Fisher v. Lags Spine & Sportscare Medical Centers, Inc. et al.

(48) Tentative Ruling

Re: Fisher v. Lags Spine & Sportscare Medical Centers, Inc. et al. Superior Court Case No. 24CECG03448

Hearing Date: September 10, 2026 (Dept. 403)

Motion: Defendants Department of State Hospitals and Brandon Price’s Demurrer to the First Amended Complaint

Tentative Ruling:

To sustain defendants Department of State Hospitals and Brandon Price’s demurrer to the First Amended Complaint, with leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) Plaintiffs Jeffery Fisher and Mishakal Clark are granted 15 days leave to file a Second Amended Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type.

Explanation:

Defendants State of California, by and through the Department of State Hospitals (“DSH”), and Brandon Price (collectively “Defendants”) demur to the First Amended Complaint filed by plaintiffs Jeffery Fisher and Mishakal Clark aka Brocco (collectively “Plaintiffs”). Defendants challenge the first cause of action, the sole cause of action asserted against them, based on several immunities from suit.

The function of a demurrer is to test the sufficiency of a plaintiff’s pleading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of plaintiff’s possible difficulty or inability in proving the allegations of his complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) In assessing the sufficiency of the complaint against the demurrer, we treat the demurrer as admitting all material facts properly pleaded, bearing in mind the appellate courts’ well established policy of liberality in reviewing a demurrer sustained without leave to amend, liberally construing the allegations with a view to attaining substantial justice among the parties. (Glaire v. LaLanne-Paris Health Spa, Inc. (1974) 12 Cal.3d 915, 918.)

A court may sustain a demurrer without granting plaintiff leave to amend the complaint if plaintiff did not request leave to amend and an effective amendment is not “apparent and consistent with the plaintiff’s theory of the case.” (Camsi IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1542.)

Government Tort Immunity

Government Code section 815 provides that “[e]xcept as otherwise provided by statute...[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” In other words, “all government tort liability must be based on statute.” (County of San Bernardino v. 9

Superior Court (2022) 77 Cal.App.5th 1100, 1107; Gov. Code, § 810, et seq.) “[I]n the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable.” (Id. at p. 1108 [emphasis in original].) Plaintiff bears the burden of setting forth facts in the complaint sufficiently detailed and specific to support an inference that the statutory elements of liability are satisfied. (Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5.) Plaintiffs must plead specific facts showing what each individual defendant did or failed to do, and how that conduct caused injury. (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)

Here, Plaintiffs concede that the First Amended Complaint is insufficient as to the first cause of action against Defendants, and request leave to amend to specifically include a basis for liability for the public entity and public employee. Plaintiffs submit that an amendment is apparent because the amended complaint will plead that Defendants are liable under Government Code sections 854.8, 855, 818.6, and 821.4.

Government Mental Institutions Immunity (Gov. Code, §§ 854.8 & 855.)

Government Code section 854.8 states in pertinent part:

(a) Notwithstanding any other provision of this part, except as provided in this section and in Sections 814, 814.2, 855, and 855.2, a public entity is not liable for: (1) An injury proximately caused by a patient of a mental institution. (2) An injury to an inpatient of a mental institution.

Government Code section 855 provides in relevant part:

(a) 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. (emphasis added.)

Plaintiffs concede that defendant DSH is afforded immunity under Government Code section 854.8 for injuries to an inpatient of a mental institution. However, it is argued that an exception applies under Government Code section 855, which states that a public entity is liable for injury proximately caused by the failure to provide “adequate or sufficient equipment, personnel, or facilities required by any statute or any regulation”

unless reasonable diligence to comply is shown. Plaintiff solely cites Title 22, section 71537 of the California Code of Regulations, which states in relevant part:

(a) A written hospital infection control program shall be adopted. The program shall conform to the guidelines contained in Infection Control in the Hospital, 1974, published by the American Hospital Association, 840 North Lake Shore Drive, Chicago, IL 60611.

The aforementioned regulation does not state with specificity a requirement that would give a public entity notice to comply. “Government Code section 855 was intended to impose liability only when the statute or regulation sets forth a specific standard that gives the public medical facility clear notice as to the minimum requirements with which it must comply. (Lockhart v. County of Los Angeles (2007) 155 Cal.App.4th 289, 308.) The statute only generally requires that a compliant infection control program be adopted by a hospital. This statute does not specify what equipment, personnel, or facilities are required. However, while the aforementioned regulation may not provide for an exception to the immunity afforded to DSH under section 854.8, leave to amend is afforded in the event that one may be applicable.

Inspection Immunity (Gov. Code, §§ 818.6 & 821.4.)

Defendants also demur to the first cause of action on the grounds that Defendants are afforded inspection immunity under Government code section 818.6 as to DSH and section 821.4 as to Brandon Price.

A public entity, or public employee, is not liable for injury caused by the failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property, other than the property of the public entity, (as defined in subdivision (c) of Section 830), for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety. (Gov. Code, §§ 818.6 [applying to public entities] 821.4 [applying to public employees].)

Under Government Code section 830, subdivision (c) defines “property of a public entity” as real or personal property owned or controlled by the public entity, but does not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity.

Here, Defendants assert that the mobile pain treatment clinic was owned and operated by Dr. Lagattuta and is not property of a public entity despite it occasionally operating on the hospital grounds, and thus they are immune from liability arising from a duty to inspect it. Plaintiffs’ response states that the immunity does not extend to the inspection of Dr. Lagattuta’s practice, as opposed to inspection of the property. Plaintiffs request leave to amend the First Amended Complaint to include this language. Plaintiffs filed to present authority for the position that inspection immunity does not extend to a medical provider’s practice. Nonetheless, Plaintiffs are provided an opportunity to plead any authority precluding the immunity.

Negligent Hiring or Supervision (§§ 820 & 820.2.) 11

Government Code section 815.2 provides:

(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.

(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.

Government Code section 820 provides:

(a) Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person. (b) The liability of a public employee established by this part (commencing with Section 814) is subject to any defenses that would be available to the public employee if he were a private person.

Ultimately a public entity and its employee are liable to the same extent as a private employer and employee. An employer can be liable to a third person for harm caused by an employee if the employer knew or should have known of the risk of that harm upon hiring, or by negligently supervising or retaining the unfit employee. (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.)

Defendant Brandon Price demurs on the grounds that the first cause of action fails to identify a supervising employee’s specific negligent act or omission. Plaintiff argues that Brandon Price was negligent in failing to conduct a background check on Dr. Lagattuta. However, the First Amended Complaint insufficiently states a cause of action under this theory because it is not stated why defendant Brandon Price had a duty to supervise defendant Dr. Lagattuta. However, it may be possible that an amendment can cure the insufficiency.

For the foregoing reasons, the demurrer as to the first cause of action is sustained, with leave to amend.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: SMC on September 9, 2026. (Judge’s initials) (Date) 12