-KJN (PS) Rhodes v. Placer County et al, No. 2:2009cv00489 - Document 120 (E.D. Cal. 2011)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 3/30/2011 ORDERING that the 73 motion to dismiss is GRANTED IN PART and DENIED IN PART. The 73 motion for more definite statement is DENIED. The 73 motion to strike is GRANTED IN PART and DENIED IN PART. Status conference is scheduled for 5/19/2011, at 10:00 AM. IT IS HEREBY RECOMMENDED that 73 motion to dismiss certain claims be granted. Referred to Judge Morrison C. England, Jr.. Objections to F&R due within 14 days. (Zignago, K.)

Download PDF

-KJN (PS) Rhodes v. Placer County et al Doc. 120 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 KATHLYN A. RHODES, 11 12 13 Plaintiff, No. 2:09-cv-00489 MCE KJN PS vs. PLACER COUNTY, et al., ORDER AND FINDINGS & RECOMMENDATIONS 14 Defendants. 15 / 16 17 Presently before this court is a motion to dismiss (“MTD”) and motion to strike 18 (“MTS”), and in the alternative, a motion for a more definite statement, filed by defendants Sonja 19 Marie Jackson, M.D. and David Fakhri, M.D. (Dkt. No. 73.) Plaintiff Kathlyn Rhodes1 opposed 20 the motions with a written opposition and declaration. (Oppo., Dkt. Nos. 94, 95.) The 21 1 22 23 24 25 This action proceeds before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1), and was reassigned by an order entered February 9, 2010. (Dkt. No. 36.) Pursuant to the local rules, this matter was assigned to the undersigned because plaintiff did not initially identify to the court the fact that she is a licensed attorney in California. Local Rule 302(c)(21) provides that where a pro se litigant later becomes represented by an attorney, that such an action will be referred back to the district judge. It is not clear that this local rule governs the treatment of this action because plaintiff is still acting in pro per. In the interests of judicial economy, the undersigned will proceed by way of findings and recommendations which will then be reviewed by the district judge in this action. 26 1 Dockets.Justia.com 1 defendants filed a written reply. (Dkt. No. 99.) The matter was submitted without oral argument 2 pursuant to Eastern District Local Rule 230(g). (Dkt. No. 101.) 3 After plaintiff filed her second amended complaint (the “SAC”), three sets of 4 defendants filed motions to dismiss and partially strike the SAC, and those motions are now 5 pending before the court.2 The motions filed by other defendants will be addressed in separate 6 orders. This order addresses only the motions filed by Drs. Jackson and Fakhri (the “moving 7 defendants”). (Dkt. No. 73.) 8 After careful consideration of the pleadings on file, the record, and the papers 9 filed in support of and in opposition to these motions, and as discussed below, the undersigned 10 recommends that the motion to dismiss be granted in part and denied in part, that the motion to 11 strike be granted in part and denied in part, and that the motion for a more definite statement be 12 denied. 13 I. BACKGROUND Plaintiff, a licensed attorney3 appearing in pro se and in forma pauperis, filed this 14 15 action on February 20, 2009. (Dkt. No. 1.) In general, plaintiff complains of alleged violations 16 of her rights based upon events surrounding her arrest and subsequent treatment at a mental 17 health facility. Following this court’s screening of her original complaint under 28 U.S.C. § 18 1915, plaintiff filed a first amended complaint on May 20, 2009. (Dkt. No. 4.) Several 19 defendants filed motions to dismiss that complaint. This court heard oral arguments on the 20 21 22 23 24 2 Defendants County of Sacramento and Dorian Kittrell filed a separate motion to dismiss the SAC. (Dkt. No. 72.) Defendant American Medical Response also filed a separate motion to dismiss and partially strike the SAC. (Dkt. No. 77.) The remaining defendants filed answers to plaintiff’s SAC, namely: California Forensic Medical Group, Inc., Elaine Hustedt, Dan Hustedt, Taylor Fithian, M.D. (Dkt. No. 69), Choice Hotels International, Inc., Sac City Lodging Partners, LLC, Eva Cooper, Myrna Yao (Dkt. No. 70), City of Rocklin, Susan Davis, Darrell Jantz, Jennifer Collins, Mark Siemens, Carlos Urrutia, Thomas J. Platina (Dkt. No. 74), Placer County, Edward N. Bonner, Mike Seipert and Cheryl Hamilton (Dkt. No. 75). 25 3 26 At several hearings in this action, plaintiff confirmed her status as an active member of the California Bar. (E.g., Dkt. Nos. 60, 117.) 2 1 motion to dismiss the first amended complaint on March 25, 2010. (Dkt. No. 60.) During that 2 hearing, the undersigned warned plaintiff that, because she was a licensed member of the 3 California Bar, she would not continue to receive the leniency typically given to pro se litigants. 4 The undersigned directed plaintiff to very carefully review and amend her pleading to correct the 5 various deficiencies noted in the motions to dismiss, including the need to plead specific factual 6 allegations against each defendant for each claim. The undersigned gave plaintiff the example of 7 the defamation/slander claim, and informed her that to properly state such a claim, she must 8 allege: the statement(s) made; by whom; and identify who heard those alleged statements. The 9 undersigned also emphasized that some of the statute of limitations arguments made in the 10 motions to dismiss appeared “well-taken,” and cautioned plaintiff that while she would be 11 permitted the opportunity to amend the apparently time-barred claims, she would be held to the 12 standards of an attorney and might therefore face sanctions for continuing to pursue claims that 13 are, in fact, time-barred. The undersigned warned plaintiff that, as a member of the bar, she 14 would be expected to omit claims that were time-barred unless she could make good faith 15 arguments to the contrary. Finally, the undersigned instructed plaintiff that with respect to any 16 claims with a claim presentation requirement (i.e., claims requiring compliance with the 17 Government Claims Act), plaintiff would need to plead the dates she presented her claim(s) and 18 attach the notice or claim to her pleading. (Id.) 19 After the hearing on March 25, 2010, the court dismissed the first amended 20 complaint and gave plaintiff leave to file her SAC. (Dkt. No. 61.) The court ordered plaintiff to 21 craft her SAC so as to distinguish between each defendant and his or her alleged actions, to state 22 non-conclusory factual bases for claims, and specifically set forth the notice provided to 23 defendants for any claims requiring such notice or claim presentation. (Dkt. Nos. 60, 61 at 2-4.) 24 On April 27, 2010, plaintiff filed her SAC. (SAC, Dkt. No. 66.) Plaintiff’s SAC 25 sets forth fourteen separate claims for relief stemming from an allegedly improper search and 26 arrest and subsequent confinement in a mental facility following her time as a guest at the 3 1 Comfort Suites hotel in Rocklin, California. (Dkt. No. 66.) The SAC asserts claims against 2 twenty-three separate defendants.4 3 The SAC alleges that on November 20, 2007, three Rocklin police officers 4 surrounded plaintiff in a public parking lot, performed a pat down of her body, interrogated her 5 and ordered her to undergo a field sobriety test. (SAC ¶ 10.) Plaintiff alleges that this interaction 6 occurred across the street from the Comfort Suites hotel in Rocklin, where she had rented Room 7 101. (Id.) Although plaintiff avers that she successfully complied with the police officers’ 8 requirements, she nonetheless was “forced to ride in the back of Rocklin Police Officer Davis’ 9 patrol car from the parking lot to the front door of Comfort Suites,” and that she was injured by 10 officer Davis during this process. (Id.) Plaintiff alleges that defendants Platina, Collins and 11 others prepared a false police report claiming that defendant Yao told Officer Platina that 12 plaintiff had been “praying to a light” and singing in the hotel lobby and was “acting crazy.” (Id. 13 ¶ 21.) 14 Later that same night, plaintiff contends that Officer Platina and another officer 15 returned to the Comfort Suites, told the hotel clerk, defendant Yao, to unlock plaintiff’s room, 16 and thereafter searched plaintiff’s hotel room and her other belongings without a warrant or 17 exigent circumstances. (Id. ¶ 11.) Plaintiff contends that the officers also broke into her car 18 trunk to perform a search. (Id. ¶ 13.) Plaintiff then states that “Rocklin Police Officers Platina 19 and/or Jantz, Davis and/or one or more ‘Doe’ Defendants 1-20 subsequently beat Plaintiff to the 20 ground and rendered her unconscious, then transported Plaintiff in the back of Platina’s patrol car 21 to the Placer County Main Jail in Auburn during the night of November 20, 2007.” (Id. ¶ 14.) 22 Plaintiff also alleges that “Platina sexually assaulted Plaintiff in the back seat of his police 23 vehicle.” (Id.) Plaintiff avers that she was assaulted and injured by a variety of persons 24 including four entities, five individuals, and 80 unnamed Doe defendants with whom she came 25 4 26 The parties are familiar with the other allegations in the complaint and they will only be recited as relevant to the grounds discussed herein. 4 1 into contact on November 20 and 21, 2007. (Id. ¶ 16 (“Said Defendants refused to allow Plaintiff 2 to make any telephone calls; refused to give Plaintiff food, water or medical treatment for her 3 personal injuries inflicted by Defendants; interrogated Plaintiff against her consent; laughed at 4 and ignored Plaintiff’s multiple requests to call her boy friend [sic], a lawyer and/or a judge; told 5 Plaintiff she was at Guantanamo Bay and that most of Plaintiff’s family was dead; rendered 6 Plaintiff unconscious and searched her body, stripped off Plaintiff’s socks and two toe rings 7 without her consent; and injected needles and foreign substances into Plaintiff’s body without her 8 consent.”). 9 Plaintiff alleges that on the night of November 21, 2007, she was transported via 10 ambulance from the Placer County Main Jail to the Sacramento County Mental Health Treatment 11 Center (“SCMHTC”). (Id. ¶ 18.) Plaintiff alleges that upon her arrival at SCMHTC, she was 12 “beat” in the parking lot by three Doe defendants employed by any of five separate entity 13 defendants. (Id.) 14 Plaintiff alleges that she was involuntarily confined for eight days at the 15 SCMHTC. (Id.) Plaintiff avers that “[a]s a proximate result of the police brutality, medical 16 malpractice, torture and abuse by Platina, Jantz, Davis, Seipert, Hamilton, Bonner, CFMG, 17 AMR, ‘Doe’ Defendants 1-80 and/or others, Plaintiff sustained severe personal and bodily 18 injuries, including injuries to her head, neck, back, left nipple, both knees, left hip, right 19 shoulder, both wrists, both legs and both feet.” (Id. ¶ 22.) 20 Plaintiff alleges that during her time at the SCMHTC, she was “treated” by the 21 moving defendants. (Id. ¶¶ 6, 85.) She alleges that moving defendants “were and are physicians 22 licensed to practice psychiatry” in California. (Id. ¶ 6.) Plaintiff alleges that moving defendants 23 did not properly advise her of the risks of ingesting medications called Seroquel and Lithobid. 24 (Id. ¶ 6.) Plaintiff alleges that moving defendants also did not advise her of various rights (i.e., 25 the right to a hearing, the right to a patient’s advocate). (Id.) 26 More precisely, plaintiff alleges that moving defendant Jackson “treated” her on 5 1 or about November 25 through 28, 2007, and “prescribed” a medication, Seroquel, “without 2 plaintiff’s consent.” (Id.) Plaintiff alleges that moving defendant Jackson did not disclose 3 Seroquel’s “adverse side effects” to plaintiff, in violation of a duty of care. (Id.) 4 Plaintiff also alleges that, during her time at SCMHTC, moving defendant Fakhri 5 “treated Plaintiff on or about November 25, 2007,” “changed the dosage of Seroquel and 6 prescribed Lithobid (Lithium),” also without plaintiff’s informed consent. (Id. ¶¶ 6, 54(b).) 7 Plaintiff alleges that Fakhri, among other defendants, administered injections to plaintiff’s body 8 against her will. (Id. ¶¶ 30(b), 54(b).) 9 Plaintiff also alleges that, on July 27, 2008, months after her discharge from 10 SCMHTC, plaintiff “saw Dr. Fakhri” and called his name, but he ignored her. (Id. at 6.) 11 II. 12 13 LEGAL STANDARDS Moving defendants’ motion is brought pursuant to Rules 12(b)(1), 12(b)(6), 12(e) and 12(f) of the Federal Rules of Civil Procedure. 14 A. Legal Standard For A Motion to Dismiss Under Rule 12(b)(1) 15 A motion brought pursuant to Rule 12(b)(1) is a challenge to the court’s 16 jurisdiction over the subject matter of the complaint. Federal courts are courts of limited 17 jurisdiction. Vacek v. UPS, 447 F.3d 1248, 1250 (9th Cir. 2006). The plaintiff has the burden of 18 establishing that subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co., 511 19 U.S. 375, 377 (1994). “A federal court is presumed to lack jurisdiction in a particular case unless 20 the contrary affirmatively appears.” A-Z Int’l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003). 21 B. Legal Standard For A Motion to Dismiss Under Rule 12(b)(6) 22 A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) 23 challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase 24 Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the “notice pleading” standard 25 of the Federal Rules of Civil Procedure, a plaintiff’s complaint must provide, in part, a “short and 26 plain statement” of the claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also 6 1 Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). The complaint must give a defendant 2 “fair notice of what the claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. 3 Twombly, 550 U.S. 544, 555 (2007) (internal quotations and modification omitted). 4 On a motion to dismiss, the court construes the pleading in the light most 5 favorable to the plaintiff and resolves all doubts in the plaintiff’s favor.5 Corrie v. Caterpiller, 6 503 F.3d 974, 977 (9th Cir. 2007); Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 7 1484 (9th Cir. 1995). The complaint’s factual allegations are accepted as true. Church of 8 Scientology of Cal. v. Flynn, 744 F.2d 694, 696 (9th Cir. 1984). In order to survive dismissal for 9 failure to state a claim pursuant to Rule 12(b)(6), however, a complaint must contain more than a 10 “formulaic recitation of the elements of a cause of action;” it must contain factual allegations 11 sufficient to “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 12 550 U.S. 544, 545 (2007). Factually unsupported claims framed as legal conclusions, and mere 13 recitations of the legal elements of a claim, do not give rise to a cognizable claim for relief. 14 Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-51 (2009) (holding that Rule 8 “demands more than an 15 unadorned, the defendant-unlawfully-harmed-me-accusation”). 16 Iqbal and Twombly describe a two-step process for evaluation of motions to 17 18 19 20 21 22 23 24 25 26 5 Pro se pleadings are typically held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Parduc, 551 U.S. 89 (2007). With respect to pleadings by pro se parties, the court must construe such a pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc). However, during a recent hearing, plaintiff confirmed to the court that she is, in fact, an attorney currently licensed to practice law in California. (E.g., Dkt. No. 117.) Therefore, it makes little sense to hold the SAC to a “less stringent” standard in this case. Moreover, plaintiff has not argued that a less stringent standard should apply to her. To date, this court has given plaintiff several opportunities to amend her pleading and otherwise treated her as a typical, non-attorney pro se party (by, for instance, permitting her to make arguments in hearings for which she failed to file any written oppositions despite Eastern District Local Rule 230(c)). Plaintiff has admitted that she is a licensed attorney in California. The undersigned has already informed plaintiff that her pleading will no longer be held to a less stringent, non-attorney standard. (E.g., Dkt. No. 60.) 7 1 dismiss. The court first identifies the non-conclusory factual allegations, and the court then 2 determines whether these allegations, taken as true and construed in the light most favorable to 3 the plaintiff, “plausibly give rise to an entitlement to relief.” Iqbal, 129 S. Ct. at 1949-50.6 4 “A complaint may survive a motion to dismiss if, taking all well-pleaded factual 5 allegations as true, it contains ‘enough facts to state a claim to relief that is plausible on its 6 face.’” Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010). “‘A claim has facial 7 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 8 inference that the defendant is liable for the misconduct alleged.’” Caviness v. Horizon Cmty. 9 Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). 10 “Plausibility,” as it is used in Twombly and Iqbal, does not refer to the likelihood 11 that a pleader will succeed in proving the allegations. Instead, it refers to whether the 12 non-conclusory factual allegations, when assumed to be true, “allow[] the court to draw the 13 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 14 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more 15 than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. 16 at 557). A complaint may fail to show a right to relief either by lacking a cognizable legal theory 17 or by lacking sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police 18 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). Only where a plaintiff has failed to “nudge [his or her] 19 claims across the line from conceivable to plausible,” is the complaint properly dismissed. 20 21 22 23 24 25 26 6 The court may consider certain limited evidence on a motion to dismiss. In ruling on a motion to dismiss pursuant to Rule 12(b), the court “may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899-900 (9th Cir. 2007) (citation and quotation marks omitted). “The court need not, however, accept as true allegations that contradict matters properly subject to judicial notice or by exhibit.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) as amended by 275 F.3d 1187 (9th Cir. 2001); accord Makua v. Gates, Civil No. 09-00369 SOM/LEK, 2009 WL 3923327, at *3 (D. Haw. Nov. 19, 2009) (not reported) (“. . . the court need not accept as true allegations that contradict matters properly subject to judicial notice or allegations contradicting the exhibits attached to the complaint”) (citing Sprewell). 8 1 Iqbal, 129 S. Ct. at 1951-52. While the plausibility requirement is not akin to a probability 2 requirement, it demands more than “a sheer possibility that a defendant has acted unlawfully.” 3 Id. at 1949; accord Twombly, 550 U.S. at 556. This plausibility inquiry is “a context-specific 4 task that requires the reviewing court to draw on its judicial experience and common sense.” Id. 5 at 1950. 6 C. Legal Standard For A Motion To Strike Under Rule 12(f). 7 Rule 12(f) of the Federal Rules of Civil Procedure states that a district court “may 8 strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or 9 scandalous matter.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) 10 (citing Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other grounds by 11 Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)). “Rule 12(f) does not authorize a district court to 12 strike a claim for damages on the ground that such damages are precluded as a matter of law.” 13 Id. at 971. Further, courts may not resolve disputed and substantial factual or legal issues in 14 deciding a motion to strike. Id. at 973. “The function of a 12(f) motion to strike is to avoid the 15 expenditure of time and money that must arise from litigating spurious issues by dispensing with 16 those issues prior to trial . . . .” Id. Granting a motion to strike may be proper if it will make trial 17 less complicated or eliminate serious risks of prejudice to the moving party, delay, or confusion 18 of the issues. Fantasy, 984 F.2d at 1527-28; Travelers Cas. and Sur. Co. of America v. 19 Dunmore, No. CIV. S-07-2493 LKK-DAD, 2010 WL 5200940, at *3 (E.D. Cal. Dec. 15, 2010) 20 (unpublished) (same). Motions to strike are generally disfavored, and in determining whether to 21 grant a motion to strike a district court resolves any doubt as to the sufficiency of a defense in the 22 defendant’s favor. E.g., Mag Instrument, Inc. v. JS Prods., Inc., 595 F. Supp. 2d 1102, 1106 23 (C.D. Cal. 2008) (internal citations omitted). 24 D. Legal Standard For A Motion For A More Definite Statement; Rule 12(e). 25 If a pleading to which a responsive pleading is permitted is so vague or 26 ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party 9 1 may move for a more definite statement before interposing a responsive pleading. Fed. R. Civ. 2 P. 12(e). A Rule 12(e) motion is proper only if the complaint is so indefinite that the defendant 3 cannot ascertain the nature of the claim being asserted. Federal Sav. & Loan Ins. Corp. v. 4 Musacchio, 695 F. Supp. 1053, 1060 (N.D. Cal. 1988); Famolare, Inc. v. Edison Bros. Stores, 5 Inc., 525 F. Supp. 940, 949 (E.D. Cal. 1981). The court must deny the motion if the complaint is 6 specific enough to apprise defendant of the substance of the claim being asserted. Bureerong v. 7 Uyawas, 922 F. Supp. 1450, 1461 (C.D. Cal. 1996). The court should also deny the motion if the 8 detail sought by a motion for more definite statement is obtainable through discovery. Beery v. 9 Hitachi Home Electronics (America), Inc., 157 F.R.D. 477, 480 (C.D. Cal. 1993); accord Harvey 10 v. City of Oakland, No. C07-01681 MJJ, 2007 WL 3035529, at *8 (N.D. Cal. Oct. 16, 2007) (not 11 reported). 12 III. DISCUSSION 13 A. 14 Moving defendants’ MTD seeks relief on numerous grounds (Dkt. No. 73-2), each 15 Motion to Dismiss of which is addressed in turn below. 16 1. Lack of Subject Matter Jurisdiction 17 Moving defendants assert Federal Rule of Civil Procedure 12(b)(1) in efforts to 18 dismiss the action on grounds that the court lacks federal subject matter jurisdiction as to them. 19 (Dkt. No. 73-2 at 3.) In an argument virtually absent of case law or other support for its 20 position,7 defendants contend that (1) there is no federal question jurisdiction underlying 21 22 23 24 25 26 7 Defendants cite one out-of-circuit case in support of their argument for dismissal for lack of jurisdiction. (Dkt. No. 73-2 at 3 (citing Serrano-Moran v. Grau-Gaztambide,195 F.3d 68, 69-70 (1st Cir. 1999).) In Serrano-Moran, the claim was brought by the parents of a mentally impaired individual who was allegedly kidnapped and beaten by four police officers, hospitalized the next day, and died a few days later, allegedly as a result of beatings and medical malpractice. Serrano-Moran, 195 F.3d at 69-70. The appellate court affirmed the district court’s finding that the claims against medical defendants did not share a common nucleus of operative facts with the claims against police defendants because the facts relevant to the civil rights claim were entirely separate from the facts relevant to the malpractice claim, and because there was a “temporal 10 1 plaintiff’s claim against them and (2) that there is no basis for supplemental jurisdiction. (Dkt. 2 No. 73-2 at 3.) Defendants suggest that their alleged wrongful acts are not part of the same “case 3 or controversy” as the acts alleged to have violated federal law, and thus that no supplemental 4 jurisdiction exists. (Dkt. No. 73-2 at 3.) Defendants argue that supplemental jurisdiction does 5 not exist as to them because there is “no common factual nexus” or temporal relationship 6 between the alleged events triggering federal question jurisdiction and the alleged events ascribed 7 to defendants. (Id.) Defendants’ arguments are not well-taken. 8 9 In general, the court must exercise supplemental jurisdiction over state-law claims that are part of the “same case or controversy.” 28 U.S.C. § 1367(a). Only a “loose factual 10 connection” to the underlying federal claim is required for supplemental jurisdiction purposes. 11 See e.g. CVPartners Inc. v. Boben, No. C 09-689 SI, 2009 WL 1331108, at *1 (N.D. Cal. May 12 13, 2009) (not reported); Campos v. Western Dental Servs. Inc., 404 F. Supp. 2d 1164, 1168-69 13 (N.D. Cal. 2005) (exercising supplemental jurisdiction where claim and counterclaim were 14 factually and legally distinct but were “offshoots of same basic transaction”).) If this condition is 15 satisfied,8 the federal court maintains jurisdiction over the state claims and all other parties – 16 even parties not facing an allegation that they violated federal law. 28 U.S.C. § 1367(a); Sea- 17 Land Serv. v. Lozen Int’l, 285 F.3d 808, 814 (9th Cir. 2002) (claims that “rely on identical facts 18 19 20 21 22 23 24 break” between the two sets of facts. (Id.) The facts of Serrano-Moran are similar to this case but are ultimately distinguishable. While the court in Serrano-Moran found that “whether or not the police violated [the decedent’s] civil rights has nothing to do with whether the hospital and doctors conformed to the requisite standard of care,” that is not the case on the pleaded facts at issue here. Here, the propriety of the mental health treatments that the moving defendants allegedly administered to plaintiff are intertwined with the propriety of plaintiff’s arrest, detention, and the reasons plaintiff was transferred to SCMHTC into the care of moving defendants. The facts relevant to plaintiff’s federal claims against the police officers are not “entirely separate” from the facts relevant to her claims against the moving defendant physicians. See Hensley v. U.S, No. C04-302P, 2006 WL 118248, at *2-3 (W.D. Wash. Jan. 13, 2006) (not reported) (discussing Serrano-Moran, factually distinguishing it, and clarifying that supplemental jurisdiction exists unless facts relevant to state claims are “entirely separate” from facts relevant to federal claims, as “a loose factual connection between the claims is generally sufficient”). 25 8 26 The court’s exercise of supplemental jurisdiction is also subject to certain conditions that are inapplicable in this case and were not advanced by defendants. See 28 U.S.C. 1367(c). 11 1 for their resolution” are part of the same “case or controversy” for supplemental jurisdiction 2 purposes); Executive Software N. Am., Inc. v. U.S. Dist. Ct. for the Cent. Dist. of Cal., 24 F.3d 3 1545, 1556 (9th Cir. 1994), overruled on other grounds in Cal. Dept. of Water Res. v. Powerex 4 Corp., 533 F.3d 1087 (9th Cir. 2008); e.g., Ortega v. Brock, 501 F. Supp. 2d 1337, 1340-44 5 (M.D. Ala. 2007) (court had original jurisdiction over defendant officer based on 42 U.S.C. § 6 1983 claim and had supplemental jurisdiction over other defendants based on state-law claims.) 7 Plaintiff’s state law claims are related to the federal claims alleged in this action 8 (SAC ¶¶ 8-9) and thereby form part of the same case or controversy. Here, plaintiff has alleged 9 numerous violations of her rights over seven consecutive days, beginning on November 20, 2007, 10 with the allegedly improper search of her body, hotel room, and vehicle, continuing with her 11 allegedly improper detention and treatment at the Placer County Main Jail, and continuing with 12 her allegedly improper detention and treatment at the SCMHTC allegedly under the care of 13 moving defendants through November 28, 2007. (Id. ¶¶ 6, 10, 14.) Thus, the SAC alleges a 14 temporally-connected chain of events. Yet moving defendants seek to sever this chain of events 15 at the time plaintiff was placed in the care of defendants at SCMHTC. 16 Artificially severing this pleaded chain of alleged events at the time of plaintiff’s 17 admittance into SCMHTC makes little sense, given that the events preceding her admittance are 18 relevant to whether such admittance (and subsequent treatment) was proper. Those events give 19 context to plaintiff’s alleged treatment at SCMHTC. Given this temporal and logical connection, 20 moving defendants’ alleged actions are part of the same “case or controversy” as the acts alleged 21 to have violated federal law—in other words, potential reasons for plaintiff’s arrest and detention 22 relate to moving defendants’ treatment of plaintiff. Even if the SAC fails to alleged that the 23 moving defendants violated federal law, the other defendants’ alleged violations of federal law 24 //// 25 //// 26 //// 12 1 have not been challenged at this posture.9 Absent such a showing, this court maintains 2 jurisdiction over the case and all parties to it, including the moving defendants. Hence, at the 3 present time, the invocation of supplemental jurisdiction is appropriate here. 28 U.S.C. § 4 1367(a). The motion to dismiss for lack of subject matter jurisdiction is denied. 5 2. Failure To State A Claim 6 The moving defendants request dismissal of seven claims for relief on grounds 7 that they fail to state a claim under Rule 12(b)(6). Moving defendants’ arguments with respect to 8 these claims are addressed in turn below. 9 a. Plaintiff’s Second Claim for Violation of California Civil and Constitutional Rights (Cal. Civ. Code §§ 43, 45, 46, 51 et seq., 1708.) 10 11 Plaintiff’s second claim cites to a litany of statutes but is largely unsupported by 12 specific factual assertions regarding the moving defendants. For the most part, this dart-board 13 approach to pleading fails to meet the notice requirements of Federal Rule 8. To the extent that 14 plaintiff is claiming violation of a specific privacy interest, she was obligated to identify the 15 nature of the privacy interest that was violated, and by whom, so that each defendant has 16 sufficient notice of the claims against him or her. See Twombly, 550 U.S. at 557. Federal 17 pleading standards require the presentation of factual allegations sufficient to state a plausible 18 claim for relief as to each defendant. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 19 1998) (“[a] plaintiff must allege facts, not simply conclusions, that show that an individual was 20 personally involved in the deprivation of civil rights”). 21 Plaintiff brings a melange of purported statutory claims against the moving 22 defendants. Plaintiff describes these statutory claims as violations of her “rights guaranteed by 23 the California Constitution.” (SAC ¶ 30.) Plaintiff essentially alleges that each and every named 24 and unnamed defendant participated in a conspiracy to violate plaintiff’s civil and constitutional 25 9 26 Moving defendants have not argued that the SAC fails to state a claim invoking at least one federal law as against at least one defendant. 13 1 rights. Plaintiff then enumerates some facts underlying her belief that her rights were so violated. 2 Plaintiff frequently lumps all defendants into one category as if they all performed each action 3 together. (E.g., id. ¶ 85 (summarily listing various defendants, “including but not limited to” 4 nine individual and entity defendants, then alleging that “defendants . . . inject[ed] Plaintiff’s 5 body with needles and foreign substances at the Main Jail in Auburn and/or in the AMR 6 ambulance and at SCMHTC . . . .” and then continuing to list various alleged wrongs without 7 ascribing any of them to specific defendants) (emphasis added).) 8 As the moving defendants point out, plaintiff provides very few non-conclusory 9 facts supporting a basis for their potential liability under plaintiff’s second claim. Comparing the 10 second claim for relief as pleaded within plaintiffs’ SAC and that same claim as stated within her 11 former pleading demonstrates that, in many instances, rather than using her opportunity to amend 12 the pleading to insert additional factual allegations to support her claim, plaintiff instead tacked 13 laundry lists of various defendants onto laundry lists of allegations and bare citations to statutes. 14 (Compare Dkt. No. 4 ¶¶ 26-32 with SAC ¶ 30(a)-(c).) 15 However, when the conclusory allegations are stripped away, the SAC can be read 16 to state certain factual allegations as against moving defendants: namely, that during plaintiff’s 17 time at SCMHTC, the moving defendants prescribed medications without her informed consent 18 and that those medications were injected against plaintiff’s wishes. (SAC ¶¶ 6, 54, 54(b), 85.) 19 Although these allegations are almost always directed at moving defendants and other 20 defendants, the SAC repeatedly ascribes these alleged events to the moving defendants. Moving 21 defendants have notice of these alleged facts and whatever claims may arise from them.10 22 23 24 25 26 10 Where, as here, defendants have fair notice of the nature of the claim, the complaint need not even allege the legal theory on which recovery is being sought. Crull v. GEM Ins. Co., 58 F.3d 1386, 1391 (9th Cir. 1995). A claim is the “aggregate of operative facts which give rise to a right enforceable in the courts.” Bautista v. Los Angeles County, 216 F.3d 837, 840 (9th Cir. 2000). It is not necessary, at the pleading stage, that plaintiff break out all of her legal theories into separate “causes” of action with precise accompanying facts and law as to each one, for defendants cannot reasonably complain of failing to understand the nature of plaintiff’s 14 1 i) California Civil Code § 43 As to California Civil Code § 43 (protection from restraint or bodily harm)11, 2 3 moving defendants appear to make a passing argument that California Civil Code § 43 is not a 4 statute “that can form the basis for a self-supporting cause of action . . . .”, but they cite no 5 authority supporting that argument. (MTD at 4-5.) Absent such authority, the undersigned 6 cannot conclude that California Civil Code § 43 does not create a private right of action 7 warranting the claim’s dismissal at the pleading stage. Moreover, district courts within this 8 circuit have not described violations of California Civil Code § 43 as unable to form the basis of 9 a self-supporting cause of action. E.g., Davis v. Kissinger, 2009 WL 2043899, No. CIV 10 S-04-0878 GEB DAD P, at *8 (E.D. Cal. July 14, 2009) (not reported) (holding that California 11 Civil Code § 43 “codifies causes of action for assault, battery, and invasion of privacy” and 12 denying summary judgment on state law claims, including those under that section); Atilano v. 13 County of Butte, No. CIV. S-07-0384 FCD KJM, 2008 WL 4078809 , at *6-7 (E.D. Cal. Aug. 14 28, 2008) (not reported) (granting summary judgment on claim for violation of California Civil 15 Code § 43 because undisputed facts did not show physical harm, not describing the statute as 16 unable to form the basis of a cause of action). 17 With respect to the factual sufficiency of the SAC, plaintiff has pleaded factual 18 allegations supporting a claimed violation of California Civil Code § 43—but only as to moving 19 defendant Fakhri. As described above, when conclusory allegations are stripped away, the 20 SAC’s allegations are that moving defendants “prescribed” medications to her without obtaining 21 22 complaint. See NAACP v. American Family Mut. Ins. Co., 978 F.2d 287, 292 (7th Cir. 1992) (criticizing the practice of utilizing different legal labels in separate counts and stating that “[o]ne set of facts producing injury creates one claim for relief, no matter how many laws are broken”). 23 11 24 25 “Besides the personal rights mentioned or recognized in the Government Code, every person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily restraint or harm, from personal insult, from defamation, and from injury to his personal relations.” Cal. Civ. Code § 43. 26 15 1 her informed consent (e.g., SAC ¶ 6), including an allegation that moving defendant Fakhri 2 himself administered injections against her will. (Id.; ¶¶ 30(b), 54(b).) Plaintiff also circuitously 3 alleges that she suffered emotional distress as a result. (E.g., id. ¶¶ 6, 24, 59-61, 85, Prayer at p. 4 36.) The SAC makes substantially the same allegations against moving defendant Jackson, but 5 falls short of alleging that Jackson herself actually performed any injections, restrained her, or 6 threatened her. (Compare id. ¶ 6, 85, 30(b) with ¶ 64(b) (listing only Fakhri as among defendants 7 who allegedly administered injections to plaintiff).) 8 9 Administering an injection against someone’s wishes logically involves a physical touching and could potentially constitute the tort of battery or be determined to have caused 10 “bodily harm” under California Civil Code § 43. To establish a claim of battery under California 11 law, a plaintiff must prove that: (1) the defendant touched the plaintiff with the intent to harm or 12 offend him, (2) the plaintiff did not consent to the touching, and (3) the plaintiff was harmed or 13 offended by defendant’s conduct. Boyd v. City of Oakland, 458 F. Supp. 2d 1015, 1051-52 14 (N.D. Cal. 2006). 15 Therefore, while the SAC alleges a bare minimum of facts as against moving 16 defendants, these facts are sufficient to support a claim that moving defendant Fakhri violated 17 California Civil Code § 43 such that the claim survives the pleading stage. As to moving 18 defendant Jackson, on the other hand, the allegations within the SAC are not sufficient to support 19 a claim that she violated California Civil Code § 43. 20 Accordingly, as to alleged violations of California Civil Code § 43, moving 21 defendants’ motion is granted with respect to Jackson and denied with respect to Fakhri. As 22 plaintiff has had multiple opportunities to amend her pleading in order to clearly link specific 23 allegations with specific defendants, the undersigned recommends that the claim for violation of 24 California Civil Code § 43 be dismissed with prejudice as against Jackson. 25 26 ii) California Civil Code §§ 45 and 46 As to California Civil Code §§ 45 and 46 (libel, slander), defendants again cite no 16 1 authority and argue in passing that neither statute can “form the basis of a self-supporting cause 2 of action . . . .” (MTD at 4-5). As stated above in reference to California Civil Code § 43, absent 3 such authority, the undersigned cannot conclude that these sections do not support a private right 4 of action warranting dismissal at the pleading stage. 5 Defendants also argue that plaintiff has not pleaded factual allegations pertaining 6 to the moving defendants that would support a claim for violation of California Civil Code §§ 7 45-46. (MTD at 5.) The argument is well-taken. Plaintiff alleges that moving defendants 8 “prescribed” medications to her without obtaining her informed consent (e.g., SAC ¶ 6) and that 9 Fakhri injected her against her wishes, not facts suggesting that moving defendants themselves 10 11 ever published any statements about her – defamatory or otherwise. (Id.; ¶ 30(b).) Accordingly, with respect to plaintiff’s claims for violations of California Civil 12 Code §§ 45-46, moving defendants’ motion to dismiss is granted. As plaintiff has had multiple 13 opportunities to amend her pleading and has not suggested any ability to amend her pleading to 14 correct these defects, the undersigned recommends that the claim for violation of California Civil 15 Code §§ 45-46 be dismissed with prejudice as against the moving defendants. 16 17 iii) California Civil Code §§ 51 and 51.7 As to the sections of the Unruh Act upon which plaintiff purports to base her 18 second claim (Cal. Civ. Code §§ 51 and 51.7), plaintiff has not alleged that moving defendants 19 had knowledge that plaintiff had any alleged protected “characteristic listed or defined in 20 subdivision (b) or (e) of Section 51.” Cal. Civ. Code § 51.7. Therefore, while plaintiff may 21 plead facts that might possibly support these claims as against other defendants (such as her 22 allegation that she was arrested in part due to her religious practices within a hotel) (SAC ¶ 21), 23 she has not alleged facts indicating that moving defendants were involved in that arrest or that 24 their alleged conduct toward her was “on account of” such alleged protected characteristic(s). Id. 25 26 Accordingly, with respect to plaintiff’s claims for violations of California Civil Code §§ 51 and 51.7, moving defendants’ motion to dismiss is granted. As plaintiff has had 17 1 multiple opportunities to amend her pleading in order to clearly link specific allegations with 2 specific defendants and has not suggested any ability to amend her pleading to remedy these 3 defects, the undersigned recommends that the claim for violation of California Civil Code §§ 51 4 and 51.7 be dismissed with prejudice as against the moving defendants. 5 iv) California Civil Code §§ 54, 54.1, and 54.3 6 Plaintiff’s claims under California Civil Code §§ 54 (equal rights to public 7 facilities), 54.1 (right to full and equal access to public facilities), and 54.3 (denial or interference 8 with admittance to or enjoyment of public facilities) (SAC ¶ 30(c) are unsupported by factual 9 allegations with respect to the moving defendants. Moreover, these statutes protect the right to 10 equal access to public accommodations by blind and physically disabled persons. Cal. Civ. Code 11 §§ 54, 54.1, 54.3. Plaintiff has alleged neither blindness nor physical disability within her SAC. 12 Likewise, she has not alleged that moving defendants played any role in denying her access to 13 any public facilities. 14 Accordingly, with respect to plaintiff’s claims for violations of California Civil 15 Code §§ 54, 54.1, and 54.3, moving defendants’ motion to dismiss is granted. As plaintiff has 16 had multiple opportunities to amend her pleading in order to clearly link specific allegations with 17 specific defendants, and because plaintiff has not suggested any ability to amend her pleading to 18 correct these defects, the undersigned recommends that the claim for violation of California Civil 19 Code §§ 54, 54.1, and 54.3 be dismissed with prejudice as against the moving defendants. 20 v) California Civil Code § 52.1 21 Plaintiff’s claim under California Civil Code § 52.1 (interference with exercise of 22 civil rights) (SAC ¶ 30(c) is largely unsupported by factual allegations with respect to the moving 23 defendants. California Civil Code § 52.1(a)-(b) makes actionable any interference “with the 24 exercise or enjoyment. . . of rights secured by the Constitution or laws of the United States, or of 25 the rights secured by the Constitution or laws of this state” by “threats, intimidation, or 26 coercion.” 18 1 As described above, plaintiff alleges that moving defendants “prescribed” 2 medications to her without obtaining her informed consent, and alleges that moving defendant 3 Fakhri (but not Jackson) administered injections against her will. (Id.; ¶¶ 6, 30(b), 54(b).) While 4 the SAC alleges a bare minimum of facts as against moving defendants, moving defendants have 5 not cited authorities indicating that, for instance, administering unwanted injections are 6 insufficient to support a claim that moving defendant Fakhri violated California Civil Code § 7 52.1. Because moving defendants cite no authority to the contrary, the undersigned cannot 8 determine that administering injections without a patient’s consent does not amount to “threats, 9 intimidation, or coercion” interfering with plaintiff’s rights as a matter of law, such that the claim 10 should be dismissed at the pleading stage. 11 Accordingly, as to moving defendant Fakhri, the allegations within the SAC are 12 sufficient to support a claim that he violated California Civil Code § 52.1 by injecting plaintiff 13 against her wishes. As to moving defendant Jackson, on the other hand, the allegations within 14 the SAC (i.e., that Jackson prescribed medication without informing plaintiff of adverse side 15 effects (SAC ¶ 6)) are not sufficient to support a claim that she violated California Civil Code § 16 52.1. Therefore, with respect to the claim for violation of California Civil Code § 52.1, the 17 motion to dismiss is denied as to moving defendant Fakhri and granted as to moving defendant 18 Jackson. As plaintiff has had multiple opportunities to amend her pleading in order to clearly 19 link specific allegations with specific defendants, and as plaintiff has not suggested any ability to 20 amend her pleading to correct these defects, the undersigned recommends that the claim be 21 dismissed with prejudice as to moving defendant Jackson. 22 vi) California Civil Code § 1708 Plaintiff’s claim under California Civil Code § 170812 (duty to avoid injuring 23 24 25 12 “Every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his or her rights.” Cal. Civ. Code § 1708. 26 19 1 persons or property) (SAC ¶ 30(d)), does not provide for a private right of action. Von Grabe v. 2 Sprint PCS, 312 F. Supp. 2d 1285 (S.D. Cal. 2003) (holding that Section 1708 does not create a 3 private right of action); accord Carr v. Allied Waste Systems of Alameda County, No. C 10-0715 4 PJH, 2010 WL 4916433, at *14 (N.D. Cal. Nov. 23, 2010) (not reported).) Accordingly, the 5 motion to dismiss is granted with respect to this claim. As amendment would be futile, the 6 undersigned recommends that this claim be dismissed with prejudice as against moving 7 defendants. 8 9 10 b. Medical Battery Claim i) Statute of Limitations Moving defendants argue that the statute of limitations bars any claim for medical 11 battery. (MTD at 7-8.) They cite to California Code of Civil Procedure § 340.5 (“Section 12 340.5”), which provides for a one year statute of limitations in actions against medical providers 13 “based upon such person’s alleged professional negligence. . . .” Cal. Code Civ. Proc. § 340.5. 14 Yet a “medical battery” claim does not sound in negligence, but in an intentional act. Aware of 15 this distinction, moving defendants cite the Central Pathology case and suggest it can be 16 interpreted to bring even intentional tort claims against medical providers within the one-year 17 statute of limitations stated in Section 340.5. (MTD at 7-8 (citing Central Pathology Serv. Med. 18 Clinic, Inc. v. Superior Court, 3 Cal. 4th 181, 192 (1992).) This argument is not well-taken. 19 The court in Central Pathology did not examine Section 340.5 or deal with 20 statutes of limitation. Central Pathology, 3 Cal. 4th at 192. Instead, the court interpreted another 21 statutory section (Cal. Civ. Code § 425.13 (punitive damages)). Id. The court construed the 22 phrase “arising out of professional negligence” in that statutory section to include intentional 23 torts, so long as the conduct giving rise to such damages is “directly related to the manner in 24 which defendants provided professional services.” Central Pathology, 3 Cal. 4th at 192. The 25 court’s conclusion was shaped by the specific statute in question – Civil Code § 425.13 – and the 26 need to read the section broadly in order to effectuate its purpose of limiting punitive damages 20 1 suits against medical providers. Id. at 190-93 (recognizing the “Legislature’s intent to protect 2 health care providers from unsubstantiated punitive damage claims” and holding that “[t]he clear 3 intent of the Legislature is that any claim for punitive damages in an action against a health care 4 provider be subject to the statute if the injury that is the basis for the claim was caused by 5 conduct that was directly related to the rendition of professional services.”) Therefore, the 6 court’s decision in Central Pathology to lump together claims sounding in negligence together 7 with claims sounding in tort is limited to the circumstances of that case. 8 9 Further, moving defendants have not cited a single case invoking Central Pathology’s rationale for statute of limitations purposes in general, let alone using that rationale 10 to treat tort claims akin to negligence claims under Section 340.5 in particular. Absent more 11 specific direction from the case law, the undersigned cannot find that Central Pathology 12 effectively expands Section 340.5 to shorten the statutes of limitation for intentional tort claims 13 alleged against medical providers. Accordingly, at this posture the undersigned cannot find that 14 plaintiff’s medical battery claim—and other intentional tort claims under state law—are time- 15 barred under Section 340.5 as a matter of law. 16 ii) 17 Failure to Plead Facts Supporting Claim A typical “medical battery” case is where “a patient has consented to a particular 18 treatment, but the doctor performs a treatment that goes beyond the consent.” Thomas v. 19 Hickman, No. CV F 06-0215 AWI SMS, 2009 WL 1273190, at *18-19 (E.D. Cal. May 5, 2009) 20 (not reported). The California Supreme Court has held that a battery and lack of informed 21 consent are two separate causes of action. Id. “A claim based on lack of informed 22 consent—which sounds in negligence—arises when the doctor performs a procedure without first 23 adequately disclosing the risks and alternatives. In contrast, a battery is an intentional tort that 24 occurs when a doctor performs a procedure without obtaining any consent.” Thomas, 2009 WL 25 1273190, at *18-19 (citing Saxena v. Goffney, 159 Cal. App.4th 316, 324 (2008).) 26 Plaintiff’s “medical battery” claim is premised on factual allegations that 21 1 medications Seroquel and Lithobid were prescribed to her without consent, and that she was 2 injected with “needles” containing such medication and “foreign substances” without her 3 consent. (SAC ¶¶ 54, 85.) Plaintiff alleges that she suffered emotional distress as a result of 4 receiving medication in this fashion. (FAC ¶¶ 6, 24, 85, Prayer at p. 36.) 5 Plaintiff also alleges that moving defendants’ failed to advise her of a right to a 6 hearing to determine whether she was “gravely disabled,” and failed to provide records after 7 plaintiff’s discharge. (SAC ¶¶ 6, 54(b).) However, plaintiff does not allege facts suggesting that 8 either of moving defendants themselves had the duty to hold hearings or provide records, and no 9 allegation that plaintiff asked either defendant to do either. Regardless, the “hearing” and 10 “failure to provide records” allegations do not support the medical battery claim. 11 Nevertheless, plaintiff’s “medical battery” claim meets minimum pleading 12 standards given the factual allegations that moving defendants prescribed and administered 13 medications without “any” informed consent from plaintiff. See Thomas, 2009 WL 1273190, at 14 *18-19. Therefore, while plaintiff does not allege that she suffered directly from side effects of 15 the administered drugs, a point advanced by moving defendants, plaintiff does allege that she 16 suffered some form of harm resulting from defendants’ alleged conduct. 17 iii) 18 Immunity under Section 5278 Although plaintiff has pleaded facts sufficient to support a “medical battery” 19 claim against moving defendants, defendants argue that they are fully immunized against the 20 claim by virtue of California Welfare and Institutions Code § 5278 (“Section 5278”). (MTD at 21 10-11.) Plaintiff alleges that most of her contact with moving defendants occurred during a 72- 22 hour hold “pursuant to Welfare and Institutions Code Section 5150.” (E.g., SAC ¶ 6.) 23 According to defendants, because moving defendants’ alleged tortious contact (i.e., prescribing 24 medications and administering them without consent) occurred during that 72-hour hold (MTD at 25 2, 5), Section 5278 necessarily applies to render defendants immune to all claims arising from 26 that contact. 22 1 Defendants’ argument is premature at this posture. The undersigned cannot 2 determine, as a matter of law, that plaintiff’s detention under Welfare and Institutions Code § 3 5150 was prompted by “probable cause” and thus done “in accordance with the law” as required 4 for immunity to apply pursuant to Section 5278. Cal. Welf. & Inst. Code §§ 5150, 5278; Bias v. 5 Moynihan, 508 F.3d 1212, 1221-23 (9th Cir. 2007). The threshold question of whether 6 “probable cause” existed for plaintiff’s detention is a question of fact that cannot be resolved at 7 the pleading stage. Defendants did not cite any precedent involving a claim similar to plaintiff’s 8 that was dismissed at the pleading stage on grounds that it arose from conduct that was 9 immunized pursuant to Section 5278. Instead, defendants’ cited cases involved dismissal of 10 claims at the summary judgment stage, after a determination that “undisputed facts” 11 demonstrated “probable cause” for detention and thus that Section 5278 immunity applied. E.g., 12 Bias, 508 F.3d at 1221-23 (granting summary judgment on immunity grounds); Gonzalez v. 13 Paradise Valley Hospital Assn., 111 Cal. App. 4th 735, 742 (2003) (overturning grant of 14 summary judgment on immunity grounds); Heater v. Southwood Psychiatric Center, 42 Cal. 15 App. 4th 1068, 1083 (1996) (after an evidentiary hearing involving three days of testimony, the 16 court found immunity and entered judgment for defendants). Accordingly, the undersigned 17 cannot find that immunity under Section 5278 acts as an absolute bar to plaintiff’s medical 18 battery (and other state law tort claims) against moving defendants at this time. Therefore, the 19 motion to dismiss is denied with respect to plaintiff’s medical battery claim. 20 21 22 c. Intentional Infliction of Emotional Distress (“IIED”) Claim i) Failure To Plead Facts Supporting Claim Defendants argue that the SAC “factually fails to state a claim” for IIED upon 23 which relief can be granted. To state a claim for IIED under California law, a plaintiff must 24 satisfactorily allege the following elements: “(1) extreme and outrageous conduct by the 25 defendant with the intention of causing, or reckless disregard of the probability of causing, 26 emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and 23 1 (3) actual and proximate causation of the emotional distress by the defendant’s outrageous 2 conduct.” Hughes v. Pair, 46 Cal. 4th 1035, 1050 (2009) (citations and quotation marks 3 omitted). The California Supreme Court has explained that “outrageous” conduct is that which is 4 so “extreme as to exceed all bounds of that usually tolerated in a civilized community,” and that 5 “the defendant’s conduct must be intended to inflict injury or engaged in with the realization that 6 injury will result.” Id. (citations and quotation marks omitted). 7 As described above, plaintiff alleges that moving defendants “prescribed” 8 medications “without Plaintiff’s consent” (SAC ¶ 6) and administered them without her consent 9 (id.), including via injection with needles. (SAC ¶¶ 6, 85.) Albeit circuitously, plaintiff alleges 10 that she suffered emotional distress as a result of receiving medication in this fashion. (SAC ¶¶ 11 6, 24, 59-61, 85, Prayer at p. 36.) As described above, plaintiff does not allege that both moving 12 defendants themselves injected her against her wishes (although she alleges this as to moving 13 defendant Fakhri), however, she suggests that both moving defendants “prescribed” such 14 injections. (SAC ¶ 30(b).) 15 Moving defendants focus on the “outrageous conduct” element of an IIED claim. 16 (MTD at 12.) They argue that “the factual basis for plaintiff’s claim lies in an alleged lack of 17 advice and information,” and that such conduct is not so “outrageous” to as subject them to 18 liability for IIED. (MTD at 12 (citing Berkley v. Dowds, 152 Cal. App. 4th 518, 533 (2007).) 19 Regardless of the plausibility of the events as alleged, the court cannot find, at this time, that the 20 SAC fails to state facts “outrageous” enough to support an IIED claim against moving defendants 21 as a matter of law. If, as alleged, the moving defendants ordered injections into plaintiff’s body 22 without proper consent, the court cannot find that this claim is subject to dismissal at the 23 pleading stage on grounds that the alleged conduct is not sufficiently severe or outrageous. 24 “[W]hether a defendant’s conduct can reasonably be found to be outrageous is a question of law 25 that must initially be determined by the court; if reasonable persons may differ, it is for the jury 26 to determine whether the conduct was, in fact, outrageous.” Berkley v. Dowds, 152 Cal. App. 24 1 4th 518, 533-34 (2007). 2 3 ii) Statute of Limitations Defendants argue that the IIED claim in this case is “directly based” on health care 4 services and should therefore be construed as “subject to the one year statute of limitation as set 5 forth by Code of Civil Procedure section 340.5.” (MTD at 7, 9.) For the reasons described 6 above in the discussion of plaintiff’s medical battery claim, however, the undersigned cannot find 7 that plaintiff’s IIED claim is time-barred under Section 340.5 as a matter of law. Accordingly, 8 defendants’ motion to dismiss is denied with respect to the IIED claim. 9 10 11 d. Medical Malpractice (Professional Negligence) Claim i) Failure To Plead Facts Supporting Claim The elements a plaintiff must prove for a negligence action based on medical 12 malpractice are: “(1) the duty of the professional to use such skill, prudence, and diligence as 13 other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a 14 proximate causal connection between the negligent conduct and the resulting injury; and (4) 15 actual loss or damage resulting from the professional’s negligence.” Thomas, 2007 WL 16 1273190, at *16-17 (citing Johnson v. Superior Court, 143 Cal. App. 4th 297, 305 (2006); 17 Hanson v. Grode, 76 Cal. App. 4th 601, 606 (1999).) 18 When stripped of conclusory and vague statements, plaintiff’s medical 19 malpractice claim boils down to an allegation that the moving defendants, alleged medical 20 professionals with a duty of care, failed to properly advise her about side effects for certain 21 medications, administered them without her consent, and that plaintiff suffered emotional 22 distress as a result. (SAC ¶ 6, 24, 85, Prayer at p. 36.) Specifically, plaintiff alleges that moving 23 defendants “prescribed” medications Seroquel and Lithobid “without Plaintiff’s consent” (id. ¶ 24 6), and administered them without her consent (id.), including (as to Fakhri) via injection of 25 plaintiff’s body with needles. (Id. ¶¶ 6, 30(b), 54(b), 85.) Albeit circuitously, plaintiff alleges 26 that she suffered emotional distress as a result of receiving medication in this fashion. (Id. ¶¶ 6, 25 1 24, 85, 59-61, Prayer at p. 36.) Therefore, while she does not allege that she suffered directly 2 from side effects of the administered drugs, plaintiff alleges that she suffered some form of harm 3 resulting from defendants’ alleged conduct. Plaintiff’s medical malpractice claim meets minimal 4 pleading requirements and cannot be dismissed at this stage. 5 Further, as described above, the undersigned cannot conclude at this posture that 6 Section 5278 immunizes defendants’ alleged medical malpractice or professional negligence, 7 because a factual determination is required regarding whether plaintiff’s detention was prompted 8 by “probable cause” and therefore done “in accordance with the law.” E.g., Cal. Welf. & Inst. 9 Code §§ 5150, 5278; Bias, 508 F.3d at 1221-23. Further, Section 5278 only provides immunity 10 for the exercise of authority to detain and evaluate, not from actions for negligence or other acts 11 or omissions in the evaluation or treatment during 72-hour holds. Gonzalez v. Paradise Valley 12 Hosp., 111 Cal. App. 4th 735 (2003). 13 14 ii) Statute of Limitations Plaintiff’s medical malpractice claim alleges professional negligence by health 15 care providers—the moving defendants—and is therefore subject to the statute of limitations set 16 forth in Section 340.5. Section 340.5 requires plaintiff to commence her action “three years after 17 the date of the injury or one year after the plaintiff discovers, or through the use of reasonable 18 diligence should have discovered, the injury, whichever comes first.” Cal. Civ. Code § 340.5 19 (emphasis added). Plaintiff alleges that moving defendants treated her “on or about” November 20 25 through November 28, 2007. (SAC ¶ 6.) On the pleaded facts, then, plaintiff discovered her 21 alleged injuries at the time they occurred or soon thereafter. (Id. ¶¶ 6, 59-61, 85.) Plaintiff does 22 not allege any delay in discovering the physical and emotional distress injuries she alleges 23 resulted from moving defendants’ alleged prescription and administration of Seroquel and 24 Lithobid without consent. Accordingly, without any extensions or tolling, the statute of 25 limitations appears to have run on or about November 25 through November 28, 2008. (Id. ¶ 6; 26 see Cal. Civ. Code § 340.5.) Plaintiff filed her complaint on February 20, 2009, well after that 26 1 date. (Dkt. No. 1.) 2 However, plaintiff argues that Section 340.5’s limitation period was extended for 3 a 90-day period because she served moving defendants with letters giving Notice of Intention to 4 File Suit (“NIFs”) (Oppo. at 11), pursuant to California Code of Civil Procedure § 364. “From 5 the language of section 364(d) it is apparent that the Legislature intended (1) that for a plaintiff 6 who serves notice within the last 90 days of the original limitations period that period is 7 ‘extended’ for a variable period beyond the initial expiration date, not ‘tolled’ for an automatic 8 90 days, and (2) that the extension be calculated from the date of ‘service of the notice,’ by its 9 terms a date that varies with each case.” Estrella v. Brandt, 682 F.2d 814, 818 (Cal. 1982). 10 Plaintiff has indicated that she served the NIFs “on August 27, 2008.” (Oppo. at 11.) 11 Defendants appear to admit NIFs were served, although they state that such 12 service occurred “on August 26, 2008.” (MTD at 9-10.) They conclude that such service did not 13 occur “within the last 90 days of the expiration of” the one-year statute of limitations, and 14 therefore that no 90-day extension occurred. (E.g., MTD at 9-10, Reply at 3; Cal. Code Civ. 15 Proc. § 364(d) (emphasis added).)13 Defendants calculate the “last 90 days before the expiration 16 of” the statute of limitations as August 30, 2008, such that service of any NIFs prior to that date 17 would not trigger the 90-day extension provided in Section 364(d). (MTD at 9-10.) Defendants 18 argue that the SAC alleges that a NIF was served upon Fakhri “91 days before the limitations 19 period ran,” and that a NIF was served upon Jackson “94 days before the limitations period” ran. 20 (MTD at 10, Reply at 3.) 21 However, the actual dates of service of the NIFs are facts that do not appear on the 22 23 24 25 13 “No action based upon the health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action. [...] If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.” Cal. Code Civ. Proc. § 354(a), (d). 26 27 1 face of the SAC or its attachments, and therefore it is not clear that the NIFs were served upon 2 the moving defendants “within” the “last 90 days” of the statute of limitations. See Cal. Code 3 Civ. Proc. § 364(d). While plaintiff alleges that she served NIFs on “August 27, 2008,” (Oppo. 4 at 11) and defendants have stated that such service occurred on “August 26, 2008” (MTD at 9- 5 10), the fact of such service does not clearly appear on the face of the SAC or exhibits thereto. 6 Although the FAC appends NIF-related documents as exhibits, it attaches only a NIF addressed 7 to defendant Fakhri (Exh. 5 to SAC) and dated August 25, 2008 with no proof of service for that 8 letter, and two “certified mail receipts” confirming the mailing of some document(s) (not clearly 9 a NIF) upon defendant Jackson on August 27, 2008.14 (Exh. 5 to SAC.) In a nutshell, there is no 10 NIF addressed to Jackson and no proof that Fakhri was ever served with the NIF addressed to 11 him. (See id.) Therefore, while the defendants do not dispute that NIFs were served upon them, 12 it is not clear from the face of the pleading (or exhibits appended thereto) when such service 13 occurred, let alone whether it definitely occurred “within” the last 90 days of the expiration of the 14 statute of limitations. (See Cal. Code Civ. Proc. § 364(d).) 15 On a motion to dismiss, all the court has before it is the pleading itself, exhibits 16 attached thereto, and judicially-noticeable documents. Outdoor Media Group, Inc. v. City of 17 Beaumont, 506 F.3d 895, 899 (9th Cir. 2007). Although a claim may be dismissed pursuant to 18 Rule 12(b)(6) on the ground that the claim is barred by the applicable statute of limitations, such 19 a dismissal may be had “only when ‘the running of the statute is apparent on the face of the 20 complaint.’” Von Saher v. Norton Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 21 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006)). “‘[A] 22 complaint cannot be dismissed unless it appears beyond doubt that the plaintiff can prove no set 23 24 25 26 14 At most, the SAC conclusorily alleges that “plaintiff timely served notices of her intent to commence litigation for medical malpractice against the Medical Defendants . . . thereby extending the statute of limitations pursuant to California Code of Civil Procedure § 364.” (SAC ¶ 89.) Whether plaintiff did anything in a “timely” manner is a legal conclusion, and therefore that element of the allegation is disregarded here. See Iqbal, 129 S. Ct. at 1949-50. 28 1 of facts that would establish the timeliness of the claim.’” Id. (modification in original) (quoting 2 Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th Cir. 1995)); see also Cervantes 3 v. City of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993) (stating that when a motion to dismiss is 4 based on the running of the statute of limitations, the motion “can be granted only if the 5 assertions of the complaint, read with the required liberality, would not permit the plaintiff to 6 prove that the statute was tolled”) (citation and quotation marks omitted); accord E.E.O.C. v. 7 ABM Industries Inc., 249 F.R.D. 588, 591 (E.D. Cal. 2008) (explaining that pleadings “can be 8 dismissed for failure to state a valid claim when a violation of the limitations period is evident 9 from the face of the complaint” and concluding that, “[b]ased on the pleadings filed to date, it is 10 impossible for the Court to ascertain with any degree of certainty whether” claims were time- 11 barred.) Defendants have not requested judicial notice15 of any NIF-related documents, 12 13 leaving factual gaps regarding whether NIFs were actually served upon moving defendants, let 14 alone whether such service occurred “within” the crucial “last 90 days.” See id. Plaintiff’s 15 representation in her opposition that she effectuated such service on “August 27, 2008” (Oppo. at 16 11) does not remedy this issue, given that the motion before the court is limited to the contents of 17 the SAC and judicially-noticeable facts. E.g., Outdoor Media Group, 506 F.3d at 899. Neither 18 plaintiff nor defendants have properly filled the factual gaps that would permit resolution of the 19 issue at the pleading stage.16 20 Further, given that the alleged service of the NIFs may have occurred on the eve 21 of the relevant 90-day deadline (i.e., one day before the cutoff in defendant Fakhri’s case, and 22 four days before the cutoff in defendant Jackson’s case) (MTD at 10, Reply at 3), a confirmation 23 15 24 Defendants have not requested judicial notice of any document confirming the service date of the NIFs, and regardless, it is unlikely that any such document would be suitable for judicial notice. 25 16 26 However, this issue may be suitable for a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. 29 1 of the actual date(s) of service is necessary prior to dismissal of any of plaintiff’s claims, with 2 prejudice, on statute of limitations grounds at the pleading stage. Therefore, the undersigned 3 cannot resolve the issue of whether service of the NIFs actually occurred “within” 90 days of the 4 expiration of the statute of limitations at this posture. Defendants’ motion to dismiss is denied 5 with respect to plaintiff’s medical malpractice (professional negligence) claims. 6 e. Negligence Per Se Claim 7 Just as the undersigned cannot conclude at this posture that plaintiff’s medical 8 malpractice (professional negligence) claim is time-barred at this posture, for the same reasons, 9 the undersigned cannot conclude that plaintiff’s “negligence per se (violation of statutes)” claim 10 is time-barred. (MTD at 9.) The date(s) defendants were served with the NIF(s) is not clear from 11 the face of the SAC, so the application of the 90-day extension (Cal. Code Civ. Proc. § 364(d)) 12 cannot be determined at this stage. 13 Putting aside their statute of limitations argument, moving defendants argue that 14 plaintiff has not alleged facts specific to them that would give rise to liability for “negligence per 15 se.” (MTD at 14.) When plaintiff amended her “negligence per se” claim she did not include 16 any allegations against the moving defendants, and thus moving defendants are implicated only 17 through the paragraph incorporating all foregoing allegations “by reference.” (Id.; SAC ¶ 90.) 18 In California, negligence per se is “a presumption of negligence [that] arises from 19 the violation of a statute which was enacted to protect a class of persons of which the plaintiff is 20 a member against the type of harm which the plaintiff suffered as a result of the violation of the 21 statute.” People of California v. Kinder Morgan Energy Partners, L.P., 569 F. Supp. 2d 1073, 22 1087 (S.D. Cal. 2008) (citing cases). Negligence per se “is merely an evidentiary doctrine and 23 not an independent cause of action.” Id. (clarifying that negligence per se is simply a codified 24 evidentiary doctrine that does not establish tort liability). However, the facts giving rise to a 25 negligence claim—not a violation of the statute or regulation itself—are what entitle a plaintiff to 26 recover civil damages for negligence per se. Spencer v. DHI Mortg. Co., Ltd., 642 F. Supp. 2d 30 1 115, 1161-62 (E.D. Cal. 2009) (“The negligence per se doctrine assists as evidence to prove 2 negligence. . . . In such circumstances the plaintiff is not attempting to pursue a private cause of 3 action for violation of the statute; rather, he is pursuing a negligence action and is relying upon 4 the violation of a statute, ordinance, or regulation to establish part of that cause of action.” 5 (citations and internal quotation marks omitted).) 6 As described above, plaintiff has pleaded a minimal basis for a medical 7 malpractice claim (professional negligence) claim against moving defendants. But while the 8 allegations supporting that underlying negligence claim might support civil damages for 9 “negligence per se,” “negligence per se” is not an independent cause of action. See Spencer, 642 10 11 F. Supp. 2d at 1161-62. Moreover, even if “negligence per se” were an independent cause of action, 12 plaintiff’s allegations, that she “was and is one of the class of persons for whose protection the 13 statutes or regulations were adopted” (SAC ¶ 92), and that her alleged injuries at the hands of 14 moving defendants “resulted from occurrences that said statutes and/or regulations were designed 15 to prevent” (id. ¶ 93), are vague and conclusory and do not support a negligence per se “claim.” 16 As described above, while plaintiff alleges she was arrested on account of her religious practices, 17 she has not alleged that moving defendants played a role in her arrest, that their conduct toward 18 her had anything to do with those religious practices, or that they were even aware of her 19 religious beliefs. 20 Accordingly, the motion to dismiss is granted with respect to plaintiff’s 21 negligence per se claim, and the undersigned recommends that this “claim” be dismissed without 22 leave to amend as against moving defendants. 23 f. False Imprisonment Claim 24 Moving defendants argue that the false imprisonment claim in this case is 25 “directly based” on health care services and should therefore be construed as “subject to the one 26 year statute of limitation as set forth by Code of Civil Procedure section 340.5.” (MTD at 10.) 31 1 For the reasons described above in the discussion of plaintiff’s medical battery claim, however, 2 the undersigned cannot find that plaintiff’s false imprisonment claim is time-barred under 3 Section 340.5 as a matter of law. 4 However, defendants also argue in the alternative that plaintiff’s false 5 imprisonment claim is time-barred even if it is treated as a “straight” false imprisonment claim 6 and therefore subject to the one-year limitations period set forth in Code of Civil Procedure § 7 340(c) (“Section 340(c)”). (MTD at 10.) As to the application of Section 340(c), defendants’ 8 argument is well-taken. 9 The limitations period on a claim of false imprisonment begins to run when the 10 alleged false imprisonment ends. Wallace v. Kato, 549 U.S. 384, 387-89 (2007). As described 11 above, moving defendants’ alleged tortious contact (i.e., prescribing medications and 12 administering them without consent) occurred “on or about” November 25 through November 13 28, 2007. (SAC ¶ 6.) On the pleaded facts, plaintiff discovered her alleged injuries (i.e., 14 unwanted injections, medications, and emotional distress therefrom) at the time they occurred or 15 soon thereafter. (Id. ¶¶ 6, 24, 59-61, 85.) Plaintiff does not allege any delay in discovering the 16 physical and emotional distress injuries she alleges resulted from unwanted medication and 17 injections. 18 Accordingly, on the face of the SAC, the one-year statute of limitations appears to 19 have run on or about November 25 through November 28, 2008. (Id. ¶¶ 6, 85.) Plaintiff filed 20 her complaint on February 20, 2009, well after that period. (Dkt. No. 1.) From the face of the 21 SAC, then, plaintiff’s false imprisonment claim is time-barred as against moving defendants. 22 Therefore, the motion to dismiss is granted with respect to the false imprisonment claim, and the 23 undersigned recommends that the claim be dismissed with prejudice as to the moving 24 //// 25 //// 26 //// 32 1 defendants.17 2 g. Conversion Claim 3 A conversion occurs where the defendant wrongfully exercises dominion over the 4 property of another. Bank of New York v. Fremont General Corp., 523 F.3d 902, 914 (9th Cir. 5 2008). To establish conversion, a plaintiff must show: (1) her ownership of or right to possess 6 the property at the time of the conversion; (2) that the defendant disposed of the plaintiff’s 7 property rights or converted the property by a wrongful act; and (3) damages. Id. (citing cases). 8 9 While plaintiff purports to advance her conversion claim against “all defendants,” (SAC ¶¶ 80-81), the SAC is devoid of factual allegations supporting a conversion claim as 10 against moving defendants. While the SAC alleges an ownership in certain personal property 11 including a flute, purse, luggage, etc. (id. ¶ 82), plaintiff does not allege any further details about 12 what happened to other items of personal property except for conclusions that the items were 13 “seized, damaged, destroyed, lost, converted, and/or stole[n].” (Id. at 82). While the SAC alleges 14 the facts that officers arresting plaintiff had access to and seized various items of property, 15 plaintiff does not allege that moving defendants were ever remotely near her property. Indeed, 16 nowhere in the SAC does plaintiff allege facts suggesting that moving defendants themselves 17 ever came into contact with or had access to plaintiff’s personal property, let alone facts 18 indicating that moving defendants unlawfully converted or seized that property. On these allegations, it possible that moving defendants—or any one of the over 19 20 100 defendants—confiscated plaintiff’s personal property, but there are no factual allegations 21 nudging the claim into the realm of plausibility as to moving defendants. See Iqbal, 129 S.Ct. at 22 17 23 24 25 26 Unlike plaintiff’s negligence claims, her “false imprisonment” claim is not potentially tolled by the service of NIFs, and therefore, the unresolved factual issues regarding those NIFs do not prevent the dismissal of the false imprisonment claim. (Cal. Code Civ. Proc. § 340(c); e.g. Noble v. Superior Court, 191 Cal. App. 3d 1189, 1190, 1192 (1987) (where plaintiff alleging negligence and battery by her surgeon and served a NIF upon him, the court dismissed plaintiff’s battery claim as time-barred and held that the “tolling provisions of [Section 364(d)] apply only to negligence causes of action and not to those based upon intentional torts or other theories as to which the limitations period has run.”) 33 1 1952 (where a plaintiff has failed to “nudge [his or her] claims across the line from conceivable 2 to plausible,” the complaint may be dismissed.) At most, these allegations suggest only “a sheer 3 possibility that” moving defendants seized plaintiff’s personal property. See id. at 1949; see 4 Twombly, 550 U.S. at 544. Accordingly, the motion to dismiss is granted with respect to the 5 conversion claim, and the undersigned recommends that this claim be dismissed without leave to 6 amend. 7 B. Motion to Strike 8 1. Allegations that Dr. Fakhri “Abandoned” Plaintiff 9 Moving defendants seek to strike the SAC’s allegations that Dr. Fakhri abandoned 10 plaintiff by failing to acknowledge her when plaintiff returned to SCMHTC to obtain copies of 11 medical records on July 27, 2008. (SAC ¶ 6 (specifically, page 4, lines 17-20).) Moving 12 defendants argue that the statement that Fakhri “abandoned” plaintiff lacks a factual basis and is 13 impertinent and immaterial under Federal Rule of Civil Procedure 12(f). (MTS at 15.) 14 “Immaterial” statements are those with “no essential or important relationship to the claim for 15 relief or the defenses” pleaded. Whittlestone, 681 F.3d at 974. “Impertinent” statements are 16 statements that “do not pertain, and are not necessary, to the issues in question.” Id. Under 17 these definitions, moving defendants’ argument is well-taken. 18 The SAC fails to allege any factual basis for a continuing doctor-patient 19 relationship following plaintiff’s discharge from SCMHTC in November 2007. Further, an 20 allegation that Fakhri “abandoned” plaintiff is conclusory and does not lend factual support to 21 any of the tort claims plaintiff alleges against Fakhri. In other words, whether Fakhri 22 “abandoned” or “ignored” plaintiff months after his alleged injections and alleged prescription of 23 medications without informed consent does not bear on the alleged medical battery, assault, or 24 medical malpractice (professional negligence) claims alleged against him. Accordingly, the 25 allegation that Fakhri “abandoned” plaintiff is both impertinent and immaterial, and page 4, lines 26 17-20, of the SAC are hereby stricken. 34 1 2. Claims for Punitive Damages From Moving Defendants 2 The Ninth Circuit Court of Appeals has clarified that “Rule 12(f) does not 3 authorize a district court to strike a claim for damages on the ground that such damages are 4 precluded as a matter of law.” Whittlestone, 618 F.3d at 971. Here, the MTS argues that 5 punitive damages are unavailable as a matter of law on grounds that plaintiff has not complied 6 with statutory procedural requirements enabling her to properly seek such damages. (MTS at 16- 7 17 (citing Cal. Code Civ. Proc. § 425.13 (requiring leave of court to seek punitive damages 8 against medical providers); Central Pathology, 3 Cal. 4th at 192 (construing Cal. Code Civ. Proc. 9 § 425.13 as encompassing punitive damages requests arising from claims sounding in negligence 10 and in tort).) Accordingly, the motion to strike appears to run afoul of Rule 12(f)’s limits as 11 described by the court in Whittlestone. See Whittlestone, 618 F.3d at 971. However, courts 12 sometimes construe such deficient motions to strike as motions to dismiss and analyze them 13 accordingly, and the undersigned will do so here.18 14 Construing the motion to strike “punitive damages” claims against moving 15 defendants as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), moving 16 defendants are correct that California Code of Civil Procedure § 425.13 requires a plaintiff to 17 obtain leave of court before claiming punitive damages against medical providers. Defendants 18 are also correct that the court in Central Pathology construed the requirements of that section to 19 apply to both negligence and tort claims against medical providers. Central Pathology, 3 Cal. 4th 20 at 192. Defendants are also correct that a review of the court’s docket confirms that plaintiff has 21 not complied with California Code of Civil Procedure § 425.13 and has not obtained leave of 22 court with respect to the punitive damages she seeks from moving defendants. 23 18 24 25 26 See, e.g., Arrad v. City of Fresno, No. 10-cv-01628 LJO SMS, 2011 WL 284971, at *2 n. 4 (E.D. Cal. Jan. 26, 2011) (unpublished) (construing defendant’s motion to strike punitive damages as a motion to dismiss in light of the holding in Whittlestone); Angel v. Golden Valley Transport, LLC, No. 10-cv-890 LJO DLB, 2011 WL 201465, at *2 (E.D. Cal. Jan. 20, 2011) (unpublished) (noting that a motion to strike portions of plaintiff’s request for statutory penalties is improper and instead construing the motion as a motion to dismiss). 35 1 However, defendants’ arguments overlook the fact that this case is proceeding in 2 federal court and is subject to the Federal Rules of Civil Procedure—not the procedural rules 3 governing actions proceeding in California state courts. California Code of Civil Procedure § 4 425.13 is a procedural rule that does not necessarily apply in this federal case. 5 Moreover, moving defendants failed to cite to any authorities directly on this 6 point. E.g., Jackson v. East Bay Hosp., 980 F. Supp. 1341, 1353 (N.D. Cal. 1997) (where 7 plaintiff claimed punitive damages under a federal statute that incorporates state substantive law 8 on determination of damages, the court denied a motion to strike punitive damages claim against 9 medical providers in federal court “[s]ince section 425.13 is a procedural requirement and does 10 not warrant special exception, it is therefore inapplicable”); contra Allen v. Woodford, No. 11 1:05-CV-01104-OWW-LJO, 2006 WL 1748587, at *22 (E.D. Cal. June 26, 2006) (not reported) 12 (granting motion to strike punitive damages and holding that, because Section 425.13 is so 13 “intimately bound up” with the substantive law of the underlying state law claims arising from 14 the rendering of professional medical services, it must be applied by federal courts when 15 addressing the issue of punitive damages against medical providers for state law claims.); 16 Thomas v. Hickman, No. CV F 06-0215 AWI SMS, 2006 WL 2868967, at *38-41 (E.D. Cal. 17 Oct. 6, 2006) (not reported) (holding that “Plaintiff’s causes of action for professional 18 negligence, intentional infliction of emotional distress, fraud and misrepresentation are directly 19 related to the manner in which Defendants provided their professional services. These claims 20 arise out of the professional negligence of health care providers. Plaintiff must petition the court 21 for punitive damages pursuant to Section 425.13 for such relief under her state law claims.”) 22 (citing Allen, 2006 WL 1748587 at *20-22; Jackson, 980 F. Supp. at 1352.) 23 Like the claims in Allen and Thomas, in this case plaintiff’s punitive damages 24 claims arise from state law claims and are directly related to the manner in which moving 25 defendants provided their professional services. See Allen, 2006 WL 1748587 at *20-22; 26 Thomas, 2006 WL 2868967, at *40-41. Therefore, those two cases provide more guidance than 36 1 the Jackson case, which involved a punitive damages claim under a federal statute incorporating 2 state substantive law regarding damages. See Thomas, 2006 WL 2868967, at *38-41. 3 Accordingly, plaintiff must petition the court for punitive damages as against moving defendants 4 pursuant to Section 425.13 for such relief under her state law claims. See Thomas, 2006 WL 5 2868967, at *41. 6 Therefore, the motion to strike plaintiff’s punitive damages claims against moving 7 defendants is construed as a motion to dismiss and the motion is granted on this issue. All of 8 plaintiff’s claims and prayers for punitive damages as against the moving defendants are 9 dismissed without prejudice. If plaintiff wishes to pursue punitive damages from moving 10 defendants Fakhri and Jackson, plaintiff will have 30 days from the date of this order to file 11 documents attempting to make the “substantial probability” showing required under California 12 Code of Civil Procedure § 425.13. 13 3. Claims for Attorneys’ Fees and Costs Under the Federal Civil Rights Act 14 The Federal Civil Rights Act provides for an award of attorney fees for plaintiffs 15 who prevail in actions brought under 42 U.S.C. § 1983 (“Section 1983”). The statutory section 16 permitting such a fee award in any Section 1983 “action or proceeding” is 42 U.S.C. § 1988 17 (“Section 1988”). Because plaintiff has only alleged state law claims as against moving 18 defendants (MTS at 15-16), moving defendants seek to strike plaintiff’s claims for attorneys’ fees 19 and costs insofar as those requests are “pursuant to 42 U.S.C. § 1983.” (SAC ¶ 31.) According 20 to moving defendants, plaintiff is not entitled to recover attorney fees or costs from them as a 21 matter of law, because Section 1988 only embraces “violations of the United States Constitution 22 and/or federal law” and “violations of state and/or common law do not support claims for relief 23 under that section.” (MTS at 15-16.) As discussed above, because the motion seeks to strike a 24 claim for fees and costs on grounds that such fees and costs are unavailable as a matter of law, 25 the motion runs afoul of Rule 12(f)’s limits as described by the court in Whittlestone. See 26 Whittlestone, 618 F.3d at 971. However, also as described above, courts sometimes construe 37 1 such deficient motions to strike as motions to dismiss and analyze them accordingly, and the 2 undersigned will do so here. 3 In support of moving defendants’ argument that plaintiff cannot invoke the 4 Federal Civil Rights Act to collect attorney fees when only pendant state law claims are alleged 5 as against them, moving defendants cite several cases but none are on point for the issue. (MTS 6 at 16 (citing Snowden v. Hughes, 321 U.S. 1, 11 (1944); Moore v. Kuspar, 465 F.2d 256, 258-59 7 (7th Cir. 1972); and Lecrenski Bros., Inc. v. Johnson, 312 F. Supp. 2d 117, 120-21 (D. Mass. 8 2004).) At the pages cited, these three cases address a federal court’s jurisdiction in Section 9 1983 cases, not the availability of attorney fees under Section 1988 for supplemental or pendant 10 state law claims in Section 1983 cases. Indeed, the word “fees” does appear in any of these 11 cases. 12 Absent authority to the contrary, the undersigned cannot conclude as a matter of 13 law that attorney fees may not be awarded as against moving defendants pursuant to Section 14 1988 in the event plaintiff were successful upon her pendant state law claims against those 15 defendants. Indeed, some courts have interpreted the Federal Civil Rights Act to provide for an 16 award of attorneys’ fees upon successful pendant state law claims even where a federal 17 constitutional claim ultimately fails. E.g., Maher v. Gagne, 448 U.S. 122, 132 (1980) (clarifying 18 that attorney’s fees under Section 1988 are available in cases “in which the plaintiff prevails on a 19 wholly statutory, non-civil rights claim pendent to a substantial constitutional claim”); Milwe v. 20 Cavuoto, 653 F.2d 80, 84 (C.A. Conn. 1981) (holding that attorney fees may be awarded as 21 against a defendant found to have committed the state law tort of assault, a claim pendant to the 22 Section 1983 claim, even though defendant was not found to have committed a violation of 23 federal constitutional law). 24 Moreover, the Ninth Circuit Court of Appeals has held that, when the plaintiff in a 25 civil rights action prevails on a pendent state claim based on a common nucleus of operative fact 26 with a substantial federal claim, fees may be awarded under Section 1988. Carreras v. City of 38 1 Anaheim, 768 F.2d 1039, 1050 (9th Cir. 1985) abrogated on other grounds by Los Angeles 2 Alliance for Survival v. City of Los Angeles, 22 Cal. 4th 352 (2000); cf. Mateyko v. Felix, 924 3 F.2d 824, 828-29 (9th Cir. 1990) (denying Section 1988 fees for successful pendant state law 4 claims if plaintiff “loses on his federal claim”). 5 While there might be case law supporting moving defendants’ argument, they 6 have not provided any to the undersigned. Absent such authority, the undersigned cannot find 7 that Section 1988 attorney fees can never be awarded as against moving defendants as a matter of 8 law on grounds that no federal claims are alleged as to those defendants. Accordingly, the 9 motion to strike plaintiff’s claims for attorneys’s fees and costs is construed as a motion to 10 dismiss, and the motion is denied. 11 C. Motion for a More Definite Statement 12 Moving defendants seek a more definite statement under Federal Rule of Civil 13 Procedure 12(e) in the event the undersigned does not grant their motion to dismiss in full. 14 (MTD at 17.) While it contains few non-conclusory, factual allegations relating to the moving 15 defendants, the SAC nonetheless provides moving defendants with adequate notice of the basis 16 for the claims against them. While the SAC is far from a model of clarity, it does state claims 17 against moving defendants as described above. The proper avenue for eliciting additional detail 18 is discovery, not a Rule 12(e) motion. See e.g., Musacchio, 695 F.Supp. at 1060; Famolare, 525 19 F. Supp. at 949; Beery, 157 F.R.D. at 480. Accordingly, the moving defendants’ motion for a 20 more definite statement is denied. 21 For the foregoing reasons, IT IS HEREBY ORDERED that: 22 1. 23 24 25 26 The motion to dismiss (Dkt. No. 73-2 at 1-14) filed by moving defendants Jackson and Fakhri is granted in part and denied in part. a. As to the argument that this court lacks subject matter jurisdiction with respect to moving defendants Jackson and Fakhri, the motion is denied. b. As to alleged claims for violations of California Civil Code § 43, 39 1 the motion denied as to Fakhri. 2 3 c. As to alleged claims for violation of California Civil Code § 52.1, the motion to dismiss is denied as to Fakhri. 4 d. The motion to dismiss the claim for medical battery is denied. 5 e. The motion to dismiss the claim for intentional infliction of 6 emotional distress is denied. 7 8 f. The motion to dismiss claims for medical malpractice (professional negligence) is denied. 9 2. The motion for a more definite statement (Dkt. No. 73-2 at 17) is denied. 10 3. The motion to strike (Dkt. No. 73-2 at 15-17) is granted in part and denied 11 in part. 12 13 a. The allegation that Fakhri “abandoned” plaintiff (SAC ¶ 6 (page 4, lines 17-20)) is stricken as impertinent and immaterial. 14 b. The motion to strike punitive damages claims against moving 15 defendants Jackson and Fakhri is construed as a motion to dismiss those claims under Rule 16 12(b)(6) and such motion to dismiss is granted. Plaintiff’s claims and prayers for punitive 17 damages as against the moving defendants are dismissed without prejudice. If plaintiff wishes to 18 pursue punitive damages from moving defendants Fakhri and Jackson, she will have 30 days 19 from the date of this order to file documents attempting to make the “substantial probability” 20 showing required under California Code of Civil Procedure § 425.13. 21 c. The motion to strike plaintiff’s claims for attorneys’s fees and costs 22 as against moving defendants is construed as a motion to dismiss those claims under Rule 23 12(b)(6) and such motion to dismiss is denied. 24 4. This matter is set for status conference on Thursday, May 19, 2011, at 25 10:00 a.m., before the undersigned. The parties are to comply with the local rules regarding the 26 filing of a timely joint status report. 40 1 Additionally, IT IS HEREBY RECOMMENDED that: 2 1. The motion to dismiss the claim for violation of California Civil Code § 3 43 be granted as to moving defendant Jackson, and the claim be dismissed with prejudice as 4 against her; 5 2. The motion to dismiss claims for violations of California Civil Code §§ 6 45-46 be granted as to moving defendants Jackson and Fakhri, and the claims be dismissed with 7 prejudice as against them; 8 9 3. The motion to dismiss claims for violations of California Civil Code §§ 51 and 51.7 be granted as to moving defendants Jackson and Fakhri, and the claims be dismissed 10 with prejudice as against them; 11 4. The motion to dismiss claims for violations of California Civil Code §§ 12 54, 54.1, and 54.3 be granted as to moving defendants Jackson and Fakhri, and those claims be 13 dismissed with prejudice as against them; 14 5. The motion to dismiss claims for violation of California Civil Code § 52.1 15 be granted as to moving defendant Jackson, and the claim be dismissed with prejudice as against 16 her; 17 6. The motion to dismiss the claim for violation of California Civil Code § 18 1708 be granted as to moving defendants Jackson and Fakhri, and that the claim be dismissed 19 with prejudice as against them. 20 7. The motion to dismiss the “negligence per se” claim be granted as to 21 moving defendants Jackson and Fakhri, and the claim be dismissed with prejudice as against 22 them; 23 8. The motion to dismiss the false imprisonment claim be granted as to 24 moving defendants Jackson and Fakhri, and the claim be dismissed with prejudice as against 25 them; and 26 9. The motion to dismiss the conversion claim be granted as to moving 41 1 2 defendants Jackson and Fakhri, and the claim be dismissed with prejudice as against them. These findings and recommendations are submitted to the United States District 3 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 4 days after being served with these findings and recommendations, any party may file written 5 objections with the court and serve a copy on all parties. Id.; see also E. Dist. Local Rule 304(b). 6 Such a document should be captioned “Objections to Magistrate Judge’s Findings and 7 Recommendations.” Any response to the objections shall be filed with the court and served on 8 all parties within fourteen days after service of the objections. E. Dist. Local Rule 304(d). 9 Failure to file objections within the specified time may waive the right to appeal the District 10 Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 11 1153, 1156-57 (9th Cir. 1991). 12 13 IT IS SO ORDERED AND RECOMMENDED DATED: March 30, 2011 14 15 16 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 42

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.