Case Number: NC061907 Hearing Date: February 07, 2019 Dept: S27

FACTS:

Plaintiff alleges he is married to Gabriele Latronica (“wife”). She suffered a stroke in 1990. ¶6 alleges multiple permanent effects of her condition, including Broca’s aphasia.

Wife does not take psychiatric medication (¶7).

In 2012 wife was found to be “gravely disabled pursuant to Welfare [sic] Code 5150.” A conservatorship was established and a public guardian was appointed.

Wife has resided in Defendant’s facility since 2015 in room 405 C.

Many allegations are not material to a claim. He alleges he visits wife 6 days a week for 2 ½ hours per day. “They play checkers and go for a walk through the facility.”

On 1/19/18 Plaintiff was visiting wife when a charge nurse and social worker came to the door, and told Plaintiff that his wife had been seen eating soap. Plaintiff responded that the accusation was “ridiculous” and the social worker said to the nurse “she is 5150 [and] we don’t have to talk to him.” Wife denied eating soap. Plaintiff confronted the Director of Nursing who responded “that’s abnormal behavior we can’t have here.” Wife was “strapped to a gurney and taken away.” Plaintiff alleges emotional and psychological injuries he suffered including anger, anxiety, fearfulness and sleeplessness.

Wife was out of the facility for 35 days. When she returned she was “physically weaker.” Plaintiff alleges the removal was to “punish and control” although he does not state what the punishment was for and why control was needed over a stroke victim. Although not a fact, Plaintiff alleges that “the ideal patient at Windsor Gardens is diapered, overly medicated, mute, and wheelchair bound.” That is a mere contention which is not deemed true on demurrer.

Plaintiff alleges the 5150 policy of defendant is “arbitrary and capricious” and used to “punish and control” – he makes the legal conclusion the policy is a violation of due process rights and equal protection.

As of 3/15/18, wife had been taken to La Palma Hospital (not a party) which he alleges has a tiny ward with 15 beds and less than 10 patients.

Dr. Bagley, the admitting psychiatrist at La Palma asked Plaintiff if his wife had mental health issues prior to her stroke. He replied she did not and rendered his own diagnosis that she was a “classic case of Broca’s aphasia.”

After the meeting with Dr. Bagley “the entire ward was “zapped with Haldol” and “raging psychotics were turned into compliant shuffling zombies.’

30 days later wife returned to Windsor Gardens and refused psychiatric medication “and is gradually recovering.”

Plaintiff concludes defendant acted with malice.

Complaint:

1. Declaratory and Injunctive Relief

2. Negligence

Defendant contends the entire complaint fails to state sufficient facts.

NEGLIGENCE C/A 2

At ¶33 Plaintiff adds an additional legal conclusion that Plaintiff is owed a duty of care with respect to defendant’s “5150” policy. The existence of a duty is a legal question and must be supported by facts establishing the duty.

But Plaintiff never identifies the policy other than to claim it is “arbitrary and capricious.” There are no facts establishing Defendant owed a duty to Plaintiff which is not a patient and apparently not a conservator or guardian.

If Plaintiff’s theory that it owed Wife a duty and hence there was a derivative duty to Plaintiff, he is incorrect. Despite the allegations, Windsor does not make 5150 determinations, physicians do that. ¶¶24 – 25 alleges Dr. Bagley at La Palma made the determination to hold wife and to administer Haldol.

DECLARATORY/INJUNCTIVE RELIEF

CCP §1060:

“Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, or with respect to the location of the natural channel of a watercourse, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross–complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought.” [Emphasis added]

The court has discretion to deny this relief under CCP §1061:

“The court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.”

There is no contract alleged between Plaintiff and Defendant. The complaint fails to establish an actual controversy between the parties. He does not identify a controversy. ¶30 merely alleges his position that the 5150 policy is a “violation of Constitutional and Welfare Code rights.” Plaintiff is not affected by defendant 5150 policy – and no actual policy is ever established.

His prayer is for “a declaration of the rights and duties of the parties and issue an order of enforcement.” He does not identify what is to be enjoined, unless he is referring to the fatally vague “order of enforcement.” There are no facts establishing a remedy at law. There are no facts establishing standing for an injunction.

The court on its own motion strike portions of the prayer with leave to amend. Plaintiff’s prayer asks for $400,000 in damages and $2 million in punitive damages. CCP §425.10(b):

“(b) Notwithstanding subdivision (a), where an action is brought to recover actual or punitive damages for personal injury or wrongful death, the amount demanded shall not be stated, but the complaint shall comply with Section 422.30 and, in a limited civil case, with subdivision (b) of Section 70613 of the Government Code.

The court is authorized to strike these prayers because they are not in conformity with law. CCP §436:

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.

Plaintiff may amend to request compensatory and punitive damages, but he may not state a dollar amount.

There is no actual controversy stated and none can be. Plaintiff is not a victim of the “policy” and is not wife’s guardian or conservator. There is no basis to enjoin anything. §5150 is assessed on a case-by-case basis by law enforcement and/or physicians. There can be no injunction against calling for a §5150 determination.

Currently, the negligence claim states no duty owed to Plaintiff. He is not a patient nor a guardian. He has no standing to sue for wife’s injuries.

The demurrer will be sustained without leave to amend the 1st cause of action and sustain 2nd cause of action with leave to amend.