Judge Daniel M. Crowley, Case Number: 22STCV21130, Date: 2023-10-31 Tentative Ruling

Defendants County of Los Angeles’, Los Angeles Department of Health Services’, Los Angeles County + University of Southern California Medical Center aka LAC+USC Medical Center’s, and University of Southern California’s demurrer to Plaintiff Marcelus Laidler ex rel Debra Legans’ second amended complaint is overruled as to the 1^st cause of action and sustained with 20 days leave to amend as to the 2nd, 4th, and 6th causes of action; and sustained without leave to amend as to the 5th cause of action.

The Court, sua sponte, strikes Plaintiff’s allegations in the 7th, 8th, and 9th causes of action against USC, as Plaintiff was not granted leave of Court to make such amendments to his pleading.

Defendants County of Los Angeles (“County”), Los Angeles Department of Health Services (“LADHS”), Los Angeles County + University of Southern California Medical Center aka LAC+USC Medical Center (“LAC+USC Medical”), and University of Southern California (“USC”) (collectively, “Defendants”) demur to Plaintiff Marcellus Laidler’s, individually, by and through his guardian ad litem and conservator Debra Legans, (“Laidler”) (“Plaintiff”) second amended complaint (“SAC”). (Notice of Demurrer, pgs. 1-2; C.C.P. §§430.10(e), (f).) Defendants also move to strike portions of the SAC. (Notice of MTS, pgs. 2-3.)

Plaintiff filed his initial Complaint on June 29, 2022. On May 17, 2023, Plaintiff filed his first amended complaint (“FAC”) against Defendants. On October 31, 2023, this Court overruled Defendants’ demurrer to Plaintiff’s 10th cause of action and sustained with leave to amend Defendants’ demurrer to Plaintiff’s 1st, 2nd, 4th, 5th, and 6th causes of action. On November 21, 2023, Plaintiff filed his operative SAC alleging ten causes of action: (1) violation of Dependent Adult Civil Protection Act [against all Defendants]; (2) negligent hiring, retention, and supervision [against County and USC]; (3) professional negligence [against County and USC]; (4) breach of fiduciary duty [against County and USC]; (5) lack of informed consent;[1] (6) violation of the Unruh Civil Rights Act [against County and USC]; (7) battery [against USC and DOES 1-200]; (8) assault [against USC and DOES 1-200]; (9) false imprisonment [against USC and DOES 1-200]; and (10) intentional infliction of emotional distress [against all Defendants].

This action arises out of Plaintiff’s admission to LAC+USC Medical on or about April-May 2021 for medical treatment for, among other things, ulcer of the esophagus. (SAC ¶15.) Plaintiff alleges he at all relevant times was a “dependent adult” as defined in Welfare and Institutions Code §15610.23 and suffered from manic depression, bipolar disorder, and schizophrenia. (SAC ¶16.)

Plaintiff alleges while he was at LAC+USC Medical, Defendants, including their clinical/nursing staff, while acting as custodial caregivers for Plaintiff, so neglected, abandoned, and abused his care by using seclusion and physical restraints as a means of coercion, discipline, staff convenience, or staff retaliation upon Plaintiff. (SAC ¶19.) Plaintiff alleges for approximately six months from April of 2021 through October of 2021, when Plaintiff was admitted to LAC+USC Medical, and while admitted to department “2E,” Plaintiff was subjected to the unwarranted, unauthorized, and illegal use of 5-point physical restraints by County clinical and non-clinical staff. (SAC ¶21.) Plaintiff alleges this involved several male members of County clinical staff using excessive force and unnecessary violence to physically dominate, hurt, and humiliate Plaintiff. (SAC ¶21.) Plaintiff alleges this included smothering his face with a pillow in order to suffocate him, causing him to black out on at least one occasion; covering his nose and mouth with their hands to prevent Plaintiff from breathing; sticking fingers in Plaintiffs eye to cause further injury and humiliation. (SAC ¶21.)

Plaintiff alleges he was restrained at least 50 times in a span of five months while in the care and custody of Defendants and the rate of restraint was excessive and unlawful in its basis for initiation and frequency, as physical restraints were whimsically used as a failsafe mechanism to punish, taunt, humiliate, and retaliate against Plaintiff in response to everything from psychiatric verbal outbursts to simply agitating, annoying and “non-redirectable” behavior. (SAC ¶22.) Plaintiff alleges he endured hours and days long restraints for unspecified non-violent “offenses”, despite posing no health or safety risk to himself or other staff and/or residents of the facility. (SAC ¶22.)

Plaintiff alleges a pattern and practice of improper restraint initiations and duration by LAC+USC Medical occurred from June 3, 2021, through October 6, 2021, where Plaintiff was subject to several hour-long and sometimes continuous day confinements, ostensibly in response to his “[inability] to following instructions” and “[interference] with care.” (SAC ¶23.) Plaintiff alleges the majority of these restraints—almost invariably during the first two to three months of Plaintiff’s residency—were ordered due to Plaintiff “not listening” or committing acts as innocuous as “spill[ing] Gatorade . . . and spill[ing] water” and “not following instructions” (i.e. “creates an unsafe condition”) as per Mayra Munoz, RN before she initiated restraints on September 18, 2021. (SAC ¶23.) Plaintiff alleges nursing notes taken by Claudia Marin on September 9, 2021, indicate Plaintiff screaming at Nurse Marin after he reported being left restrained and unattended for four to five hours. (SAC ¶23.)

Plaintiff alleges County was at all times aware of LAC+USC Medical’s inordinately high restraint rate compared to the state and national average and blatantly and negligently disregarded its responsibility to investigate and ameliorate its systematic deficiencies. (SAC ¶25.) Plaintiff alleges as a result, he endured unlawful restraints on the following dates of admission: June 3, 4, 5, 7, 9, 10, 12, 15, 17, 18, 19, 21, 25, 26, 29, and 31, 2021, and August 5, 2021, September 8, 9, 10, 11, 12, 13, 15, 17, 18, 19, 20, 23, 24, 25, and 30, 2021, October 1, 5, and 6, 2021. (SAC ¶25.)

Plaintiff alleges most restraint incidents lasted several days, and were devoid of any iota of legality, or adherence to applicable state or federal guidelines on restraints, whereby County staff would essentially leave Plaintiff tied down—most often along all 5 points of his body—for several days at a time, where he was cursed at, taunted, ignored, and left with little to no provisions. (SAC ¶27.) Plaintiff alleges this includes County’s intentional refusal to treat Plaintiff’s critical condition by depriving him of necessary nutrition, hygiene, and critical medical care during his day’s long periods of confinement. (SAC ¶27.) Plaintiff alleges he suffered from the burn of thick leather belts tightly wrapped around his wrists and ankles that were cutting against his skin with his every movement or rotation, for days on end. (SAC ¶27.) Plaintiff alleges during county’s inhumane and illegal detention, Plaintiff could do nothing more than remain still to prevent the torturous burns from the belts, urinary acid, and feces in which he was left to wallow. (SAC ¶27.) Plaintiff alleges County clinical staff would seldom crack open his door only to find Plaintiff laying in a pool of his own urine and feces. (SAC ¶27.) Plaintiff alleges some would taunt him, while most utterly ignored his dire medical needs. (SAC ¶27.)

On December 22, 2023, Defendants filed the instant demurrer and motion to strike. On January 12, 2024, Plaintiff filed his opposition. On January 19, 2024, Defendants filed their reply.

Defendants demur on the basis that Plaintiff’s claims are limited to the statutory confines on liability against County and LAC+USC Medical because they are public entities. Defendants further demur to Plaintiff’s 1st, 2nd, 4th, 5th, 6th, 7th, 8th, and 9th causes of action on the basis they fail state facts sufficient to constitute causes of action. (Demurrer, pg. 2; C.C.P. §430.10(e).) Defendants demur to the 4th, 5th, and 6th causes of action as uncertain, ambiguous, and unintelligible. (Demurrer, pg. 2; C.C.P. §430.10(f).)[2] Defendants also demur to the 7th, 8th, and 9th causes of action as improperly brought against USC. (Demurrer, pg. 2.)

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. (C.C.P. §430.41(a).) A declaration must be filed with a demurrer regarding the results of the meet and confer process. (C.C.P. §430.41(a)(3).)

Defendants’ counsel’s declaration states that on December 13, 2023, her office sent correspondence to Plaintiff’s counsel outlining the deficiencies in the SAC and requesting counsel call her office before December 15. (Decl. of Olano ¶8, Exh. C.) Defendants’ counsel declares she followed up by email. (Decl. of Olano ¶9.) Defendants’ counsel declares both the correspondence and the email went unanswered. (Decl. of Olano ¶10.) Defendants’ counsel’s declaration is sufficient under C.C.P. §430.41(a)(3).

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

Dependent Adult Abuse (Neglect) (Welfare & Institutions Code §§15600, et seq.) (1st COA)

To state a cause of action for neglect under Welfare & Institutions Code §§15600, et seq., Plaintiff must allege the following elements: (1) Defendant had care or custody of the Plaintiff involving ongoing responsibility for his basic needs, which an able-bodied and fully competent adult would ordinarily be capable of managing without assistance; (2) Plaintiff was 65 years of age or older or a dependent adult while he was in Defendant’s care or custody; (3) Defendant failed to use the degree of care that a reasonable person in the same situation would have used in providing for Plaintiff’s basic needs, including assisting in personal hygiene or in the provision of food, clothing, or shelter; providing medical care for physical and mental health needs; protecting Plaintiff from health and safety hazards; or preventing malnutrition or dehydration; (4) Plaintiff was harmed; and (e) Defendant’s conduct was a substantial factor in causing Plaintiff’s harm. (CACI 3103.)

“Abuse of an elder or a dependent adult” means “[p]hysical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering” or “[t]he deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” (Welf. & Inst. Code §15610.07(a).)

Plaintiff alleges that while he was admitted to LAC+USC Medical, Defendants were responsible for his care and custody. (SAC ¶47.) Plaintiff alleges Defendants therefore had a duty under federal and state regulations to provide his care, comfort, and safety. (SAC ¶47.) Plaintiff alleges without limiting the generality of the foregoing, said Defendant(s), had a duty to protect Plaintiff’s well-being and care, which included rendering appropriate medical treatment and care, upholding its legal and ethical obligations to Plaintiff, ensuring compliance with medical ethics and legal standards while Plaintiff was under LAC+USC Medical’s protection; and maintaining detailed records of the Plaintiff’s psychiatric medical history, treatment plans, and progress, reflecting the continuity of Plaintiff’s care. (SAC ¶47.)

Plaintiff alleges Defendant(s) had a duty to (a) Adequately train and supervise nursing staff to perform proper custodial care; (b) Maintain accurate and authentic medical records of Plaintiffs medical condition and activity; (c) Maintain adequate nursing and support nursing staffing levels and at required ratios in order to meet Plaintiff’s needs; and (d) Adhere and comply with Health and Safety Code §§1180, et seq.; California Code of Regulations, Title 22, Division 5, Chapter 9; the Centers for Medicare & Medicaid (CMS) Conditions of Participation of Hospitals as codified in the Code of Federal Regulations, Title 42, Part 482, as to the use of seclusion and physical restraints. (SAC ¶48.) Plaintiff alleges Defendants further owed a special duty of care to Plaintiff, who was a person and unable to care for himself independently during his admission at LAC+USC Medical. (SAC ¶49.)

Plaintiff alleges this affirmative duty required a responsibility for a heightened degree of supervision and care with respect to a dependent adult such as Plaintiff. (SAC ¶50.) Plaintiff alleges this would include the duty to adequately care for Plaintiff; whose mental state left him particularly vulnerable to harm. (SAC ¶50.) Plaintiff alleges Defendant(s) breached the aforementioned duties to Plaintiff. (SAC ¶50.) Plaintiff alleges these breaches were in reckless disregard for the safety of Plaintiff and the probability that severe injury would result from their failure to carefully adhere to their duties. (SAC ¶50.) Plaintiff alleges Defendant(s) knew or should have known that there was a probability that injury would result from the failure to adhere to their duties. (SAC ¶50.) Plaintiff alleges in particular, and without limiting the generality of the foregoing, the Defendant failed to do all that was listed in paragraph 38(a)-(f), as well prevent the use of seclusion and/or physical restraints as a means of coercion, discipline, staff convenience, or staff retaliation on Plaintiff. (SAC ¶50.)

Plaintiff alleges he was restrained at least 50 times in a span of five months while in the care and custody of Defendants and their rate of restraint was excessive and unlawful in its basis for initiation and frequency, as physical restraints were whimsically used as a failsafe mechanism to punish, taunt, humiliate, and retaliate against Plaintiff in response to everything from psychiatric verbal outbursts to simply agitating, annoying and “non-redirectable” behavior. (SAC ¶51.) Plaintiff alleges he endured hours and days long restraints for unspecified non-violent “offenses”, despite posing no health or safety risk to himself or other staff and/or residents of the facility. (SAC ¶51.) Plaintiff includes a list of dates and incidents in which “Code Gold” (4 point) restraining initiation occurred, particularly in his first month of admission in June 2021, and continued through October 2021. (SAC ¶53.) Plaintiff alleges County Defendants were at all times aware of LAC + USC Medical’s inordinately high restraint rate compared to the state and national average and disregarded its responsibility to investigate and ameliorate its systematic deficiencies, resulting in Plaintiff continuing to endure restraints on the days listed in the pleading. (SAC ¶54.)

Plaintiff alleges as a proximate, direct, and legal result of the acts and omissions of Defendant(s) and resulting breach of their duties to Plaintiff as alleged herein, Plaintiff was harmed and suffered damages due to severe injuries, pain, emotional distress, loss of dignity, and humiliation, and mental suffering. (SAC ¶60.) Plaintiff alleges he is entitled to recover damages for his pain and suffering pursuant to Welfare & Institutions Code §15657(b). (SAC ¶60.)

Plaintiff sufficiently alleges facts for a cause of action under Welfare & Institutions Code §§15600 et seq. Plaintiff sufficiently alleges (1) Defendant had care or custody of Plaintiff involving ongoing responsibility for his basic needs, which an able-bodied and fully competent adult would ordinarily be capable of managing without assistance; (2) Plaintiff was a dependent adult while he was in Defendant’s care or custody; (3) Defendant failed to use the degree of care that a reasonable person in the same situation would have used in providing for Plaintiff’s basic needs, including assisting in personal hygiene and protecting Plaintiff from health and safety hazards by way of Defendants’ use of 4-point physical restraints and use of excessive force, such as smothering Plaintiff’s face with a pillow to suffocate him, covering Plaintiff’s nose and mouth to prevent him from breathing, and sticking fingers in Plaintiff’s eyes; (4) Plaintiff was harmed by Defendant’s use of thick leather belts tied around him wrists and ankles which caused burns to his skin, as well as burns from urinary acid and feces in which he was left to wallow for days at a time, in addition to taunts to humiliate Plaintiff; and (e) Defendants’ conduct was a substantial factor in causing Plaintiff’s harm, aside from permanent injury, skin abscesses, and scarring to Plaintiff’s hands, feet, ankles and wrists; and injuries to Plaintiff’s legs, hips and eyes due to the improper use of force administered during his illegal restraints, Plaintiff does and will continue to suffer from lifelong mental and psychological post-traumatic injuries resulting from his unwarranted, unauthorized, and illegal physical restraints. (See SAC ¶¶21-30.)

Plaintiff alleges with specificity how and what manner each Defendant was responsible for the alleged violations against Plaintiff. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396,

410; Goldrich v. Natural Y Surgical Spec., Inc. (1994) 25 Cal.App.4th 772, 782-783; see SAC ¶¶52-58.)

Further, the Second Amended Complaint sufficiently pleads facts taking the claim out of the realm of professional negligence. A cause of action for dependent adult abuse must be based upon “egregious acts of misconduct distinct from professional negligence.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 784.) Plaintiff alleges, “This included smothering his face with a pillow in order to suffocate him, causing him to black out on at least one occasion; covering his nose and mouth with their hands to prevent Plaintiff from breathing; sticking fingers in Plaintiff’s eye to cause further injury and humiliation.” (SAC, ¶ 21.) The Court finds that this allegation is of an egregious act of misconduct distinct from professional negligence.

Accordingly, Defendants’ demurrer to Plaintiff’s 1st cause of action for dependent adult abuse (neglect) is overruled.

The elements of a cause of action for negligent hiring, training, and retention are: (1) the employer defendant hired the employee; (2) the employee was unfit or incompetent to perform the work for which they were hired; (3) the employer defendant knew or should have known the employee was unfit or incompetent and that the unfitness or incompetence created a particular risk to others; (4) the employee’s unfitness or incompetence harmed plaintiff; and (5) the

employer defendant’s negligence in hiring, supervising, or retaining the employee was a substantial factor in causing plaintiff’s harm. (CACI 426.)

and/or staff whose position-job duties entailed supervising, monitoring, mentoring, caring, and/or otherwise being entrusted and responsible for protecting the safety and well-being of patient(s) at LAC+USC Medical, owed and had a duty to adequately and properly investigate, hire, train, and supervise, as well as conduct an adequate background check into the education, training, and/or job-employment experience of agents, employees, personnel, and/or staff prior to them being hired, so as to verify, determine, and ensure each were qualified or competent to undertake the responsibilities required when working with, guiding, supervising, monitoring, mentoring, caring, or otherwise being entrusted and responsible for protecting the safety and well-being of dependent adult patient(s), especially those suffering from mental illness, grave disability, incompetence, and/or diminished capacity. (SAC ¶65.)

Plaintiff alleges Defendant(s) negligently breached their duties to Plaintiff as herein alleged throughout his admission at LAC+USC Medical by failing to adequately and properly investigate, hire, train, and supervise, as well as conduct an adequate background check in assessing the truth and accuracy of the education, training, and/or experience of agents, employees, personnel, and/or staff prior to them being hired, so as to verify, determine, and ensure each were qualified or competent to be entrusted to undertake the responsibilities required when working with, guiding, supervising, monitoring, mentoring, or otherwise being responsible

for protecting the safety and well-being of said dependent adult patient(s) suffering from mental illness, grave disability, incompetence, and/or diminished capacity, such that they would be able to recognize instances or potentials for problems, conflict, and harm to include, without limitation, use of seclusion and/or physical restraints as a means of coercion, discipline, staff convenience, or staff retaliation on Plaintiff, and reporting same as mandated by law. (SAC ¶66.)

Plaintiff alleges County and USC knew or should have known that the aforementioned doctors, nurses, and staff of LAC+USC Medical were unfit, or incompetent given the inordinate rate and manner of restraint initiation and public data establishing that LAC+USC Medical rates of retention far exceed the state national average. (SAC ¶67.) Plaintiff alleges County and USC knew or should have known that the aforementioned doctors, nurses, and staff of LAC+USC Medical were unfit or incompetent given the record-breaking rate and duration of restraints put on Plaintiff over the course of his five-month-long period of admission and fifty-plus restraint orders that should have prompted a thorough evaluation of past incidents. (SAC ¶67.) Plaintiff alleges he was predominantly, repeatedly, and indefinitely put on non-violent constraints irrespective of the purported grounds for administering restraints and irrespective of the measures necessary to ensure that restraints were administered under the most humane conditions and removed in accordance with appropriate medical standard of care relative to restraint removal and patient re-integration post-restraint administration. (SAC ¶67.)

Plaintiff alleges these conditions were created by the following negligent and/or unfit providers over the course of Plaintiff’s residence from June of 2021 through October of 2021: Jin Sol G. Lee, MD, Morgan Jonathan Hawkins, MD, Robert James Tamai, MD, Carol M. Kamjou, MD, William Jacob Hertzing, MD, Ada Rennie Castillo, MD, Ivy Lee De Quiros, MD, Kevin Andrew Bechler, MD, Philip Christopher Sheth, MD, Hamida KhanMohammed, MD, Marshall Yuan, MD, Zhaojun Huang, MD, Magnolia M Eugenio, MD, Wanda Faye Banks, MD, and Matthew Stanley Johnson, MD; and nurses Georgina Thomas, RN, Kenechukwu Tony Agu, NA, Nancy Valdez, LVN, Rudelia Collins, RN, Edith Ezeani, LVN, Odukoya Odutola, RN, Mona Toeque, RN, Priscilla Abaekobe, RN, Hector Barrales, NA, Dalia Morales, Johnny Kanu, Alemayehu Negussie, RN, Rigat Asfaha, NA Noemy Pulido, Patrice Mckinstry, RN, Charles Nwadiogu, Yilma Belaineh, RN, Pauline Golit, RN, Uche Onwenna, NA, Zimena Toledo Intriago, RN, Raquel Torres, Solomon Onuoha, NA, Marc Poblete, Maria Litchel Capiral, RN, Annette Cole Veal, RN, Girma Ashenafi, Cherrie Mae Tan, RN, Roselyn Ogbuene, Helen Ugwu, Mayra Munoz Taboada, RN, Ma Fides Nayve, CMA, Evelyn Virgo, LVN, Ye Htet Aung, Michael Miranda, NA, Enrico Arrieta, RN, Edgar Alegria , Candace Sullivan, NA, Irena Petrovich, RN, Rosalia Rivera, RN, Jean Pierre, NA, Ananda Gallegos, RN, and Lewis Amadi, were negligent in their failure to identify and ameliorate Plaintiff’s rate and manner of detention, as it was apparent that Plaintiff was being restrained at an alarming rate. (SAC ¶67.)

Plaintiff alleges County and USC vis-à-vis LAC+USC Medical doctors, nurses and staff flouted measures necessary to make sure its staff was fit, competent, and sufficient in quantity, which is prescribed by statute, and instead made Plaintiff endure the cruelest and most inhumane of circumstances to ameliorate their staffing deficiencies, all at the expense of Plaintiff’s physical and mental health and safety. (SAC ¶68.)

Plaintiff alleges as a proximate, direct, and legal result of the acts and omissions of Defendant(s) and resulting breach of their duties to Plaintiff as alleged herein, Plaintiff was harmed and suffered damages due to severe injuries, pain, emotional distress, loss of dignity, and humiliation, and mental suffering. (SAC ¶69.) Plaintiff alleges but for USC and County vis-à-vis LAC+USC Medical’s negligent hiring and supervision, Plaintiff would not have endured the several months of torture that resulted in the physical, psychological, and emotional injuries alleged herein. (SAC ¶69.)

Plaintiff fails to allege that USC and the County knew or should have known that the employees named were unfit or incompetent and that the unfitness or incompetence created a particular risk to others. Plaintiff fails to allege a causal connection between the allegedly negligent hiring, training, retention, and supervision or the unfitness of any employee and Plaintiff’s claimed injuries. Although the SAC lists the names of individuals involved in the care and treatment of Plaintiff, it does not allege facts that constitute a causal link or Defendants’ knowledge of unfitness or incompetence. Further, the inclusion of allegations regarding “the record-breaking rate and duration of restraints” placed do not go to knowledge of unfitness or incompetence or any causal link between alleged unfitness of employees and Plaintiff’s claimed injuries.

Accordingly, Defendants’ demurrer to Plaintiff’s 2nd cause of action for negligent hiring, training, and retention is sustained with 20 days leave to amend.

The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach. (Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1101.)

“A fiduciary relationship is ‘any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party. Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he voluntarily accepts or assumes to accept the confidence, can take no advantage from his acts relating to the interest of the other party without the latter’s knowledge or consent. . . .’” (Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 29, internal citations omitted.)

Plaintiff alleges by virtue of the special doctor-relationship created throughout Plaintiff’s admission at LAC+USC Medical, Defendant(s) owed a duty of ordinary care to Plaintiff to use the degree of care, skill, knowledge, training, and expertise that a reasonably prudent person would use. (SAC ¶71.) Plaintiff alleges Defendant(s) breached their fiduciary duty to Plaintiff as herein alleged throughout his admission at LAC+USC Medical. (FAC ¶51.)

Plaintiff alleges by virtue of Defendant(s) negligently breached their duties to Plaintiff as herein alleged throughout his admission at LAC+USC Medical. (FAC ¶72.)

Plaintiff fails to allege the fiduciary duty arising from law that subjects USC and County to liability under this cause of action.

Accordingly, Defendants’ demurrer to Plaintiff’s 4th cause of action for breach of fiduciary duty is sustained with 20 days leave to amend.

A cause of action for failure to obtain informed consent requires the following elements: (1) defendant performed a medical procedure on plaintiff; (2) defendant did not disclose to plaintiff the important potential results and risks of and alternatives to the medical procedure; (3) a reasonable person in plaintiff’s position would not have agreed to the medical procedure if that person had been adequately informed; and (4) plaintiff was harmed by a result or risk that defendant should have explained. (CACI 533.)

Plaintiff concedes that he voluntarily withdrew his cause of action for lack of informed consent and mistakenly failed to remove the cause of action from the caption page.

Accordingly, Defendants’ demurrer to Plaintiff’s 5th cause of action for lack of informed consent is sustained without leave to amend.

A cause of action under the Unruh Civil Rights Act must allege the following elements: (1) that defendant denied/aided or incited a denial of or discriminated or made a distinction that denied full and equal accommodations/ advantages/ facilities/ privileges/ services to plaintiff; (2) that a substantial motivating reason for defendant’s conduct was its perception of plaintiff’s sex/ race/ color/ religion/ ancestry/ national origin/ medical condition/ genetic information/ marital status/ sexual orientation/ citizenship/ primary language/ immigration status/ other actionable characteristic; (3) that plaintiff was harmed; and (4) that defendant’s conduct was a substantial factor in causing plaintiff’s harm. (CACI 3060.)

There are two causation elements: There must be a causal link between the discriminatory intent and the adverse action (see element 2), and there must be a causal link between the adverse action and the harm (see element 4). (CACI 3060, Directions for Use.)

Whether a defendant is a “business establishment” is decided as an issue of law. (Rotary Club of Duarte v. Board of Directors (1986) 178 Cal.App.3d 1035, 1050.)

“[T]he language and history of the Unruh Act indicate that the legislative object was to prohibit intentional discrimination in access to public accommodations. We have been directed to no authority, nor have we located any, that would justify extension of a disparate impact test, which has been developed and applied by the federal courts primarily in employment discrimination cases, to a general discrimination-in-public-accommodations statute like the Unruh Act. Although evidence of adverse impact on a particular group of persons may have probative value in public accommodations cases and should therefore be admitted in appropriate cases subject to the general rules of evidence, a plaintiff must nonetheless plead and prove a case of intentional discrimination to recover under the Act.” (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1149, 1175.)

Plaintiff alleges as a result of the aforementioned acts, omissions, and conduct as herein alleged, Defendant(s) denied Plaintiff full and equal protection under the laws of the State of California and the United States of America, in clear violation of Civil Code §§51, et seq. (SAC ¶82.)

Plaintiff alleges a motivating reason for the acts, omissions, and conduct of Defendant(s), was their perception of, and more particularly, discrimination toward, Plaintiff’s ethnicity or race as an African American. (SAC ¶83.)

Plaintiff alleges Defendants’ acts, omission, and conduct was a substantial factor in causing Plaintiff to suffer serious, physical, psychological, mental, and emotional injuries. (SAC ¶84.) Plaintiff alleges there is a causal link between the adverse actions of County Defendants and USC vis-à-vis LAC+USC Medical doctors, nurses, and staff and the harm suffered by Plaintiff because Plaintiff’s injuries are a direct consequence of inhumane restraint and detention measures administered by County Defendants and USC vis-à-vis LAC+USC Medical doctors, nurses, and staff, who administered such inhumane practices for no reason but to physically, mentally and emotionally subdue and humiliate Plaintiff whom Defendants wrongly perceived as a usual threat on the basis of his race and ethnicity as an African American male. (SAC ¶84.) Plaintiff alleges the adverse restraint actions led to the physical, mental, and psychological injuries bore by Plaintiff to this day and for the rest of his life, as he deals with frequent night terrors of being strapped to a bed in “Department 2E” where LAC+USC Medical staff are taunting and torturing him. (SAC ¶84.) Plaintiff alleges he also lives with scars and skin abrasions that serve as direct and constant reminders of the adverse actions endured at the hands of the following County Defendants’ discriminatory practices. (SAC ¶84.)

Plaintiff fails to allege a causal link between the discriminatory intent and the adverse action and merely sets forth conclusory allegations that Defendants’ alleged discriminatory conduct was motivated by Plaintiff’s race rather than meeting the requisite pleading standard for intentional discrimination. (See CACI 3060, Directions for Use; Harris, 52 Cal.3d at pg. 1175.) Further, Plaintiff fails to allege USC and County are “business establishments” as a matter of law. (Rotary Club of Duarte, 178 Cal.App.3d at pg. 1050.)

Accordingly, Defendants’ demurrer to Plaintiff’s 6th cause of action is sustained with 20 days leave to amend.

A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

If the complaint contains enough facts to apprise defendant of the issues it is being asked to meet, failure to label each cause of action is not ground for demurrer: “Although inconvenient, annoying and inconsiderate, the lack of labels . . . does not substantially impair [defendant’s] ability to understand the complaint.” (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 n.2.)

Plaintiffs’ 4th and 6th causes of action are not so uncertain that Defendants cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against them.

Defendants’ demurrer to Plaintiff’s SAC is overruled as to the 1^st cause of action and sustained with 20 days leave to amend as to the 2nd, 4th, and 6th causes of action. Defendants’ demurrer to Plaintiff’s SAC is sustained without leave to amend as to the 5th cause of action.

In light of the Court’s ruling on the demurrer, Defendants’ motion to strike is denied as moot.

The Court moves, sua sponte, to strike Plaintiff’s allegations against USC in the 7th, 8th, and 9th causes of action, as Plaintiff was not granted leave of Court to make such amendments to his pleading.

C.C.P. §436 provides that the Court may . . . at any time within its discretion and upon terms it deems proper, “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (C.C.P. §436(b).)

It is the general rule that when a court “sustains a demurrer with leave to amend, the scope of the grant of leave is ordinarily a limited one. It gives the pleader an opportunity to cure the defects in the particular causes of action to which the demurrer was sustained, but that is all.” (Community Water Coalition v. Santa Cruz County Local Agency Formation Commission (2011) 200 Cal.App.4th 1317, 1329.) “The Plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.” (Id., quoting Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) “[L]eave to amend must be construed as permission to the pleader to amend the cause of action which he pleaded in the pleading to which the demurrer has been sustained.” (People ex rel. Department of Public Works v. Clauson (1957) 248 Cal.App.2d 770, 785.)

The prior demurrer and motion to strike did not address Plaintiff’s causes of action against USC for battery (7th cause of action), assault (8th cause of action), and false imprisonment (9th cause of action) because those causes of action were alleged against Does 1-200 in the FAC. Here, in the SAC, these causes of action are newly stated against USC without leave of this Court. Plaintiff was not permitted to amend his pleading to on these causes of action based on this Court’s 10/31/23 Ruling, or by Plaintiff moving for leave of this Court to amend.

Accordingly, Plaintiff’s allegations against USC in the 7th, 8th, and 9th causes of action are stricken from Plaintiff’s SAC.

The Court, sua sponte, strikes Plaintiff’s allegations against USC in the 7th, 8th, and 9th causes of action.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] The Court notes the caption on Plaintiff’s SAC indicates the existence of this cause of action, but the body of the SAC does not include this cause of action. In fact, the SAC labels the 5th cause of action as violation of the Unruh Civil Rights Act. To avoid confusion, the Court labels the causes of action in Plaintiff’s SAC as it is numbered in the caption of the SAC rather than the numbering reflected in the body of the pleading.

[2] The Court notes Defendants do not demur to the 10th cause of action.