Case Name: Brahmbhatt v. Wang, et al.
Case No.: 2016-1-CV-294191

According to the allegations of the first amended complaint (“FAC”), plaintiff Niraj Brahmbhatt (“Plaintiff”) saw Dr. Alex Wang (“Wang”) on March 30, 2012 for symptoms of frequent, severe headaches, irregular sleep pattern, and high irritability that had been persisting for a year. (See FAC, ¶¶ 4-5.) Plaintiff was unable to perform regular tasks at work due to his worsening symptoms, and by September 2012, Plaintiff was on a personal leave of absence from work. (See FAC, ¶ 6.) On September 21, 2012, Plaintiff was seen by Wang and Plaintiff reported that he was unable to sleep for a week after attempting to return to work 10 days earlier. (See FAC, ¶ 7.) Wang referred Plaintiff to psychiatrist Dr. Naureen Khan (“Khan”), who negligently misdiagnosed Plaintiff as having bipolar condition and prescribed Plaintiff the antipsychotic medication, Zyprexa, for his severe mental health condition, after which, Plaintiff picked up the prescription, went home, took the prescribed medication and tried to sleep. (See FAC, ¶¶ 7-10.) Plaintiff’s mental health condition worsened, resulting in a visit to the ER on September 25, 2012 with Dr. Joshua Davenport (“Davenport”), and on October 1, 2012, Plaintiff requested an appointment with Dr. Khan; however, Plaintiff was told that he could not be seen until December 3, 2012. (See FAC, ¶¶ 11-17.) Apparently, Plaintiff did not see Khan on December 3, 2012, and instead, at the insistence of Wang, Plaintiff saw Khan on January 9, 2013, where Khan prescribed Plaintiff continued treatment by Zyprexa plus Wellbutrin. (See FAC, ¶¶ 18-20.)

On February 12, 2013, Plaintiff asked Khan how long he would have to continue to take medication, to which Khan replied that he would need to take the medication for an additional 10-12 months in order to see improvement. (See FAC, ¶ 21.) Upon learning this, Plaintiff informed Khan that he would not take the medication for such a long duration, but was unaware that he would suffer from withdrawal symptoms. (See FAC, ¶¶ 21-22.) On June 28, 2013, Plaintiff visited Khan, where Khan changed the prescription to Risperdal; however, Risperdal created the same side effects as Zyprexa and worsened Plaintiff’s severe mental health issue through severe mental slowing, confusion, and paranoia. (See FAC, ¶¶ 23-24.) On July 23, 2013, Khan explained that his symptoms of impaired mental and cognitive capacity were bipolar symptoms and added Wellbutrin to his prescriptions with an advice to get the prescriptions from his primary care physician, Dr. Lina Gourava (“Gourava”). (See FAC, ¶ 24.) On August 20, 2013, Plaintiff visited the ER and was seen by Dr. Grace Lee (“Lee”), where Plaintiff disclosed that he was refusing to take his antipsychotic medication, and was thereafter placed on a 5150 hold. (See FAC, ¶ 26.) Plaintiff believes that “there is no way to support legal involuntary detention” because he was “falsely declared gravely disabled while [he] had all the independent arrangement for food, shelter, clothing and capacity to arrange it by myself before, on and after August 20, 2013… [his wife] bought food and [he] ate the whole vegetarian burrito at 7:15 pm, so legally [he] didn’t meet any requirement for involuntary confinement under the provision of 5150” although he “had to tell [the staff] that people keep asking me about suicide keeps reminding me of better being dead than living like this so they should stop asking me leading questions as my preference is to live differently and not die and that is the reason I came to doctors voluntarily.” (FAC, ¶¶ 28-34.)

Plaintiff was transferred to a Fremont facility under the care of Dr. Bhupinder Waraich (“Waraich”), and Plaintiff continued to refuse to take antipsychotic medication and refused to sign any other papers. (See FAC, ¶¶ 34-35, 37-39.) Waraich and the staff at the facility did not allow Plaintiff to go outside. (See FAC, ¶ 35.) After 24-36 hours, Waraich informed Plaintiff that he would not be able to go outside unless he took his antipsychotic medication and signed an informed consent form, which was not truly obtained without coercion, and thus a violation of Plaintiff’s patient rights. (See FAC, ¶¶ 36, 39.) From August 28, 2013 through November 2013, Plaintiff was under the care Drs. Khan, Elizabeth Whitley Lassen (“Lassen”) and Evelyn Hazlett (“Hazlett”) for intensive group therapy where he was compelled to take his antipsychotic medication despite his concerns and desire not to take the medication. (See FAC, ¶¶ 40-41.) On November 7, 2013, Khan continued to prescribe his antipsychotic medication despite the Plaintiff’s desire not to continue the medication. (See FAC, ¶ 42.) During December 2013 to May 2014, Plaintiff tried to obtain care from other help providers; however, no other health care provider would accept to care for Plaintiff without a transfer of care request from his current healthcare provider due to his diagnosis. (See FAC, ¶ 43.) Further, Plaintiff refused to take his antipsychotic medication since his visit with Khan, resulting in unanticipated withdrawal symptoms, and a visit to the ER at Washington Hospital on May 16, 2014 where Thomas P. Drake RN (“Drake”) noted that Plaintiff had disrobed and laid on the bed quietly. (See FAC, ¶¶ 45, 47-48.) The doctors at this facility became aware of Plaintiff’s prior bipolar diagnosis, and Plaintiff was then given antipsychotic medication and involuntarily detained for another 96 hours at Mills Peninsula Hospital under the care of Drs. Yelena Koss (“Koss”) and Rodica Lascar (“Lascar”). (See FAC, ¶ 45.) Plaintiff believes that Drake, and Harjinder Kaur LCSW (“Kaur”) intentionally misrepresented the facts in the medical records under the instruction of Dr. Neal S. Dickler (“Dickler”) or Dr. John Engers III (“Engers”) to falsely prepare papers for the involuntary hospitalization under Welfare and Institutions Code section 5150. (See FAC, ¶¶ 48-51.) For the next 24-30 hours, Koss and Lascar repeatedly injected Plaintiff with antipsychotic medications despite his requests to cease. (See FAC, ¶ 54.)

On May 18, 2014, Plaintiff was compelled to provide a blood sample, and forced to sign further consent forms for treatment permitting the use of antipsychotic medications, and was confined against his will from May 16 through May 20, 2014. (See FAC, ¶ 55.)

In June 2014, Plaintiff found a psychologist who accepted his care and another psychiatrist in April 2015; they determined that the source of an anxiety episode was related to the harassment by a manager at Brocade Communication Systems, Inc. (“Brocade”)—Plaintiff’s former employer. (See FAC, ¶¶ 56-61.) Plaintiff informed Brocade about this, and Brocade provided Plaintiff forms related to filing a workers’ compensation claim. (See FAC, ¶ 61.) The workers’ compensation insurer contacted Brocade regarding Plaintiff’s claim, to which Brocade noted that his injuries were due to Plaintiff’s bipolar disorder rather than a work-related injury, and Plaintiff complains that Brocade disclosed his private psychiatric condition and details of his treatment without authorization. (See FAC, ¶ 61.) His psychiatrist in February and March 2015 informed Plaintiff that she believed that the prior diagnosis of bipolar disorder was incorrect. (See FAC, ¶ 62.) Plaintiff alleges that these injuries were not discoverable before April 22, 2015 due to the nature of the injuries. (See FAC, ¶ 66.) Plaintiff suffered another psychotic episode from July 2016 to September 2015, resulting in another hospitalization in September 2016, requiring intensive treatment until the end of December 2016. (See FAC, ¶ 69.) Plaintiff alleges that he was lacking the legal capacity to make decisions for purposes of Code of Civil Procedure section 352 until he did not recover fully from incapacity until April 2016, when he filed the instant action on April 21, 2016. (See FAC, ¶ 70.)

On March 24, 2017, Plaintiff filed the FAC against a number of defendants, asserting causes of action for:

1) Fraud;
2) Violation of Welfare & Institutions Code section 5150;
3) Violation of Unruh Civil Rights Act;
4) Violation of Civil Code section 52.1;
5) Negligent misrepresentation;
6) Battery;
7) False imprisonment;
8) Negligence per se;
9) Intentional infliction of emotional distress;
10) Discrimination due to disability;
11) Violation of public policy;
12) Violation of confidentiality of Medical Information Act, the California Constitution, privacy, and the contract regarding confidentiality of mental health records;
13) Professional negligence; and,
14) Violation of the Unruh Civil Rights Act.

Defendants Dickler, Drake and Kaur demurred to each cause of action of the FAC against them, and defendant Brocade also demurred to the ninth through eleventh causes of action. The Court sustained Brocade’s demurrer to the ninth through eleventh causes of action without leave to amend.

The Court sustained Dickler, Drake and Kaur’s demurrer to the second cause of action for violation of Welfare and Institutions Code section 5150, the third cause of action for violation of the Unruh Civil Rights Act, the fourth cause of action for violation of Civil Code section 52.1, the eighth cause of action for negligence per se and gross negligence, and the thirteenth cause of action for professional negligence, without leave to amend, and Dickler, Drake and Kaur’s demurrer to the first, fifth through seventh and ninth causes of action with leave to amend.

Defendant Waraich now demurs to the first through ninth and thirteenth causes of action of the FAC.

Second cause of action for violation of Welfare and Institutions Code section 5150

In opposition to the demurrer, Plaintiff concedes that “in our current case there is no private cause of action for violation of Provisions of Civ [sic] Code § 5150….” (Pl.’s opposition to demurrer (“Opposition”), p.3:22-23.) Accordingly, defendant Waraich’s demurrer to the second cause of action for violation of Welfare and Institutions Code section 5150 is SUSTAINED without leave to amend.

Eighth and thirteenth causes of action
The eighth cause of action is for “negligence per se, gross negligence.” The thirteenth cause of action is for professional negligence. Despite the length of the FAC being 100 pages, and consisting of 254 paragraphs of allegations, the FAC rarely references Waraich. In fact, neither the eighth nor the thirteenth causes of action specifically reference Waraich. Regardless, the FAC alleges that on August 20, 2013, Plaintiff was transferred to Fremont Hospital pursuant to a Welfare and Institutions Code section 5150 involuntary detention under the care of Waraich. (See FAC, ¶¶ 27-34.) According to the FAC, Fremont Hospital’s policy was that they would not allow patients to “go out with other inmates to see open sky” absent taking medication and signing the informed consent documents. (See FAC, ¶¶ 35-36.) The FAC alleges that these actions from August 20 to August 23, 2013 by Waraich violated the laws specifically enacted to protect Plaintiff and were a breach of the standard of care. (See FAC, ¶¶ 39, 204-208, 240-243.)

In the Court’s prior tentative ruling since adopted, the Court sustained Dickler, Drake and Kaur’s demurrer to the eighth and thirteenth causes of action, stating that these causes of action were barred by the statute of limitations:

As to the thirteenth cause of action for professional negligence and the eighth cause of action for negligence per se and gross negligence, as Plaintiff concedes, the relevant statute of limitations is Code of Civil Procedure section 340.5, in which it states that “the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” (Code Civ. Proc. § 340.5.) The thirteenth cause of action alleges that “From and after September 21, 2012 through May 20, 2014, Defendants, and each of them, at relevant times as alleged in incorporated paragraphs, were negligent and careless and failed to exercise the proper degree of knowledge and skill in examining, informing, treating, and caring for Plaintiff so that Plaintiff was caused to suffer the injuries and damages hereinafter alleged.” (FAC, ¶ 240.) Although it is difficult to parse through the rambling, 100-page, 254-paragraph FAC, Plaintiff appears to allege that as a result of the negligent acts of Dickler, Drake and Kaur, Plaintiff was subjected to a 5150 hold that had no probable cause for such a hold. Plaintiff clearly discovered that he was subject to the 5150 hold on May 16, 2014.

As a 5150 hold requires probable cause, Plaintiff also knew, or should have known that these defendants lacked probable cause to process the 5150 hold on May 16, 2014 if he believed, as he alleges, that no probable cause to process the 5150 hold existed. Plaintiff filed the complaint more than one year after the accrual of the cause of action, and thus, these causes of action are barred by the statute of limitations. (See Massey v. Mercy Medical Center Redding (2009) 180 Cal.App.4th 690, 699 (stating that “ the limitations period begins to run, not when medical records are obtained, but when one suspects, or reasonably should suspect, that he has been injured in some wrongful way”); see also Knowles v. Super. Ct. (Labo) (2004) 118 Cal.App.4th 1290, 1295-1301 (stating that “a person need not know of the actual negligent cause of an injury; mere suspicion of negligence suffices to trigger the limitation period… a plaintiff need not know the precise manner in which a wrongdoer was negligent in order to discover his or her injury, within the meaning of section 340.5… courts have rejected the argument that the limitations period does not begin to run until a plaintiff learns the specific causal mechanism by which he or she has been injured”).) In opposition, Plaintiff asserts that “[a]ny possibility of discovery was further delayed as a result of abandonment of the patient where obtaining further care from MD Psychiatrist without transfer of care is very difficult.” (Pl.’s opposition to Dickler, Drake and Kaur’s demurrer, p.10:6-8.) However, the abandonment of Plaintiff as a patient does not affect Plaintiff’s ability to understand that he was subjected to a 5150 hold or administered medications without probable cause on May 16, 2014. Plaintiff also argues that “[t]he actual physical manifestation of appreciable symptoms related to the clearly visible wrongful acts (battery/assault of removing trousers, physical acts of injecting unknown medication without consent and ignoring tearful pleadings to cease the act (not the injuries of injected medicine)) of defendants on May 16, 2014 was on Sep 16, 2016 while in Stanford emergency examination room, when any healthcare provider approached, I panicked, lost my ability to speak, my throat completed dried and a strong stimuli of memory related to the May 2014 experience compromised my health situation in the ER, such possibilities were suspected by my health care providers in Aug 2015, however actual physical manifestation of internal mental injuries was only visible when I was exposed to similar situation (FAC ¶65 as ultimate fact).”

However, Plaintiff’s statement admits that there were “clearly visible wrongful acts” that occurred on May 16, 2014, and also clearly, Plaintiff’s alleged injury from the wrongful 5150 hold occurred on that date. Plaintiff’s delayed appreciation of that injury was not alleged to be due to the acts of Dickler, Drake and Kaur. Accordingly, Dickler, Drake and Kaur’s demurrer to the eighth and thirteenth causes of action for negligence is SUSTAINED without leave to amend.

(Court’s anticipated order re: demurrer.)

As with Dickler, Drake and Kaur’s demurrer, Plaintiff again concedes, the relevant statute of limitations is Code of Civil Procedure section 340.5. Here, it is clear that Plaintiff should have discovered the alleged injury from Waraich—the coerced taking of medication and signing of the informed consent form—within one year from the date of such occurrence. The FAC does not allege any other contact with or care from Waraich after August 23, 2013. Plaintiff filed the complaint more than one year after the accrual of the cause of action, and thus, these causes of action are barred by the statute of limitations. (See Massey v. Mercy Medical Center Redding (2009) 180 Cal.App.4th 690, 699 (stating that “ the limitations period begins to run, not when medical records are obtained, but when one suspects, or reasonably should suspect, that he has been injured in some wrongful way”); see also Knowles v. Super. Ct. (Labo) (2004) 118 Cal.App.4th 1290, 1295-1301 (stating that “a person need not know of the actual negligent cause of an injury; mere suspicion of negligence suffices to trigger the limitation period… a plaintiff need not know the precise manner in which a wrongdoer was negligent in order to discover his or her injury, within the meaning of section 340.5… courts have rejected the argument that the limitations period does not begin to run until a plaintiff learns the specific causal mechanism by which he or she has been injured”).) In opposition, Plaintiff addresses counsel for Waraich rather than the Court, but nevertheless states:

So before sustaining any demurrer, please tell the court which window of time in these facts of FAC allows a plaintiff to actually file the complaint for each cause of action…. To elaborate further as the date when each cause of action accrues is not clearly specified in demurrer, there is no way to figure out how they are picking it up from within four corners of the FAC, and as that is not clear any tolling due to for example proof of fraud or concealment on professional negligence (3 year from discovery of injury) or tolling due to still believing having bipolar due to fraud and concealment of defendants, and reporting to employer and having to pursue workers comp claim, or tolling due to CCP 352… how do we determine that how above facts from FAC impacts the tolling of each cause of action where applicable…. I am not citing authorities, but these authorities exists…. So at this point, I can not even say that sustain the demurrer with leave to amend, because it is not even clear what amendment is necessary to survive demurrer and move on to the next step.

(Opposition, pp.5:7-28, 6:1-27.)

However, as the Court pointed out in the prior tentative since adopted, “the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended.” (Hendy v. Losse (1991) 54 Cal.3d 723, 742; see also Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636.) Plaintiff has not only failed to show the manner in which the FAC can be amended so as to state a viable cause of action, but he admits that he does not know how he can so amend it.

Moreover, Plaintiff’s opposition does not focus on the demurring defendant in his FAC, Waraich, but instead addresses other rulings, other defendants, and causes of action that are not at issue in the instant demurrer. (See Opposition, pp.7:11-27, 8:1-19.) In other instances, Plaintiff strangely addresses Waraich’s counsel’s meet and confer discussions:

Vengeance takes up too much portion of limited space, so just a request next time please do not call me disingenuous neither on paper, nor in court, just present your facts and let the listener determine.

Back to courteous, as always everything is reciprocated, so for Ms. Still I enjoyed our exchanges, and with genuine courtesy, please let me tell you we both are students of the SCU law school, and most likely learned tort from the same professor (Prof Mannester), so as a courtesy, do not tell me how did I get this wrong idea of continuing tort, or on when a cause of action accrues and Larson V UHS Rancho is no where near applicable here to even take the space I gave in ten page brief. Nor will I be afraid by CCP 998 offer, as I have learned from the best and so have you. And as both you and me know that there is no way the demurrer can be sustained, and if sustained not without leave to amend and if somehow that happens, the court of appeal is going to find a cause of action it can derive from already pleaded complaint.

(Opposition, pp.8:16-27, 9:1-3.)

If there is a portion of the opposition that addresses Waraich’s demurrer, it merely confirms that the causes of action accrued as of August 23, 2013, the alleged latest date by which Plaintiff could have discovered his injury of coerced medication and lack of informed consent:

So some day defendant has to answer and I intent [sic] to breadth [sic] till that day and may be little more to see if I can manage to see how air in a closed room feels like when he or she can not leave as they please. I will put all my efforts to have share this experience with each defendant who blocked my free air for what ever time. I will make sure there is a reporter and their counsel with them. The same courtesy they are supposed to provide as outlined in law for informed consent and they didn’t. It is just time for the time, an eye for an eye makes the world blind, however time for time only helps improve our understanding of each other. Leaving aside the philosophy the attorney from your office left a voicemail to check my intention, so as a courtesy I provided above answer. However in reality the answer is unless you provide answer to the complaint, one should decide it is ok to inquire intent.

Again I lost what I was suppose to talk about, the delay tactics, towards the end I directly spoke to the counsels, as I feel the real purpose for filing demurrer is to just delay the answer and may be get lucky like Brocade got lucky, however if we were able to meet and confer as the court actually expects as good faith effort, it is always possible to stipulate the delay or get all the information you need, even the as secret as intent, (you don’t get to be lucky though) – the whole point of good faith is not to take disadvantage of adversary as long as we are trying in good faith. So I believe, I have shown the courtesy, you may help it confirm.

(Opposition, p.9:3-25.)

Thus, Plaintiff does not demonstrate the manner in which the eighth and thirteenth causes of action might be amended as to defendant Waraich, and only confirms that the causes of action as to Waraich accrued on August 23, 2013—more than one year prior to the filing of his initial complaint. Accordingly, Waraich’s demurer to the eighth and thirteenth causes of action is SUSTAINED without leave to amend.

Sixth cause of action for battery

Waraich demurs to the sixth cause of action, also asserting that it is untimely. The sixth cause of action for battery alleges that “from August 20, 2013 to August 23, 2013… Plaintiff was photographed, strip searched, and confined in a closed area until he complied with the instruction of Dr. Bhupinder Waraich to take antipsychotic medications in his presence, sign consent forms under duress and agree to compulsory follow-up treatment through intensive outpatient program.” (FAC, ¶ 186.) Unlike the allegations as to defendants Dickler, Drake and Kaur where it was entirely unclear what the alleged battery could have been as to them, the sixth cause of action makes clear that the cause of action as to Waraich accrued on August 23, 2013. For reasons already stated above, the Opposition confirms the date of accrual as to defendant Waraich. The relevant statute of limitations is Code of Civil Procedure section 335.1, which states that “[a]n action for… battery… [must be brought w]ithin two years.” (Code Civ. Proc. § 335.1.) The initial complaint was filed more than two years after the cause of action accrued. Plaintiff, in opposition, does not assert how the cause of action might be amended so as to state a viable cause of action. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended”).) Accordingly, Waraich’s demurrer to the sixth cause of action is SUSTAINED without leave to amend.

Seventh cause of action for false imprisonment

Waraich demurs to the seventh cause of action for false imprisonment, again asserting that it is untimely. As Waraich states, the relevant statute of limitations is Code of Civil Procedure section 340, subdivision (c), which states that “[a]n action for… false imprisonment… [must be brought w]ithin one year.” (Code Civ. Proc. § 340, subd. (c).) Here, the seventh cause of action does not mention Waraich, but the only allegations of the FAC against Waraich are regarding Plaintiff’s involuntary confinement at Fremont Hospital from August 20-23, 2013. (See FAC, ¶¶ 27, 34-39, 99, 130, 186.) Again, as stated above, the Opposition confirms the date of accrual as to defendant Waraich. Plaintiff, in opposition, does not assert how the cause of action might be amended so as to state a viable cause of action. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended”).) As the initial complaint was filed more than one year after the alleged false imprisonment by Waraich, Waraich’s demurrer to the seventh cause of action is also SUSTAINED without leave to amend.

Ninth cause of action for intentional infliction of emotional distress

Waraich also demurs to the ninth cause of action for intentional infliction of emotional distress, likewise asserting that it is time-barred. As stated above, the only allegations of the FAC against Waraich are regarding Plaintiff’s involuntary confinement at Fremont Hospital from August 20-23, 2013, and the Opposition confirms the date of accrual as to defendant Waraich. “Causes of action for assault, battery and intentional infliction of emotional distress are governed by the two-year statute of limitations set forth in Code of Civil Procedure section 335.1.” (Pugliese v. Super. Ct. (Pugliese) (2007) 146 Cal.App.4th 1444, 1450.) The initial complaint was filed more than two years after the accrual of the ninth cause of action. Plaintiff, in opposition, does not assert how the cause of action might be amended so as to state a viable cause of action. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended”).) Accordingly, Waraich’s demurrer to the ninth cause of action is also SUSTAINED without leave to amend.

Third cause of action for violation of the Unruh Civil Rights Act

The third cause of action does not specifically allege that Waraich performed any particular act that violated the Unruh Civil Rights Act. “[S]tatutory causes of action must be pleaded with particularity.” (Covenant Care, Inc. v. Super. Ct. (Inclan) (2004) 32 Cal. 4th 771, 790.) The third cause of action does not allege that any of the alleged misconduct was done because of any disability of Plaintiff. It is entirely unclear how Waraich might have discriminated against Plaintiff considering that Waraich’s profession is to deal with the disabled. Further, Waraich is not alleged to have denied any full and equal accommodations, advantages, privileges, facilities or services; Plaintiff is alleged to have been provided those services, however to Plaintiff’s disagreement.

Plaintiff, in opposition, does not assert how the cause of action might be amended so as to state a viable cause of action. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended”).) Accordingly, Waraich’s demurrer to the third cause of action for violation of the Unruh Civil Rights Act is SUSTAINED without leave to amend.

Fourth cause of action for violation of Civil Code section 52.1

The fourth cause of action is for violation of Civil Code section 52.1. Again, “statutory causes of action must be pleaded with particularity.” (Covenant Care, Inc. v. Super. Ct. (Inclan) (2004) 32 Cal. 4th 771, 790.) Here, the fourth cause of action fails to specify any act by defendant Waraich, or even mention Waraich. As previously noted in the prior tentative order, that the Court intends to adopt, the only defendant that is specifically mentioned is Kaiser Permanente. The fourth cause of action does not specify any specific statute or any part of the Constitution violated, instead just generally referring to “the Constitution or laws of the United States or laws of this State of California.”

Plaintiff’s Opposition also does not specify any statute or part of the Constitution that is alleged to have been violated by Waraich, instead merely stating that “the constitutional rights belong to all breathing souls on this earth and no more sacred right then having right to breadth [sic] free air and free thought.” (Opposition, p.12:12-21 (also stating that “[t]he responsibility to protect these constitutional rights belongs to all of us, not only when we are asked to take oath to bear arm to protect the constitution of the United States of America verbally, but in reality when we breadth [sic] the free air here, because mother nature has given enough water and food here and just being here is shelter enough”).)

Plaintiff, in opposition, does not assert how the cause of action might be amended so as to state a viable cause of action as against defendant Waraich. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended”).) Accordingly, Waraich’s demurrer to the fourth cause of action for violation of the Civil Code section 52.1 is SUSTAINED without leave to amend.

First and fifth causes of action for fraud and negligent misrepresentation

The elements of a cause of action for fraud are: (1) a misrepresentation, which includes a concealment or nondisclosure; (2) knowledge of the falsity of the misrepresentation, i.e., scienter; (3) intent to induce reliance on the misrepresentation; (4) justifiable reliance; and (5) resulting damages. (Lazar v. Super. Ct. (Rykoff-Sexton, Inc.) (1996) 12 Cal. 4th 631, 638.) The same elements comprise a cause of action for negligent misrepresentation, except there is no requirement of intent to induce reliance. (Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519.) “Fraud actions are subject to strict requirements of particularity in pleading.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) The specificity requirement has two purposes: to apprise the defendant of certain definite accusations against him so that he can intelligently respond to them, and also to weed out nonmeritorious actions on the basis of the pleadings. (Id. at 216-17.) Minimally, a fraud cause of action must “allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” (Lazar, supra, 12 Cal.4th at 645.)

Here, it is entirely unclear what representations were made to Plaintiff from Waraich that would subject Waraich to liability for fraud. Indeed, the FAC alleges that Waraich stated that Plaintiff was not allowed to “go out with other inmates to see open sky in the fenced compound” unless he agreed to sign the informed consent form and take antipsychotic medication; the FAC does not allege that this representation was false. As stated above, the only allegations of the FAC against Waraich are regarding Plaintiff’s involuntary confinement at Fremont Hospital from August 20-23, 2013, and the Opposition confirms the date of accrual as to defendant Waraich. As Waraich argues, to the extent that these fraud claims are premised on a false “diagnosis of bipolar” (FAC, ¶ 81), or “negligent misdiagnos[is]” (FAC, ¶ 90), the gravamen of those claims are medical malpractice and are time-barred for reasons already stated. Additionally, as Waraich argues, to the extent that the fraud claims are premised on “forcing antipsychotic medication” and “coercion and force to make me sign the informed consent paper and take antipsychotic medication in [Waraich’s] presence, the gravamen of those claims are battery, which is likewise time-barred for reasons stated above. (See also Jackson v. Cedars-Sinai Medical Center (1990) 220 Cal.App.3d 1315, 1319-1323 (stating that a personal injury action arising from allegedly unlawful 72 hour hold involving excessive physical restraint and drug therapy governed by statute of limitations for personal injury actions, now section 335.1).)

Plaintiff, in opposition, does not assert how the cause of action might be amended so as to state a viable cause of action. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended”).) Accordingly, Waraich’s demurrer to the first and fifth causes of action is SUSTAINED without leave to amend.

Motion to strike:

In light of the rulings on demurrer, the motion to strike is MOOT.

The Court shall prepare the Order.