Judge: Stephen P. Pfahler, Case: 22CHCV00124, Date: 2023-04-11 Tentative Ruling

Case Number: 22CHCV00124    Hearing Date: April 11, 2023    Dept: F49

Dept. F-49

Date: 4-11-23

Case #22CHCV00124

Trial Date: 11-6-23 c/f 6- 26-23

JUDGMENT ON THE PLEADINGS

MOVING PARTY: Defendant, SC Medical, Inc. dba AFC Urgent Care of Valencia

RESPONDING PARTY: Plaintiff, Peter Yaya, pro per

RELIEF REQUESTED:

Motion for Judgment on the Pleadings on the First Amended Complaint

SUMMARY OF ACTION

On December 21, 2021, Plaintiff Peter Yaya entered the premises of Defendant SC Medical, Inc. dba AFC Urgent Care of Valencia for medical treatment. Plaintiff maintains that a deviated septum interferes with his breathing, and therefore elects to avoid wearing a mask. Notwithstanding Plaintiff’s objections to wearing a mask, Plaintiff was told a mask was required for any treatment. Plaintiff declined and asked that his paperwork be returned.

Plaintiff alleges his medical condition constitutes a disability, and the denial of service violated the right of equal access to the facility. The denial of service led to delayed treatment.

On December 28, 2021, Plaintiff mailed a letter to “American Family Care Corporate headquarters in Birmingham, Alabama outlining the events, and asked for a resolution of the matter and that appropriate action be taken. Plaintiff received a response… [threatening] Plaintiff ‘with an aggressive cross-complaint’ and ‘action for malicious prosecution.’”

On February 24, 2022, Plaintiff, in pro per, filed a complaint for Violation of Civil Liberties (first and second causes of action), Patients Bill of Rights Violations, and Intentional Infliction of Emotional Distress. Defendant answered on April 1, 2022.

On November 3, 2022, Plaintiff filed a “complaint” for Violations of Civil Liberties (first and second causes of action), Violation of the Patient Bill of Rights, and Intentional Infliction of Emotional Distress. On February 7, 2022, the court granted the motion for judgment on the pleadings to the complaint and deemed the later filed complaint as an amended pleading notwithstanding the identification of the later filed document as a “complaint.” Defendant answered the amended “complaint” on March 3, 2023.

RULING: Granted.

Defendant, SC Medical, Inc. dba AFC Urgent Care of Valencia moves for judgment on the pleadings to the “November 22, 2022” filed complaint. No pleading was filed on this date. The court therefore considers the last filed complaint filed on November 3, 2022, as the operative pleading.

Defendant moves for judgment on the pleadings to the entire operative complaint on grounds that the requirement Plaintiff wear a mask in order to receive treatment in the clinic constitutes an immune act, thereby barring the subject lawsuit. Defendant additionally challenges the individual causes of action on ground of insufficient facts supporting the claims.

Plaintiff in opposition contends this motion is improperly redundant with the prior motion for judgment on the pleadings. Plaintiff next challenges the meet and confer effort. On the substance of the action, Plaintiff denies any immunity, in that face masks only constituted a “recommended activity,” rather than a mandatory action. Plaintiff then proceeds with disagreement over efficacy of masks in regards to the transmission of Covid, thereby rendering the required masks as an intentional, discriminatory act.

Defendant in reply reiterates the lack of legal authority for any claim, immunity, and challenges any argument regarding application of the willful misconduct exception to the PREP Act. Defendant also restates challenges the merits of the individual claims under California law.

“A motion for judgment on the pleadings serves the function of a demurrer, challenging only defects on the face of the complaint… [¶] The grounds for a motion for judgment on the pleadings must appear on the face of the complaint or from a matter of which the court may take judicial notice.” (Richardson-Tunnell v. School Ins. Program for Employees (2007) 157 Cal.App.4^th 1056, 1061.) In considering a motion for judgment on the pleadings, courts consider whether the factual allegations, assumed true, are sufficient to constitute a cause of action.  (Fire Insurance Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452-453.)

On a threshold note, the court first addresses the initial argument in opposition. The court specifically granted the first motion for judgment on the pleadings, due to Plaintiff refilling/filing of an amended, which superseded any prior pleading, even if it was done without leave of court. The court declined to determine any substantive changes between the pleadings. Plaintiff’s unilateral action is interpreted as an amendment. The second filed pleading prior to the hearing on the motion constituting a concession on the merits of the motion. Defendant is absolutely allowed to file the instant, second motion for judgment on the pleadings. Nothing in the prior order or statutory authority in any way bars the subject motion.

The failure to meet and confer or sufficient meet and confer is not a basis for the denial of the motion. (Code Civ. Proc., § 439, subd. (a)(4).)

On the merits of the motion, the court addresses Public Readiness and Emergency Preparedness Act (PREP) as provided under 42 U.S.C.A. § 247d-6d. The court summarizes the relevant parts of the act:

(a) Liability protections

(1) In general

Subject to the other provisions of this section, a covered person shall be immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure if a declaration under subsection (b) has been issued with respect to such countermeasure.

(2) Scope of claims for loss

(A) Loss

For purposes of this section, the term “loss” means any type of loss, including--

…

(ii) physical, mental, or emotional injury, illness, disability, or condition;

…

(B) Scope

The immunity under paragraph (1) applies to any claim for loss that has a causal relationship with the administration to or use by an individual of a covered countermeasure, including a causal relationship with the design, development, clinical testing or investigation, manufacture, labeling, distribution, formulation, packaging, marketing, promotion, sale, purchase, donation, dispensing, prescribing, administration, licensing, or use of such countermeasure.

(3) Certain conditions

Subject to the other provisions of this section, immunity under paragraph (1) with respect to a covered countermeasure applies only if--

(A) the countermeasure was administered or used during the effective period of the declaration that was issued under subsection (b) with respect to the countermeasure;

(B) the countermeasure was administered or used for the category or categories of diseases, health conditions, or threats to health specified in the declaration; and

(C) in addition, in the case of a covered person who is a program planner or qualified person with respect to the administration or use of the countermeasure, the countermeasure was administered to or used by an individual who--

(i) was in a population specified by the declaration; and

(ii) was at the time of administration physically present in a geographic area specified by the declaration or had a connection to such area specified in the declaration.

(4) Applicability of certain conditions

With respect to immunity under paragraph (1) and subject to the other provisions of this section:

(A) In the case of a covered person who is a manufacturer or distributor of the covered countermeasure involved, the immunity applies without regard to whether such countermeasure was administered to or used by an individual in accordance with the conditions described in paragraph (3)(C).

(B) In the case of a covered person who is a program planner or qualified person with respect to the administration or use of the covered countermeasure, the scope of immunity includes circumstances in which the countermeasure was administered to or used by an individual in circumstances in which the covered person reasonably could have believed that the countermeasure was administered or used in accordance with the conditions described in paragraph (3)(C).

(5) Effect of distribution method

The provisions of this section apply to a covered countermeasure regardless of whether such countermeasure is obtained by donation, commercial sale, or any other means of distribution, except to the extent that, under paragraph (2)(E) of subsection (b), the declaration under such subsection provides that subsection (a) applies only to covered countermeasures obtained through a particular means of distribution.

(6) Rebuttable presumption

For purposes of paragraph (1), there shall be a rebuttable presumption that any administration or use, during the effective period of the emergency declaration by the Secretary under subsection (b), of a covered countermeasure shall have been for the category or categories of diseases, health conditions, or threats to health with respect to which such declaration was issued.

(b) Declaration by Secretary

(1) Authority to issue declaration

Subject to paragraph (2), if the Secretary makes a determination that a disease or other health condition or other threat to health constitutes a public health emergency, or that there is a credible risk that the disease, condition, or threat may in the future constitute such an emergency, the Secretary may make a declaration, through publication in the Federal Register, recommending, under conditions as the Secretary may specify, the manufacture, testing, development, distribution, administration, or use of one or more covered countermeasures, and stating that subsection (a) is in effect with respect to the activities so recommended.

(2) Contents

In issuing a declaration under paragraph (1), the Secretary shall identify, for each covered countermeasure specified in the declaration--

(A) the category or categories of diseases, health conditions, or threats to health for which the Secretary recommends the administration or use of the countermeasure;

(B) the period or periods during which, including as modified by paragraph (3), subsection (a) is in effect, which period or periods may be designated by dates, or by milestones or other description of events, including factors specified in paragraph (6);

(C) the population or populations of individuals for which subsection (a) is in effect with respect to the administration or use of the countermeasure (which may be a specification that such subsection applies without geographic limitation to all individuals);

(D) the geographic area or areas for which subsection (a) is in effect with respect to the administration or use of the countermeasure (which may be a specification that such subsection applies without geographic limitation), including, with respect to individuals in the populations identified under subparagraph (C), a specification, as determined appropriate by the Secretary, of whether the declaration applies only to individuals physically present in such areas or whether in addition the declaration applies to individuals who have a connection to such areas, which connection is described in the declaration; and

(E) whether subsection (a) is effective only to a particular means of distribution as provided in subsection (a)(5) for obtaining the countermeasure, and if so, the particular means to which such subsection is effective.

(3) Effective period of declaration

(A) Flexibility of period

The Secretary may, in describing periods under paragraph (2)(B), have different periods for different covered persons to address different logistical, practical or other differences in responsibilities.

(B) Additional time to be specified

In each declaration under paragraph (1), the Secretary, after consulting, to the extent the Secretary deems appropriate, with the manufacturer of the covered countermeasure, shall also specify a date that is after the ending date specified under paragraph (2)(B) and that allows what the Secretary determines is--

(i) a reasonable period for the manufacturer to arrange for disposition of the covered countermeasure, including the return of such product to the manufacturer; and

(ii) a reasonable period for covered persons to take such other actions as may be appropriate to limit administration or use of the covered countermeasure.

…

In deciding whether and under what circumstances or conditions to issue a declaration under paragraph (1) with respect to a covered countermeasure, the Secretary shall consider the desirability of encouraging the design, development, clinical testing or investigation, manufacture, labeling, distribution, formulation, packaging, marketing, promotion, sale, purchase, donation, dispensing, prescribing, administration, licensing, and use of such countermeasure.

(7) Judicial review

No court of the United States, or of any State, shall have subject matter jurisdiction to review, whether by mandamus or otherwise, any action by the Secretary under this subsection.

(8) Preemption of State law

During the effective period of a declaration under subsection (b), or at any time with respect to conduct undertaken in accordance with such declaration, no State or political subdivision of a State may establish, enforce, or continue in effect with respect to a covered countermeasure any provision of law or legal requirement that--

(A) is different from, or is in conflict with, any requirement applicable under this section; and

(B) relates to the design, development, clinical testing or investigation, formulation, manufacture, distribution, sale, donation, purchase, marketing, promotion, packaging, labeling, licensing, use, any other aspect of safety or efficacy, or the prescribing, dispensing, or administration by qualified persons of the covered countermeasure, or to any matter included in a requirement applicable to the covered countermeasure under this section or any other provision of this chapter, or under the Federal Food, Drug, and Cosmetic Act.

…

(d) Exception to immunity of covered persons

(1) In general

Subject to subsection (f), the sole exception to the immunity from suit and liability of covered persons set forth in subsection (a) shall be for an exclusive Federal cause of action against a covered person for death or serious physical injury proximately caused by willful misconduct, as defined pursuant to subsection (c), by such covered person. For purposes of section 2679(b)(2)(B) of Title 28, such a cause of action is not an action brought for violation of a statute of the United States under which an action against an individual is otherwise authorized.

(2) Persons who can sue

An action under this subsection may be brought for wrongful death or serious physical injury by any person who suffers such injury or by any representative of such a person.

(e) Procedures for suit

(1) Exclusive Federal jurisdiction

Any action under subsection (d) shall be filed and maintained only in the United States District Court for the District of Columbia.

(2) Governing law

The substantive law for decision in an action under subsection (d) shall be derived from the law, including choice of law principles, of the State in which the alleged willful misconduct occurred, unless such law is inconsistent with or preempted by Federal law, including provisions of this section.

(3) Pleading with particularity

In an action under subsection (d), the complaint shall plead with particularity each element of the plaintiff's claim, including--

(A) each act or omission, by each covered person sued, that is alleged to constitute willful misconduct relating to the covered countermeasure administered to or used by the person on whose behalf the complaint was filed;

(B) facts supporting the allegation that such alleged willful misconduct proximately caused the injury claimed; and

(C) facts supporting the allegation that the person on whose behalf the complaint was filed suffered death or serious physical injury.

(4) Verification, certification, and medical records

(A) In general

In an action under subsection (d), the plaintiff shall verify the complaint in the manner stated in subparagraph (B) and shall file with the complaint the materials described in subparagraph (C). A complaint that does not substantially comply with subparagraphs (B) and (C) shall not be accepted for filing and shall not stop the running of the statute of limitations.

(B) Verification requirement

(i) In general

The complaint shall include a verification, made by affidavit of the plaintiff under oath, stating that the pleading is true to the knowledge of the deponent, except as to matters specifically identified as being alleged on information and belief, and that as to those matters the plaintiff believes it to be true.

(ii) Identification of matters alleged upon information and belief

Any matter that is not specifically identified as being alleged upon the information and belief of the plaintiff, shall be regarded for all purposes, including a criminal prosecution, as having been made upon the knowledge of the plaintiff.

(C) Materials required

In an action under subsection (d), the plaintiff shall file with the complaint--

(i) an affidavit, by a physician who did not treat the person on whose behalf the complaint was filed, certifying, and explaining the basis for such physician's belief, that such person suffered the serious physical injury or death alleged in the complaint and that such injury or death was proximately caused by the administration or use of a covered countermeasure; and

(ii) certified medical records documenting such injury or death and such proximate causal connection.

(5) Three-judge court

Any action under subsection (d) shall be assigned initially to a panel of three judges. Such panel shall have jurisdiction over such action for purposes of considering motions to dismiss, motions for summary judgment, and matters related thereto. If such panel has denied such motions, or if the time for filing such motions has expired, such panel shall refer the action to the chief judge for assignment for further proceedings, including any trial. Section 1253 of Title 28 and paragraph (3) of subsection (b) of section 2284 of Title 28 shall not apply to actions under subsection (d).

…

(2) Covered person

The term “covered person”, when used with respect to the administration or use of a covered countermeasure, means--

…

(B) a person or entity that is--

…

(ii) a distributor of such countermeasure;

(iii) a program planner of such countermeasure;

(iv) a qualified person who prescribed, administered, or dispensed such countermeasure

…

…

(8) Qualified person

The term “qualified person”, when used with respect to the administration or use of a covered countermeasure, means--

(A) a licensed health professional or other individual who is authorized to prescribe, administer, or dispense such countermeasures under the law of the State in which the countermeasure was prescribed, administered, or dispensed; or

…

42 U.S.C.A. § 247d-6d

The PREP Act was specifically extended to the Covid pandemnic as of January 31, 2020.

“To date, United States traveler-associated cases have been identified in a number of States and community-based transmission is suspected. On January 31, 2020, Secretary Azar declared a public health emergency pursuant to section 319 of the PHS Act, 42 U.S.C. 247d, for the entire United States to aid in the nation's health care community response to the COVID-19 outbreak.[FN1] The outbreak remains a significant public health challenge that requires a sustained, coordinated proactive response by the Government in order to contain and mitigate the spread of COVID-19.”

(Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 FR 15198-01.)

“Section IX. Administration of Covered Countermeasures

The PREP Act does not explicitly define the term “administration” but does assign the Secretary the responsibility to provide relevant conditions in the Declaration. In Section IX of the Declaration, the Secretary defines “Administration of a Covered Countermeasure,” as follows:

Administration of a Covered Countermeasure means physical provision of the countermeasures to recipients, or activities and decisions directly relating to public and private delivery, distribution, and dispensing of the countermeasures to recipients; management and operation of countermeasure programs; or management and operation of locations for purpose of distributing and dispensing countermeasures.

“The definition of “administration” extends only to physical provision of a countermeasure to a recipient, such as vaccination or handing drugs to patients, and to activities related to management and operation of programs and locations for providing countermeasures to recipients, such as decisions and actions involving security and queuing, but only insofar as those activities directly relate to the countermeasure activities. Claims for which Covered Persons are provided immunity under the Act are losses caused by, arising out of, relating to, or resulting from the administration to or use by an individual of a Covered Countermeasure consistent with the terms of a Declaration issued under the Act. Under the definition, these liability claims are precluded if they allege an injury caused by a countermeasure, or if the claims are due to manufacture, delivery, distribution, dispensing, or management and operation of countermeasure programs at distribution and dispensing sites.

“Thus, it is the Secretary's interpretation that, when a Declaration is in effect, the Act precludes, for example, liability claims alleging negligence by a manufacturer in creating a vaccine, or negligence by a health care provider in prescribing the wrong dose, absent willful misconduct. Likewise, the Act precludes a liability claim relating to the management and operation of a countermeasure distribution program or site, such as a slip-and-fall injury or vehicle collision by a recipient receiving a countermeasure at a retail store serving as an administration or dispensing location that alleges, for example, lax security or chaotic crowd control. However, a liability claim alleging an injury occurring at the site that was not directly related to the countermeasure activities is not covered, such as a slip and fall with no direct connection to the countermeasure's administration or use. In each case, whether immunity is applicable will depend on the particular facts and circumstances.”

(Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 FR 15198-01.)

The operative complaint itself alleges Plaintiff sought treatment from Defendant on December 21, 2021, which places the visit during the applicable period of the PREP Act and Covid declaration period. [Operative Complaint, Unnumbered Paragraph Between Paragraphs 8 & 9.] Plaintiff identifies Defendant as a licensed medical facility. [Id., ¶ 1.] This time frame and Covid emergency declaration is undisputed. The only issue is therefore whether Defendant was and remains immunized under the PREP Act.

The plain language clearly establishes Defendant as a licensed healthcare thereby placing it within the regulation as both a “covered person” and “qualified person” as a licensed healthcare facility. (42 U.S.C.A. § 247d-6d(i)(2)(B)(iv) & (8)(A).) Nothing in the operative complaint alleges the facility operated as anything other than a healthcare facility.

The designation of Defendant as a covered entity engaging in defined countermeasures categorically and unequivocally precludes any state and federal claims regardless of any claimed disabilities arising from a deviated septum thereby preventing Plaintiff from wearing a mask. The public policy behind the law protects a health care provider engaged in the provision of licensed medical care from a lawsuit arising from alleged acts arising from imposed conditions in the distribution of healthcare during a public health emergency.

Plaintiff presents no basis of any exception. Even if Plaintiff could state an exception, the subject court is the improper forum, as addressed in the regulatory sections. In other words, the court finds the PREP Act applicable, no exception to any action, and even if an action were justified, the court lacks jurisdiction.

The court also declines to consider the merits of the individual causes of action. Even if the court considered the claims on the basis of inapplicability of the PREP Act, the action lacks merit.

The refusal to provide service to Plaintiff due to his refusal to wear a mask because of an alleged defined medical condition, such as a deviated septum, in no way presents the basis for an exclusion of the PREP Act when all other patients seeking treatment remained required to wear a mask. The court declines to find a special privilege applicable to Plaintiff, thereby establishing the basis of an Unruh Act violation, even if the PREP Act regulations were not applicable. (Civ. Code, § 51, subd. (c).)

On the slander claim, the operative complaint lacks any actual support for the alleged false and unprivileged utterance. (Civ. Code, § 46.) On the violation of the patient bills of rights, nothing in the complaint alleges Plaintiff was a patient of any qualified facility. (Health & Saf. Code, § 1430.)

Finally, on the intentional infliction of emotional distress claim, the court finds no outrageous conduct supporting the claim in any context. (Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 129-130.)

The court therefore grants the motion for judgment on the pleadings with prejudice.

The case is dismissed. Defendant is ordered to submit a judgment.

Defendant to give notice.