been operating for about nine or ten months , a

surveyor from the Joint Commissi o n , a privat e national accreditation agency which sets s tandards for the industry, questioned the adequacy of SRCC ’ s and Encino Hospital ’ s8 licensing. In response, Ga rcia represented to the surveyor that

no additional licensing was required.
In 2017

, Encino Hospital w as involved in a survey by the Department of Public Health , which raised n o complaints about Serenity ’ s licensing status.
Garcia testified he worked with Rapier on policies and procedures after she was hired by Serenity , and neither she nor any other Seren ity employee express ed a c oncern about
Seren ity ’ s license status, patient referra l s , or the patient discharge process.
Garcia never received any complaint from CDI or the Department of Public Health about Serenity ’ s license status , and
in fact the d epartme nt continued to renew Encino Hospital ’ s lice nse even after the allegations in this lawsuit were made public. Garcia had no knowledge of AIR until this ca se was filed.
Eric Stone , a licensing expert, testified that he retired from
the Department of Public Health in 2017. His job had been to
enforce both state and federal laws and regulations, including those involving licensing , and o ver the years he had m any conversations with the Encin o Hospital management team, including Santos. Stone claimed not to re member the
conversation with Santos in which , Santos testified ante , he stated that medical detoxification was an inpatient service that could be provided in a hospital ’ s general acute care beds. The
trial court found Stone ’ s demeanor was evasive , and his claim of

no memory unlikely. The court spe culated Stone was taking a different position than he had while still employed by Department of Public Health because the CDI had changed its position.9 Rapier testified that she applied for a job with Serenity an d was granted what she described as a three

- month interview

process , during which she worked at Serenity to learn about its operation. She was eventually offered the job

, and started part time in March 2016 and full time on April 1, but took a medical
lea ve of absence at the end of June and was ter minated by Lasko in August 2016. Rapier admitted that prior and subsequent to her brief employment at Serenit y she had no experience in an acute detox facility in a hospital setting

. Rapier did not claim to ha ve reported licensing or steering
issues to anyone before she was terminated, and failed to produce
a memorandum of “ policies and procedures ” that she cla imed to have written but Serenity ignored

. The court found that Rapier ’ s testimony on key issues was not very credible, and “ o verall, Rapier did nothing to advance
CDI ’ s case. ” Evelyn Kim , a consultant on medical practices who also investigates fraud cla ims , testified s he was first approached by Rapier for purposes of this litigation, and was hired by Ra pier ’ s attorneys to o pine on a standard form used to bill insurance companies. Kim opined that if Encino Hospital used th e form

, SRCC would have to be li sted as a healthcare provider , and its
National Provide r Identifier number furnished . However, the

co urt found Kim ’ s testimony was rambling and d ifficult to understand, conveying the “ distinct impression ” that she was

un familiar with the standard form , an d “ was making up her

answers. ” Kim gave no testimony as to what disclosures from a
detox service insu rance companies considered to be material. Kim admitted she had never worked in a hospital nor been involved in hospital billings, ha d no experience with or10 background in California insurance regulations, reviewed none o f
the claim forms submitted to insu rers by Encino Hospital, and had no opinion as to whether the hospital’s claim forms were accurate or whether Encino Hospital or SRCC intended to
defraud any insurance provider. Kim admitted that she wrongly assumed Serenity was a long

- term residential dr ug and alcohol treatment program. The court found that no evidence supported Kim ’ s opinion
that SRCC had to be specified as a healthcare provider on a cla im
form , and in any event the Serenity detox program was identified on Encino Hospital ’ s claim forms. Ultimately, the court found,
Kim ’ s testimon y was of no value in showing that Encino Hospital
made material false statements or omissions on claim forms

s ubmitted to California insurance companies.
Jennifer Vachet

, a licensed marriage and family therapist
who previously worked for Rapier but had no prior experience in a hospital setting or with a detox facility , testified that Rapier
hired her to w o rk for S erenity in 2016 as a social services manager. She worked there for seven months , resigning after

anot her employee lodged a complaint against her

. Vachet admitted that Serenity personnel made no medically improper discharge decision s. Denise Durity , who h andled Serenity ’ s billings

, recalled that Encino Hospital used its National Provider Identifier
number to bill for Serenity ’ s services , but she wa s not shown any claim submitted by Encino Hospital to any insurance company

. CDI presented excerpts from the d eposition of Dr. Joshua Diamond, Serenity ’ s medical director, who opined that it was a

“ best practice ” to begin discharge planning only at the tim e of
admission , not before

. Dr. Diamond based this opinion on some11 unidentified “ information that [he] resear ched to prepare [a] document from insurance companies who would recommend this
as well. ” CDI introduc e d neither the document nor any other
eviden ce to co rroborate Dr. Diamond ’ s opinion. Dr. Diamond testified that Serenity had daily interdisciplinary trea tment group meetings at which discharge decisions would be discussed, but did not specify how often he attended these meetings . H e admitted he ha d no responsibility for discharge decisions.
Dr. Diamond testified that he accused Robert Canova

, Serenity ’ s d irector of operations, of “ fraud ” in a text message

, because Canova caused Serenity to hold patients l onger than necessary for financial reasons

. The message was not introduced
into evidence , and neither Diamond nor CDI identified any patient as to which this occurred or connected any patient in this category to a claim made to a California insurance comp any. Dr. Diamond admitted he had no knowledg e of patients’ preplanned discharge plans , and no evidence o f any financial arrangement s between Serenity and the long

- term care facilities to which patie n ts would be discharged. The court found Dr. Diamond prov ided no s upport for CDI ’ s steering theory.
F inally, CDI introduced excerpts of Canova ’ s deposition, who admitted he was unaware of any insurer questioning Serenity ’ s licensure, and testified that Em Garcia told him on
several occasions that the correct lic ensing was in place. Canova
testified that AIR was for a time Serenity ’ s largest referral

source , and AIR

- referred patients arrived at Serenity with a

pr eplanned discharge strategy

. Canova admitted that not all
AIR

- referred patients were discharged to a n AIR

- affiliated12 facility , and he was un aware of any payment made by Serenity
for patient referrals.
Canova testified that on occasion, when Dr. Diamond
be lieved that a patient was medically cleared but the team
believed a safe discharge location was n ot th en available, Dr.
Diamond “ didn ’ t want to wa it for the available bed for a safe discharge location [,] so the patient [was] discharged to the

street. ” Can ova testified that p atients usually had a predetermined facility as part of their “ continuity of care plan. ” Defendants rested without calling any witnesses.
C. Posttrial Proceedings In its closing brief, CDI argued there were 4

, 135 false
claims

, for which “ assessments ” should be imposed in the amount of $139 million plus a penalty range of $20 to $41 mill ion against
all six defendants.
In their c losing brief, the Prime defendants argued that
CDI “ vastly overreached in pursuing a case beyond its limited j urisdiction. ”
The court found that CDI ’ s conclusory allegations of aiding and abetting and conspiracy were unsupported by any evidence suggesting liability on the part of Prime Healthcare Foundation, Prime Healthcare Services, or JNL Management. The court chided CDI for failing to dismiss these defendants either when it
knew it would introduce no evidence of their liability or at the
conclusion of the evidence.
T he court found that CDI ’ s claims , which alleged conduct
that no licensing or accrediting agency had found to be troubling, including the CDI itself, constituted a vast overreach a s to parties, theo ries, and scope

. The court also found that CDI failed

to fulfill its ethical obligation to be scrupulously fair

, in that it13 pursued the litigation agains t several defendants beyond any reasonably colorable claim. The court found it troubling that CDI

app ea red to have abdicated its statutory respon sibility to take the primary role in prosecuting the action , instead ceding control

to Rapier ’ s attorneys

. On the merits, t he court found that CDI ’ s fraud theory was unsupported by any evidence of a false stateme nt or omission, specific intent to defraud

, materiality, or reliance. On the contrary, the undisputed evidence was that all defendants
intended to follow the law, consulted attorneys when unsure about what to do, and relied on a lack of information from a ny agency, including CDI, that their practic es were improper, even after the allegations in this case were made public. T he c ourt therefore conclude d tha t CDI failed to show that defendants
intended to defraud anyone or that any alleged false statement or
omission was material , an issue on which CD I called no witness except Kim, whom the court found to be un persuasive

. As to CDI ’ s steering theory, the co urt found CDI failed even to provide a clear definition of steering , and offered no evidence that any defendant employed anyone to steer patients to Serenity , as there was no evidence of payments or remuneration of any kind . Even if a monetary exchange wa s not required for steering to occur, the court found that no evidence suggested defendants exchanged any benefit with AIR for referrals. On the contrary, the undisputed evidence showed it wa s common and
ethical for a detox facility to help a patient find a longer term residential facility , and there was no agreed

- upon standard to follow in doing so

.14 The court concluded that defendants were entitle d to judgment in their favor

, and later denied CDI ’ s and the relator ’ s motions for new trial

. 3 CDI appeal ed from the final judgment and separately appealed from the order denying its motion for a new trial. We consolidated the appeals f or purposes of br iefing, oral argument,
and decision. 4 DISCUSSION
CDI and the relator contend the trial court erred by interpr eting the IFPA as applying only to fraudulent claims as opposed to simply false claims, and by interpr eting subdivision (a) of section 1871.1 as r equiring a cash exchange as opposed to an exchange of any item or service of value. CDI further
contends the trial court erred in denying it a jury trial

, denying a
continuance , and awarding an item of costs

. A

. Preliminary Consideration s The Prime defe ndants preliminarily argue that Rapier may
assert no argument on appeal beyond the arguments raised by
CDI bec ause CDI has a statutory obligation to lead th is litigation.

3 A relator is a real party in interest in whose name a state
or at torney general brings a lawsuit. He or she is generally the person who furnishes information on which the lawsuit is based. ( People ex rel. Allstate Ins. Co. v . Weitzman (2003) 107 Cal.App.4th 534, 538.)

4 On December 17, 2021, CDI’s appeal as to the SR CC defendants was dismissed without prejudice. The order denying CDI’s new trial motion is not itself appealable, but is reviewable on appeal from the underlyin g judgment. ( Walker v. Los Angeles County M etropolitan Transportation Authority (2005) 35 Cal. 4th 15, 18

- 19; Code Civ. Proc., § 904.1, subd. (a)(2).)15 (§ 1871.7, subd. (f)(1).) We disagree. Although the CDI maintains the primary resp onsibility for prosecuting th is action, Rapier enjoys the “ right to continue as a party to the action .” (§ 1 871.7, subd. (f).) When independent parties join forces in litigation, it is not uncommon for each to take a slice of the available arguments on appeal. To hold otherwise would invite even more duplication than is already inherent in multi

- party litigati on. After filing their opening briefs, CDI and Rapier settled their case against the SRCC defendants and stipulated to dismiss their appeal as to those defendants without prejudice. The Prime defendants argue that pursuant to the doctrine of collateral

e stoppel, the settlement and dismissal are “dispositive of all claims raised on appeal” against them , i ncluding that plaintiffs
were entitled to a jury trial, that they were entitled to a new trial based on denial of a continuance, and that common finings o n multiple elements of plaintiffs’ causes of action were incorrect

. We disagree. “Collateral estoppe l precludes relitigation of issues argued

an d decided in prior proceedings.” ( Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) But “ ‘an appeal “ is not a separate proceeding and has no independent existence ” [citation]; it is merely the continuation of an action.’ ” ( Zamos v. Stroud (2004)
32 Cal.4th 958, 969.) No authority of which we have been made aware applies the doctrine of collateral estoppel to different parties in the same proceeding

. If finality as to one party in a proceeding forestalled the appellate rights of another party, all appeals would have to be all

- or

- nothing affairs where all losing part ies appeals or none do. That has never b een the law.16 B. Standard of Review “In reviewing a judgment based upon a statement of
decision follow ing a bench trial, we review questions of la w de novo, and we review the trial court’s findings of fact for
substantial evidence.” ( Durante v. County of Santa Clara (2018) 29 Cal.App.5th 839, 842 .) “ ‘Under this deferential standard of review, findings o f fact are liberally construed to support th e judgment and we consider the evidence in the light most favorable to the prevailing party, drawing all reaso nable inferences in support of the findings.’ ” ( RSCR Inland, Inc. v. State Dept. of Public Health (2 019) 42 Cal.App.5th 122, 131 .)
C

. Violation of the IFPA

1. History and p urpose of the IFPA The IFPA, originally enacted in 1993, consists of eight
articl es concerning insurance fraud. 5 Article 1 (titled False and Fraudulent Claims) comprises sections 187 1 through 1871.9. 6
Section 1871 sets forth legislative findings and states the Legislature ’ s intention is to “ permit the full utilization of the expertis e of the commissioner and the department so that they may more effectively investigate and discover in surance frauds, halt fraudulent activities, and assist and receive assistance from federal, state, local, and administrative law enforcement agencies

5 Stat ute s 1993, ch apter 120, section 3.3 (A ssem. B ill No. 1300), effective July 16, 1993.

6 The IFPA is Chapter 12 of Part 2 (The Business of In surance) of Division 1 (General Rules Governing Ins urance) of the Insurance Code, sections 1871

- 1879.8. Articles 2 through 8 of the IFPA govern various aspects of the administration of insurance claims and the i nvestigation, reporting, and prevention of i nsurance fraud.17 in t he prosecution of persons who are parties in insurance
frauds. ” (§ 1871, subd. (a).) Subdivision (h) of section 1871 explains that “ [h]ealth
insu rance fraud is a particular problem for health insurance policyholders. Although there are no precise figures , it is
believed that fraudulent activities account for billions of dollars annually in added health c are costs nationally. Health care fraud

cau ses losses in premium dollars and increases health care costs unnecessarily. ” 7 When section 1871.7 was origin ally enacted it prescribed civil penalties for the employment of runners, cappers, steerers or other p ersons to procure clients or patients or obt ain workers ’ compensation benefits, without regard to the nature of any insurance claim submitted for payment. (Former § 1871.7, subd. (a), Stats. 1993
, ch. 120 (A ssem. B ill No. 1300 (July 16, 1993).)
Section 1 871.7 was amended in 1994, adding conduct do ne with an intention to engage in activities prohibited by Penal Code sections 549, 550, and 551 (which crimin alize the making of false or fraudulent claims to insurers), and to provide civil penalties
for that c onduct. (Former § 1871.7, amended Stats. 19 94
, ch. 1247, § 1 (A ssem. B ill No. 1926).)
Section 1871.7 was amended in several respects in 1995. Notably , the amendment made it unlawful to use runners, cappers, steerers or others not just to obtain worker s ’

7 Subdivisions (b) through (g) of section 1871 deal with issues of fraud in automobile and workers ’ compensation insurance. Section 1871.7 originally dealt only with workers ’ compensation claims , until its scope was expanded by amendment in 1994 to apply also to “ ‘ crimes involving fraudu lent claims against insurers. ’ ” ( People ex rel. Allstate Ins. Co. v. Weitzman supra , 107 Cal.App.4th at p. 5 48 .)18 compensation benefits, but also to procur e claims to insurers. (Former § 1871.7, amended S tats. 1995, ch. 574, § 2 (S en. B ill No. 465).) Although the former law allowed actions arising from any workers ’ compensation claim even if the claim was not
fra udulent, according to the Senate Committee o n Criminal Procedure, section 1871.7 as amended required proof that a claim was illegal and fraudulent. (Anal ysis of the Sen. Comm. on Crim. Proc., S en. B ill No. 465 (1995

- 1996 Reg. Sess.), p. 5.) The
committee went on to explain that the amended bill “ w ould make it unlawful and provide for disgorgement of profits whenever a capper is used, ” because, according t o the bill ’ s sponsor (with respect to automobile insurance claims), “ fraud is almost always present wh en cappers are used. ” ( Ibid .)
Section 1871 .7 was amended again in 1999, by adding the last sentence to subdivision (b), which provid ed for the first tim e that penalties are to be assessed for each fraudulent claim presented to an insurer, instead of for each violation of subdivision (a). (Former § 1871.7, amended S tats. 1999, ch. 885, § 2 (A ssem. B ill No. 1050); see Amendments, Deering ’ s Ann. Ins. Code ( 2009 ed.) foll. § 1871.7, p. 274.)
2. Statutory i nterpretation Our fundamental task in construing a s tatute is to ascertain the intent of the Leg islature and effectuate the

statute ’ s purpose. ( Day v. City of Fontana (2001 ) 25 Cal.4th 268, 272.) “ [ S ] uch a construction is, if possible, to be adopted as will give effect to all ” of the statutory language. (Code Civ. Proc., § 1858.) When the langua ge of the statute is clear and unambiguous, the “ plain meaning ” rule applies; we presume the Legislature meant what it said. ( Day

, at p. 272.)19 D

. Application
1. False c laims Subdivision (b) of section 1871.7 pr ovides in pertinent part:

“ Every person who violates any provision of this section or Section 549, 550, or 551 of the Penal Code shall be subject

. . . t o a civil penalty of not less than five thousand dollars ($5,000) nor more than ten thousand dollars ( $10,000), plus an assessment of
not more tha n three times the amount of each claim for compensation . . . . The penalty prescribed in this paragraph
shal l be assessed for each fraudulent claim presented to an insurance company by a defendant . . . . ” Pen al Code section 550 applies to “ any false or fraudulent claim for the payment of a loss or injury, . . . under a contract of insurance ” and “ any false or fraudulent claim for payment of a health care benefit. ” (Pen

. Code, § 550, subd. (a)(1), (6).) Here, CDI alleged that Encino Hospital misreprese nted to insurers that it was properly licensed to provide detox services
when it was not. T he trial court fou nd no evidence suggesting that defendants presented a false claim to any insurer. We

agree ; n o author ity of which we are aware or to which we hav e been directed obligates Encino Hospital to hold any license other than its license as a general acute care h ospital

. “No person . . . shall operate . . . health facility in this state, without first obtaining a license” from the Department of Public
Hea lth. (Health & Saf. Code, § 1253, subd. (a).) It is undisputed that Encino Hospital is licensed as a general acute care hospital by the Department of Public Health. Relying on and selectively quoting from Heal th and Safety
Code sections 1250.3 , subdivis ion (a) and 1254.2, subdivision (a), Rapier argues that “ any facility providing ‘ 24

- hour inpatient care20 for pe rsons who have a dependency on alcohol or other drugs, or both alcohol and other drugs ’ must be licens ed as a ‘ chemical dependency recovery hospit al. ’ ” Neither of these statutes so provides , either separately or in combination

. Health and Safety Code se ction 1250.3, subdivision (a), provides: “ As defined in S ection 1250, ‘ health facility ’ includes
the following type: ‘ Chemical dependency recove ry hospital ’ means a health facility that provides 24

- hour inpatient care for persons who have a dependency on alcohol or other drugs, or both alcohol and other drugs. This care shall include, but not be
limited to, the following basic services: patient counseling, group therapy, physical conditioning, family therapy, outpatient services, and dietetic services. Each facility shall have a medical director who is a physician and surgeon licensed to practice in
th is state. ” Health and Safety Code section 1 254.2 simply provides that the Department of Public Health “ shall license chemical dependency recovery hospita ls to provide the basic services specified in subdivision (a) of Section 1250.3. ” Neither statute pro vides that a general acute care hospital

suc h as Encino Hospital becomes a chemical dependency recovery hospital simply because it offers the same service s a chemical dependency recovery hospital would offer. On the contrary, a general acute care hospita l may provide chemical dependency recovery s ervices “ as a supplemental
service. ” (Health & Saf. Code, § 1250.3, subd. (d)(1).) When it does so, “ the gen eral acute care hospital . . . shall provide the supplemental services in a distinct part of the hospi tal or freestanding facility, if the distinc t part satisfies the criteria21 established by law and regulation for approval as a chemical dependency recovery supplemental service. ” ( Ibid .) 8 Nothing about this scheme obligates a general acute care hospital to obtain some different license. Rapi e r ackno wledges that a general acute care hospital may provide acute detox services without an entirely new license
bu t, she argues, selectively quoting from subdivision (d) of Health and Safety Code section 1250.3, such a hospital may do so only “so long as they obtain CDPH’s ‘ approval ’ to provide such
services .” The statue does not say that. Health and Safety Code

sec tion 1250.3, subdivision (d) provides that a general acute care hospital may provide acute detox servi ces “in a distinct part of the hospital or f reestanding facility, if the distinct part satisfies the criteria established by law and regulation for approv al as a chemical dependency recovery supplemental service.” (Italics added.) The statute says only t hat the distinct part of the hospital must s atisfy the criteria for approval as a chemical

8 Subdivision (d) of Health and Safety C ode section 1250.3 provides in pertinent part: “Chemical dependency recovery services may be provi ded as a supplemental service in existing general acute care beds and acute psychiatric beds in a general acute care hospital or in existing acute psychiatric be ds in an acute psychiatric hospital or in ex isting beds in a freestanding facility, as defined in subdivision (c). When providing chemical dependency recovery services as a supplemental service, the general acute care hospital, acute psychiatric hospital, or freestanding facility, as defined in sub division (c), shall provide the supplemental servic es in a distinct part of the hospital or freestanding facility, if the distinct part satisfies the criteria established by law and regulation for approval as a c hemical dependency recovery supplemental ser vice.”22 dependency recovery supplemental service, not that the hospital

must actual ly obtain a separate CDPH approval. Department of Public Health regulations g enerally requ ire approval for provision of supplemental s ervice s : “ Any licensee desiring to establish or conduct

. . a supplemental service, shall obtain prior approv al from the Department . . . .” (C al. C ode
R egs., tit. 22, § 70301 , subd. (a).) The regulations then list 28 supplemental services for which app roval is required. ( Id. at § § 7 0 4 0 1

- 7 0 6 57 [e.g., acute respiratory care, burn center, dental service, intens ive care newborn, pediatric service, perinatal service, radiation therapy, social service, speech path ology, standby emergency medical service, et c.].) “ Chem i cal d epe nd e n c y

r eco v e ry s e r v i ces ” are not a m ong t he l ong l i st of su pp l emen t a l

s er vi ce s for whi c h a general acute care hospital requires Department of Public Health approval. Rapier also argues that Encino Hospital was obligated but
failed to identify Serenity as a provider on its insurance claims , a theory beyond CDI ’ s statement at trial about conte sted issues. In any event, t he trial court rejected the theory because no evidence supported it. The o nly exhibit containing actual claim forms, Exhibit 1111, showed that Serenity was disclosed to insurers

. CDI instead relied at trial on Exhibit 1061, l isting 4

, 484 claims,
but the court found that this e x hibit was prepared for litigation,
and did not co rrelate to actual claim forms.
Because Enci no Hospital needed no separate license or approval

, and no evidence showed it concealed any provider, the
CDI ’ s cause of action for false claims fails for lack of a predicate.
We therefore need not decide whethe r the IFPA requires a showing of scienter or materiality.23 2. Steering
CDI ’ s steering theory was that AIR sometimes referred an addiction recovery patient t o Serenity in exchange for Serenity’s promise not to interfere with the patient’s preadmission plan t o be discharged to an AIR

- affiliated treatme nt center for follow

- on care. In other words, CDI alleged, Serenity permitted patients to
be referred to foll ow

- on care facilities based on profit, not the patients’ best interests. CDI argues the trial court m isconstrued the law applicable to this claim , and in doing so erred by finding
the evidence weighed against it. We disagree. Subdivision (a) of section 1 871.7 provides: “ It is unlawful to knowingly employ

. . . steerers

. . . to procure

. . . patients to

. . . obtain services or benefits . . . tha t will be the basis for a claim against an

. . . insurer. ” “A steerer has been held to be one who gains the confidence of the person intended to be fleeced [citation] and who may be
said to steer or lead the vi ctim to the place where the latter is to
be robbed or swindled.” ( Barron v. Board of Dental Examiners of
Cal. (1930) 109 Cal.App. 382, 385.) Here, the tr ial court found that any evidence suggest ing that Serenity employed AIR to procure patients was outwei ghed by evidence that no such employment exi sted

. To begin, no evidence indicated that Serenity or Encino Hospital either received compensation for refe rring patients to residential treatment centers or paid for referrals to the Serenity

program. Under the most liberal construction of CDI’s theo ry, under
which a cash exchange is not required, Serenity “employed” AIR by expressly or tacitly agreeing , in exchange for referrals, to honor a patient’s preplanned treatment regimen, which24 benefitted AIR becaus e the plan included later referral to an AIR

affiliated facility. But no evidence indicated that such an agreement existed. CDI attempted to establish an inference for such an agreement by establishing that it was “universally accepted” that a n acute de tox facility should refuse to honor a patien t’s preplanned treatment regimen. Serenity would fail to follow this universal standard, CDI theorized , only if motivated to do so by a prior agreement with AIR to obtain referrals

. Little to n o evidence support ed the theory

. Dr. Waldman,
CDI’s expert on the standards for referring acute detox patients to long

- term facilities, stated only that pre selecting a lon g

- term facility in advance of detox would violate the best practices standard, not any universally acc epted standard

. He testified he

was unaware of any professional standard specifying when discharge locations should be established for substance use
diso rder patients, and agreed that reasonable medical professionals could disagree about the timing of dis charge planning. Lasko testified that it wa s “ very ” common for a patient to arrive at a detox facility with a predetermined discharge location for long

- t erm care. Th e evidence thus afforded no reasonable basis upon which

to infer that Serenity declined t o interfere with patients’ preplanned discha rge locations to secure its own profits. Rapier argues it is irrelevant whether it was common and
ethical to exchange a patient referral for a promise to discharge the patient to a facility owned by the referra l source’s affiliate,
because “[i] f conduct is made illegal by statute, ‘ everybody’s doing
it ’ is not a defense. ”25 This misses the point. The question i s whether Serenity “employed” AIR to obtain referrals. There being no express agreement to that effec t, nor remuneration exchanged, CDI infers
th e employment from the fact that Serenity’s discharge orders
benefitt ed AIR

. However, t hat it was common and e thical to discharge a patient to a facility affiliated with the referring party negates Rapier’s claim that the discharge orders were evidence of AIR’s employment

. With the employment inference negated, little to no evidence supported CDI’s steering theory , and substantial evidence weighed against it. The trial court was therefore justified in finding tha t CDI failed to prove its theory.
E

. Procedu ral Issues

1. Jury t rial CDI demanded a jury trial but failed to deposit jury fees.
The trial court therefo re granted Prime ’ s motion to strike the
demand for a jury trial, finding th at jury fees were not timel y paid , and in any event CDI’s causes of act ion were not subject to jury trial. CDI moved for relief under Code of Civil Procedure section 631, which the trial court denied. CDI then petitioned for
a writ of mandate , which we denied

. ( State of Californi a v. Superior Court (B298315, June 19, 2019) pet. denied.) CDI argues the trial court erred in denying CDI ’ s right to a jury trial. We disagree.
A trial court ’ s decision whether to allow jury trial where
there has been a waiver is reviewed for abuse of d iscretion. (Code Civ. Proc., § 631, subds. (f) & (g).) Here, Rapier failed to pay the initial jury fee until it was
four months late

, and CDI never paid it

. (See Code Civ. Proc.,26 § 631, subd. (f)(5).) The trial court therefore acted within its
discreti on in striking CDI ’ s request for a jury tria l and denying
its application for relief under Code of Civil Procedure section
631. On the merits, CDI was no t entitled to a jury trial on its
claims.
“ ‘ [ T ] he right to a jury trial in a civil action may be aff orded either by statute or by the California Constitution.’ ” ( Nationwide Biweekly Administration, Inc. v. Superior Court of Alameda County (2020) 9 Cal. 5th 279, 296

- 297 ( Nationwide ) .)
The IFPA affords no explicit right to a jury trial on causes
of actio n it creates. Article I, section 16 of the California Constitution states in relevant part that “[t]rial by jury is an inviolate right and shall
be secur ed to all . . . .”
“From the outset of our state ’ s history, our courts have explained that this prov ision was intended to preserve the right to a civil jury as it existed at common law in 1850 when the jury trial provision was first incorporated into the California Constitution.” ( Nationwide

, supra , 9 Cal.5th at p. 315.)

“ Pursuant to this historical ap proach, as a general matter the
California C onstitution affords a right to a jury trial in common law actions at law that were triable by a jury in 1850, but not in suits in equity that were not triable by a jury in 1850.” ( Ibid .)

“ ‘ “In determining wh ether the action was one triable by a jury a t common law, the court is not bound by the form of the action but rather by the nature of the rights involved and the facts of the particular case

— the gist of the action. A jury trial must be granted where the gist of the action is legal, where the actio n is in reality cognizable at law.” ’ ” ( Ibid .)27 “At early common law, actions at law typically involved
lawsu its to recover money damages for injuries caused by breach of contract or tortious conduct. Equitable causes of action typically sought relief su ch as injunctions, orders for specific performance, or the disgorgement of ill

- gotten gains, which were
unavai lable in actions at law.” ( LaFace v. Ralphs Grocery Co

. (2022) 75 Cal.App.5th 388, 395.)
“The constit utional right of trial by jury is not to be narrowly construed. It is not limited strictly to those cases in which it existed before the adoption of the Constitution but is extended to cases of like nature as may afterwards arise. It
embraces cases of th e same class thereafter arising. . . . The introduction of a new subject into a class renders it amenable to its general rules, not to its exceptions. ” ( People v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283, 300.)
Courts determine whether there is a ri ght to a jury trial
under the California Con stitution by looking to the statutory scheme as a whole to determine whether the gist of a cause of
action und er the IFPA seeking both injunctive relief and civil penalties is legal or equitable. ( Nationwide

, su pra , 9 Cal.5th at p. 324.) Whether a jury t rial right exists under the state constitution is an issue of law subject to de novo review. ( Jogani v. Super ior Court (2008) 165 Cal.App.4th 901, 904.)
The foremost consideration is whether the IFPA’s remedies are equitable in nature. ( DiPirro v. Bondo Corp . (2007) 153 Cal.App.4th 150, 181 [“ ‘ Determining whether the gist of a claim is in law or equity “ depends in large measure upon the mode of
relief to be afforded ” ’ ”].)
T he IFPA is a remedial statute inte nded to protect the public from sharp insura nce practices. As noted, t he28 Legislature’s intention in enacting it was to “permit the full
utilization of th e expertise of the commissioner and the department so that they may more effectively investigate and
d iscover insurance frauds, halt fraudulent ac tivities, and assist and receive assistance from federal, state, local, and administrative law enforcement age ncies in the prosecution of persons who are parties in insurance frauds.” (§ 1871, subd. (a).)
The I FPA provides for civil penalties between $5, 000 and $10,000 , assessments of “not more than three times the amount of each claim for compensation

, ” and “ot her” equitable relief, including temporary injunctive relief. (§ 1871.7, subd. (b).) The penalties “ are intended to be remedial rather than puni tive . . . . If the court finds, after considering the goals of disgorging unlawful profit, restitution, comp ensating the state for the costs of investigation and prosecution, and alleviating the social costs
of increased insurance rates due to fraud, tha t such a penalty would be punitive . . . , the court shall reduce that penalty appropriately.” (§ 1871.7, sub d. (c).) “[A]n injunction to prohibit ongoing or future misconduct or an order requiring a defendant t o provide specific performance or disgorge i ll

- gotten gains” is equitable in nature. ( Nationwide

, supra , 9 Cal.5th at p. 293.) That t he IFPA’s remedies includ e injunctive relief and “other” equitable relief supports finding that
a cause of action under t he IFPA to be equitable in nature . (See
Lut z v. Glendale Union High School (9th Cir. 2005) 403 F.3d 1061, 1067

- 1068 [reference to ‘other equitable relief ’ makes sense only if the relief previously described relief is itself equitable].)
Even an award of civil penalties under the IFPA is
determine d based on equitable principles. Thus

, i f the court

— not a jury

— finds, after considering equitable factors suc h as29 disgorgement, unlawful profit, restitution, costs of investigation and prosecution, and the socia l costs of increased insurance rates
due to fraud, that civil penalties are punitive, it must adjust
them “appropriately ,” i.e., equitabl y

. Further, the IFPA has a fundamentally equitable purpose: To investigate

, discover and deter insurance frauds , not to compensate a plaintiff for actual damages sustained. The act
makes no reference to compensatory damages ; a ssessments are levied in relation not to dam ages

— there need be no damages

— but to the dollar amount of claims submitted to insurers

. Finally, the primary right to bring an action for civil

p enalties pursuant to the IFPA is given to the state rather than individuals seeking compensation. (§ 1871.7, subd. (d) [commissioner or district attorney may bring a civil action].) Even though the IFPA authori zes a qui tam action to enforce its provisio ns, if the commissioner elects to intervene, the CDI bears “the primary responsibility for prosecuting the act ion, and shall not be bound by an act of the person bringing the action” (§ 1871.7, subd. (f)(l)).
T he IFPA’s remedial purpose, the primacy give n to state action, and statutory remedies, including civil penalties, that are not damages at law but constitu te equitable relief appropriate
and incidental to enforcement of the act

, render a cause of action
bro ught pursuant to the act more in the nature of an action to enforce public rights, not to vindicate individual injuries. As such, the gist of such a caus e of action is equitable, which does not entitle the CDI or Rapier to a jury trial. (See DiPirro v.
B ondo

, supra , 153 Cal.App.4th at p. 184.)
A final consideration supports denial of a jury trial here. Stepping back from equitable elements inhering in t he IFPA30 itself, the threshold issue with respect to plaintiffs’ false claim
cause of action

— whether a hospital’s operation of a detox facility

req uire s separate approval or a separate license from the
CDPH

— is a question purely of administrative law , one th e Legislature has r elegated to the CDPH . The CDPH has at all relevant times been aware of Encino Hosp ital’s activities but has never required sep arate approval for its detox center

. Plaintiffs purport in this action to supplant CDPH ’s health licensing

ex pertise . Assuming for the sake of argument th is is a proper invocation of the IFPA , a matter we need not decide today despite the parties’ and am ici’s extensive briefing on the issue,
health care licensing is quintessential ly an administrative
endeavor. W hether a hospital’s supplemental service requires separate CDPH approval involves the “nuanced and qua litative ” consideration of a variety of fact ors and circumstances identified
in CDPH ’s administrative guidelines, and is “the type of decision
that has tr aditionally been viewed as the province of courts rather than juries.” ( Nationwide

, supra , 9 Cal.5th at p. 3 04 ; see also McHugh v. Santa Monica R ent Control Bd . (1989) 49 Cal.3d 348, 380 [“no jury trial right exists as to adjudication of a matter
otherwis e properly within the regulatory power of an administrative agency”] .) As with the Unfair Competition Law at issue in
Nationwide

, an overarching legislative concern in enacting the healthcare licensing scheme was doubtless to provide a streamlined procedu re for informed and uniform regulation of California’s healthcare industry. Although we assume for th e sake of argument that the CDI may properly insert itself into this scheme, in effect regulating the healthcare industry through a31 backdoor opened by the IFPA, we find no reason to permit a jury
to do so

. Rapier cites to three IFPA cases that were tried t o juries, but none decided the jury

- trial is sue. A case is no authority for unconsidered propositions. ( In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388.) Rapier argues that the fixed minimum for an IFPA civil penalty renders the action akin to one a t law to recover a debt.
But even if this i s true, the IFPA still obligated the trial court under subdivision (c) of section 1871.7 to reduce penalties

“ appropriately” pursuant to a n equitable analysis. Thus, even if a civil penalty was in the nature of a private debt, a point we do not decide, ci vil penalties under the IFPA are ineluctably equitable. We conclude that the essential character and purpose o f the IFPA is equitable. Therefore, CDI and Rapier had no right to a jury trial. 9
2. Continuance
Tw o months before trial, CDI moved for a conti nuance on the ground that the sheer volume of documents produced would require more than two months of prepara tion. The trial court denied the request without prejudice. CDI never renewed the request. On the c ontrary, on the day of trial CDI answered re ady for trial, and when the court gave it an opportunity to address

9 The parties and amici argue at great lengt h about whether the IFPA applies to preferred provider organizations (PPOs), Employee Retirement Income Security Act (ERISA) plans, plans regulated by the Califo rnia Department of Managed Health Care, or i nsurance companies from other states. Given today’ s result we need not reach those issues.32 “ anything else ” before opening statements, CDI raised no concern
about lack of time to prepare

. By failing to seek a continuance when it had th e chance, CDI forfeits any claim of error on appeal.
F

. Costs The trial court awarded the Prime defendants $20,291.11
for enlargements and photocopies of exhibits. Rapier contends
this wa s an inappropriate item of costs, especially so with respect to copi es not used at trial. We disagree. A prevai ling party in civil litigation is entitled to recover costs incurred in the litigation “[e]xcept as otherwise expressly provided by statute

. ” (Code Civ. Proc., § 1032, subd. (b).) Code of
Civil Procedure sectio n 1033.51 sets forth specific items of costs that are allowed or prohibited. (§ 1033.5, subds. (a), (b).) The
statute also authorizes the trial court in its discretion to award or deny an item of costs not mentioned in this section. (§ 1033.5, subd. (c) (4) ; hereafter subd ivision (c)(4)

. ) All cos ts, whether expressly permitted under section 1033.5, subdivision (a) or
awarded in the trial court ’ s discreti on pursuant to subdivision (c)(4), must be “reasonably necessary to the conduct of the litigation rath er than merely convenient or beneficial to i ts preparation” (§ 1033.5, subd. (c)(2)) and “reasonable in amount” (§ 1033.5, subd. (c)(3)).
We review a tria l court ’ s cost award for abuse of discretion. ( Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332.)
T he t rial court awarded the Prime defendants cost s incurred in preparing photocopies of exhibits under subdivision (a)(13) of Code of Civil Procedure section 1 033.5 (hereafter subdivision (a)(13) ) , which allows the recovery of costs for models, enlargements, an d photocopies of exhibits “if they were33 reas onably helpful to aid the trier of fact,” even though the exhibits were not ultimately used at trial.
Our Su preme Court recently held that costs related to unused photocopies of trial exhibits and demonstrative s are not categorically recoverable under su bdivision (a)(13), but may still
be awarded in the trial court ’ s discretion pursuant to section subdivision (c )(4)

. ( Segal v. ASICS America Corp . (2022) 12 Cal.5th 651, 657.) Here, the trial court exercised its discretion under subdivision (a)(13) in det ermining that unused exhibits were reasonably helpful to aid the trier of fact. Although that
award was ultim ately mis

- categorized, the same discretion exercised under subdivision (a)(13) supported awarding the costs under subdivision (c)(4). Rapier argue s that because section 1871.7, subdivision (g)(5) of the IFPA authorizes attorney’s fees and expenses for a
de fendant in only limited circumstances

, this limitation occupies the field, and a defendant is not enti tled to costs otherwise
awardable in civil a ctions

. We disagree

. Section 1871.7, subdivision (g)(5), provides: “If the district attorney or commissioner does not proceed with the action, and the person bringing the action conducts the action, the court m ay award to the defendant its reasonable att orney’s fees and expenses if . . . the court finds that the claim of the person bringing the action was clearl y frivolous, clearly vexatious, or brought primarily for purposes of harassment.”
Because subdivision (b) of Code of Civil Procedure section
1032 grants a prevailing party the right to recover costs “ [e]xcept as otherwise expressly provided by statute, ” we must determine whether section 1871.7, subdivision (g)(5) provides an “ express ” exception. Although that section gives a prevailing defendant th e34 right to recover “ attorney’s fees and expenses” in a frivolous
action in which the commissioner has declined to intervene, the
statute makes no mention of costs awarded in other circumstances. In other words, it does not expressly disallow recovery of c osts by prevailing defendants in other circumstances ; any suggestion that prevailing defendants are prohibited from recovering their costs in other circumstances is at most implied. Accordingly, based on the pla in meaning of the words of the statutes in q uestion, we conclude subdivision (g)(5) of section
1871.7 does not provide an “ express ” exception to the gener al rule permitting a prevailing defendant to recover its costs under Code
of Civil Procedure section 1 032. (See Murillo v. Fleetwood Enterprises, Inc . (1998) 17 Cal.4th 985, 991 [statute permitting recovery of costs in some circumstances does not express disallow costs in other circumstances].) Rapier argues that because the trial court ordered an
electro nic exchange of exhibits, the award of costs for three photocopied sets of exhibits

— as exhibit lists changed

— was an abuse of discretion. We disagree. Ev en if exhibits are exchanged electronically, a trial court could reasonably conclude that photocopies of those exhibits will be necessary for tria l. The court could further reasonably conclude that costs of re

- preparing exhibits as exhibit lists change is reasonable considering the practical burdens of preparing for trial as the scope of a case changes.
G

. Requests for Judicial Notice
Plaintiffs’ requests for judicial notice of legislative materials are granted. ( Evid

. Code, § 451, subd. (a). ) Rapier’s requests for judicial notice of legislative materials are granted.35 ( Ibid .) The CDI’s request for jud icial notice of health care
materials are gr anted. (Evid. Code, § 451, subds. (c) & (h).)
DISPOSITION
The judgment and rulings on posttrial orders are a ffirmed. The Prime defendants are to recover costs on appeal.

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

B ENKE, J

. *

* Retired Associate Justice of the Court of Appeal, Fourth Appellate District, Division One, assigned by the Chief Justi ce pursuant to article VI, section 6 of the California Constitution.Filed 1/20/23 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA ex rel. MARY LYNN RAPIER et al.

, Plaintiffs and Appellants

,

v.

ENCINO HOSPITAL MEDICAL CENTER et al.,

Defendant s and Respondent s

. B 30242 6, B303196
( Los Angeles County Super. Ct. No. BC641254)

ORDER MODIFYING OPINION AND DENYING REHEARING

, CERTIFYING OPINION FOR PUBLICATION

[ NO C HANGE IN JUDGMENT]

THE COURT: It is ordered that the opinion filed herein on December 21,
2022 , be modified as follows:

1. On page 2, in t he first sentence in the opening paragraph,
“Fraud” is changed to “ Frauds

. ”
2. On page 2, last line, the sentence “ We affirm the judgment” is changed to “ We affirm the judgment and postjudgment
order.”
3. On page 4, f ootnote 2 is moved to the end of the f irst
sentence in the opening paragraph on page 2.
4. On page 3, “Ins. Code,” is deleted from the statutory reference in the last paragraph.2 5. On page 4, “Ins. Code,” is deleted from the statutory reference in the first paragraph.
6. On page 15, the word “ appeals” in the last line is changed to “appeal.”
7. On page 19, in the first line of the penultimate paragraph, the word “a” is inserted before “health facility.”
8. On page 22, in the penultimate sentence, “fails for lack of a predicate” is changed to “f ails for lack of any predicate false
claim.”
9. On page 28, at the end of the second full paragraph, in the
bracketed text for the citation to Lutz v. Glendale Union High School (9th Cir. 2005) 403 F.3d 1061, 1067

- 1068, the
third use of “relief” is delete d.
10. On page 31, in the last sentence of the antepenultimate paragraph, “e ven if a civil penalty was in the nature of a private debt ” is changed to “ even if a civil penalty is in the nature of a private debt .”

11. On page 34, in the bracketed phrase at t he end of the first paragraph, “express” is changed to “expressly.”
12. On page 35, first line, “The CDI’s request” is changed to “The CDI’s requests.”
13. On page 35, i n the Disposition, the phrase “ rulings on posttrial orders ” is changed to “postjudgment order.”

Th ese modification s effect no change in the judgment.

Relator’s petition for rehearing is denied.

The opinion in the above

- entitled matter filed on December 21, 2022, was not certified for publication in the Official Reports.3 For good cause it now appears that the opinion should be published in the Official Reports and it is so ordered.

____________________________________________________________ ROTHSCHILD, P. J. CHANEY, J. BENKE, J. *

* Retired Associate Justic e of the Court of Appeal, Fourth Appellate District, Division One, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.