Motion for Judgment on the Pleadings (Judge Deborah C. Servino)

Defendants Covenant Care California, LLC and Robert Do’s (“Defendants”) motion for judgment on the pleadings as to the Complaint of Plaintiffs Michael Decoud, deceased, by his successor in interest Teri Heard and Teri Heard, individually, is denied.

A motion for judgment on the pleadings may be made, and granted, on the same grounds as a general demurrer.  (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650; Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).)  As in with a demurrer, the grounds for judgment on the pleadings must appear on the face of the complaint or be based on facts that the court may judicially notice.  (Code Civ. Proc., § 438, subd. (d); see, Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1063 [subject to certain exceptions, extrinsic evidence should not be considered in a motion for judgment on the pleadings].)

Defendants argue that they are immune from liability under the Public Readiness and Emergency Preparedness Act (“PREP Act”).  (Mot., at pp. 13-21.) Defendants also argue that Plaintiffs’ willful misconduct allegations must be dismissed as Plaintiffs have not complied with the PREP Act.  (Mot., at pp. 21-23.)  “Congress enacted the PREP Act in 2005 ‘[t]o encourage the expeditious development and deployment of medical countermeasures during a public health emergency’ by allowing the HHS Secretary ‘to limit legal liability for losses relating to the administration of medical countermeasures such as diagnostics, treatments, and vaccines.’”  (Cannon v. Watermark Retirement Communities, Inc. (D.C. Cir., Aug. 5, 2022, Nos. 21-7607 and 21-7096) __ F.4th __, __ [2022 WL 3130653 at p. *1].)  The PREP Act provides that “a covered person shall be immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure . . . .” (42 U.S.C. § 247d-6d(a)(1).)  The immunity is triggered by a declaration by the HHs Secretary identifying the threat to public health, the period during which immunity is in effect, and other particulars.  (42 U.S.C. § 247d-6d(b); see Magioli v. Alliance HC Holdings (3d Cir. 2021) 16 F.4th 393, 401.)   Both “covered countermeasure” and “covered person” are terms defined in the PREP Act. (42 U.S.C. § 247d-6d(i)(1)–(2).)

The PREP Act also includes one exception to its grant of immunity for covered countermeasures administered by covered persons.  (Cannon v. Watermark Retirement Communities, Inc., supra, __ F.4th at p. __ [2022 WL 3130653 at p. *2].)  42 U.S.C. section 247d-6d(d)(1) provides that “the sole exception to the immunity from suit and liability of covered persons . . . shall be for an exclusive Federal cause of action against a covered person for death or serious physical injury proximately caused by willful misconduct . . . by such covered person.”  Such an action “shall be filed and maintained only in the United States District Court for the District of Columbia.”  (24 U.S.C. § 247d-6d(e)(1).) The term “willful misconduct” is defined in the Act. (42 U.S.C. § 247d-6d(c)(1)(A).) An individual may not bring a suit under 42 U.S.C. § 247d-6d(d)(1) unless the individual has exhausted the remedies available under 42 U.S.C. § 247d-6e(a), the Covered Countermeasure Process Fund. (42 U.S.C. § 247d-6e(d)(1).)

In March 2020, the HHS Secretary issued a declaration under the PREP Act “to provide liability immunity for activities related to medical countermeasures against COVID-19.” (Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15,198, 15,198 (Mar. 17, 2020).) The declaration provided immunity for covered persons for the use of covered measures, including “any antiviral, any other drug, any biologic, any diagnostic, any other device, or any vaccine, used to treat, diagnose, cure, prevent, or mitigate COVID-19 ….” (Ibid. at 15,202.) The HHS Secretary has issued subsequent amended declarations throughout the pandemic. (See Seventh Amendment to Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 86 Fed. Reg. 14,462 (Mar. 16, 2021).)

For purposes of the instant motion for judgment on the pleadings, the court must assess whether Plaintiffs’ claims allege conduct covered by the PREP Act.  Defendants rely on vague references to COVID-19 to support their contention that Plaintiffs’ “claims involve at least three covered countermeasures that invoke PREP Act immunity: (i) personal protective equipment; (ii) diagnostic devices; and (iii) infection control program.”  (Mot., at p. 18 [emphasis in original].)  Defendants contention relies on the following references and language in Plaintiffs’ Complaint: (1) the decedent was of fragile health, and that as a result of his physical and mental condition, he was dependent on others for his activities of daily living (Complaint, at ¶ 41); (2) decedent was more susceptible to respiratory infection/syndrome due to his age and medical conditions (Complaint, at ¶ 43); (3) Defendants failed to properly assess to gather information to make decisions about suitable interventions to avoid individualized health risks (Complaint, at ¶ 42); (4) Defendant Covenant Care California LLC DBA St. Edna Sub-Acute and Rehabilitation Center (“St. Edna”) failed to provide adequate care to decedent and failed to effectively develop, implement, and modify care plans for decedent’s individualized care needs (Complaint, at ¶¶ 44, 61-64); (5) sometime during the early spring of 2020, St. Edna no longer allowed visitors in the facility (Complaint, at ¶ 46); (6) around May of 2020, it was reported that approximately 16 cases of COVID-19 have been confirmed at St. Edna and St. Edna employees began to fail to show up for work (Complaint, at ¶ 47); (7) St. Edna failed to provide required care to its facility’s residents and placed them in harm’s way (Complaint, at ¶¶ 47, 64); (8) decedent tested positive for COVID-19 and was transported to Garden Grove Hospital due to pneumonia (Complaint, at ¶¶ 48-49); (9) decedent’s health continued to decline over the next few days, and he could not recover from his extreme respiratory infection/syndrome and other injuries and died (Complaint, at ¶¶ 50-51); (10) as a result of Defendants’ alleged misconduct, decedent suffered injuries and death (Complaint, at ¶¶ 73-75, 85, 88-90); (11) all Defendants jointly engaged in abuse and neglect of decedent by operating the facility business in an unlawful manner to maximize profits at the expense of providing appropriate care to its residents including decedent (Complaint, at ¶¶ 64-73); and (12) Defendants were “guilty of recklessness, fraud, oppression, and/or malice” (Complaint, at ¶ 76).  Defendants interpret this language to assert that Plaintiffs’ claims are based on Defendants use or nonuse of covered countermeasures and therefore covered by the PREP Act.  (See Mot., at pp. 10-11, 18-21.)

But there is no reference in Plaintiffs’ Complaint to PPE, diagnostic devices, or infection control programs.  Rather, Plaintiffs allege a lack of care and failing to meet Decoud’s needs generally, including having LVNs instead of RNs inadequately assessing and caring for decedent and being understaffed.  Beyond stray allegations referring to COVID-19 (see Complaint, at ¶¶ 46-48), the Complaint primarily focuses on Defendants alleged failure to: provide the decedent with the care and treatment he needed; ensure adequate nutritional and fluid intake; promote and maintain personal hygiene; monitor and manage his pain levels; and monitor, assess, and reassess decedent’s deteriorating condition and to report his changes of condition to his physician and/or family to arrange for higher level of care.  Defendants failed to implement care plans with adequate monitoring of decedent’s intake and output and thus repeatedly withheld care.  (See, e.g., Complaint, at ¶ 63.)

The parties have cited to no binding California authority on this issue.  And, this court has found no binding authority.  However, a growing number of federal courts have declined to extend PREP Act immunity in cases that far more directly implicate COVID-19 than Plaintiffs’ claims do here.  Even in cases in which the plaintiffs have brought state-law claims for failure to protect against COVID-19, there is growing consensus among federal courts that these claims are still “not properly characterized as federal law claims under the PREP Act.”  (See Dupervil v. Alliance Health Operations, LLC (E.D.N.Y. 2021) 516 F.Supp.3d 238, 255 [collecting cases]; Lyons v. Cucumber Holdings, LLC (C.D. Cal. 2021) 520 F.Supp.3d 1277, 1285-1286 [PREP Act inapplicable to the plaintiff’s claim of inaction].  One court explained: “the plaintiffs’ allegations did not fall within the scope of the PREP Act because the PREP Act was designed to address claims arising from the administration or use of covered countermeasures, rather than claims alleging a failure to act in the face of the threat of COVID-19 altogether.”  (Saunders v. Big Blue Healthcare, Inc. (D. Kan. 2021) 522 F.Supp.3d 946, 960–961.)

In this case, Plaintiffs’ Complaint does not on its face allege claims arising out of Defendants’ use or purposeful non-use based on allocation decisions of covered countermeasures under the PREP Act. As alleged, Plaintiffs’ claims do not implicate covered countermeasures or the immunity afforded under the PREP Act.  Accordingly, the motion for judgment on the pleadings is denied.

Plaintiffs shall give notice of the ruling.