Filed 11/17/20 Jarman v. HCR Manorcare CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

JANICE JARMAN, as Successor in 

Interest, etc.,

 Plaintiff and Appellant,

v.

HCR MANORCARE, INC., et al.,

 Defendants and Appellants.

 G051086

 (Super. Ct. No. RIC10007764)

 O P I N I O N

Appeals from a judgment of the Superior Court of Riverside County, Mac 

R. Fisher and Phrasel L. Shelton (retired judge of the Riverside Super.Ct. assigned by the 

Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Judges. Remanded with 

directions.

Lanzone Morgan, Anthony C. Lanzone, Steffi A. Jose, Anna H. Cronk,

Travis K. Siegel; Downey Brand and Jay-Allen Eisen for Plaintiff and Appellant.

Petrullo, John Patrick Petrullo, Isaiah Costas; Manatt, Phelps and Phillips, 

Barry S. Landsburg and Joanna S. McCallum for Defendants and Appellants.

* * *
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John Jarman (and later his daughter, Janice Jarman, as successor in interest) 

(Jarman) sued HCR ManorCare, Inc. and Manor Care of Hemet, CA, LLC (ManorCare),

the owners and operators of a nursing home, for violations of Health and Safety Code 

section 1430 (section 1430), elder abuse, and negligence.

The jury returned a special verdict finding ManorCare committed 382 

violations of Jarman’s rights based on the care he received, and that its conduct was 

negligent. The jury awarded Jarman $95,500 in statutory damage ($250 per violation 

pursuant to section 1430) plus $100,000 in damages for the negligence. The jury also 

made a finding that ManorCare had acted with malice, oppression or fraud. The trial 

court later granted ManorCare’s motion to strike the punitive damage claim. The total 

judgment in favor of Jarman was for $195,500 plus $368,755 in attorney fees.

As relevant here, in his appeal to this court (Jarman v. HCR ManorCare, 

Inc. (2017) 9 Cal.App.5th 807, 816-817, rev’d. by Jarman v. HCR ManorCare, Inc. 

(2020) 10 Cal.5th 375, 380),

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Jarman argued the order striking punitive damages should 

be reversed. ManorCare also appealed, arguing that allowing the jury to award separate 

statutory damages for each violation of section 1430 was improper. We agreed with 

Jarman and disagreed with ManorCare. ManorCare sought review in the California 

Supreme Court, which was granted.

On August 17, 2020, the Supreme Court issued an opinion reversing this 

court’s judgment and remanded the matter to this court for further proceedings consistent 

with its opinion. (Jarman v. HCR ManorCare, Inc., supra, 10 Cal.5th 375.) In its 

opinion, the Court addressed the section 1430 issue and determined the statutory cap of 

$500 applies per action, not per violation. (Ibid.) The Supreme Court did not reach the 

issue of punitive damages. (Id. at p. 393, fn. 8.)

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In the interests of simplicity and readability, for the remainder of this opinion, we cite to 

our original opinion without noting the Supreme Court’s reversal.
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The Supreme Court’s remittitur to this court was issued on September 21, 

2020. Pursuant to California Rules of Court, rule 8.200(b)(2), either party was permitted

to submit a supplemental brief “limited to matters arising after the previous Court of 

Appeal decision.” We have received and reviewed the briefs from both parties.

ManorCare argues in its brief (as it did in a motion to stay issuance of the 

remittitur) that this court should decide the issue of whether punitive damages are 

available under section 1430. The Supreme Court, as noted above, expressly declined to 

reach the issue of punitive damages. The Court stated, “We do not reach the question 

[of] whether Jarman is entitled to punitive damages.” (Jarman v. HCR ManorCare, Inc.,

supra, 10 Cal.5th at p. 393, fn. 8.) Its decision is therefore only relevant to the amount of 

punitive damages that may be awarded, not the availability of punitive damages.

ManorCare states we should decide this issue and claims that the original 

appeal did not encompass it. We disagree. The issue of punitive damages was 

extensively briefed in the original appeal; indeed, it was the central focus of ManorCare’s 

responsive brief.

In our original opinion, we stated ManorCare’s argument that the special 

verdict did not include findings on any cause of action that would support punitive 

damages “assumes punitive damages are not available on a cause of action alleging 

violations of section 1430, subdivision (b), because ‘[w]here a statute creates new rights 

and obligations not previously existing in the common law, the express statutory remedy 

is deemed to be the exclusive remedy available for statutory violations, unless it is 

inadequate.’ [Citation.] However, we disagree for two reasons.” (Jarman v. HCR 

ManorCare, Inc., supra, 9 Cal.App.5th at pp. 816-817.)

The next four paragraphs of our opinion explain that reasoning. (Jarman v. 

HCR ManorCare, Inc., supra, 9 Cal.App.5th at pp. 817-818.) Accordingly, we reject 

ManorCare’s argument that this issue has not previously been considered. It has. Our 
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opinion’s disposition stated: “[T]he case is remanded to the trial court with directions to 

conduct further proceedings to establish the amount of punitive damages Jarman is 

entitled to recover as a result of ManorCare’s 382 violations of his rights.” (Id. at 

p. 832.) This was not altered by the Supreme Court’s decision, we see no reason to 

revisit it. Therefore, we deny ManorCare’s motion.2The trial court may consider any 

issue relevant to the proper amount of punitive damages on remand.

ManorCare also requests we vacate the original attorney fee award and 

direct the trial court to reconsider it. As noted, the trial court awarded Jarman fees and 

costs totaling $368,755. (Jarman v. HCR ManorCare, Inc., supra, 9 Cal.App.5th at p. 

810.) ManorCare argues that given the Supreme Court’s decision, which reduces the 

amount of damages, it is appropriate for the trial court to reconsider the attorney fee 

award, citing Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC (2013) 

221 Cal.App.4th 102, and Lemaire v. Covenant Care California, LLC (2015) 234 

Cal.App.4th 860.

We agree with ManorCare that it is reasonable for the trial court to take a 

second look at attorney fees and costs in light of the entirety of the circumstances, and we 

reject Jarman’s argument to the contrary. We do not suggest, however, that a reduction 

or an increase in the attorney fee award is required. We direct only that the trial court 

exercise its discretion and reconsider the issue.

2 ManorCare requests judicial notice of various legislative history and administrative 

materials relating to this issue. Jarman requests judicial notice of several briefs the 

parties filed in the Supreme Court. None of these documents are relevant to this opinion. 

Because matters to be judicially noticed must be relevant to a material issue (People ex 

rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422-423, fn. 2), the requests 

are denied.
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Accordingly, ManorCare’s motion for this court to decide (or reconsider)

the availability of punitive damages under section 1430 is denied. The motion to vacate

the original attorney fee and costs award is granted.

On remand, the trial court is directed to consider the appropriate amount of

punitive damages in accordance with our original opinion. (Jarman v. HCR ManorCare, 

Inc., supra, 9 Cal.App.5th 807.) The trial court shall also reconsider the amount of 

attorney fees and costs.

Because neither the Supreme Court’s decision nor our decision finally 

resolves the case, we do not award costs now. On remand, the trial court has discretion to 

award the costs of this appellate proceeding.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.