Case Number: BC653113 Hearing Date: March 29, 2018 Dept: 92

LORENZO JONES,

Plaintiff(s),

vs.

COUNTY OF LOS ANGELES et al.,

Defendant(s).

Case No.: BC653113

[TENTATIVE] ORDER SUSTAINING IN PART AND OVERRULING IN PART THE DEMURRER TO THE COMPLAINT

Dept. 92

1:30 p.m.

March 29, 2018

The Demurrer to the first cause of action by Defendants County of Los Angeles and LAC+USC Medical Center is SUSTAINED as to LAC+USC Medical Center and OVERRULED as to County of Los Angeles. The Court is inclined to SUSTAIN the demurrer as to LAC+USC Medical Center without leave to amend unless Plaintiff can make an offer of proof at the hearing on how the complaint can be amended to state a claim against LAC+USC Medical Center. If no leave is granted, County of Los Angeles is ordered to file an answer within ten days of this order.

I. Background Facts

On March 9, 2017, plaintiff Lorenzo Jones (“Plaintiff”) filed a complaint against defendants County of Los Angeles (“County”), LAC+USC Medical Center (“USC”) and does 1 to 50 alleging causes of action for (1) violation of California Government Code section 845.6 against all defendants, and negligence pursuant to California Government Code section 844.6(d) and medical negligence against Does 1 to 50.

The complaint alleges the following: 1) On December 18, 2015, Plaintiff was arrested and placed in the care and custody of the Mental Health Unit of County. (Complaint ¶ 9); 2) On March 13, 2016, Plaintiff was experiencing a series of seizures and was transferred to USC for medical treatment. (Id.); 3) While Plaintiff was being treated for his seizures, an IV was improperly inserted into the right hand or arm of Plaintiff causing Plaintiff injury. (Id.); 4) Plaintiff notified the personnel at USC about the pain he was experiencing but the personnel failed to treat Plaintiff’s right arm and rather continued examining Plaintiff for his seizures. (Id. ¶ 10); 5) Plaintiff was subsequently transported back to County’s Mental Health Unit. (Id. ¶ 11); 6) Plaintiff noticed that his right arm was swollen and in pain after his visit to USC and though he complained and asked the deputies, mental health group facilitators and his therapist for medical attention, his requests were ignored. (Id. ¶ 12); and 7) Few weeks passed until the defendants responded to Plaintiff’s complaints and took Plaintiff to USC where Plaintiff underwent extensive emergency surgery on his right arm. (Id. ¶ 14.)

On March 1, 2017, County and USC (jointly “the Moving Defendants”) filed a demurrer to the first cause of action on the grounds that it is uncertain and that it fails to state facts sufficient to support a cause of action. On March 16, 2018, Plaintiff filed an opposition.

II. Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, 147 Cal.App.4th at 747.)

III. Discussion

a. Meet and Confer

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (CCP § 430.41.) The Court notes that Moving Defendants have fulfilled the meet and confer requirement prior to filing this demurrer. (See Declarations of Michelle Rahban and Stephen A. Diamond.)

b. First Cause of Action: Government Code section 845.6

Moving Defendants contend that the first cause of action fails to sufficiently allege facts which establish a violation of Government Code section 845.6 (“section 845.6”) because Plaintiff’s claim fails to allege any facts showing that Plaintiff’s injury was caused by the defendants’ failure to summon care, rather, the facts allege that the defendants were negligent in providing Plaintiff with the proper medical care and attention. Plaintiff opposes and argues that the complaint sufficiently alleges a violation of section 845.6 by alleging that after Plaintiff was given an IV, he requested but was denied medical care needed for the improper IV insertion for weeks.

Section 845.6 states in relevant part, “Neither a public entity nor a public employee is liable for injury proximately caused by the failure of the employee to furnish or obtain medical care for a prisoner in his custody; but, except as otherwise provided by Sections 855.8 and 856 [concerning mental illness and addiction], a public employee, and the public entity where the employee is acting within the scope of his employment, is liable if the employee knows or has reason to know that the prisoner is in need of immediate medical care and he fails to take reasonable action to summon such medical care.” (Castaneda v. Department of Corrections and Rehabilitation (2013) 212 Cal.App.4th 1051, 1070.)

The first clause of section 845.6 establishes the immunity generally of both the public entity and its employees from liability “for injury proximately caused by the failure of the employee to furnish or obtain medical care for a prisoner in his custody.” (Id.)(Italics added.) The second phrase creates a limited public-entity liability when: (1) the public employee “knows or has reason to know [of the] need,” (2) of “immediate medical care,” and (3) “fails to take reasonable action to summon such medical care.” (§ 845.6, italics added.) (Castaneda v. Department of Corrections and Rehabilitation (2013) 212 Cal.App.4th 1051, 1070.)

Section 845.6 is very narrowly written to authorize a cause of action against a public entity for its employees’ failure to summon immediate medical care, not for malpractice in providing that care. (Id.) The 1963 Law Revision Commission comments to section 845.6 clarify, “This section limits the duty to provide medical care for prisoners to cases where there is actual or constructive knowledge that the prisoner is in need of immediate medical care. (Id.)

Notably, the failure to summon care claim is effectively comprised of two parts, the first being allegations of USC personnel failing to summon care and the second part being County personnel failing to summon care.

As to the first part, the complaint alleges that after an IV was improperly inserted into Plaintiff’s arm at USC, USC personnel continued to examine Plaintiff regarding his seizures despite Plaintiff complaining of pain to his arm. (Complaint ¶¶ 10-11.) The Court finds that such allegations against USC fail to state a claim for violation of Government Code section 845.6. Notably, the point of section 845.6 is to hold public entities and their employees liable for failure to summon immediate medical care. (Castaneda, 212 Cal.App.4th at 1070.) Here, there is no violation of section 845.6 by USC for failure to summon medical care since Plaintiff was already in the care of medical professionals when the IV was improperly inserted into his arm. Notably, pursuant to section 845.6, USC is immune from liability for its failure to furnish medical care. (Castaneda, 212 Cal.App.4th at 1070.) Thus, the allegations against USC and its employees sound in medical negligence, not failure to summon care pursuant to section 845.6.

As to the second part, the complaint alleges that after Plaintiff was examined at USC, he was transferred back to the custody of County’s mental health unit, where Plaintiff for weeks requested but was denied medical care to address Plaintiff’s arm. (Complaint ¶¶ 11-14, 17-19.) The complaint also alleges that the significant passage of time and the defendants’ failure to summon medical care to treat Plaintiff’s arm contributed to Plaintiff’s injuries to his arm. (Id. ¶¶ 13, 17-19.) The Court finds that these allegations are sufficient to state a claim for violation of section 845.6 against County.

The Court notes that Plaintiff’s claim is not based on the alleged negligent insertion of the IV into Plaintiff’s arm by USC personnel, rather, the basis is that County and its employees failed to summon immediate medical care to Plaintiff after he made complaints to deputies, mental health facilitators and his therapist regarding his arm, and that this failure to provide immediate medical care contributed to the injuries that Plaintiff suffered. (Complaint ¶¶ 12-13, 17-19.) The Court further notes that Moving Defendants fail to show how the failure to summon medical care for a “few weeks” does not constitute a failure to summon immediate medical care. The Court finally notes that Moving Defendant’s argument that Plaintiff’s claim is solely based on the failure to provide further care or treatment is unconvincing because while County summoned medical care for Plaintiff’s seizures, County failed to summon immediate medical care for Plaintiff’s arm which is a separate injury and which was allegedly never addressed during the medical treatment of Plaintiff’s seizures.

Accordingly, the demurrer to the first cause of action is SUSTAINED as to USC and OVERRULED as to County. The Court notes that the Moving Defendants also demur to the first cause of action for uncertainty. However, Moving Defendants do not support this contention with argument in the points and authorities. Accordingly, based on the analysis above, with regard to County, the Court finds that the first cause of action is not uncertain and sufficiently places County on notice of Plaintiff’s claims.

Moving Party is ordered to give notice.