Case Number: EC059789??? Hearing Date: June 17, 2016??? Dept: NCD
DEPARTMENT NCD-LAW AND MOTION RULINGS
Case Number: EC059789 Hearing Date: June 17, 2016 Dept: NCD
TENTATIVE RULING
DEMURRER
MOTION TO STRIKE
Calendar: 3
Date: 6/17/16
Case No: EC 059789
Case Name: Hicks v. Glendale Adventist Medical Center, et al.
Moving Party: Defendant Estilita B. Calica M.D. (?Dr. Calica?) (Demurrer)
Defendant Glendale Adventist Medical Center (?Glendale Medical?) (Motion to Strike)
Responding Party: Plaintiff Debra Lynn Hicks
RELIEF REQUESTED:
Sustain demurrer to second and fourth causes of action of Second Amended Complaint
Strike second cause of action from Second Amended Complaint as it pertains to defendant Glendale Adventist Medical Center
RULING:
There is no meet and confer declaration submitted with this demurrer, as required under CCP ? 430.41. The parties are ordered to the attorney conference room to engage in the required meet and confer.
Glendale Medical?s Request for Judicial Notice is GRANTED.
Pursuant to the Court?s Order of February 22, 2016, the Court granted plaintiff leave to file a Second Amended Complaint. The court has reviewed the opinion filed by the Court of Appeal in this action, and the directions to the trial court, and enters the following order:
The trial court?s order of July 17, 2013 is vacated and the court enters a new order pursuant to the Court of Appeal?s Opinion filed October 19, 2015 (?the Opinion?) on the demurrers previously filed by defendants. The demurrers to the first cause of action (violation of statutory duties) are overruled as to both defendants. The demurrers to the second cause of action (violation of statutory duties) are sustained without leave to amend as to both defendants. The demurrer to the fourth cause of action (intentional infliction of emotional distress) is overruled as to defendant Glendale Medical. The demurrer to the fourth cause of action (intentional infliction of emotional distress) is sustained without leave to amend as to defendant Dr. Calica. Demurrers to the fifth cause of action (negligence) are overruled as to both defendants. Hence, the First Amended Complaint would be the operative pleading, if this Court is correct in interpreting the Court of Appeal?s opinion in light of the reversal of the trial court?s dismissal order of July 17, 2013.
This order reflects this Court?s belief that the Court of Appeals disposition of Plaintiff?s Appeal was to sustain the demurrers to the Second Cause of Action as to both defendants for violation of Federal Civil Rights without leave to amend. The Court bases this conclusion on the Court of Appeals request of August 12, 2015 asking the parties for extensive additional briefing on the issue of whether a private doctor and a private hospital are acting under color of state law when they involuntarily committed the plaintiff to a hold under the Lanterman Petris Short Act (?LPS Act?). The Court of Appeal explicitly rejected all the plaintiff?s arguments that the private physician, Dr. Calica, and the private hospital, Glendale Medical, were acting under color of state law when they committed plaintiff to an involuntary detention under the LPS Act. See Opinion pages 9-17. However, at page 11 of the Opinion, the Court of Appeal states that: ?Plaintiff has not adequately pled that defendants were State Actors?, which language in conjunction with the disposition of the case upon remand at page 19 creates an ambiguity by the language that the demurrers are ?sustained? as to the Second Cause of Action for federal civil rights violations, but with no ?without leave to amend? language. Hence, the Court will allow the filing of the Second Amended Complaint and enters the following orders:
Defendant Dr. Calica?s Demurrer to the Second Amended Complaint is SUSTAINED without Leave to Amend as to the Second and Fourth Causes of action.
Defendant Glendale Medical?s Motion to Strike the Second Cause of Action for federal civil rights violations is SUSTAINED without Leave to Amend.
The new allegations of the Second Amended Complaint contained in ?? 25-30 are insufficient to establish that Defendants Dr. Calica and Glendale Medical acted under color of state law. Under any of the tests the courts use to convert a ?private actor? into a ?state actor? the facts alleged are not sufficient as a matter of law because the case law is clear but when a private doctor and/or a private hospital commits a person to involuntary detention under the LPS Act, they are not acting under ?color of state law?.
The mere fact that Los Angeles County ?licensed? Dr. Calica and the Glendale Medical Center to involuntarily commit plaintiff pursuant to the LPS Act and state and/or county regulators relating thereto do not convert these private actors into state actors.
The U.S. Supreme Court in Lugar v. Edmondson Oil Co. Inc. (1982) 457 U.S. 922. 937 defined how a private actor could be designated a state actor. Plaintiff?s allegations do not satisfy the five different possible tests the courts use to convert a private actor into a state actor. Plaintiff?s allegations fail to meet all of the following tests:
(a) Nexus Test: See Wittner v. Banner Health (10th Cir.2013) 720 F3d 770 [psychiatric hold by private hospital and private doctor does not result in state actors]
Jackson v. East Bay Hospital 980 F. Supp. 1341, 1657 (N.D. CA 1977) [LPS Act hold alone does not establish state action]
(b) Public Function Test: See Spencer v. Lee 864 F.2d 1376, 1377
Harvey v. Harvey 949 F.2d 1127, 1130-31 (11th Cir 1992) [involuntary commitment in private hospital is not state action]
Blum v. Yaretsky 457 U.S. 991, 108 (1982) [medical decisions by private parties are not state actions]
(c) Joint Action Test: Gorenc v. Salt River Project Agric. Improvement and Power District
869 F.2d 503, 507 (9th Cir. 1989) [No state liability when no joint action between private and state actors]
(d) Symbiotic Relationship Test: Estades ? Negroni v. CPC Hospital San Juan Capistrano
412 F.3 1, 20 (1ST Cir 2005) [involuntary commitment by private hospital does not amount to state action because commitment is not attributable to the state]
(e) Government Compulsion or Coercison Test
Blum v. Yaretsky 457 U.S. 991 (1982) [state is not liable for medical decisions by
private actors when no state involvement]
The Court of Appeal discussed all these tests pursuant to the supplemental ?letter briefing? it requested in its August 12, 2015 letter to the parties. Paragraphs 25 to 30 of the Second Amended Complaint merely states that Glendale Medical Center was approved by the County of Los Angeles to accept individuals who are brought to the hospital pursuant to the LPS Act. Glendale Medical employs no county personnel, LPS Act detentions are not commonly done by the state or county, neither the state nor county are otherwise involved with Glendale Medical in processing LPS Act patients, nor are the county or the state customarily actively involved in processing LPS Act patients, nor are the county or the state forcing or coercing Glendale Medical into performing LPS Act medical detentions or treatments.
In short, Plaintiff?s conclusory allegations and ?thin allegations? that because Glendale Medical and Dr. Calica are subject to a licensing type procedure to accept LPS Act Patients, or that these defendants would have to comply with the ?the law? as is relates to implementing a LPS Act procedure, does not convert them from private to state actors.
CAUSES OF ACTION: from Second Amended Complaint
1) Violation of Statutory Duties Under the Lanterman Petris Short Act
2) Violation of Federal Civil Rights
3) Assault and Battery
4) IIED
5) Negligence
SUMMARY OF FACTS:
Plaintiff Debra Hicks alleges that after unintentionally taking too much pain medication, plaintiff was taken by ambulance to defendant Glendale Adventist Medical Center, where she was admitted to the emergency room, and later discharged without instructions. Plaintiff alleges that the emergency room physician had instructed plaintiff that, due to hospital policy applied to people arriving with a drug overdose, she was required to remain in the hospital and be interviewed by a psychiatrist. Plaintiff alleges that, although she expressed a desire to go home, and because no hospital records reflect compliance with statutes concerning a Welfare & Institutions Code Section 5150 72-hour hold, she was wrongly detained involuntarily.
Plaintiff also alleges that hospital records reflect that defendant Dr. Calica, a psychiatrist, consulted with plaintiff on the premise that plaintiff was on a 5150 hold, and decided to end the hold, when in fact there was no lawful 5150 hold on plaintiff because the requirements of the LPS Act had not been followed. The hospital notes show that, after Dr. Calica had left the hospital unit, a friend of plaintiff?s called and reported concern about plaintiff going home because she had tried to commit suicide the day before, and also referenced a letter plaintiff had written to a friend. The hospital notes state that the 72-hour hold was resumed. Plaintiff was angry and ran out of the hospital and was brought back by the Glendale Police and hospital security guards and was transferred to the psychiatric unit by Dr. Calica?s orders.
Plaintiff alleges that she was then wrongfully retained from September 20, 2011 through September 26, 2011, and was released only after she filed a writ of habeas corpus. Dr. Calica allegedly agreed thereafter to release plaintiff if she withdrew the writ hearing. Plaintiff alleges that during her retention she was placed in restrains, forcibly subjected to the use of strong anti-psychotic medications and placed in seclusion, none of which, according to her complaint, was not warranted by the facts or law. Plaintiff also alleges that during her retention individuals in hospital uniforms engaged in conduct toward plaintiff including removing her brassiere and touching her breasts and removing her pants to inject her with drugs against her will. She claims that when she protested, hospital personnel laughed at her, touched her vagina, and forcibly moved her about when she was scared and intimidated and harassed her when she indicated fear. Plaintiff further alleges that during her retention she was not allowed to use the bathroom, so that she unwillingly urinated in her bed, and was unnecessarily denied food and water.
The file shows that on July 17, 2013, the court, Judge Goldstein presiding, heard demurrers and motions to strike as to the First Amended Complaint filed by the moving defendants, Glendale Medical and Dr. Calica. The demurrers were sustained as to all causes of action. The demurrers were sustained without leave to amend in light of the failure of plaintiff to appropriately amend the pleading after previous demurrers had been sustained on the same grounds on August 24, 2013 (evidently, the minute order should have stated ?April? 24, 2013).
Plaintiff appealed the resulting judgments of dismissal.
On October 19, 2015, the Second District filed its Opinion in the matter, stating at page 19 that the demurrers should have been overruled as to the causes of action for (1) violations of statutory duties (?5150 et seq.) as to both defendants, (2) intentional infliction of emotional distress as to the hospital only, and (3) negligence as to both defendants,? but (4) sustaining the demurrers as to violations of federal civil rights.
Remittitur was received by the superior court on January 6, 2016.
On February 22, 2016, the court, Judge Hofer presiding, conducted a status conference and granted plaintiff?s request for leave to file a Second Amended Complaint. The court order states, ?Court directs counsel to meet and confer pursuant to the court rules prior to the filing of the Second Amended Complaint.?
Defendant Dr. Calica demurs to the Second Amended Complaint, and defendant Glendale Medical moves to strike the second cause of action.
ANALYSIS:
Procedural
No Meet and Confer
The demurrer was improperly filed without the moving party first meeting and conferring. The demurrer was filed and served after January 1, 2016, the effective date of CCP ? 430.41, which requires that before filing a demurrer, the demurring party must meet and confer:
?(a) Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.
(1) As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.
(2) The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.
(3) The demurring party shall file and serve with the demurrer a declaration stating either of the following:
(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer.
(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.
(4) Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.?
Although the opposition indicates that the parties met and conferred before the Second Amended Complaint was filed, pursuant to the court?s order, as mentioned above, there is no meet and confer declaration submitted with the demurrer showing a meet and confer before the demurrer was filed with the proper showing for the court. This seems particularly annoying, as the opposition concedes that the fourth cause of action against Dr. Calica was reasserted in error, making the demurrer on this point a waste of time.
Substantive
Second Cause of Action?Violation of Federal Civil Rights– Demurrer of Dr. Calica and Motion to Strike of Glendale Medical
Defendants both argue that plaintiff has improperly reasserted this cause of action after the Court of Appeal conducted a detailed legal analysis and determined that the trial court had previously properly sustained the demurrer to this cause of action, apparently without leave to amend, on the ground that defendants do not qualify as state actors under applicable law.
The Court of Appeal Opinion does set forth a very detailed analysis of the issue, as considered by federal courts, and decisions holding that ?private doctors and hospitals are not ?state actors? when they involuntarily commit individuals to psychiatric facilities under state laws that permit such commitments?. Here, the decisions of the federal appellate courts on the federal statutory question before us are both numerous and consistent, and they thus provide a solid foundation for our conclusion that, based on the allegations of the FAC, neither the Hospital nor Dr. Calica was a state actor.? [Opinion, p. 14].
The Court of Appeal then in some detail explained why the federal authorities cited by plaintiff were inapposite, and how California law is not meaningfully different than the laws of the states addressed in the federal cases relied upon by the Court of Appeal, and concluded: ?the FAC did not plead that the Hospital and Dr. Calica were state actors. The trial court did not err in sustaining the demurrer to the second cause of action for federal civil rights violations.? [Opinion, p. 17].
The Disposition in the Opinion at page 19 states:
?The judgments are reversed. The cause is remanded to the superior court with directions to vacate its orders sustaining the defendant?s demurrers without leave to amend and to enter a new order (1) overruling the demurrers to the first cause of action (violation of statutory duties) as to both defendants, (2) sustaining the demurrers to the second cause of action (violation of federal civil rights) as to both defendants, (3) overruling the demurrer to the fourth cause of action (intentional infliction of emotional distress) as to the Hospital, and sustaining it to Dr. Calica, and (4) overruling the demurrers to the fifth cause of action (negligence) as to both defendants.?
The opposition argues that the amended pleading addresses all of the points in the appellate opinion and argues that the claim should be allowed to proceed. There is no legal authority cited or argument made by either party as to why this court should interpret the conclusion that the trial court had not erred in its ruling on the previous demurrers as to the second cause of action as its ruling per se sustaining the demurrer without leave to amend, should not be reinstated by this court as per the Opinion. There is no explanation why, if plaintiff intended to, and did, challenge the portion of the ruling on the demurrer which denied leave to amend, this issue was not discussed in the appellate opinion, when such opinions in other cases have directly discussed whether, although a demurrer was properly sustained, the trial court should have permitted leave to amend. The problem with the Opinion is that on page 11 the Court of Appeal states ?plaintiff has not adequately pled that defendants were state actors,? and then in its case disposition at page 19 the Court of Appeal fails to state that the previously filed demurrers are sustained ?without leave to amend?, as the trial court had ordered. This apparent contradiction creates an ambiguity as to the disposition by this Court of the second cause of action.
It appears that one option to obtain clarification would be for one of the parties to seek a rehearing under CRC Rule 8.268(a)(1). According to the California Practice Guide, Civil Appeals and Writs, the Rutter Group, Eisenberg, Horvitz and Wiener, ?A rehearing may be granted to clarify or alter imperfect or impractical directions to the trial court contained in the dispositive portion of the appellate court?s opinion. [Kenney v. Kenney (1954) 128 Cal.App.2d 128, 133?(disapproved on other grounds in See v. See….Ducoing Mgmt. Inc. v. Superior Court?(2015) 234 Cal.App.4th 306, 314?].? [Section 12.21]
The problem here is that a petition for rehearing must be served and filed in the Court of Appeal within 15 days after the decision was filed with the appellate court clerk, and, although the court can grant an extension of time for such a filing, it cannot grant a rehearing after the opinion becomes final as to that court, in effect, within thirty days after the decision is filed. See Civil Appeals and Writs, at 12:52-12:53, citing CRC Rule 8.268(b) and (c). Here, the decision was filed on October 19, 2015, so has long ago become final.
The other option seems to be for this Court to enter a ruling denying the filing of the Second Amended Complaintt because the demurrer was sustained without leave to amend as per this Court?s interpretation of the Opinion, and permit the parties to pursue a petition for writ of prohibition or writ of mandate challenging this Court?s interpretation of the Opinion. According to Civil Appeals and Writs:
?Reversal with directions: When an appellate court?s reversal is accompanied by directions requiring specific proceedings on remand, those directions are binding on the trial court and must be followed. Any material variance from the directions is unauthorized and void. [Hampton v. Super.Ct. (1952) 38 Cal.2d 652, 655-656?; Ayad v. Sprint Spectrum, L.P. (2012) 210 CA.4th 851, 859-863?; Karlsen v. Superior Ct. (Cannonball Acquisitions) (2006) 139 CA4th 1526, 1530?.].
(1) [14.150] Remedy for trial court variance: A failure to follow appellate direction can be challenged on appeal from the subsequent judgment or order. It can also be challenged by immediate petition for writ of prohibition (to restrain variance from the directions) (Hampton v. Super.Ct., supra 38 Ca2d at 656?) or writ of mandate (to compel compliance with the directions) (Karlsen v. Super Ct. (Cannonball Acquisitions), supra, 139 CA4th at 1529?)[See Butler v. Super.Ct. (Terry) (2002) 104 CA4th 979, 982.?
Civil Appeals and Writs, at 14:149- 14:150 (italics in original).
The court will not place the burden on the parties to seek clarification from the Court of Appeal before the court makes a decision, and instead will issue its ruling in the alternative allowing the plaintiff to elect whether it wants to file a writ with the Court of Appeal to seek clarification of the Opinion.
The pleading now adds allegations that defendants qualify as state actors because they made application to, and were approved by, the County of Los Angeles, to accept patients brought to the hospital pursuant to the LPS Act and, on the part of Dr. Calica, to be a Designated Individual with the power to determine whether an individual could be involuntarily detained. [Paras. 28, 29].
Dr. Calista argues that the second cause of action is defective as it fails to allege any specific act or omission of Dr. Calica which allegedly violated plaintiff?s rights, but this argument becomes moot in light of this Court?s ultimate decision in this case.
The Court of Appeal in its Opinion, however, noted: ?The parties agree that an individual?s wrongful confinement in a psychiatric hospital constitutes a deprivation of liberty that may support a section 1983 claim. See Zinerman v. Burch (1990) 494 U.S. 113, 131.? [Opinion, p. 10]. It appears that the only defect the Court of Appeal found in the FAC was that it failed to sufficiently allege that defendants qualified as ?state actors? for purposes of supporting a federal civil rights violation claim. [Opinion, p. 10]. Dr. Calista does not address this argument, but Glendale Medical addresses the merits of these issues in its Reply Memorandum
Glendale Medical, in its Reply, does address the merits of whether the new allegations are sufficient, and what the law of the case is now in light of the Court of Appeal Opinion.
The ambiguity of the Court of Appeals decision places this court in the difficult position.
If this Court determines that, on remand, plaintiff is permitted to amend this cause of action, certain consequences follow. If this Court determines that the amendment makes this proceeding now distinct from the allegations and arguments considered by the Court of Appeal and now found the claim sufficient without the benefit of argument from the party against whom the claim would reinstated. Hence, this Court will issue its ruling in the alternative, and will consider the merits of the Second Amended Complaint.
However, a reading of the Court of Appeal discussion of the issue suggests that the new allegations are not sufficient to overcome the factual premise here that, although licensed by a public agency to operate as actors under the statute, defendants remain a private hospital and private physician, and their conduct cannot as a matter of law under the authorities cited by the Court of Appeal be considered state action sufficient to support a claim for a violation of plaintiff?s federal civil rights. The demurrer accordingly will be sustained without leave to amend on the merits of the Second Amended Complaint. The Motion to Strike will be granted as well on its merits.
Fourth Cause of Action?IIED– Demurrer of Dr. Calica
The opposition apologizes for not removing Dr. Calica from this cause of action and ?acknowledges that the Court of Appeals [sic] excluded her?? The demurrer should accordingly be sustained without leave to amend as to Dr. Calica relating to the Fourth Cause of Action.