Loucks v. Kaiser Foundation Hospitals

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4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 PATRICIA LOUCKS, et al., Case No. 20-cv-01216-EMC

8 Plaintiffs,

ORDER GRANTING DEFENDANT

9 v.

AMR’S MOTION TO DISMISS,

DENYING AS MOOT AMR’S MOTION

10 KAISER FOUNDATION HOSPITALS, et FOR A MORE DEFINITE

al., STATEMENT, AND GRANTING

11

AMR’S MOTION TO STRIKE

Defendants.

12 Docket No. 35

13

14

15 I. INTRODUCTION

16 This case arises out of the circumstances surrounding the death of Shawn Loucks (“Mr.

17 Loucks”), who died at a UCSF hospital on February 23, 2019, after also receiving medical care at

18 Kaiser Santa Rosa on February 10 and 20, 2019. Plaintiffs are Patricia Loucks, Donna Barry,

19 Luke Barry, Christina Keeney-Foster, Eric Foster, Peter Figone, Dawn Loucks, Ashley Loucks,

20 Tony Marks, and Nena Meola-Marks (collectively “Plaintiffs”). The Complaint itself does not

21 identify the relationship of these parties to the deceased (although it appears that at least some of

22 the Plaintiffs are Mr. Loucks’s family members). Defendants are Kaiser Foundation Hospitals,

23 Kaiser Foundation Health Plan, Inc, The Permanente Medical Group, Inc. (together “Kaiser”),

24 American Medical Response (“AMR”), and the Regents of the University of California (“the

25 Regents” or “the UC Regents”) (collectively “Defendants”). Plaintiffs assert claims for medical

26 malpractice, dependent adult abuse, negligent infliction of emotional distress (“NIED”),

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1 intentional misconduct,1 violations of the Emergency Medical Treatment and Labor Act

2 (“EMTALA”), and wrongful death. See Docket No. 1 (“Compl.”) ¶ 1.

3 AMR moves to dismiss for failure to state a claim, for a more definite statement, and to

4 strike certain portions of the Complaint. See Docket No. 35 (“AMR Mot.”). For the reasons

5 discussed below and as stated at the hearing, the Court GRANTS AMR’s Motion to Dismiss and

6 dismisses the Complaint in its entirety (as to AMR). Plaintiffs’ NIED claim is dismissed with

7 leave to amend. Plaintiffs’ IIED, dependent adult abuse, and EMTALA claims are dismissed with

8 prejudice. The Court DENIES AMR’s Motion for a More Definite Statement as moot, and

9 GRANTS AMR’s Motion to Strike.

10 II. BACKGROUND

11 A. Factual Background

12 The parties and Court are familiar with the factual background of this case as detailed in

13 this Court’s prior order dismissing Plaintiffs’ claims against defendant UC Regents and granting

14 defendant Kaiser’s Motion to Compel Arbitration. See Docket No. 45. As is relevant to this

15 motion, Plaintiffs allege that “KAISER documents that they had consulted with ambulance

16 provider defendant AMERICAN MEDICAL RESPONSE (AMR) who had promised to send their

17 critical care ambulance but nonetheless and without telling anyone simply determined not to do so

18 and refused to do so.” Compl. ¶ 8. “AMR negligently and recklessly and intentionally refused to

19 send the critical care ambulance as promised.” Id. This caused Kaiser personnel to “frantically

20 search for an alternative critical care ambulance.” Id. Ultimately, the only critical care ambulance

21 that was located “had to come from hours away in Sacramento.” Id. Plaintiffs allege that “[t]hese

22 critical care delays were agonizing for the family members [who were present] who recognized

23 that these delays were causing severe harm” to Mr. Loucks; these delays furnish the basis for the

24 Plaintiffs’ negligent infliction of emotional distress claims. Id.

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1 Plaintiffs, in their Opposition, specified that their claim for intentional misconduct was actually

1 B. Procedural Background

2 Plaintiffs filed their Complaint in federal court on February 19, 2020. See Docket No. 1.

3 On April 21, 2020, the Regents filed a Motion to Dismiss (pursuant to both Rule 12(b)(2) and

4 Rule 12(b)(6)) and for a More Definite Statement, as well as a Motion to Strike. See Docket No.

5 14. On May 11, 2020, Kaiser filed a Motion to Compel Arbitration and Stay the Case and In the

6 Alternative to Dismiss. See Docket No. 29. On June 25, 2020, this Court found that the Regents

7 were an instrumentality of the state and thus were immune from suit in federal court under the

8 Eleventh Amendment. See Docket No. 45. Additionally, this Court found that Plaintiffs were

9 bound by the arbitration agreement between Mr. Loucks and Kaiser. See id. Accordingly, this

10 Court granted UC Regents’ Motion to Dismiss for Lack of Personal Jurisdiction and Kaiser’s

11 Motion to Compel Arbitration and Stay the Case. See id.

12 On May 22, 2020, American Medical Response filed a Motion to Dismiss (pursuant to

13 12(b)(6)), for a More Definite Statement, and to Strike. See AMR Mot. at 2. AMR seeks to

14 dismiss Plaintiffs’ claims for NIED, IIED, dependent adult abuse, and EMTALA. See id. In

15 addition, AMR asks this Court to strike Plaintiffs’ punitive damages claim from their Complaint.

16 See id. This Court heard AMR’s motion on July 23, 2020.

17 III. DISCUSSION

18 A. Subject Matter Jurisdiction

19 The Court has a sua sponte obligation to ensure that it has subject matter jurisdiction over a

20 case. See, e.g., Maniar v. Federal Deposit Ins. Corp., 979 F.2d 782, 784–85 (9th Cir. 1992)

21 (noting that a district court has power to remand a case sua sponte when it lacks subject matter

22 jurisdiction); Corporate Mgmt. Advisors, Inc. v. Artjen Complexus, Inc., 561 F.3d 1294, 1296

23 (11th Cir. 2009) (stating that “[a] district court may remand a case sua sponte for lack of subject

24 matter jurisdiction at any time”).

25 Plaintiffs’ Complaint states: “This case belongs in federal court due to the federal question

26 of EMTALA and due to [AMR] being based in Colorado and thus establishing diversity

27 jurisdiction.” Compl. ¶ 26. Although the federal claim is under EMTALA, AMR does not dispute

1 $75,000. However, should Plaintiffs file an amended complaint, they must allege the

2 jurisdictional amount. See 18 U.S.C. § 1332 (“The district courts shall have original jurisdiction

3 of all civil actions where the matter in controversy exceeds the sum or value of $75,000.”).

4 B. AMR’s Motion to Dismiss

5 1. Legal Standard

6 Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint

7 for failure to state a claim. In ruling on a Rule 12(b)(6) motion, a court takes all allegations of

8 material fact as true and construes them in favor of the plaintiffs to determine whether a plausible

9 legal claim has been stated. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). A claim

10 has facial plausibility if the plaintiff pleads “factual content that allows the court to draw the

11 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

12 556 U.S. 662, 678 (2009). The Ninth Circuit has outlined a two-step process for evaluating

13 pleadings against this standard: “First, to be entitled to the presumption of truth, allegations in a

14 complaint or counterclaim may not simply recite the elements of a cause of action, but must

15 contain sufficient allegations of underlying facts to give fair notice and to enable the opposing

16 party to defend itself effectively. Second, the factual allegations that are taken as true must

17 plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to

18 be subjected to the expense of discovery and continued litigation.” Levitt v. Yelp! Inc., 765 F.3d

19 1123, 1135 (9th Cir. 2014) (citations omitted).

20 2. Analysis

21 AMR moves to dismiss Plaintiffs’ claims for NIED, IIED, dependent adult abuse, and

22 EMTALA pursuant to FRCP 12(b)(6). See AMR Mot. at 2; Docket No. 47 at 6 (“AMR Reply”).

23 a. Negligent Infliction of Emotional Distress

24 Before turning to Plaintiffs’ NIED claim, it is necessary to note that Plaintiffs have not

25 adequately alleged an underlying negligence claim against AMR for Mr. Loucks’s death.

26 Critically, Plaintiffs’ NIED claim must be predicated on an underlying negligence claim against

27 AMR for Mr. Loucks’s death in order for Plaintiffs to recover for emotional distress. See Thing v.

1 distress caused by observing the negligently inflicted injury of a third person.”) (emphasis added).

2 Put differently, Plaintiffs cannot recover for the emotional distress AMR allegedly caused

3 Plaintiffs if AMR’s conduct was not negligent. See id. The complaint lacks specific factual

4 allegations identifying an underlying negligent act and other elements such as duty, proximate

5 cause, etc.

6 Even if Plaintiffs had adequately plead an underlying negligence claim against AMR, they

7 have not stated a NIED claim. In California, NIED claims are analyzed under “two ‘theories’ of

8 recovery: the ‘bystander’ theory and the ‘direct victim theory.’ Burgess v. Superior Court, 2 Cal.

9 4th 1064, 1071 (1992). “The distinction between the ‘bystander’ and ‘direct victim’ [theories] is

10 found in the source of the duty owed by the defendant to the plaintiff.” Id. at 1072. Plaintiffs

11 assert a bystander theory here. “The ‘bystander’ cases . . . address ‘the question of duty in

12 circumstances in which a plaintiff seeks to recover damages as percipient witness to the injury of

13 another.’” Id. at 1072 (citations omitted). The class of persons able to recover for witnessing the

14 injury of another was defined by the California Supreme Court in Thing. See 48 Cal. 3d at 667–

15 68. There, the court held:

16 [A] plaintiff may recover damages for emotional distress caused by

observing the negligently inflicted injury of a third person if, but

17 only if, said plaintiff: (1) is closely related to the injury victim; (2) is

present at the scene of the injury-producing event at the time it

18 occurs and is then aware that it is causing injury to the victim; and

(3) as a result suffers serious emotional distress - a reaction beyond

19 that which would be anticipated in a disinterested witness and which

is not an abnormal response to the circumstances.

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21 Id. at 667. Thus, Plaintiffs can recover for emotional distress damages only if they meet Thing’s

22 three-factor test. See id.

23 i. First Thing Factor

24 The Thing court further defined what “closely related to the injury victim” meant by

25 stating, “[i]n most cases no justification exists for permitting recovery for NIED by persons who

26 are only distantly related to the injury victim.” Id. at 688 n.10 (emphasis added). The court

27 explained that “[a]bsent exceptional circumstances, recovery should be limited to relatives

1 Here, Plaintiffs, in their Complaint, do not detail how they are related to Mr. Loucks. See

2 Compl. ¶¶ 10–19. However, in their Opposition, Plaintiffs state that Patricia “Patty” Loucks is

3 Mr. Loucks’s wife; Ashley Loucks is Mr. Loucks’s daughter; Dawn Loucks is Mr. Loucks’s

4 mother; Luke Barry is Mr. Loucks’s brother-in-law; Donna “Dawn” Barry is Mr. Loucks’s sister-

5 in-law; Christina Keeney-Foster is Mr. Loucks’s niece-in-law; Eric Foster is Mr. Loucks’s

6 nephew-in-law; Nena Marks is Mr. Loucks’s sister-in-law; and Tony Marks is Mr. Loucks’s

7 brother-in-law.2 See Pls. Opp’n at 4–5. Thus, Patricia, Ashley, and Dawn Loucks may satisfy the

8 first Thing factor because they assertedly are Mr. Loucks’s wife, daughter, and mother,

9 respectively. See Thing, 48 Cal. 3d at 688 n.10; Pls. Opp’n at 4–5. However, Plaintiffs still must

10 amend their Complaint to allege specifically the familial relationships they asserted in their

11 Opposition . See Compl. ¶¶ 10–19; Pls. Opp’n at 4–5. The other named Plaintiffs are distant

12 relatives and can recover only if they resided in the same household as Mr. Loucks or can show

13 “exceptional circumstances.” See Thing, 48 Cal. 3d at 688 n.10.

14 Plaintiffs argue that even though Luke and Donna “Dawn” Barry; Christina Keeney-Foster

15 and Eric Foster; and Nena and Tony Marks are distant relatives, exceptional circumstances exist

16 that permit recovery. See Pls. Opp’n at 5. Plaintiffs state that “[b]eing present for and aware of

17 your family member’s final moments involving the worst possible intentional and reckless neglect

18 is more than an exceptional circumstance for a close relative.” Id. Here, Plaintiffs misconstrue

19 the meaning of an “exceptional circumstance” under California caselaw. In Moon v. Guardian

20 Postacute Services, Inc., a California appellate court held that courts are “ill equipped to assess

21 emotional attachments” and thus pleading a strong relationship and/or showing an emotional bond

22 between two parties, “does not satisfy the exceptional circumstances requirement.” 95 Cal. App.

23 4th 1005, 1012 (2002). Rather, the court stated that exceptional circumstances would “have to be

24 grounded on issues of public policy.” Id. The court offered an example of an exceptional

25 circumstance, stating, “if denying the claim would relieve the defendant from facing any liability

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2 Peter Figone is not listed, and his claims are DISMISSED from the case because Plaintiffs admit

1 for an NIED claim because there is no close living relative who can make such a claim, the court

2 should consider the exceptional circumstances exception.” Id.

3 Here, Plaintiffs have pointed to no such public policy issue. See Pls. Opp’n at 5. Unlike

4 the hypothetical contemplated in Moon, Plaintiffs Patricia, Ashley, and Dawn Loucks may recover

5 under NIED (assuming they meet the remaining Thing factors). See Thing, 48 Cal. 3d at 688 n.10;

6 Pls. Opp’n at 4–5. Plaintiffs incorrectly argue that exceptional circumstances exist due to the

7 particular type of harm Plaintiffs witnessed. See Pls. Opp’n at 5. Although the harm Plaintiffs

8 plead would likely be a traumatic experience for any relative to witness, as explained in Moon and

9 Thing, California caselaw does not support their argument: courts are “ill equipped” to judge the

10 emotional attachments between distant relatives and the victim, and courts “must draw arbitrary

11 lines.” Moon, 95 Cal. App. 4th at 1013; Thing, 48 Cal. 3d at 667. Thus, the NIED claims of all

12 named Plaintiffs besides Patricia (wife), Ashley (daughter), and Dawn Loucks (mother) are

13 dismissed with prejudice. See Moon, 95 Cal. App. 4th at 1013.

14 ii. Second Thing Factor

15 The second Thing factor requires Plaintiffs to be “present at the scene of the injury-

16 producing event at the time it occurs and . . . aware that it is causing injury to the victim.” Thing,

17 48 Cal. 3d at 667. A plaintiff must “experience a contemporaneous sensory awareness of the

18 causal connection between the negligent conduct and the resulting injury.”3 Golstein v. Superior

19 Court, 223 Cal. App. 3d 1415, 1437 (1990) (emphasis added). “A plaintiff may recover based on

20 an event perceived by other senses so long as the event is contemporaneously understood as

21 causing injury to a close relative.” Bird, 28 Cal. 4th at 916. “When there is observation of the

22 defendant’s conduct and the [victim’s] injury and contemporaneous awareness the defendant’s

23 conduct or lack thereof is causing harm to the [victim], recovery is permitted.” Bird, 28 Cal. 4th

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3 In its Motion to Dismiss and at oral argument, AMR stated that Plaintiffs must have been aware

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that AMR’s conduct was negligent. See AMR Mot. at 18. This is not the law. See Bird v. Saenz,

28 Cal. 4th 910, 920–21 (2002). In Bird, The California Supreme Court stated: “[A] plaintiff need

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not contemporaneously understand the defendant’s conduct as negligent, as opposed to harmful.”

Id. at 920 (emphases in original). The Bird court further noted that rather than require a plaintiff

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to be aware of negligence (a legal conclusion), a plaintiff “must be contemporaneously aware of

1 at 910 (emphases in original) (citing Ochoa v. Superior Court, 39 Cal. 3d 159, 170 (1985)). “In

2 the case of an event which cannot be perceived, distress recovery is not allowed.” Golstein, 223

3 Cal. App. 4th at 1427.

4 Here, Plaintiffs assert that AMR’s negligent conduct or injury-producing event was its

5 failure to respond and transport Mr. Loucks. See Compl. ¶ 8. Plaintiffs assert that they learned of

6 AMR’s injury-producing conduct from Kaiser personnel and not from AMR. See id.; Pls. Opp’n

7 at 3. This poses a problem for Plaintiffs’ claim because they could not have had a

8 “contemporaneous sensory awareness” of AMR’s injury-producing conduct; they learned of the

9 allegedly harmful act and resulting injury through an intermediary – Kaiser. See Golstein, 223

10 Cal. App. 3d at 1427 (“In the case of an event which cannot be perceived, distress recovery is not

11 allowed.”). Plaintiffs were aware of the injurious consequences of AMR’s decision but not

12 contemporaneously of AMR’s decision itself. See Bird, 28 Cal. 4th at 921 (“One takes a giant

13 leap . . . by imposing liability for NIED based on nothing more than a bystander’s ‘observation of

14 the results of the defendant’s infliction of harm,’ however ‘direct and contemporaneous.’”).

15 Plaintiffs’ reliance on Keys v. Alta Bates Summit Medical Center, 235 Cal. App. 4th 484, 485

16 (2015) is inapposite. Keys is distinguishable because the plaintiffs therein witnessed the injury-

17 producing event themselves. See 235 Cal. App. 4th at 490 (defining the “injury-producing event”

18 as the “defendant’s lack of acuity and response to [decedent’s] inability to breathe, a condition

19 plaintiffs observed and were aware was causing her injury”). There was “contemporaneous

20 sensory awareness.” Golstein, 223 Cal. App. 3d at 1437.

21 Thus, Plaintiffs have not met the requirements of the second Thing factor.

22 iii. Third Thing Factor

23 The Court further notes that as to the third Thing factor, which requires Plaintiffs to allege

24 they suffered “serious emotional distress,” Plaintiffs merely allege in conclusory terms they

25 suffered “extreme” and “severe” emotional distress. Thing, 48 Cal. 3d at 667; Compl. ¶¶ 8, 34.

26 Thus, Plaintiffs’ allegations fall short of required pleading standards. See Levitt, 765 F.3d at 1135

27 (“[T]o be entitled to the presumption of truth, allegations in a complaint or counterclaim may not

1 underlying facts to give fair notice and to enable the opposing party to defend itself effectively.”);

2 see also Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 989 n.12 (1993) (“Serious

3 emotional distress is such that ‘a reasonable [person], normally constituted, would be unable to

4 adequately cope with the mental stress engendered by the circumstances of the case.’”) (citations

5 omitted).

6 Accordingly, Plaintiffs’ NIED claim is dismissed with leave to amend.

7 b. Intentional Infliction of Emotional Distress

8 In their Complaint, Plaintiffs alleged “intentional misconduct” and that AMR

9 “intentionally refused to send the critical care ambulance as promised.” Compl. ¶¶ 1, 8.

10 Subsequently, in their Opposition brief, Plaintiffs argued that their “intentional misconduct” claim

11 was actually a claim for intentional infliction of emotional distress. Pls. Opp’n at 6.

12 The elements of IIED are as follows: (1) extreme and outrageous conduct by the defendant

13 with the intention of causing, or reckless disregard of the probability of causing, emotional

14 distress; (2) the plaintiff suffering severe or extreme emotional distress; and (3) actual and

15 proximate causation of the emotional distress by the defendant’s outrageous conduct. See Hughes

16 v. Pair, 46 Cal. 4th 1035, 1050 (2009) (citations omitted). “A defendant’s conduct is ‘outrageous’

17 when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’”

18 Id. (citations omitted). In addition, “[the defendant’s] conduct [must be] directed at the plaintiff,

19 or occur in the presence of a plaintiff of whom the defendant is aware.” Christensen v. Superior

20 Court, 54 Cal. 3d 868, 903 (1991) (emphasis added).

21 Because Plaintiffs did not plead an IIED claim in their Complaint (and instead only

22 asserted, without clarification, “intentional misconduct”), any IIED claim they purport to assert is

23 dismissed. See Ashcroft, 556 U.S. at 678. Had Plaintiffs identified their “intentional misconduct”

24 claim as an IIED claim in their Complaint, the claim would still fail because Plaintiffs have not

25 shown that AMR intentionally directed their conduct at Plaintiffs or were aware of Plaintiffs’

26 presence in the emergency room. See Christensen, 54 Cal. 3d at 903. Instead, based on Plaintiffs’

27 allegations, AMR was aware of Mr. Loucks, only, because he is the individual it had allegedly

1 from recovering on behalf of Mr. Loucks for any emotional distress he may have suffered prior to

2 his death. See Cal. Civ. Proc. Code § 377.34 (“In an action or proceeding by a decedent’s

3 personal representative or successor in interest on the decedent’s cause of action, the damages

4 recoverable are limited to the loss or damage that the decedent sustained or incurred before

5 death . . . and do not include damages for pain, suffering, or disfigurement.”) (emphasis added);

6 Cty. of Los Angeles v. Superior Court, 21 Cal. 4th 292, 305 (1999) (explaining that § 377.34

7 allows the estate of the decedent to recover for pecuniary losses such as lost or reduced wages or

8 medical care expenses, but not for emotional distress because “when the plaintiff experiences

9 emotional distress, the loss is nonpecuniary”); Li Ching Chu v. Naik, No. A142837, 2015 WL

10 3380969, at *3 (Cal. Ct. App. May 26, 2015) (unpublished) (“The survival claims for intentional

11 and negligent infliction of emotional distress are by definition barred by section 377.34 because

12 the damages for such torts consist of emotional suffering.”).

13 Because Plaintiffs have not given the Court any reason to believe that AMR was aware or

14 could have been aware of Plaintiffs’ presence at the time AMR allegedly caused Plaintiffs’

15 extreme emotional distress, Plaintiffs’ IIED claim is dismissed with prejudice.

16 c. Dependent Adult Abuse

17 The Elder Abuse and Dependent Adult Civil Protection Act (“Dependent Adult Act” or

18 “Act”) was enacted to provide heightened remedies for “acts of egregious abuse” against elders or

19 dependent adults. See Delaney v. Baker, 20 Cal. 4th 23, 35 (1999). A dependent adult is “any

20 person between the ages of 18 and 64 years who is admitted to a 24-hour health facility.” Cal.

21 Welf. & Inst. Code § 15610.23. Heightened remedies are available “where it is proven by clear

22 and convincing evidence” that a defendant is liable for physical abuse, neglect, or abandonment,

23 and that the defendant “has been guilty of recklessness, oppression, fraud or malice” in the

24 commission of the abuse. Cal. Welf. & Inst. Code § 15657. Acts of simple or professional

25 negligence are not subject to liability under the Act. See Baker, 20 Cal. 4th at 32.

26 Plaintiffs allege that AMR “negligently and recklessly and intentionally refused to send

27 their critical care ambulance,” which caused “severe harm” to Mr. Loucks. Compl. ¶ 8. Based on

1 abandonment. See Pls. Opp’n at 3 (“When [AMR] failed and refused to do so it was reckless

2 neglect and abandonment at a minimum.”).

3 Under the Dependent Adult Act, abandonment and neglect require the defendant to have

4 had “care or custody” of the dependent adult. See Cal. Welf. & Inst. Code §§ 15610.05, 15610.57.

5 To have “care or custody” of the dependent adult, the defendant and dependent adult must have

6 had a custodial relationship as described by the California Supreme Court in Winn v. Pioneer

7 Medical Group, Inc., 63 Cal. 4th 148, 158 (2016). The Winn court stated:

8 [A custodial relationship] is a relationship where a certain party has

assumed a significant measure of responsibility for attending to one

9 or more of an elder [or dependent adult’s] basic needs that an able-

bodied and fully competent adult would ordinarily be capable of

10 managing without assistance. [The relationship] entails more than

casual or limited interactions. It is the defendant’s relationship with

11 an elder or a dependent adult–not the defendant’s professional

standing or expertise–that makes the defendant potentially liable for

12 neglect.

13 Id. at 158.

14 Here, Plaintiffs fail to allege (nor does their Opposition reasonably assert) a relationship

15 akin to the type of relationship described in Winn. Compare id.; with Pls. Opp’n at 2. Indeed,

16 based on Plaintiffs’ allegations, AMR never even met Mr. Loucks, let alone took “care and

17 custody of him.” See Compl. ¶¶ 8, 34.

18 The persons the Dependent Adult Act was designed to protect are those that are dependent

19 upon a healthcare provider or caretaker for their basic needs. See Delaney, 20 Cal. 4th at 33. In

20 this case, Mr. Loucks may have been dependent on AMR prospectively for transport, but that is

21 not the type of relationship the Act was designed to regulate; there was no existing relationship at

22 the time AMR acted (or did not act). Because Plaintiffs have not alleged facts that would bring

23 them within the realm of the Dependent Adult Act and cannot do so, Plaintiffs’ dependent adult

24 abuse claim is dismissed with prejudice. See Winn, 63 Cal. 4th at 165 (“Plaintiffs cannot bring a

25 claim of neglect under the [Elder Abuse and Dependent Adult Civil Protection Act] unless the

26 defendant health care provider has a caretaking or custodial relationship with the elder or

27 dependent adult.”).

1 d. EMTALA

2 Lastly, Plaintiffs allege that AMR has violated EMTALA. See Compl. ¶ 1; Pls. Opp’n at

3 6. Under EMTALA, if a hospital fails to screen an individual seeking care or fails to provide

4 further medical care or transfer in order to stabilize the individual, the individual has a private

5 right of action against the hospital. See 42 U.S.C. § 1395dd. An individual’s private right of

6 action to sue is limited to hospitals only. See id. (“Any individual who suffers personal harm as a

7 direct result of a participating hospital’s violation of a requirement of this section may, in a civil

8 action against the participating hospital, obtain those damages available for personal

9 injury . . . and such equitable relief as is appropriate.”) (emphasis added); Eberhardt v. City of Los

10 Angeles, 62 F.3d 1253, 1256 (9th Cir. 1995) (“The plain text of the EMTALA explicitly limits a

11 private right of action to the participating hospital.”).

12 Plaintiffs admit that “EMTALA [liability] is generally limited to hospitals.” Pls. Opp’n at

13 6. Nonetheless, Plaintiffs argue AMR may be an agent of Kaiser, and that “it is now particularly

14 important to determine the extent that AMR might be part of the present EMTALA violations.”

15 Id. Plaintiffs provide no relevant support for their argument that AMR, a private ambulance

16 company, would be subject to EMTALA liability or how AMR (assuming they were subject to

17 liability) violated EMTALA’s screening and stabilization requirements. See Trahan v. Clayton

18 Dublier & Rice, 741 Fed. App’x 397, 399 (9th Cir. 2018) (unpublished). Plaintiffs cite Arrington

19 v. Wong, 237 F.3d 1066, 1068 (9th Cir. 2001), and argue that “assuming responsibility for a

20 patient and then abandoning and refusing to follow through on that commitment is a similar if not

21 worse violation of the intention and purpose of [EMTALA].” Pls. Opp’n at 7. However,

22 Arrington is not analogous to Plaintiffs’ case because the subject of the EMTALA violation in

23 Arrington was the defendant hospital, not the ambulance company. See 237 F.3d at 1069. In

24 Arrington, the plaintiff, Mr. Arrington, suffered a heart attack and was transported by an

25 ambulance to the nearest hospital, which was defendant’s hospital. Id. at 1069. While on the way

26 to the defendant hospital, ambulance personnel contacted the defendant hospital to inform them of

27 Mr. Arrington’s condition. Id. The hospital responded by redirecting the ambulance to a different

1 shortly thereafter. Id. The court determined that the defendant hospital had violated EMTALA

2 because the hospital had failed to screen Mr. Arrington (who sought the hospital’s care) and

3 instead made the decision to redirect the ambulance to a different hospital. Id. at 1070, 1074.

4 Here, the hospital – Kaiser – sought to transfer Mr. Loucks; it was AMR – not a hospital – that

5 allegedly made the decision not to respond. Whether AMR had a contract with Kaiser to transport

6 patients like Mr. Loucks is immaterial. The question under EMTALA is whether a hospital made

7 the injurious decision. See Eberhardt, 62 F.3d at 1256.

8 Accordingly, the Court dismisses Plaintiffs’ EMTALA claim against AMR with prejudice

9 because EMTALA does not apply to AMR in this context. See 42 U.S.C. § 1395x(e).

10 C. AMR’s Motion for a More Definite Statement

11 Because the Court has dismissed all claims against AMR, AMR’s Motion for a More

12 Definite Statement is denied as moot. Nonetheless, the Court cautions Plaintiffs that any amended

13 complaint may not lump causes of action into a single paragraph. See Compl. ¶ 1. Instead,

14 Plaintiffs should adhere to Federal Rule of Civil Procedure 10(b) by clearly delineating each

15 claim.

16 D. AMR’s Motion to Strike

17 Because the Court has dismissed with prejudice all claims for which Plaintiffs could seek

18 punitive damages, the Court grants AMR’s Motion to Strike from the Complaint Plaintiffs’ prayer

19 for punitive damages.

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1 IV. CONCLUSION

2 For the forgoing reasons, the Court GRANTS AMR’s Motion to Dismiss and dismisses

3 the Complaint in its entirety (as to AMR). Plaintiffs’ NIED claim against AMR is dismissed with

4 leave to amend. Plaintiffs’ IIED, dependent adult abuse, and EMTALA claims against AMR are

5 dismissed with prejudice. The Court DENIES AMR’s Motion for a More Definite Statement as

6 moot, and GRANTS AMR’s Motion to Strike.

7 Should Plaintiffs seek to file an amended complaint, they must do so within thirty (30)

8 days.

9 This order disposes of Docket No. 35.

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11 IT IS SO ORDERED.

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13 Dated: July 31, 2020

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15 ______________________________________

EDWARD M. CHEN

16 United States District Judge

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