Judge: Douglas W. Stern, Case: 22STCV19313, Date: 2023-04-20 Tentative Ruling
Case Number: 22STCV19313 Hearing Date: April 20, 2023 Dept: 68
Hai-Jin Shin vs. Wise
& Healthy Aging, Long-Term Care Ombudsman, et al. 22STCV19313
MOVING PARTY: State of California on behalf
of Defendants
RESPONDING PARTY: Plaintiff Hai-Jin Shin
Demurrer to Second Amended Complaint with
Motion to Strike
I.
BACKGROUND
A. Factual
Plaintiff’s Second Amended Complaint (SAC), like her First Amended
Complaint, 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 breached their duties under the California Welfare and Institutions
Code because of this failure. (Demurrer at p. 7.)
B. Procedural
This
action was originally filed by Plaintiff on June 13, 2022. Defendants filed their
Demurrer with Motion to Strike as to Plaintiff’s SAC on March 28, 2023.
Plaintiff filed her opposition several days late on April 14, 2023 (it would
have been due 9 court days before the hearing, on April 7, 2023). Defendants
filed an objection to the late opposition and replies April 17, 2023. The Court notes the objections, finds that
they are well taken, but is nevertheless reviewing and considering the late
oppositions.
C.
Judicial Notice
Defendants
have requested that the Court take judicial notice of restraining orders and
related documents that were filed against Plaintiff by her brother to stay away
from their mother while their mother was in the long-term care facility. The request is granted.
Plaintiff
has also requested that the Court take judicial notice of documents related to
the prior restraining orders. That request is denied.
The
judicial notice is relevant to the Court only with respect to the motion to
strike relating to the class action allegations.
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].
As was the case with previous iterations of
Plaintiff’s complaint, 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 as to Plaintiff’s first two
causes of action is sustained without 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.
Similarly, government employees are
immune from liability under Gov. Code § 820.2 if the acts at issue are a result
of the exercise of discretion vested in the employee. The entity is liable for
injury resulting from the act of an employee if the employee is immune. (Gov.
Code § 815.2(b).)
Like the previous version of the
complaint, there is no indication from Plaintiff’s SAC that Defendants’
employees were not acting in good faith, nor is there any indication that they
failed to perform a mandatory duty. Additionally, as the employees in this case
were exercising their discretion, the employees and the entities would be
immune.
Defendants’ demurrer as to
Plaintiff’s third cause of action is sustained without 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:
·
“Class Action” from
the caption. (SAC, p. 1)
·
Paragraph No. 3 (SAC,
p. 2:22-3:5)
·
Section VII Class
Action Allegations (SAC, ¶¶ 53-55)
·
Section VII. Prayer
for Relief (SAC, ¶¶ 5-6 at p. 23.) (requests for permanent injunction and
attorney’s fees)
Defendants argue that Plaintiff’s class action allegations
are improper because Plaintiff failed to plead a sufficient factual basis in
the SAC to amend the individual action into a putative class action.
Civil Code section 382 sets forth the requirements
for a plaintiff or a putative class of plaintiffs to file a proposed class
action in the State of California. In order to state an appropriate factual
basis for a proposed class action, the plaintiff must establish the existence
of “an ascertainable class” and a “well-defined community of interest among
class members.” (Sav-On Drug Stores v. Superior Court (2004) 34 Cal.4th
319, 326.) The “community of interest” criteria is comprised of three factors: (1)
predominant common question of law or fact; (2) class representatives with
claims or defenses typical of the class; and (3) class representatives who can
adequately represent the class. (Ibid.) Moreover, plaintiffs are
required to show that class treatment would “provide substantial benefits” to
both the courts and the litigants. (Bell v. Farmers Ins. Exchange (2004)
15 Cal.App.4th 715, 741.)
Plaintiff has not shown that she can adequately
represent the class. To start, she cannot maintain any of her causes of action
individually as currently pled, so she could not maintain them as part of a
class. Further, Plaintiff has not shown that the claims she is making are
typical of an ascertainable class of persons; rather, the allegations she has
made concerning the treatment of her mother appear to be specific to the
situation of her mother. Plaintiff has not provided any facts that would show
that the problems that she has alleged are widespread.
Plaintiff has also not pled any facts showing that
she would be entitled to attorney’s fees, or that a permanent injunction would
be appropriate.
Defendant’s motion to strike is granted without
leave to amend.
III. ORDER
1.
Defendants’ Demurrer as to Plaintiff’s Second
Amended Complaint is sustained without leave to amend.
2.
Defendants’ Motion to Strike is granted
without leave to amend.