Catherine Moseley Jackson, in her individual capacity and as successor-in-interest to the Estate of Blair Moseley vs. BHC Sierra Vista Hospital, Inc.

and (4) negligent misrepresentation against Defendant and Turning Point Community Programs (“Turning Point”).

The FAC details in one hundred thirty-eight (138) paragraphs spanning over twenty-nine pages the factual allegations that give rise to this case and support the causes of action listed above. In summary, the FAC describes the deterioration of Blair’s psychiatric health that led Blair to be “placed on an involuntary psychiatric hold, or ‘5150 hold,’” in late March 2022. (FAC ¶¶ 10-23.) Blair was transferred to Defendant and admitted “as ‘a danger to herself’, within the meaning of California Welfare and Institutions Code § 5150 and after prior Court determination that she was “gravely disabled”, but a few days after Blair’s admission, family communications abruptly ceased. (FAC ¶¶ 24, 25, 75.)

Blair’s mother, Catherine Moseley Jackson (“Plaintiff”), called Defendant several times to speak with Blair and her assigned case manager, but got no response until April 6, 2022, when she received a voicemail to call Defendant’s Case Manager who identified herself as simply “Melinda.” (FAC ¶¶ 25-26.) Plaintiff spoke with Melinda on the morning of April 8, 2022, and was advised that Melinda would call her back the same day with Blair on the line at 3:00 p.m., but Melinda never called back. (FAC ¶ 26.)

Plaintiff called and left several more voice messages, but did not hear back from Melinda. (Ibid.)

On April 12, 2022, without giving notice to Blair’s family members or the people listed on her Release of Information (“ROI”), Blair was transferred from Defendant to Turning Point, a Crisis Residential Program (“CRP”) providing 24/7 crisis stabilization services as an alternative inpatient psychiatric hospital for adults who are experiencing a psychiatric crisis. (FAC ¶¶ 32- 33.) The discharge instructions faxed from Defendant to Turning Point on the day of Blair’s transfer indicated that she was suffering from paranoid schizophrenia and was being “referred” to Turning Point by Defendant and transported directly to Turning Point’s facility. (FAC ¶ 65.)

On April 18, 2022, unaware that Blair had been transferred to Turning Point, Plaintiff called Defendant and spoke to an authorized representative who identified herself simply as “Rachel” and transferred Plaintiff to another representative who identified herself as “Audrey”. (FAC ¶ 27.) Audrey took down Plaintiff’s number, confirmed that Blair was at Defendant’s hospital, advised that the cut-off time for speaking with patients was 10:00 p.m., and promised to pass Plaintiff’s message to Blair the same day. (Ibid.)

The next day, April 19, 2022, a receptionist called and advised Plaintiff that Blair was no longer at Defendant’s hospital and that Plaintiff “should file a missing person’s report.” (FAC ¶ 28.) Blair’s brother, Mr. Williams, who was listed as an authorized person on Blair’s ROI, also called Defendant trying to reach Blair on April 19, 2022, and was informed that Blair was no longer at Defendant’s hospital and that they didn’t know where she had been released to. (FAC ¶ 29.) Defendant later informed Mr.

Williams that Blair had been discharged on April 12, 2022, and that Blair’s Case Manager “Melinda” should have called him prior to Blair’s discharge since he was clearly listed on her ROI. (FAC ¶ 30.)

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On April 24, 2022, Blair was walking in the lanes of traffic on Southbound Interstate 5 at Florin Road in Sacramento when she was hit by a vehicle and sustained fatal injuries. (FAC ¶ 31.)

On April 25, 2022, Defendant Case Manager “Melinda” finally called and disclosed to Mr. Williams that Blair was transferred from Defendant to Turning Point on April 12, 2022. (FAC ¶ 32.) Mr. Williams made numerous calls to Turning Point on April 25 and April 26, 2022, and was eventually told by Turning Point’s authorized representative who identified himself simply as “Eric” that Blair was no longer part of the program. (FAC ¶¶ 34-37.) Eric, “wasn’t exactly sure when Blair left but believed it was sometime between Saturday April 23, 2022, and Monday April 25, 2022,” and advised Mr.

Williams to call area hospitals. (FAC ¶ 37.) The FAC alleges that, “Blair’s death could have been avoided had [Defendant] not neglected her during her stay there and prematurely discharged her to Turning Point defendants while she was still in need of intensive psychiatric treatment and a clear danger to herself. [Defendant] discharged her without any notice to relatives or persons listed on Blair’s ROI.” (FAC ¶ 40.)

The parties engaged in meet and confer efforts as required by Code of Civ. Proc. Section 430.41, but were unable to reach agreement and this demurrer followed.

Defendant demurs generally to all four causes of action in the FAC. (Code Civ. Proc. § 430.10(e).) With respect to the first two causes of action, Defendant argues that it is immune from all civil liability pursuant to Welf. & Inst. Code § 5113. With respect to the third and fourth causes of action, Defendant argues that the FAC fails to set forth facts sufficient to state a cause of action for fraud/intentional misrepresentation and negligent misrepresentation.

Plaintiffs oppose the motion and alternatively request that the Court grant leave to amend.

Legal Standard

The function of a demurrer is to test the sufficiency of the pleading it challenges by raising questions of law. (Salimi v. State Comp. Ins. Fund (1997) 54 Cal.App.4th 216, 219; Nordlinger v. Lynch (1990) 225 Cal.App.3d 1259, 1271.) A demurrer “tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) The purpose of a demurrer is to test the legal sufficiency of a claim. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)

For the purpose of determining the effect of a complaint, its allegations are liberally construed, with a view toward substantial justice. (Cal. Code Civ. Proc. §452; Amarel v. Connell (1988) 202 Cal.App.3d 137, 140-141; Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 43, fn. 7.) In this respect, the Court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law, and considers matters which may be judicially noticed. (Blank v.

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Kirwan (1985) 39 Cal.3d 311, 318; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-1112.) A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, William S. Hart Union High School Dist. v. Regional Planning Com. (1991) 226 Cal.App.3d 1612, 1616 n.2.)

Discussion

First and Second Causes of Action: Medical Malpractice/Wrongful Death and Negligence

Defendant demurs to the first and second causes of action for medical malpractice/wrongful death and negligence on the grounds that Defendant is immune from all civil liability pursuant to Welf. & Inst. Code § 5113 and, therefore, Plaintiffs fail to state facts sufficient to constitute a cause of action for either of these claims. (Code Civ. Proc., § 430.10 (e).)

The FAC alleges that Blair was admitted to Defendant’s hospital, “as ‘a danger to herself’, within the meaning of California Welf. & Inst. Code § 5150 and after prior Court determination that she was ‘gravely disabled.’” (FAC ¶ 75.) Section 5150 of the Welfare and Institutions Code is titled “Dangerous or Gravely Disabled Person; Taking into Custody; Procedures” and set forth under Chapter 2, which is titled “Involuntary Treatment”, of the Lanterman-Petris-Short Act (“LPS Act”), Welf. & Inst. Code §§ 5000, et seq.

Section 5113 of the LPS Act, which is set forth under Chapter 1, “General Provisions,” is titled “Exemptions from liability” and provides that, “the facility providing treatment responsible for the detainment of the person shall not be civilly or criminally liable for any action by a person released at or before the end of the period for which he or she was admitted pursuant to the provisions of the appropriate article.” (Welf. & Inst. Code § 5113.)

The parties agree that this, “immunity statute applies only if the psychiatrist directly responsible for the person’s treatment believes, as a result of the psychiatrist’s personal observations, that the person certified no longer is, as a result of mental disorder or impairment by chronic alcoholism, a danger to others, or to himself or herself, or gravely disabled,” pursuant to Welf. & Inst. Code § 5257. (MPA at 7:4-7; Opp. at 6:27-7:2.)

Welf. & Inst. Code section 5257 is titled ‘Termination of involuntary commitment; remaining at facility on a voluntary basis; referral information; limitation on involuntary detainment’ and provides that, “[d]uring the period of intensive treatment pursuant to Section 5250 or 5270.15, the person’s involuntary detention shall be terminated and the person shall be released only if the psychiatrist directly responsible for the person’s treatment believes, as a result of the psychiatrist’s personal observations, that the person certified no longer is, as a result of mental

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disorder or impairment by chronic alcoholism, a danger to others, or to himself or herself, or gravely disabled.” (Welf. & Inst. Code § 5257, subd. (a).)

Defendant cites Coburn v. Sievert (2005) 133 Cal.App.4th 1483, 1505 (“Coburn”), and asserts that the court in Coburn, “rejected the negligence standard and stated the immunity statute applied to a claim for negligence for premature discharge from an involuntary psychiatric hold specifically differentiat[ing] that case from Bragg v. Valdez [where] the Appellate Court determined a claim of premature discharge based on lack of insurance, was sufficient to overcome the statutory immunity on demurrer.” (MPA at 7:13-17; see Bragg v.

Valdez (2003) 111 Cal.App.4th 421 (“Bragg”).) Defendant argues that these cases demonstrate that Defendant is immune from liability for the first two causes of action because here, “[o]nly medical error is alleged,” and the court in Bragg specifically stated that, “there is immunity if the decision [to discharge a patient] even though in error, is made based upon medical grounds.” (MPA at 7:25- 27, 8:22-25; citing Bragg, supra, at fn. 11.)

In Coburn, the Court of Appeals affirmed the trial court’s decision to grant summary judgment to a treating psychiatrist for claims of negligent treatment and premature release on the ground that he was immune from liability under section 5154, subdivision (a) of the Welfare and Institutions Code, for damages arising from the patient’s violent outburst on an airplane the day after he was released. (Coburn, supra, 133 Cal.App.4th at 1488-1489.) “Section 5154, subdivision (a) provides that ‘if the provisions of Section 5152 have been met,’ the treating psychiatrist is not ‘liable for any action by a person released’ early.” (Id. at 1489.) The Coburn court concluded: “(1) the phrase ‘provisions of Section 5152’ was intended to include only the conditions in section 5152 relating to early release; (2) this lawsuit only concerns liability for actions by Coburn; (3) a subjective standard for belief is imposed by the language in section 5152 that refers to the treating psychiatrist's belief ‘that the person no longer requires evaluation or treatment’; and (4) the evidence referenced by plaintiffs was insufficient to create a question of fact as to whether the psychiatrist subjectively believed that no further evaluation or treatment was needed.” (Ibid.)

In Bragg, it was alleged that a psychiatric patient was released into the general public solely because the patient had no insurance and the Court of Appeal reversed the trial court’s decision sustaining the psychotherapists demurrer without leave to amend, finding that there would be no immunity if that allegation was proven at trial, as the “immunity applies as long as the psychiatrist, based upon his own personal observations, believes the person is no longer a danger [which] assumes the psychiatrist is acting in good faith.” (Bragg, supra, 111 Cal.App.4th at 433.)

In opposition, Plaintiffs argue that Defendant’s immunity argument is fatally flawed because Blair was never released within the meaning of Welfare and Institutions Code section 5113.

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Indeed, the patients in both Coburn and Bragg were released to the general public, whereas here, the FAC plainly alleges that Blair was discharged and transferred from Defendant to Turning Point, with instructions that she was to be brought back to Defendant’s hospital if her symptoms worsened. (FAC ¶ 65.) The FAC further alleges that a Discharge Summary Report was prepared and signed by psychiatrist, Dr. Viet Xuan Le, on April 13, 2022, which appears to rely on incorrect or inaccurate information, as the medical records show it was clear to Defendant that, at the time of Blair’s discharge, Blair was gravely disabled and a danger to others or herself, and not a candidate for discharge because of her mental disorder. (FAC ¶¶ 56-64, 67.)

On demurrer, a pleading must be liberally construed (Code Civ. Proc., § 452) and survives a general demurrer insofar as it states facts disclosing some right to relief. (Code Civ. Proc., § 452; Barquis v. Merchants Collection Assn. (1972) 7 Cal. 3d 94, 103.) Liberally construed and taken as true as required by law (Lazar v. Superior Court (1996) 12 Cal.4th 631, 635), the FAC alleges that Defendant negligently and prematurely discharged and transferred Blair to another inpatient psychiatric hospital while Defendant’s medical staff was aware that Blair remained gravely disabled and a danger to herself and others. Accordingly, neither Coburn nor Bragg demonstrates that Defendant is entitled to immunity as a matter of law for the claims of medical malpractice/wrongful death and negligence alleged in the FAC.

Furthermore, section 5113 provides immunity for liability “for any action by a person released,” and the Court notes that it is unclear that this matter involves liability for injuries arising out of “an action by a person released,” in this case, Blair, as was the case in both Coburn and Bragg. Rather, it appears from the allegations of the FAC that this matter involves liability arising from Defendant’s allegedly negligent failure to appropriately treat Blair during her involuntary detention, for which Defendant may not be immune from liability under Welf. & Inst.

Code section 5278. (See Gonzalez v. Paradise Valley Hospital (2003) 111 Cal.App.4th 735, 743 [summary judgment was improper where parents alleged decedent’s death was proximately caused by defendants’ negligence during decedent’s detention, specifically, psychiatrist’s failure to appropriately treat decedent’s psychosis and hospital’s failure to adequately supervise and provision of inadequate facilities].) Accordingly, Defendant’s general demurrer to Plaintiffs’ first and second causes of action on grounds of immunity pursuant to Welf. & Inst.

Code § 5113 is OVERRULED.

Third and Fourth Causes of Action: Fraud (Intentional Misrepresentation) and Negligent Misrepresentation

Defendant also asserts a general demurrer against Plaintiffs’ third and fourth causes of action pursuant to Code of Civ. Proc., § 430.10(e). Defendant argues that the facts alleged in the FAC do not support these claims because the elements of “duty, causation, and damages, do not exist.” (MPA at 9:14.)

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The elements of a cause of action for fraud are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. (OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal. App. 4th 835, 845.) A claim for negligent misrepresentation does not require scienter or intent to defraud and instead, “encompasses ‘[t]he assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true’ [citation], and ‘[t]he positive assertion in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true’ [citations].” (Ibid.)

To establish a claim for “fraud through nondisclosure or concealment of facts, it is necessary to show the defendant ‘was under a legal duty to disclose them.’ [Citation.]” (Ibid.)

To properly plead a cause of action for false promise, Plaintiffs must allege that: 1) Defendant made a promise to Plaintiff that they did not intend to perform; 2) Defendant intended that Plaintiff would rely on the promise; 3) Plaintiff reasonably relied on the promise; 4) Defendant did not perform the promise; and 5) Plaintiff was harmed as a result. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) As with any other form of fraud, each element of a promissory fraud claim must be alleged with particularity. (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1059-1060.)

The FAC alleges that Defendant knowingly and recklessly made false and misleading statements to Plaintiffs, and concealed facts from Plaintiffs, specifically, Plaintiff Catherine M. Jackson, and that Plaintiffs relied on these statements and concealment of facts to their detriment and suffered damages as a result. (FAC ¶ 109.)

Defendant argues that the FAC fails to state a cause of action for fraud or negligent misrepresentation because it fails to establish that Defendant had any legal duty to disclose information about Blair’s treatment or discharge to Plaintiffs. Defendant asserts that, “[t]he health care providers at [Defendant] were limited by federal and state statutes, as well as the psychiatric-patient privilege, from releasing information regarding” Blair’s treatment, admission, discharge, or continued treatment without Blair’s prior consent. (MPA at 10:4-6.)

Defendant contends that, “Plaintiffs allude to this by stating only Blair’s brother, a non-party, was on the ROI in her records. FAC, ¶ 116. Without Blair’s prior authorization, [Defendant] was legally required not to provide any information to Plaintiffs regarding Blair’s treatment, discharge or follow-up treatment. As such, [Defendant] did not have a duty to disclose this information, and was bound by law not to disclose this information.” (MPA at 10:11-16.)

In opposition, Plaintiffs assert that the FAC alleges that Mr. Williams was communicating on behalf of the family, including Plaintiffs, and that the Supreme Court has recognized that,

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“misrepresentations to the plaintiff may be communicated indirectly through an agent or third party,” citing Mirkin v. Wasserman (1993) 5 Cal.4th 1082; Gawara v. United States Brass Corp. (1998) 63 Cal.App.4th 1345. (Opp. at 11:14-18.) However, as noted by Defendant in reply, Mr. Williams was not Defendant’s agent, and any information conveyed to him was not with the intention of this information being relayed to or relied upon by Plaintiffs, who were not authorized by Blair to receive that information. (Reply at 6:11-14.)

Accordingly, as Mr. Williams is not a plaintiff in this action, Defendant’s demurrer to the third and fourth causes of action is SUSTAINED on the ground that the FAC fails to allege that Defendant owed a legal duty to Plaintiffs sufficient to support Plaintiffs’ claims for fraud and negligent concealment. Leave to amend will be granted as this is the first challenge to the pleadings and it appears that Plaintiffs can correct this deficiency simply by naming Mr. Williams as a plaintiff together with his parents.

Conclusion

For the reasons and as set forth above, Defendant’s demurrer to Plaintiffs’ FAC is OVERRULED as to Plaintiffs’ first and second causes of action and SUSTAINED with leave to amend as to the third and fourth causes of action.

Plaintiffs may file and serve a Second Amended Complaint (2AC) by no later than August 14, 2023. Although not required by statute or Court rule, Plaintiffs are directed to present the clerk with a copy of this ruling when the 2AC is presented for filing. Defendant may file and serve a response within 30 days of service of the 2AC, 35 days if served by mail.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.