Opinion
A147491
01-31-2017
WALEED MASHAL et al., Plaintiffs and Appellants, v. COUNTY OF SAN MATEO, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. CIV533468)
I.
INTRODUCTION
Appellants Waleed Mashal and Fatima Mashal are the parents of Mohammad Mashal. Nadia Mashal and Mae Waleed Mashal are his sisters. Together, they brought an action against San Mateo County (the County) after Mohammad died from a drug overdose while in the County's hospital psychiatric ward. The County filed a demurrer to their first amended complaint (FAC), claiming the County has immunity from suit under these circumstances pursuant to Government Code section 854.8. The trial court agreed, finding that appellants failed to allege any exception to the immunity statute. On appeal, appellants argue that their FAC sufficiently pleaded an exception to the general immunity from suit under section 854.8. We conclude that appellants' FAC adequately stated a cause of action under section 855, an exception to section 854.8, and we therefore reverse the judgment.
Because the decedent and all of the plaintiffs share the same surname, we will refer to Mohammad Mashal by his first name only to avoid any possible confusion. No disrespect is intended.
All subsequent citations are to the Government Code unless otherwise identified.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Mohammad was a patient at the San Mateo County Medical Center (Medical Center) in the inpatient psychiatric ward, where he was involuntarily admitted in August 2014. Mohammad suffered from schizophrenia. While in the psychiatric ward, Mohammad obtained methadone from another patient and overdosed on it. He died from complications from the overdose on November 5, 2014.
On April 21, 2015, appellants filed a complaint against the County of San Mateo, the Medical Center, and the San Mateo County Sheriff's Department alleging three causes of action: (1) negligence in violation of sections 815.2 and 815.4; (2) dangerous condition in violation of section 835; and (3) negligence. Appellants alleged that the County and the Medical Center breached their duty of care by failing to prevent patients from smuggling in unauthorized narcotics, thereby failing to provide a safe and secure environment for patients, including Mohammad.
The County filed a demurrer, alleging the complaint failed to state sufficient facts to constitute a cause of action, and that the County is immune from suit for an injury caused or suffered by a patient of a mental institution.
The court concluded that the complaint failed to state a cause of action upon which relief could be granted, because a public entity is not liable for injury proximately caused or suffered by a patient of a mental institution under section 854.8, subdivision (a)(1). "Immunity attaches unless the complaint alleges facts showing an exception. Plaintiffs' attempt to plead the exception set forth in Government Code section 855 is deficient because it fails to identify any statute or regulation with which Defendant County failed to comply." Therefore, the court issued an order sustaining the County's demurrer with leave to amend.
Appellants filed a FAC which set forth new causes of action against the County and the Medical Center, as well as AlliedBarton Security Services LP, the private security company for the Medical Center. The FAC alleged: (1) a violation of section 855, subdivision (a); (2) a violation of section 855.8; and (3) negligence. Appellants alleged the County and Medical Center violated section 855 subdivision (a) by failing to follow standards in the California Code of Regulations (CCR), specifically, title 22, sections 71205 (medical service staffing), 71215 (psychiatric nursing service staffing), 71233 (pharmaceutical service requirements), and 71235 (pharmaceutical staffing requirements). They allege the County and Medical Center "did not meet requirements regarding staffing, labeling and storage of drugs, the handling of personal medications and controlled drugs, pharmaceutical staff requirements, and pharmaceutical equipment and supplies and the failure to meet these standards enabled, facilitated, and allowed the individual who gave the methadone to Plaintiffs' Decedent [Mohammad] control and access to excessive, unsafe and unnecessary quantities of methadone."
The second and third causes of action in the FAC do not apply to the County. In the second cause of action, appellants alleged "Does 1—100" violated section 855.8 by failing to act with reasonable and due care in administering methadone to patients. The third cause of action alleged negligence against the private security firm. The County also argued that the Medical Center cannot be a separate defendant because it is a part of the County and not a distinct legal entity. That contention has not been challenged by appellants.
Section 855, subdivision (a) states: "A public entity that operates or maintains any medical facility that is subject to regulation by the State Department of Health Services, Social Services, Developmental Services, or Mental Health is liable for injury proximately caused by the failure of the public entity to provide adequate or sufficient equipment, personnel or facilities required by any statute or any regulation of the State Department of Health Services, Social Services, Developmental Services, or Mental Health prescribing minimum standards for equipment, personnel or facilities, unless the public entity establishes that it exercised reasonable diligence to comply with the applicable statute or regulation."
The County again filed a demurrer, contending that the FAC failed to identify any statute or regulation to support a claim under section 854.8. (§ 854.8, subd. (a)(1).) It claimed the exception set forth in section 855 applies only where a party can allege a specific violation of regulation or statute setting forth minimum standards, and appellants had failed to do so.
In addition to contending that the complaint was sufficiently specific to meet pleading requirements, at the hearing on the demurrer appellants also argued that dismissal of the complaint would prevent them from gathering evidence to "fl[e]sh[ ] out" the minimum standards violated as set forth in the FAC. The court adopted its tentative ruling, which sustained the demurrer without leave to amend. "The courts have determined that it is insufficient to allege a violation of a regulation or statute unless it sets out a specific minimum of staffing, equipment or facilities and breach thereof in order to state a cause of action against a public entity." (Original italics.) The court cited to Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521 (Johnson). The court found that because the FAC failed to allege any specific minimum of staffing, equipment, or facilities, the cause of action failed as a matter of law.
III.
DISCUSSION
A. Standard of Review
" 'On review of the judgment of the Court of Appeal reversing the superior court's order[ ] sustaining defendant['s] demurrer[ ], we examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory, such facts being assumed true for this purpose.' " (Lee v. Hanley (2015) 61 Cal.4th 1225, 1230, quoting McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) We assume the truth of the allegations in the FAC. The allegations of the complaint "must be liberally construed with a view to attaining substantial justice among the parties." (Kotlar v. Hartford Fire Ins. Co. (2000) 83 Cal.App.4th 1116, 1120 (Kotlar), citing King v. Central Bank (1977) 18 Cal.3d 840, 843.)
We must further decide whether there is a reasonable possibility appellant could cure the defect with an amendment. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) If an amendment could cure the defect, we will reverse. (Ibid.)
B. Appellants Sufficiently Alleged Violations of Minimum Standards in the Regulations
Under section 854.8, generally a public entity is not liable for injuries caused by, or suffered by, a patient in a mental institution. (§ 854.8, subd. (a); Johnson, supra, 205 Cal.App.4th at p. 524.) There are, however, limitations to this governmental immunity. One exception is for injuries proximately caused by the failure of the public entity "to provide adequate or sufficient equipment, personnel, or facilities required by any statute or any regulation of the State Department of Health Services, Social Services, Developmental Services, or Mental Health prescribing minimum standards for equipment, personnel or facilities, unless the public entity establishes that it exercised reasonable diligence to comply with the applicable statute or regulation." (§ 855, subd. (a).)
In Johnson, a woman who was involuntarily committed to a county mental institution was sexually assaulted by a fellow patient. (Johnson, supra, 205 Cal.App.4th at pp. 524-525.) She sued the institution, claiming the patient was able to gain access to her room due to a faulty lock on the door. (Id. at p. 525.) The State Department of Health Services conducted an investigation and found the door did not properly lock. (Ibid.) The state regulations require that the hospital be in "good repair," but there was no statute or regulation requiring locks on patient rooms. (Ibid.)
This division affirmed based on the general immunity under section 854.8. (Johnson, supra, 205 Cal.App.4th at p. 528.) The plaintiff had not shown any negligent or wrongful acts by the county, and she failed to demonstrate the medical center provided insufficient equipment, personnel, or facilities as required by the statutes or regulations. (Ibid.) There was no statute or regulation requiring door locks on patient rooms in county psychiatric hospitals. (Ibid.) The broad provisions invoked by plaintiff entitling psychiatric patients " 'to be free from harm' " and neglect, and requiring hospitals be " 'in good repair at all times' " and maintained " 'for the safety and well-being of patients, personnel and visitors' " are not specific minimum standards. (Id. at p. 529.) Therefore, she had failed to present evidence that the county violated any regulation concerning locked doors or other security measures. (Id. at p. 530.)
Appellants claim that the facts alleged in the FAC are closer to those in Baber v. Napa State Hospital (1989) 209 Cal.App.3d 213 (Baber), where the court reversed a judgment of nonsuit granted following the opening statement in a patient's action against a state mental hospital. Division Five of this court held that regulations requiring a sufficient number of personnel and appropriate physical resources were questions of fact that should be decided by a jury. (Id. at p. 220.) The plaintiff was prepared to prove that the hospital was inadequately staffed and equipped, which led to his injury, and Division Five concluded he should be given the opportunity to do so. (Id. at pp. 220-221.) The reviewing court noted that the plaintiff may be able to provide correspondence, reports, or directives that demonstrated the hospital violated minimum standards. (Id. at p. 221.)
Baber was expressly disapproved by the Second District in Lockhart v. County of Los Angeles (2007) 155 Cal.App.4th 289, 308 (Lockhart). Broadly worded general provisions do not defeat immunity and statutes or regulations must set forth specific minimums to trigger liability under section 855. (Id. at pp. 307-309.) "[T]he plain language of Government Code section 855 clearly states that not all statutory or regulatory violations will provide a basis for liability, only those that prescribe minimum standards." (Id. at p. 309.) The Lockhart court concluded that "a regulation requiring 'sufficient nursing staff . . . to meet the needs of the patients' sets forth only a general goal within which a public medical facility may exercise its discretion, not a specific minimum standard giving clear notice of the minimum amount of nursing personnel the facility must supply. It sets forth the general policy goal for staffing the psychiatric unit, but does not specifically direct the manner in which that goal is to be attained. This is not the type of regulation 'prescribing minimum standards for equipment, personnel or facilities,' the breach of which can give rise to liability under Government Code section 855." (Id. at p. 308.)
The Lockhart court expressly disagreed with Baber, holding "the issue is not the validity or propriety of the regulations promulgated; the issue is whether those regulations 'prescrib[e] minimum standards for equipment, personnel or facilities' such that their breach gives rise to tort liability." (Lockhart, supra, 155 Cal.App.4th at p. 309.) The court concluded that the plaintiff's attempt to create liability failed because regulations which require "adequate" or "sufficient" equipment, personnel or facilities cannot provide a basis for liability, as they do not "prescrib[e] minimum standards for equipment, personnel or facilities." (Id. at p. 310.)
Appellants point out that because Johnson and Lockhart both arose in a different procedural posture, on motions for summary judgment, their holdings are not applicable here. Unlike the plaintiffs in Johnson and Lockhart, they have not been given a sufficient opportunity to conduct discovery in order to establish the violation of the standards set forth in the regulations. The County counters that appellants had five months from the filing of their original complaint until the County filed its second demurrer to conduct discovery, and they failed to do so. While we agree that appellants have not yet had the opportunity to conduct discovery to demonstrate the County had violated minimum standards set forth in the regulations, the allegations in the FAC state as much and, as noted earlier, we are required to assume the truth of the facts alleged in the complaint at the demurrer stage. (Lee v. Hanley, supra, 61 Cal.4th at p. 1230.)
A more significant difference between this case and Johnson and Lockhart is that the patients in both of those cases relied on broad, general language in the regulations. For example, in Johnson, we held these sort of broad provisions regarding the safety and well-being of patients were not minimum standards. Further, there was simply no regulation requiring a medical center to maintain locks on patient doors. (Johnson, supra, 205 Cal.App.4th at pp. 529-530.) In Lockhart, the court held that an allegation the facility lacked "sufficient nursing staff" to meet patients' needs was not a specific minimum standard, but simply a general policy goal. (Lockhart, supra, 155 Cal.App.4th at pp. 309-310.)
Here, appellants cite to four discrete regulations in their complaint. Initially, we note that two of them do not appear to set forth minimum standards. CCR section 71235 outlines the general duties of pharmaceutical service staff including: "A pharmacist shall have overall responsibility for the pharmaceutical service." (Cal. Code Regs., tit. 22, § 71235.) It does not set forth any minimum requirements. Similarly, CCR section 71205 outlines general requirements for medical service staff. It states that there must be "sufficient psychiatrists on the staff to meet the needs of the patients." (Cal. Code Regs., tit. 22, § 71205.) It also states that one or more clinical psychologists or and social service workers must be employed in either a full-time, part-time or consulting basis. These are the types of general requirements found to be insufficient in Johnson and Lockhart.
However, two of the regulations referenced in the FAC do appear to set forth minimal standards relevant to appellants' allegations. CCR section 71215 of the regulations outlines the requirements for psychiatric nursing staff. It sets forth a minimum requirement that each nursing unit shall "[h]ave a registered nurse on duty at all times." (Cal. Code Regs., tit. 22, § 71215.) CCR section 71233 sets forth pharmaceutical service general requirements. It provides: "There shall be a system maintained whereby no person other than a pharmacist or an individual under the direct supervision of a pharmacist shall dispense medications for use beyond the immediate needs of the patient." (Cal. Code Regs., tit. 22, § 71233, subd. (d).) It also states: "No drugs shall be administered except by licensed personnel authorized to administer drugs and upon the order of a person legally authorized to prescribe." (Cal. Code Regs., tit. 22, § 71233, subd. (g).) It details the minimum standards for dispensing, labeling and storing medication. For example, it provides: "No medications shall be left at the patient's bedside." (Cal. Code Regs., tit. 22, § 71233, subd. (i).) It also specifies that all drugs must be labeled by "one legally authorized to prescribe or dispense [drugs]." (Cal. Code Regs., tit. 22, § 71233, subd. (q)(3).)
Appellants allege in the FAC that the County "did not meet the requirements regarding staffing, labeling and storage of drugs, the handling of personal medications and controlled drugs, pharmaceutical staff requirements, and pharmaceutical equipment and supplies and the failure to meet these standards enabled, facilitated, and allowed the individual who gave methadone to Plaintiffs' Decedent [Mohammad] control and access to excessive, unsafe and unnecessary quantities of methadone." They assert that the County's failure to meet these minimum standards "was a substantial factor" in Mohammad's overdose. Furthermore, appellants also contend in their brief on appeal that CCR section 71215 requires at least one nurse to be on duty at all times, and the complaint alleges this regulation too was breached. Accepting this as a minimum standard, appellants should have the opportunity to demonstrate the County violated this minimum requirement and the violation proximately caused Mohammad's overdose.
At oral argument, the County's counsel made reference to the portion of the FAC (the third cause of action) that alleged defendant AlliedBarton Security Services LP failed to provide adequate security measures to prevent patients from smuggling unauthorized narcotics into the psychiatric unit. This portion of the complaint did not apply to the County and does not support the County's argument that the Medical Center cannot be held liable for smuggled contraband. Both the general factual allegations and the allegations in the first cause of action in the FAC alleged that the patient who gave methadone to Mohammad had access to methadone because of "inadequate and incompetent staffing" and "inadequate equipment and facilities."
Construing these allegations "liberally" with a "view to attaining substantial justice among the parties" (Kotlar, supra, 83 Cal.App.4th at p. 1120), we conclude that appellants have alleged sufficient facts to survive a demurrer. Therefore, we conclude the trial court erred in granting the County's demurrer.
IV.
DISPOSITION
The judgment is reversed.
/s/_________
RUVOLO, P. J. We concur: /s/_________
REARDON, J. /s/_________
STREETER, J.