Judge Bruce G. Iwasaki, Case Number: 24STCV07029, Date: 2024-08-13 Tentative Ruling

Moving Party: Defendants, County of Los Angeles; Ngozi Chukwuemek, NP; Trini Bui, NP; Monika Villazon, NP; Taylor Docter, PGY3; Mina Masri, D.O.; Keith Carrillo, NP; Beverly Welch; Tchuisse Hermione, NP; Manuel O. Natividad, M.D.; Veronica Hernandez-Lara, NP; Rea Whitman, PA; Chase Luther, M.D.; Robert Paquette, M.D.; Ziba Dayani, PA; Ekaterina Korol, NP; Dina Villapudua, PA; Olivia Gomez, MD; Brittany Slaughter, PA; Alexis M. Peters, M.D.; Aung Lin, D.O.; Christina R. Ghaly, M.D.; Timothy Belavich, Ph.D.; and Sean Henderson, M.D.

Tentative Ruling: The demurrer to the first and third causes of action is overruled.

The demurrer to the second, fourth, fifth, and sixth causes of action is sustained with leave to amend.

Plaintiff Juan Pulido (“Plaintiff”) sued defendants the County of Los Angeles (“the County”); Ngozi Chukwuemek, NP; Trini Bui, NP; Monika Villazon, NP; Taylor Docter, PGY3; Mina Masri, D.O.; Keith Carrillo, NP; Beverly Welch; Tchuisse Hermione, NP; Manuel O. Natividad, M.D.; Veronica Hernandez-Lara, NP; Rea Whitman, PA; Chase Luther, M.D.; Robert Paquette, M.D.; Ziba Dayani, PA; Ekaterina Korol, NP; Dina Villapudua, PA; Olivia Gomez, MD; Brittany Slaughter, PA; Alexis M. Peters, M.D.; Aung Lin, D.O.; Christina R. Ghaly, M.D.; Timothy Belavich, Ph.D.; and Sean Henderson, M.D. (together “Defendants”) on March 20, 2024 and filed his operative first amended complaint (“FAC”) on May 23, 2024. The FAC asserts causes of action for (1) medical negligence, (2) negligence, (3) Government Code § 845.6, (4) Bane Act Violations, (5) Health & Safety Code § 123110, and (6) Evidence Code § 1168.

As alleged in the complaint and accepted as true for purposes of demurrer (with paragraph citations to the FAC):

Plaintiff was arrested in West Covina in September 2022. (¶ 22.) He was bitten by a police dog during the arrest. (¶¶ 21, 27.) Plaintiff was transferred to County custody shortly afterward. (¶ 26.) The dog bite became infected. (¶ 27.) While incarcerated over the course of the following several months, the various individual Defendants provided Plaintiff medical care. (¶¶ 28-63.) But they ignored his pleas for more intensive treatment, the condition of the wound worsened, and he did not receive satisfactory treatment for his infection before his discharge on July 11, 2023. (Ibid.; see also ¶ 74.)

Plaintiff also asserts he began requesting his medical records from the County beginning in March 2023, and the County has violated its own policies by refusing to provide complete records. (¶¶ 72, 75-76.)

On June 24, 2024, Defendants demurred to and moved to strike portions of Plaintiff’s FAC. On July 30, 2024, Plaintiff filed his opposition. On August 6, 2024, Defendants replied.

Defendants’ request for judicial notice is denied. “There is ... a precondition to the taking of judicial notice in either its mandatory or permissive form—any matter 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 fn. 2.) The federal District Court’s order has no bearing on this motion.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . ..” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)

“[I]n ‘any medical malpractice action, the plaintiff must establish: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.’” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122, quoting Hanson v. Grade (1999) 76 Cal.App.4th 601, 606.)

Plaintiff has sufficiently pleaded his claim for negligence. He alleges he was a patient under the individual defendants’ care, so they owed him a professional duty. He alleges he presented with severe medical symptoms and they failed or refused to refer him for proper treatment. A practitioner exercising ordinary skill, he pleads, would have referred him thus Defendants breached their duty. And Plaintiff alleges his worsening medical condition caused him considerable pain and suffering. Defendants are on notice of the details of Plaintiff’s claims such that they can prepare a defense; they know his identity, the period of his incarceration, and a fairly precise timeline of events.

Defendants argue Plaintiff only pled conclusions, because he repeatedly reiterates his allegation that Defendants’ conduct fell below the standard of care. (See Dem., 15:3-15.) If that were all Plaintiff alleged, his FAC would indeed fail. But he also pled voluminous supporting facts.

Defendants also argue Plaintiff “fails to allege what the [County’s relevant] policies are or how or in what way these policies were violated” by the individual defendants. As to the first cause of action, this ambiguity is irrelevant. The County policies do not govern the common-law standard of care.

Plaintiff’s asserts his second cause of action only against defendants Ghaly, Belavich, and Henderson. He has assigned it the heading “negligence”, though the body of the FAC clarifies he is relying on a negligent hiring theory. (See FAC, ¶ 89 [“negligent and reckless with regarding to the hiring, training, supervision ...”].)

An employer may be liable in negligence “if it ‘knew or should have known that hiring [a tortfeasor] employee created a particular risk or hazard and that particular harm materializes.’ ” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.)

Plaintiff alleges Ghaly, Belavich, and Henderson had supervisory roles in the prison medical system and their subordinates caused him injury. But he does not plead facts showing that Ghaly, Belavich, or Henderson knew or should have known that any of their co-defendants might act in a way that would cause Plaintiff harm. “To establish negligent supervision, a plaintiff must show that a person in a supervisorial position over the actor had prior knowledge of the actor’s propensity to do the bad act.” (Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902.) Without pleading facts showing as much, Plaintiff has not stated a claim.

“ ... [E]xcept as otherwise provided by Sections 855.8 and 856, a public employee, and the public entity where the employee is acting within the scope of his employment, is liable if the employee knows or has reason to know that the prisoner is in need of immediate medical care and he fails to take reasonable action to summon such medical care.” (Gov. Code, § 845.6.)

“To state a claim under section 845.6, ‘a prisoner must establish three elements: (1) the public employee knew or had reason to know of the need (2) for immediate medical care, and (3) failed to reasonably summon such care.’ [Citation.] (Lawman v. City and County of San Francisco (N.D. Cal. 2016) 159 F.Supp.3d 1130, 1150.)

Plaintiff has pled the three elements of a section 845.6 claim. He alleges he presented to medical professionals in need of immediate care for his severely infected injury, and they unreasonably failed to summon emergency care. As with his medical negligence claim, Defendants propose an excessively high pleading standard where they insist he must “allege[] facts to support [his] ... allegations that each medical Defendant failed to properly assess Plaintiff’s alleged injury and respond accordingly.” (Dem., 18:15-18.) All Plaintiff needs to do is place Defendants on notice of the particulars of his claims, and he has done so.

The elements of a Bane Act claim are: (1) defendant interfered with or attempted to interfere with plaintiffs’ constitutional or statutory right by threatening or committing violent acts; (2) plaintiffs reasonably believed that if they exercised their constitutional right the defendant would commit violence against them or their property; (3) defendant injured plaintiffs or their property to prevent them from exercising their constitutional right or retaliated against plaintiffs for having exercised their constitutional right; (4) plaintiffs were harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiffs' harm. (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 882 (“Austin B.”).)

“The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e.,¿‘threat[ ], intimidation or coercion’), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law.”¿ (King v. State of Cal.¿(2015) 242 Cal.App.4th 265, 294; Austin B., supra, 149 Cal.App.4th at p. 883.)

Defendants argue Plaintiff has not pled his claim in part because he must allege “acts of violence or threats thereof [that are] physical in nature”. (Dem., 19:12-14.) The Court does not endorse this narrow reading of the Bane Act. “Civil Code section 52.1 requires ‘an attempted or completed act of interference with a legal right, accompanied by a form of coercion.’ ” (Austin B., supra, 149 Cal.App.4th at p. 882, emphasis added.) Coercion is not confined to the physical. (See e.g. Pen. Code, § 236.1 [“coercion” defined as “a scheme, plan, or pattern” that causes a person to fear “serious harm to or physical restraint” against oneself or another].) In fact, a violation of a civil right, if sufficiently egregious, may satisfy the Bane Act by itself, without more. (See Cornell v. City & County of San Francisco (2017) 17 Cal.App.5th 766, 801-802 [wrongful detention is “inherent[ly]” coercive and satisfies Bane Act].)

Notwithstanding Defendants’ reasonable confusion regarding the Bane Act (see id., at p. 801 [Bane Act has been “ ‘ “the source of much debate and confusion” ’ ” in federal courts]), the FAC fails to state a claim for other reasons. The FAC does not allege facts suggesting (1) that anyone threatened to commit, or did commit, violent acts against Plaintiff; (2) that Plaintiff refrained from exercising a constitutional right for fear of violence; or (3) that Defendants were motivated by a desire to prevent Plaintiff from exercising his rights. And because it alleges none of those, it also does not allege (5) that any such action was a substantial factor in causing Plaintiff’s harm.

Fifth Cause of Action for Violation of the Health and Safety Code § 123110 and Sixth Cause of Action for Violation of Evidence Code § 1168

Plaintiff asserts his fifth and sixth causes of action against the County only, under two statutes related to disclosure of medical records:

“[A]ny adult patient of a health care provider, any minor patient authorized by law to consent to medical treatment, and any patient's personal representative shall be entitled to inspect patient records upon presenting to the health care provider a request for those records and upon payment of reasonable costs[.]” (Health & Saf. Code, § 123110(a).) And “[a]ny patient or representative aggrieved by a violation of Section 123110 may, in addition to any other remedy provided by law, bring an action against the health care provider to enforce the obligations prescribed by Section 123110. Any judgment rendered in the action may, in the discretion of the court, include an award of costs and reasonable attorney fees to the prevailing party. (Id., § 123120.)

“Before the filing of any action or the appearance of a defendant in an action, if an attorney at law or his or her representative presents a written authorization therefor signed by an adult patient, ... to a medical provider, the medical provider shall promptly make all of the patient's records under the medical provider's custody or control available for inspection and copying by the attorney at law or his or her representative.” (Evid. Code, § 1158(b).)

The County demurs on the ground that it is immunized from liability by Government Code section 844.6. Section 844.6 states that “a public entity is not liable for ... [a]n injury to a prisoner”, with limited exceptions. (Gov. Code, § 844.6(a)(2).) “[T]he plain language of section 844.6 is clear and unambiguous”, and it provides a “broad grant of immunity”. (Bitner v. Department of Corrections & Rehabilitation (2023) 87 Cal.App.5th 1048, 1064.) The immunity precludes statutory liability as well as common-law liability. (Id., at p. 1063 [“Because a public entity’s liability is itself a creature of statute, interpreting section 844.6 to exempt liability created by statute would ... render[] section 844.6 all but meaningless”].)

Plaintiff replies that because “[he] was released from custody on July 11, 2023 ... and his medical records are still being unlawfully withheld”, he states a claim that falls outside his time as “prisoner” and therefore outside the ambit of section 844.6.

If Plaintiff’s claims arise from time that elapsed since he was a prisoner, it is not apparent from the face of the FAC. The causes of action as pled arguably arise from his time as a prisoner and are not exempted from section 844.6 immunity, so they are deficient, either for failure to state a claim or for ambiguity.

The demurrer to the fifth and sixth causes of action are sustained with leave to amend.

The demurrer is sustained with leave to amend as to the first, fourth, fifth, and sixth causes of action.

The demurrer having been sustained with leave, the motion to strike is denied as moot.

Plaintiff may file and serve an amended complaint on or before September 13, 2024.