Judge Armen Tamzarian, Case 23STCV05027 2023-05-18 Tentative Ruling

Judge: Armen Tamzarian, Case: 23STCV05027, Date: 2023-05-18 Tentative Ruling

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Case Number: 23STCV05027 Hearing Date: May 18, 2023 Dept: 52

Defendant Inland Empire Health Plan’s Motion to Transfer Venue to the San Bernardino Superior Court

Defendant Inland Empire Health Plan moves to transfer venue to the Superior Court in the County of San Bernardino, or in the alternative, the County of Riverside.

The court denies this motion for three reasons. First, defendant does not meet the requirements for renewing a motion. “A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (CCP § 1008(b).)

This is a renewed motion. Defendant moved to transfer venue from the initial court, the Orange County Superior Court, to San Bernardino County. On January 14, 2023, Judge Salter of that court issued an order stating: “Both sides agree that venue is improper in Orange County. The dispute is over where to send it.” (Opp. RJN, Ex. B.) Judge Salter rejected defendant’s argument for transferring the action to San Bernardino County and sided with plaintiff in transferring the matter here. (Ibid.)

Defendant makes no attempt to show new or different facts, circumstances, or law that warrant changing Judge Salter’s order. The court cannot reconsider a prior order without such a showing. In substance, defendant simply argues Judge Salter’s ruling was incorrect.

Second, this court may not have the power to reconsider Judge Salter’s order. “Generally, one trial court judge may not reconsider and overrule an interim ruling of another trial judge.” (In re Marriage of Oliverez (2015) 238 Cal.App.4th 1242, 1248.)

Third, the court denies this motion on the merits for the same reasons Judge Salter stated. In an action “against a county, city, or local agency,” a defendant may move to transfer the action to a county “other than that in which the plaintiff … resides” and other than the defendant’s county of residence. (CCP § 394(a).) That subdivision provides an exception for actions “for injury …. caused by the negligence or alleged negligence” of the agency. (Ibid.) This action does not allege negligence. Los Angeles County is a proper neutral venue.

Defendant Inland Empire Health Plan’s motion to transfer venue is denied.

Defendant Inland Empire Health Plan’s Demurrer and Motion to Strike Portions of First Amended Complaint

Demurrer

Defendant Inland Empire Health Plan demurs to all four causes of action alleged in plaintiffs Markeisha Cassidy-Dawson and minor Melrose D.-F.’s first amended complaint.

1st and 3rd Causes of Action

Defendant demurs to the first cause of action for violation of the Unruh Civil Rights Act and the third cause of action for unfair business practices on the grounds that those statutes do not apply to public agencies. Plaintiffs concede on these two causes of action. (Opp., p. 2.)

Government Claims Act

Defendant argues plaintiffs failed to allege they complied with the Government Claims Act. Under the Act, “ ‘[c]laims for personal injury must be presented not later than six months after the accrual of the cause of action, and claims relating to any other cause of action must be filed within one year of the accrual of the cause of action.’ ” (Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1118.) “With certain exceptions [citation], the timely filing of a written government claim is an element that a plaintiff is required to prove in order to prevail on his or her cause of action.” (Id. at p. 1119.)

Plaintiffs do not allege they timely complied with the Government Claims Act. In the opposition, plaintiffs do not argue they submitted a timely claim. Instead, they argue the Government Claims Act does not apply.

A. 2nd Cause of Action: Government Code § 11135

The Government Claims Act does not apply to plaintiffs’ second cause of action for violation of Government Code section 11135. “[W]here a claimant seeks both damages and nonmonetary relief from a public entity in the same action, the applicability of the claim filing requirement turns on whether the damages sought are ancillary to the equitable relief also sought.” (Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 761 (Gatto).)

For this cause of action, the prayer for money damages is ancillary to the prayer for equitable relief. Though the first amended complaint seeks money damages in general (FAC, prayer, ¶¶ 1-4) and may purport to do so for all causes of action, plaintiffs cannot recover damages for this cause of action. “This article and regulations adopted pursuant to this article may be enforced by a civil action for equitable relief, which shall be independent of any other rights and remedies.” (Gov. Code, § 11139.) When the Legislature amended section 11139 “to expressly provide for a private right of action,” it also “expressly limited enforcement to a ‘civil action for equitable relief.’ ” (Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 594 (Donovan).) “Government Code section 11139 demonstrates that when the Legislature wanted to limit the remedies available in a private enforcement action to equitable or injunctive relief, it clearly knew how to do so.” (Id. at p. 595.)

Plaintiffs’ claims for equitable relief for the second cause of action cannot be ancillary because that is the only relief available. The Government Claims Act therefore does not apply.

B. 4th Cause of Action: Substantive Due Process

The Government Claims Act does not apply to the fourth cause of action because it does not allege an “injury” under the Act. The Act defines “injury” as “death, injury to a person, damage to or loss of property, or any other injury that a person may suffer to his person, reputation, character, feelings or estate, of such nature that it would be actionable if inflicted by a private person.” (Gov. Code, § 810.8.) This definition’s purpose “ ‘is to make clear that public entities and public employees may be held liable only for injuries to the kind of interests that have been protected by the courts in actions between private persons.’ ” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 968 (Aubry).)

Plaintiffs rely on two cases holding the Government Claims Act’s definition of “injury” did not apply to plaintiffs’ claims. First, in Aubry, the plaintiff brought “a cause of action against a public entity that fail[ed] to comply with its obligations under the prevailing wage law.” (Aubry, supra, 2 Cal.4th at p. 962.) As a later case explained, in Aubry, “no right to be paid prevailing wages existed in the private sphere.” (N.V. Heathorn, Inc. v. County of San Mateo (2005) 126 Cal.App.4th 1526, 1536.)

Second, plaintiffs cite City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, where the action was “to recover misallocated tax revenue.” (Id. at p. 867.) The plaintiffs alleged defendants “fail[ed] to comply with their statutory duty to correctly allocate and distribute tax revenue to other public entities.” (Ibid.)

Though the above cases involve substantially different claims, plaintiffs’ fourth cause of action alleges injury to interest not protected in actions between private persons. Plaintiffs allege violations of the California Constitution’s rights to substantive due process. “Substantive due process protects against arbitrary government action.” (Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 855.) “[P]rivate action, however hurtful, is not unconstitutional.” (Kruger v. Wells Fargo Bank (1974) 11 Cal.3d 352, 358.) Private persons cannot violate this interest. An injury to this interest is therefore not of the kind protected in actions between private persons.

Defendant’s reply does not specifically address this argument and provides no authority to the contrary. Defendant’s reliance on Lozada v. City and County of San Francisco (2006) 145 Cal.App.4th 1139 is misplaced. That case discusses a separate issue: when the Government Claims Act applies based on the type of relief plaintiff seeks. The Court of Appeal applied the rule from Gatto, as discussed above.

This issue is distinct. It concerns whether the plaintiff alleges an “injury” under Government Code section 810.8, as discussed in Aubry. That question turns on the “types of interests” allegedly violated (Aubry, supra, 2 Cal.4th at p. 970), not the type of relief the plaintiff seeks. For example, in Aubry the plaintiff sought “recovery … of the shortfall in wages” due to workers. (Ibid.) Though money damages (or money as restitution) would be the remedy for that injury, the California Supreme Court nonetheless held the injury was not to a covered type of interest.

Administrative Exhaustion

Defendant also argues plaintiffs failed to allege they exhausted their administrative remedies under the Welfare and Institutions Code. “ ‘[W]here an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.’ ” (Rojo v. Kliger (1990) 52 Cal.3d 65, 84 (Rojo).) “[T]his oft-quoted rule speaks only to the need to exhaust administrative remedies provided for a statutory right and does not govern rights and remedies outside the legislative scheme.” (Ibid.)

Plaintiffs were not required to exhaust any administrative remedies for the second cause of action for violation of Government Code section 11135. When the Legislature amended section 11139, as discussed above, it did so “to clarify a victim of discrimination ‘need not pursue administrative or any other remedies prior to, or instead of, bringing an action for equitable relief, nor would any victim be required to elect one remedy.’ ” (Donovan, supra, 167 Cal.App.4th at p. 594.)

Plaintiffs were also not required to exhaust administrative remedies for the fourth cause of action for violation of substantive due process rights. The Welfare and Institutions Code provides an administrative process and remedy for an “applicant for or recipient of public social services” who is “dissatisfied” with those services (Welf. & Inst. Code, § 10950(a)) and for appealing “an adverse benefit determination from [a] Medi-Cal managed care plan” (§ 10951(b)(1)). (See also In re Darlene T. (2008) 163 Cal.App.4th 929, 938-941 [requiring administrative exhaustion under these statutes before judicial review of denial of public assistance payments].)

Plaintiffs, however, are not directly seeking to vindicate their statutory right to Medi-Cal assistance. The fourth cause of action seeks to vindicate their right to substantive due process under the California Constitution. Under the applicable sections of the Welfare and Institutions Code, “ ‘[i]t is the [i]ndividual who must apply for a hearing, regarding” his or her “application for or receipt of aid.” (Oliva v. Swoap (1976) 59 Cal.App.3d 130, 135.) One generally cannot “‘fail[] to exhaust an administrative [r]emedy” when “ ‘no such administrative remedy existed.’ ” (Ibid.) This administrative process and remedy concern an individual’s rights to public assistance, including healthcare.

Plaintiffs fourth cause of action alleges, “Defendants’ administration of the Medi-Cal program, including underfunding, failure to adequately monitor network adequacy, and imposition of unreasonable administrative burdens on participants and providers, deprives Plaintiffs of their constitutionally protected” rights. (FAC, ¶ 68.) The statutory procedure does not address broad structural issues such as “underfunding” and “monitor[ing] network adequacy” and cannot provide the remedy of an “order and judgment enjoining Defendants from violating” the rights to “substantive due process and equal protection” (FAC, prayer, ¶ 5). Plaintiffs therefore were not required to exhaust their administrative remedies before bringing their fourth cause of action.

Sufficient Factual Allegations

Defendant further argues the first amended complaint has insufficient factual allegations to constitute the second cause of action for violation of Government Code section 11135. Defendant argues plaintiffs do not “allege how and when IEHP breached a mandatory duty created by section 11135” because the allegedly subpar medical care was that IEHP would not permit plaintiff Markeisha Cassidy-Dawson to see a specialist in Orange County. (Demurrer, pp. 12-13.) Defendant argues that, rather than race discrimination, that happened for a simple and legitimate reason: Orange County is outside of Inland Empire Health Plan’s designated geographic region.

Plaintiffs, however, allege other instances of inadequate medical care not related to denying services in Orange County. They allege IEHP denied and delayed Cassidy-Dawson’s referral to see a perinatologist (FAC, ¶¶ 11-17) and “denied [her] request for a medical-grade breast pump” (id., ¶ 32).

Defendant also argues Government Code section 11135 does not “expressly overcome the public entity immunity statute.” (Demurrer, p. 13.) As discussed above, Government Code section 11139 expressly provides, “This article and regulations adopted pursuant to this article may be enforced by a civil action for equitable relief, which shall be independent of any other rights and remedies.” That section permits individuals to sue public entities for violating Government Code section 11135. Plaintiffs therefore allege sufficient facts for the second cause of action.

Motion to Strike

Defendant Inland Empire Health Plan moves to strike seven portions of plaintiffs’ first amended complaint regarding punitive damages and plaintiffs’ third cause of action. Plaintiffs filed a notice of non-opposition to this motion. The court will therefore strike the eight portions of the first amended complaint defendant challenges.

Leave to Amend

After a successful demurrer, where “there is a reasonable possibility that the defects can be cured by amendment, leave to amend must be granted.” (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) The plaintiff bears the burden of “demonstrat[ing] how the complaint can be amended.” (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711.) “Leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law.” (Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436.)

Plaintiffs did not oppose defendant’s demurrer to the first and third causes of action and did not oppose defendant’s motion to strike. Plaintiffs do not demonstrate how the defects can be cured. As a matter of substantive law, defendant is not a “business establishment” under the Unruh Civil Rights Act, it is immune from the Unfair Competition Law, and public agencies are not liable for punitive damages. The court therefore will deny plaintiffs leave to amend these defects.

Disposition

Defendant Inland Empire Health Plan’s demurrers to plaintiffs’ first and third causes of action are sustained without leave to amend.

Defendant Inland Empire Health Plan’s demurrers to plaintiffs’ second and fourth causes of action are overruled.

Defendant Inland Empire Health Plan’s motion to strike portions of the first amended complaint is granted without leave to amend.

The court hereby strikes the following portions of plaintiffs’ first amended complaint without leave to amend:

1. All of paragraph 6;

2. Paragraph 34 at page 6, lines 21-22: “Because of IEHP’s intentional and negligible [sic] oppressive, discriminatory and unlawful conduct”;

3. Paragraph 53 at lines 26-28: “And because Defendant’s wrongful conduct was intended to cause injury to Plaintiffs and was despicable conduct carried out with a willful and conscious disregard of Plaintiffs’ rights”;

4. Paragarph 53 at page 9, lines 2-5: ““Defendant’s practices subjected Plaintiff to cruel and unjust hardship, was done with reckless disregard, all with the intent to deprive Plaintiffs of their property, legal rights, or to otherwise cause injury, such as to constitute malice, oppression and/or fraud under Civil Code section 3294”;

5. Paragraph 69 at page 13, lines 2-3: “Defendants have had ample time and opportunity to consider how their challenged conduct would likely harm Plaintiffs; and the class’s health”;

6. All of paragraph 70;

7. All of paragraph 72; and

8. All of paragraphs 54 through 65.

Defendant Inland Empire Health Plan is ordered to answer within 20 days.