Judge: Douglas W. Stern, Case: 22STCV19313, Date: 2023-01-27 Tentative Ruling
Case Number: 22STCV19313 Hearing Date: January 27, 2023 Dept: 68
Hai-Jin Shin vs. Wise & Healthy Aging, Long-Term Care
Ombudsman, et al., Case No. 22STCV19313
MOVING PARTY: State
of California on behalf of Defendants
RESPONDING PARTY: Plaintiff
Hai-Jin Shin
Demurrer to First Amended Complaint with Motion to Strike
I. BACKGROUND
Plaintiff’s
First Amended Complaint (FAC) alleges three causes of action for violation of
constitutional equal protection, violation of constitutional due process, and
violations of statutory duties under Cal. Welf. & Inst. Code § 9712.5(a)(1)
against Defendants Long-Term Care Ombudsman of California and Wise &
Healthy Aging, Long-Term Care Ombudsman Services (Defendants). These causes of
action are related to the care of Plaintiff’s mother at a Convalescent Center.
Plaintiff alleges that Defendants’ failure to provide a Korean language
interpreter when Plaintiff’s mother was signing her advanced directives was a
violation of her mother’s Equal Protection and Due Process rights. Further,
Plaintiff claims that Defendants breach their duties under the California
Welfare and Institutions Code because of this failure. (Demurrer at p. 7.)
This
action was originally filed by Plaintiff on June 13, 2022. Defendants filed their
Demurrer with Motion to Strike as to Plaintiff’s FAC on December 30, 2022.
Plaintiff filed her opposition on January 17, 2023. Defendants filed their
reply on January 20, 2023.
II. ANALYSIS
A. The
Demurrer
As a
general matter, in a demurrer proceeding, the defects must be apparent on the
face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968,
994.) “A demurrer tests the pleading alone, and not the evidence or facts
alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153
Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the
complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is
concerned with is whether the complaint, as it stands, states a cause of
action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Where a
demurrer is sustained, leave to amend must be allowed where there is a
reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the
plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC
(2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable
possibility that the plaintiff can state a good cause of action, it is error to
sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).
1. First
Two Causes of Action
Defendants demur to Plaintiff’s first and second causes
of action under the Equal Protection Clause and Due Process Clause on the basis
that federal lawsuits are barred against a state when the state has not given
its consent. Additionally, Defendants demur on the basis that the claims fail on
a state constitutional basis because Plaintiff has not established a private
right of action.
The Eleventh Amendment to the U.S. Constitution bars
federal lawsuits against a state absent consent of the state. (Papasan v.
Allain (1986) 478 U.S. 265, 276.) For the exception to this bar under the
doctrine of Ex parte Young to apply, a plaintiff must allege claims
against individually named state officials. (Ex parte Young (1908) 209
U.S. 123; see also Papasan, 478 U.S. at 277-78; Edelman v. Jordan
(1974) 415 U.S. 651, 664-68.)
Further, a plaintiff cannot establish a private right of
action for alleged violations of Article I, section 7(a) under the Equal
Protection Clause or Due Process Clause of the California Constitution if the
instant action is not tied to an established common law or statutory action
against the defendants. (Julian v. Mission Community Hosp. (2017) 11
Cal.App.5th 360, 392 [holding that no private right of action for alleged
violations of constitutional provisions when such action is not tied to an
established common law or statutory action]; see also McAllister v. Los
Angeles Unified Sch. Dist. (2013) 216 Cal.App.4th 1198, 1214 [holding no
private right of action under art I., § 2(a), for substitute teacher allegedly
terminated for comments made a public rally].
There is no indication of consent to the suit from the
state of California, so Plaintiff’s federal claims are barred on that basis,
nor is Plaintiff suing individually named state officials. Additionally,
Plaintiff has not shown that the instant action is tied to an established
common law or statutory action against Defendants, so Plaintiff cannot maintain
the causes of action under the California Constitution, either.
Defendants’
demurrer to Plaintiff’s first two causes of action is sustained with leave to
amend.
2.
Third Cause of Action
Defendants demur to the third cause of action on the
basis that Welfare and Institutions Code section 9712.5 does not create a
mandatory duty for Defendants. Pursuant to Welfare and Institutions Code
section 9715, subdivision (a),
representatives of the office
of the Ombudsman are immune from liability if they are acting in good faith in
the performance of their duties.
There is no allegation in Plaintiff’s FAC that Defendants
were not acting in good faith, nor is there any indication that they failed to
perform a mandatory duty.
Defendants’
demurrer as to Plaintiff’s third cause of action is sustained with leave to
amend.
B.
Motion to Strike
Defendants move to strike references to a class action
suit from Plaintiff’s FAC for being irrelevant and improper. The following contain
the references that Defendants are requesting the Court to strike:
·
Plaintiff’s
introductory paragraph (FAC, p. 1:24-27)
·
Section I. Parties
Paragraph no. 3 (FAC, pp. 2:19-3:2)
·
Section VI. Third
Cause of Action for Violation of Statutory Duties Under California Welf. &
Inst. Code § 9712.5, Paragraph no. 45 (FAC, p. 15:3-6)
In Plaintiff’s opposition, Plaintiff indicates that she
wants to ask the Court for leave to amend to add complete class action
allegation claims to the complaint. (Opposition to Motion to Strike, p. 4.) As
currently plead, there are no complete class action claims, so the references
to a class action are irrelevant and improper.
Accordingly,
Defendant’s motion to strike is granted with leave to amend.
Plaintiff
granted 30 days leave to amend.