Judge: Joseph Lipner, Case: 24STCV03778, Date: 2024-06-04 Tentative Ruling

Case Number: 24STCV03778    Hearing Date: June 4, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant Diana Lopez, PMHNP (sued as “Diana Lopez Psycho Dr.) (“Defendant”) demurs to the Complaint filed by Plaintiff Dewey Demetro, Jr.

The Court CONTINUES Defendant’s demurrer to July 2, 2024 at 8:30 am. To allow the Attorney General to make a determination as to whether to remove this case to federal court.  The Court requests that the Attorney General do so no later than July 1, 2024 so that the Court can rule on the demurrer if the case remains in state court.

Defendant to give notice.

Background

This case relates to Plaintiff’s attempts to obtain psychiatric services from Defendant. The following facts are taken from the allegations of the Complaint, which the Court accepts as true for the purposes of this demurrer.

Plaintiff attempted to receive psychiatric services from Defendant. Plaintiff alleges that he had to wait for 18 months to see Defendant.

When Plaintiff met with Defendant on an unspecified date, Defendant allegedly stated that she was referring Plaintiff to her supervisor to handle Plaintiff’s case. Defendant allegedly stated that her supervisor was not taking any more cases. Plaintiff allegedly stated that Defendant’s statements did not make sense and stated that Defendant was treating Plaintiff that way due to racism.

Defendant stated that she would be back and returned roughly ten minutes later. Defendant allegedly told Plaintiff to take a pill three times a day for 90 days. It is unclear from the Complaint what mediation the pill was. Plaintiff asked Defendant how she came to the conclusion that Plaintiff needed to take the pill. Defendant allegedly asked if Plaintiff was questioning her judgment. Plaintiff allegedly stated that he was questioning Defendants judgment because Plaintiff believed Defendant to be racist based on Defendant’s initial decision to pass Plaintiff’s case onto Defendant’s supervisor.

Plaintiff alleges that Defendant was trying to kill him with the pills. Plaintiff alleges that psychology has killed one billion people and cured zero people. Plaintiff alleges that Defendant would not see him following that meeting. Plaintiff appears to allege that Defendant has labeled him a drug addict, although the syntax of the Complaint makes this somewhat unclear.

            Plaintiff filed this action against Defendant on February 15, 2024. It is not clear from the Complaint what causes of action Plaintiff intends to raise. Plaintiff seeks $8,000,000,000.00.

            Defendant demurred to the Complaint on March 21, 2024. Plaintiff did not file an opposition. Defendant contends that the Court lacks subject matter jurisdiction and that the Complaint is impermissibly vague and fails to state a cause of action.

            On April 2, 2024, the United States Attorney for the Central District of California made a limited appearance to state that whether Defendant is deemed to be an employee of the Public Health Service for the purposes of 42 U.S.C., section 233 with respect to Plaintiff’s claims is under consideration.

Legal Standard

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.) The court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) 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. (Ibid.; 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).

Discussion

Subject Matter Jurisdiction

Defendant argues that the Court lacks subject matter jurisdiction on the basis that this action may only be brought against the United States federal government via the Federal Tort Claims Act (“FTCA”).

42 U.S.C., section 233 outlines a statutory scheme whereby certain entities and their employees are deemed to be employees of the Public Health Service (“PHS”), and whereby claims against those entities and their employees for personal injuries arising from medical services must be brought exclusively against the United States itself. (42 U.S.C., § 233.)

Under 42 U.S.C., section 233, subd. (g)(1)(A), an entity shall be deemed to be an employee of the Public Health Service (“PHS”) when certain conditions are met. (42 U.S.C., § 233, subd.(g)(1)(A).) A covered entity’s employees, officers, board members, and contractors are also considered employees of the PHS for the purposes of this statute. (42 U.S.C., § 233, subd.(g)(1)(A).) An entity is covered when it is a public or non-profit private entity receiving Federal funds under 42 U.S.C., section 254b, and is covered for the duration of a calendar year that begins during a fiscal year for which a transfer was made under 42 U.S.C., section 233, subd. (k)(3) in order for payments to be made for judgments against the United States.

The remedy against the United States provided by 28 U.S.C., section 1346, subd. (b) and 28 U.S.C., section 2672 is the exclusive remedy for personal injuries resulting from the performance of medical functions, by any employee of the PHS, including covered entities and their employees when the PHS employee was acting within the scope of their employment. (42 U.S.C., § 233, subd. (g)(1)(A); 42 U.S.C., § 233, subd. (a).) The above remedy against the United States is exclusive of claims under the same subject matter against the employee whose act or omission gave rise to the claim. (42 U.S.C., § 233, subd. (a).) The federal district courts have exclusive jurisdiction over such a claim. (28 U.S.C., section 1346, subd. (b)(1).)

“Upon a certification by the Attorney General that the defendant was acting in the scope of his employment at the time of the incident out of which the suit arose, any such civil action or proceeding commenced in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States of the district and division embracing the place wherein it is pending and the proceeding deemed a tort action brought against the United States under the provisions of Title 28 and all references thereto.” (42 U.S.C., § 233, subd. (c).)

The treatment at issue in this case took place at St. Anthony Medical Center (“St. Anthony”). (Rubaum Decl. ¶ 3.) St. Anthony is a Federally Qualified Health Center under 42 U.S.C., section 233.

            The Attorney General has not issued a notice of removal to federal court at this time. As discussed above, the United States Attorney for the Central District of California has informed the Court that whether Defendant is deemed to be an employee of the Public Health Service for the purposes of 42 U.S.C., section 233 with respect to Plaintiff’s claims is under consideration.

Because section 233(g)(1)(A) is a jurisdictional bar, the Court continues Defendant’s demurrer in this matter pending the Attorney General’s determination as to whether to remove this case to federal court.