This case was last updated from Los Angeles County Superior Courts on 09/28/2022 at 18:02:16 (UTC).

MICHAEL DEUSCHEL VS CA HEALTH AND HUMAN SERVICES AGENCY ET A

Case Summary

On 10/10/2017 MICHAEL DEUSCHEL filed a Civil Right - Other Civil Right lawsuit against CA HEALTH AND HUMAN SERVICES AGENCY ET A. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are DAVID J. COWAN and ARMEN TAMZARIAN. The case status is Disposed - Judgment Entered.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1070

  • Filing Date:

    10/10/2017

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Civil Right - Other Civil Right

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DAVID J. COWAN

ARMEN TAMZARIAN

 

Party Details

Petitioner

DEUSCHEL MICHAEL

Respondents

LIGHTBOURNE WILL

KENT JENNIFER

CALIFORNIA DEPARTMENT OF HEALTH CARE SERV

CALIFORNIA HEALTH AND HUMAN SERVICES AGEN

DOOLEY DIANA

CALIFORNIA DEPARTMENT OF SOCIAL SERVICES

Not Classified By Court

MEXICAN AMERICAN LEGAL DEFENSE

Attorney/Law Firm Details

Respondent Attorney

BARCA DANE CHRISTIAN

 

Court Documents

Judgment - JUDGMENT [PROPOSED]

10/25/2021: Judgment - JUDGMENT [PROPOSED]

Notice of Entry of Judgment / Dismissal / Other Order

10/25/2021: Notice of Entry of Judgment / Dismissal / Other Order

Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE)

10/14/2021: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE) OF 10/14/2021

10/14/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE) OF 10/14/2021

Proof of Service (not Summons and Complaint)

10/19/2021: Proof of Service (not Summons and Complaint)

Case Management Statement

6/15/2021: Case Management Statement

Certificate of Mailing for - CERTIFICATE OF MAILING FOR [ORDER TRIAL PREPARATION]

6/17/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR [ORDER TRIAL PREPARATION]

Order - ORDER TRIAL PREPARATION

6/17/2021: Order - ORDER TRIAL PREPARATION

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

6/17/2021: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Notice - NOTICE OF HEARING ON DEFENDANT'S DEMURRER AND NOTICE OF TRIAL SETTING

7/1/2021: Notice - NOTICE OF HEARING ON DEFENDANT'S DEMURRER AND NOTICE OF TRIAL SETTING

Minute Order - MINUTE ORDER (COURT ORDER)

3/9/2021: Minute Order - MINUTE ORDER (COURT ORDER)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (DEMURRER OF RESPONDENTS, CALIFORNIA HEALTH AND HUMAN SERVICES...) OF 04/29/2021

4/29/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (DEMURRER OF RESPONDENTS, CALIFORNIA HEALTH AND HUMAN SERVICES...) OF 04/29/2021

Minute Order - MINUTE ORDER (DEMURRER OF RESPONDENTS, CALIFORNIA HEALTH AND HUMAN SERVICES...)

4/29/2021: Minute Order - MINUTE ORDER (DEMURRER OF RESPONDENTS, CALIFORNIA HEALTH AND HUMAN SERVICES...)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE REASSIGNMENT TO AN INDEPENDENT CALENDAR COURT) OF 05/03/2021

5/3/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE REASSIGNMENT TO AN INDEPENDENT CALENDAR COURT) OF 05/03/2021

Minute Order - MINUTE ORDER (COURT ORDER RE REASSIGNMENT TO AN INDEPENDENT CALENDAR COURT)

5/3/2021: Minute Order - MINUTE ORDER (COURT ORDER RE REASSIGNMENT TO AN INDEPENDENT CALENDAR COURT)

Notice of Case Management Conference

5/4/2021: Notice of Case Management Conference

Notice - NOTICE OF CONTINUED HEARING ON PLAINTIFFS ADA ACCOMMODATION REQUEST

1/11/2021: Notice - NOTICE OF CONTINUED HEARING ON PLAINTIFFS ADA ACCOMMODATION REQUEST

Minute Order - MINUTE ORDER (COURT ORDER)

1/12/2021: Minute Order - MINUTE ORDER (COURT ORDER)

75 More Documents Available

 

Docket Entries

  • 02/08/2022
  • Docketat 08:30 AM in Department 52, Armen Tamzarian, Presiding; Order to Show Cause Re: (Entry of Judgment) - Not Held - Vacated by Court

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  • 01/18/2022
  • Docketat 10:00 AM in Department 52, Armen Tamzarian, Presiding; Non-Jury Trial ((3 days)) - Not Held - Vacated by Court

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  • 01/10/2022
  • Docketat 09:00 AM in Department 52, Armen Tamzarian, Presiding; Final Status Conference - Not Held - Vacated by Court

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  • 10/25/2021
  • DocketNotice of Entry of Judgment / Dismissal / Other Order; Filed by Clerk

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  • 10/25/2021
  • DocketJudgment; Filed by CALIFORNIA HEALTH AND HUMAN SERVICES AGEN (Respondent); DIANA DOOLEY (Respondent); CALIFORNIA DEPARTMENT OF HEALTH CARE SERV (Respondent) et al.

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  • 10/19/2021
  • DocketProof of Service (not Summons and Complaint); Filed by CALIFORNIA HEALTH AND HUMAN SERVICES AGEN (Respondent); DIANA DOOLEY (Respondent); CALIFORNIA DEPARTMENT OF HEALTH CARE SERV (Respondent) et al.

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  • 10/14/2021
  • Docketat 10:00 AM in Department 52, Armen Tamzarian, Presiding; Hearing - Other (pursuant to Vesco v. Superior Court of Ventura) - Held - Motion Denied

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  • 10/14/2021
  • Docketat 10:00 AM in Department 52, Armen Tamzarian, Presiding; Hearing on Demurrer - without Motion to Strike - Held - Motion Granted

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  • 10/14/2021
  • Docketat 09:00 AM in Department 52, Armen Tamzarian, Presiding; Hearing on Demurrer - without Motion to Strike - Not Held - Advanced and Continued - by Court

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  • 10/14/2021
  • DocketCertificate of Mailing for ((Hearing on Demurrer - without Motion to Strike) of 10/14/2021); Filed by Clerk

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153 More Docket Entries
  • 01/16/2018
  • DocketSTIPULATION AND ORDER EXTENDING TIME FOR DEFENDANTS/RESPONDENTS TO RESPOND TO PETITION AND COMPLAINT

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  • 11/13/2017
  • DocketNOTICE RE: CONTINUANCE OF HEARING

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  • 11/13/2017
  • DocketNotice Re: Continuance of Hearing and Order; Filed by Clerk

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  • 10/18/2017
  • DocketNotice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

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  • 10/18/2017
  • DocketNOTICE OF TRIAL SETTING CONFERENCE & ATTACHED ORDERS THEREON

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  • 10/18/2017
  • DocketNotice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

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  • 10/10/2017
  • DocketPETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES

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  • 10/10/2017
  • DocketSUMMONS

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  • 10/10/2017
  • DocketPetition; Filed by null

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  • 10/10/2017
  • DocketORDER ON COURT FEE WAIVER

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Tentative Rulings

b"

Case Number: ****1070 Hearing Date: October 14, 2021 Dept: 52

No. 10

Michael Deuschel v. California Health and Human Services Agency, et al.

****1070

10/14/21

What’s on calendar?

1. Vesco Hearing

2. Defendants’ Demurrer

Notice:

Ok – problem with prior notice but clerk mailed notice of new hearing on 9/2/21

Tentative:

Sustain w/o leave

BACKGROUND

10/10/17: Plaintiff Michael Deuschel filed the initial “petition for writ of mandate and complaint for declaratory and injunctive relief and damages” against defendants California Health and Human Services Agency; Diana Dooley as Secretary of the agency; California Department of Health Care Services; Jennifer Kent as Director of the department; California Department of Social Services, and Will Lightbourne as Director of that department.

9/18/18: Plaintiff filed the operative “amended complaint notice of and petition for writ of mandate and complaint for declaratory and injunctive relief and damages” against the same defendants for:

#

Cause of Action

Against

1

Gov. Code ; 11135, Defeating or Impairing

All

2

Gov. Code ; 11135, Disinvesting

All

3

Cal. Const. Art. I, ; 7(a) and Art. IV, ; 16(a), Equal Protection

All

4

Cal. Const. Art. I, ; 7(a) and Art. IV, ; 16(a), Due Process

All

5

CCP ; 526a, Request for Injunctive Relief

All

6

CCP ; 1085, Writ for Ordinary Mandate

All

7

Discrimination: ADA Title II and Title III, Reformation Act, CCP ;; 51-52

All

11/9/18: Defendants filed their demurrer to the FAC.

4/29/21: Judge Strobel ruled on this demurrer only as to the sixth cause of action for writ of mandate. The demurrer was sustained without leave to amend. Judge Strobel transferred the case for reassignment to resolve the non-writ causes of action.

Allegations:

The 4/29/21 order begins by summarizing the 200-page FAC. The gist is that he alleges he was wrongfully denied medical treatment for several conditions. The causes of action begin on page 194.

MOVING PARTY POSITION

Defendants/respondents California Health and Human Services Agency;, Michael Wilkening (its new director); Department of Health Care Services; Jennifer Kent; Department of Social Services; and Will Lightbourne filed this joint demurrer.

1st and 2nd Causes of Action: Government Code ; 11135

Plaintiff alleges discrimination based on differences between (1) Medi-Cal; and (2) Medicare and private insurance. That is not discrimination “under” a state program or activity. That requires discrimination within a state program or activity—i.e. the state program treats members of a protected class worse than others in the program.

Plaintiff fails to allege causation. Medi-Cal’s fees and managed care rates are set in conjunction with the federal government. The federal Centers for Medicare and Medicaid Services (CMS) reviews and approves the rates. The state does not control Medicare or private insurance rates or policies.

Medi-Cal patients are not similarly situated to patients under Medicare or private insurance. These three types of coverage each of separate statutory schemes.

3rd Cause of Action: Equal Protection

The state has not adopted anything that affects similarly situated groups unequally. The State has no control over Medicare or private insurance. Again, plaintiff has not alleged causation. As the FAC alleges, people with disabilities and seniors receive disproportionate amounts of benefits under Medi-Cal. (¶¶ 3, 103-111.) Excluding them from Medicare and employer-sponsored insurance has nothing to do with the State.

4th Cause of Action: Due Process

Substantive due process requires abuse of power or oppression. It does not apply to negligence or mistakes. Plaintiff alleges underfunding and mismanagement resulting in denial of medical care and services. Deliberate indifference is not enough.

5th Cause of Action: Injunctive Relief

This fails because it is derivative of his other claims.

7th Cause of Action: ADA, Rehabilitation Act, and Unruh Civil Rights Act

For Unruh, the rights or privileges plaintiff alleges are expressly limited by law—State Plan Amendments approved by the federal government. It does not apply to neutral policies with a disparate impact.

For ADA and the Rehabilitation Act, the statutes do not guarantee any particular level of medical care. They prohibit discrimination against people with disabilities. Plaintiff does not allege that. He alleges Medi-Cal treats all enrolees the same. (¶ 49.)

DSS and Director Lightbourne:

They are not proper parties. DHCS alone administers Medi-Cal. DSS does everything except health care. Its only role comes from delegation by other agencies, such as In-Home Supportive Services. The DSS State Hearings Division holds some administrative hearings for programs administered by DHCS, but DHCS has decision-making authority.

Combined Complaint with Writ Petition

When a petition for writ of mandate and complaint are based on the same causes of action, the entire case should be resolved under the law of mandamus. A cause of action is based on the primary right, not the form of relief sought. If the court dismisses the writ, it should also dismiss the entire complaint.

OPPOSITION: None filed.

REPLY: Notice of non-oppositions on 6/12/19 and 11/12/2020 before other hearings.

DISCUSSION

Department 82 ruled on several of these arguments already, at least in the context of the writ. Judge Strobel rejected the argument about the complaint and petition being coextensive (4/29/19 order, p. 4, 3rd ¶); ruled that DSS and Director Lighthouse were not proper respondents (pp. 6-7); and, under the section on “clear, present, and ministerial duty” more or less ruled on the merits of the other causes of action, while claiming not to do so (pp. 7-10). It briefly goes through the legal standards for each on page 8. The final paragraph on page 8 and first paragraph on page 9 essentially reject all of those causes of action on the merits.

That order has one concerning part about DSS: “Petitioner’s allegations that DSS hearing officers discriminated against him under the ADA may or may not be relevant to other causes of action in the FAC.” (P. 7, 3rd ¶.)

A metaphor for the equal protection argument: this is equivalent to arguing that California violates equal protection because Pasadena City College or Cal. State LA (Medi-Cal) are worse schools than UCLA (Medicare), and none of the public universities are as good as Stanford (private insurance).

This case is eligible for dismissal for delay in prosecution. CCP ; 583.420(a)(2)(A) provides for discretionary dismissal when the action is not brought to trial within three years after filing. The three-year anniversary was October 10, 2020.

Tentative Ruling:

Defendants California Health and Human Services Agency; Michael Wilkening; Department of Health Care Services; Jennifer Kent; Department of Social Services; and Will Lightbourne’s Demurrer to First Amended Complaint

Defendants/respondents jointly demur to all seven causes of action for failure to state sufficient facts. On April 29, 2021, the Writs and Receivers department of this court sustained the demurrer without leave to amend as to the sixth cause of action for writ of ordinary mandate. The court then transferred the case for resolution of the remaining causes of action. The court reassigned the case here to Department 52. Plaintiff/petitioner Michael Deuschel did not file an opposition.

1st and 2nd Causes of Action: Government Code ; 11135

Plaintiff fails to allege sufficient facts for these causes of action. Government Code ; 11135(a) provides that no one shall, on the basis of disability, “be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state.”

Plaintiff fails to allege he was denied full and equal access to the benefits under a state program. To state a claim under Government Code ; 11135, plaintiff must allege discrimination between members of a protected class and similarly situated people who are not members of the class. (County Inmate Telephone Service Cases (2020) 48 Cal.App.5th 354, 368 (County Inmate).) In County Inmate, the court held that for minority jail inmates, other inmates—not the general population—are the relevant comparison group. (Ibid.) The court stated that “the only appropriate inquiry is an analysis of the impact on minorities ‘in the population base “affected” ’ [citation], and that is the inmate population. There is no other relevant group. And African-American and Latino inmates are treated exactly the same as any other inmates.” (Ibid.)

The same reasoning applies here. Plaintiff alleges, “Law requires Defendants provide Medi-Cal Enrollees with access to medical care equivalent to the access afforded to people with other insurance coverage, including Employer Sponsored Insurance (ESI) and Medicare. Defendants are failing in this duty. … As a result, Medi-Cal Enrollees suffer greater pain, illness, and undiagnosed and untreated serious medical conditions … than do their fellow Californians with other insurance.” (FAC, ¶ 2.)

Plaintiff further alleges, “The State's failure to provide Medi-Cal Enrollees with equivalent access to health care disparately impacts Plaintiff (and seniors and other persons with disabilities Enrollees) due to his (their) additional vulnerability and increased need for medical care. In effect, California has created a separate and unequal system of health care, one for the Medi-Cal insurance program for low income seniors and persons with disabilities, and one for the other principal insurance plans, whose recipients are disproportionately ‘enabled.’ ” (¶ 3.)

Plaintiff’s discrimination claims rely on comparison with the wrong group. He alleges the Medi-Cal insurance program for low-income seniors and people with disabilities is worse than other insurance programs. The state program at issue is Medi-Cal. The only proper comparison is between Medi-Cal enrollees with disabilities and Medi-Cal enrollees without disabilities. But plaintiff alleges he is being denied medical care “like other Medi-Cal Enrollees.” (FAC, ¶ 76.) He alleges, “All Medi-Cal Enrollees are equally affected by the questions of law and fact affecting Plaintiff in that all Medi-Cal Enrollees are subject to the same acts and omissions by Defendants that cause the discrimination at issue.” (FAC, ¶ 49.) By definition, it is not discrimination within the program to treat all Medi-Cal enrollees the same. He alleges not that Medi-Cal treated him worse than others because of his disability, but that the whole Medi-Cal program is inadequate. That is not discrimination.

Even if people covered by Medicare or private insurance were the correct comparison group, defendants cannot discriminate by providing worse coverage. The federal government administers Medicare, and private entities provide private insurance. Defendants are not involved with either. Plaintiff does not allege defendants are making any distinction or using any policy that discriminates against people with disabilities. Rather, plaintiff alleges Medi-Cal treats everyone the same, but it should provide better benefits to match other programs.

Plaintiff also alleges defendants provide worse grievance procedures for fee-for-service enrollees in contrast to managed care enrollees. He alleges, “Medi-Cal discriminates against persons with disabilities enrolled in Fee-For-Service Medi-Cal by denying them the same grievance-resolution services it provides Mandatory Managed Care Enrollees because they are trying to force them into mandatory managed care plans.” (FAC, ¶ 246.) He does not allege that the fee-for-service grievance procedure constitutes disparate treatment or has a disparate impact on people with disabilities. He instead compares fee-for-service enrollees versus mandatory managed care enrollees, not people with disabilities versus people without disabilities.

3rd Cause of Action: Equal Protection

This cause of action fails for the same reasons as the first two. “ ‘The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but ‘whether they are similarly situated for purposes of the law challenged.’ ” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) Disabled Medi-Cal enrollees are not similarly situated as people with Medicare or private insurance. The laws or practices plaintiff challenges have no impact on people with Medicare or private insurance. Plaintiff does not allege defendants treat Medi-Cal enrollees differently based on whether or not they have a disability.

4th Cause of Action: Due Process

Plaintiff fails to allege sufficient facts for this cause of action. “Substantive due process protects against arbitrary government action. [Citation.] … A substantive due process violation requires some form of outrageous or egregious conduct constituting ‘a true abuse of power.’ [Citation.]” (Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 856.) “[T]he mere finding that a government decision is arbitrary or capricious is not sufficient to establish a substantive due process violation.” (Galland v. City of Clovis (2001) 24 Cal.4th 1003, 1033.)

Plaintiff does not allege outrageous or egregious abuse of power. He alleges defendants violated his due process rights via their “administration of the Medi-Cal program, including underfunding, failure to adequately monitor network adequacy, and imposition of unreasonable administrative burdens on participants and providers, and failure to provide Disabled Fee-For-Service Enrollees the same full and equal protective and grievance services provided to the mandatory managed care plan enrollee.” (FAC, ¶ 1263.)

These allegations are insufficient. Plaintiff essentially alleges that defendants, in applying their standard procedures affecting all Medi-Cal enrollees, failed to provide him with adequate care. In other words, plaintiff alleges that the law itself did not do enough for him and does not do enough for Medi-Cal enrollees. Even if true, this allegation does not amount to claim for violation of plaintiff’s substantive due process rights.

5th Cause of Action: Injunctive Relief

This purported cause of action fails because “[i]njunctive relief is a remedy, not a cause of action.” (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 65.) The remedy is only available based on an underlying cause of action. (Ibid.) Plaintiff’s underlying causes of action fail. This one cannot stand on its own.

7th Cause of Action: ADA, Rehabilitation Act, and Unruh Civil Rights Act

This cause of action also fails for the same reasons as the first, second, and third causes of action. These laws each prohibit discrimination against people based on disability. Plaintiff does not allege that. He alleges Medi-Cal does not and did not provide enough care. These laws do not require defendants to provide adequate medical care to people. They require defendants to treat people equally regardless of their disability.

Department of Social Services and Director Will Lightbourne

Defendants argue Department of Social Services (DSS) and its Director, Will Lightbourne, are not proper defendants because DSS has no role in administering Medi-Cal programs. As the demurrer acknowledges, DSS State Hearings Division conducts some hearings for programs administered by the Department of Health Care Services (DHCS). (P. 23:8-10.) Defendants argue the first amended complaint fails against these defendants because “DHCS, not DSS, has the final decision-making authority in these cases.” (Demurrer, p. 23:10-11.)

The first amended complaint does not state sufficient facts to constitute any of its causes of action against defendants Department of Social Services (DSS) or its Director, Will Lightbourne. Plaintiff alleges various violations based on denial of access to medical care or treatment under the Medi-Cal program. DHCS administers that program. (Cal. Code Regs., tit. 22, ; 50004(a).) DSS, on the other hand, is “the single state agency with full power to supervise every phase of the administration of public social services, except health care services and medical assistance… .” (Welf. & Inst. Code, ; 10600.)

DSS had one role in this case: it conducts State Hearings for Medi-Cal enrollees, like plaintiff, who claim wrongful denial of treatment. (FAC, ¶¶ 27, 245-249, 253, 276-280, 391-406, 410-432, 435-446, 851, 878, 919, 934-937, 1217.)

California Code of Regulations, title 22, section 50951 provides beneficiaries a right to a State hearing for Medi-Cal eligibility or benefits disputes. Title 22, section 50953(c) provides:

The Director [of DHCS] may develop an agreement with another agency to perform the State hearings. The Department [DHCS] shall retain sole authority for decision-making on Medi-Cal issues.

(1) Each proposed decision involving Medi-Cal issues shall be submitted to the Department for action. Substantive review for the conformity of the proposed decision to the Department's regulations and policies shall be the sole responsibility of the Director. The Director shall take action on the proposed decision within 30 days following actual receipt by the Department.

(2) All requests for rehearing or reconsideration of cases involving Medi-Cal shall be acted upon by the Director. The Director shall grant or deny the request no earlier than 5 nor later than 15 working days after the request is actually received by the Department. If action is not taken by the Director within this period, the request for rehearing shall be deemed denied.

Thus, DSS performs the State hearings, but DHCS “retain[s] sole authority for decision-making on Medi-Cal issues.” The DSS hearings result in a “proposed decision,” but it is “the sole responsibility of the Director” of DHCS to take action on the proposed decision. Plaintiff’s causes of action against DSS and its Director fail because DSS provides only a procedure and an advisory decision. It does not decide what medical care plaintiff receives. Errors in the procedure of those hearings do not give plaintiff a cause of action unless he shows prejudice. (Saad v. City of Berkeley (1994) 24 Cal.App.4th 1206, 1215.) For the reasons discussed above, plaintiff fails to state a cause of action on the merits of those decisions, and therefore fails to show prejudice.

For defendant Lightbourne, the first amended complaint only names him in his capacity as the Director of DSS. He cannot be personally liable when DSS is not.

Leave to Amend

A demurrer may be sustained without leave to amend when there is no reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The plaintiff bears the burden of showing he can successfully amend the complaint. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348-349.)

Plaintiff has not filed an opposition. He has not shown any way to cure the defects in the first amended complaint. There is no reasonable possibility of curing these defects.

Defendants’ demurrer to the first, second, third, fourth, fifth, and seventh causes of action is SUSTAINED without leave to amend.

"


Case Number: ****1070    Hearing Date: April 29, 2021    Dept: 82

Michael Deuschel,

v.

California Health and Human Services Agency, et al.,

****1070

Judge Mary Strobel

Hearing: April 29, 2021

Tentative Decision on Demurrer to Petition and Complaint

Respondents California Health and Human Services Agency; Michael Wilkening, in his official capacity as Secretary of the California Health and Human Services Agency; the California Department of Health Care Services; Jennifer Kent, in her official capacity as Director of the California Department of Health Care Services; the California Department of Social Services; and Will Lightbourne, in his official capacity as Director of the Department of Social Services (collectively, “Respondents”) demur to the first amended petition and complaint of Petitioner Michael Deuschel (“Petitioner”) for failure to state a cause of action.

Statement of the Case

The first amended petition and complaint (“FAC”) is more than 200 pages in length and includes 1285 paragraphs of allegations. Some pertinent allegations from the FAC include the following: Petitioner is a person with disabilities and a Medi-Cal enrollee. (FAC ¶ 17.) Petitioner is 56 years old. (Ibid.) Petitioner suffers from gadolinium toxicity, nephrogenic systemic fibrosis, osteodystrophy, and osteoporosis, among other conditions. Since 2009, he has received more than 50 surgical procedures, half minor and half major. (Id. ¶¶ 18-19.)

Petitioner alleges that “Medical providers deem him unworthy of care and insist they cannot treat him because Medi-Cal pays too low.” (Id. ¶ 21.) Petitioner alleges that medical providers have denied him, inter alia: medical treatment for osteoporosis; prescribed hip surgeries; prescribed shoulder surgeries; investigation of cerebral atrophy; surgery to remove dysfunctional neuro-stimulator; necessary MRIs; prescribed pain treatment; treatment for thoracic spine injuries; and revision vocal cord surgery to allow him to speak and breathe. (Id. ¶¶ 28-41.)

Petitioner also details what he alleges is a “humanitarian crisis” within the Medi-Cal program. (Id. ¶¶ 46-147.) Petitioner alleges that he, “like other Medi-Cal enrollees”, was denied equal access to health care comparable to those in Medicare and employer-sponsored insurance (ESI). (Id. ¶ 76.) “Due to difficulties accessing primary and specialty care, Plaintiff’s and other Medi-Cal Enrollees’ chronic and acute conditions go untreated or are not adequately treated.” (Id. ¶ 81.) “Provider participation in Medi-Cal is low as compared to other insurance, and does not meet the network adequacy standards set by State regulation to ensure adequate access to care.” (Id. ¶ 86.) “Defendants fail to set both the Fee-for-Service rates and mandatory managed-care plans’ capitation rates high enough to ensure equal access to qualify care for Medi-Cal participants.” (Id. ¶ 101.)

Petitioner has a lengthy history of medical treatments and surgeries since 2007 from several different health care providers. (Id. ¶¶ 150-202.) Petitioner alleges that medical providers delayed service or refused to treat him on several instances. (Id. ¶¶ 174, 193, 199; see ¶ 202, pp. 46-49.) Petitioner also describes his current medical status and stages of disabilities and disorders. (Id. ¶¶ 203-384.) Currently, Petitioner requires but has been denied hip surgeries; shoulder surgeries; revision bilateral vocal cord surgeries; and replacement of a dysfunctional neuro-stimulator to treat his chronic occipital neuralgia. (Id. ¶ 203.)

Petitioner alleges an inequity between Medi-Cal and other forms of health care coverage within California, which violated his equal protection and substantive due process rights. (Id. ¶¶ 1235-1265.) Petitioner also alleges that Respondents discriminated against him on the basis of his disability in violation of the Unruh Civil Rights Act and the federal Americans with Disabilities Act (ADA). (Id. ¶¶ 1275-1285.)

Procedural History

On October 10, 2017, Petitioner, in pro per, filed a petition for writ of mandate and complaint for declaratory and injunctive relief and damages. The petition and complaint set forth the following causes of action: (1) Government Code ; 11135 et seq.; (2) Government Code ; 11135 et seq.; (3) Cal. Const. Art. I, ; 7(a) and Art. IV ; 16(a); (4) Cal. Const. Art. I ; 7(a); (5) CCP ; 526a; (6) writ of mandate pursuant to CCP ; 1085; and (7) CCP ;; 51, 52.

On February 9, 2018, Respondents filed and served a demurrer to the original complaint.

On August 17, 2018, the court entered the parties’ stipulation to continue the demurrer hearing to September 20, 2018. The court ordered any opposition and reply to be filed pursuant to CCP section 1005. The stay expired on September 3, 2018. No opposition to the demurrer to the original complaint was received from Petitioner.

On September 18, 2018, Petitioner untimely filed a first amended complaint. The FAC sets forth the following causes of action: (1) Government Code ; 11135 et seq.; (2) Government Code ; 11135 et seq.; (3) Cal. Const. Art. I, ; 7(a) and Art. IV ; 16(a), Equal Protection; (4) Cal. Const. Art. I ; 7(a) and Art. IV ; 16(a), Due Process,; (5) CCP ; 526a; (6) writ of mandate pursuant to CCP ; 1085; and (7) Discrimination in violation of the ADA and CCP ;; 51, 52.

At the demurrer hearing on September 20, 2018, the parties stipulated to accept the untimely FAC for filing and deem Respondents’ demurrer moot. The court ordered stayed all claims except the petition for writ of mandate.

On November 9, 2018, Respondents filed and served their demurrer to the entire FAC and their meet and confer declaration.

The demurrer hearing was continued multiple times.

On March 9, 2021 the court reset the hearing on demurrer for April 29, 2021. The court’s minute order advised Petitioner that his opposition to the demurrer was due by April 16, 2021. The court mailed its minute order to the parties.

No opposition has been received from Petitioner.

Summary of Applicable Law

A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Code Civil Procedure section 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Analysis

Non-Writ Causes of Action

At the demurrer hearing on September 20, 2018, the court stayed all claims except the petition for writ of mandate (sixth cause of action). (See 9/20/18 minute order.) Despite the stay, on November 9, 2018, Respondents filed a demurrer to all causes of action in the FAC. Because of the stay, the court does not decide the demurrer as to the first, second, third, fourth, fifth, and seventh causes of action.

Moreover, pursuant to the local rules which designate that Department 82 is a specialized Writs and Receivers department and not a general civil department, only a cause of action for writ of mandate is properly assigned to this department. (LASC Local Rules 2.8(d) and 2.9.) As amended for January 2020, Local Rules 2.8(d) and 2.9 do not include a claim for declaratory relief as a special proceeding assigned to the writs departments. Accordingly, the sixth cause of action for writ of ordinary mandate is properly assigned to Department 82. The first through fifth and seventh causes of action are not writ causes of action and must be assigned to an independent calendar department. Indeed, Petitioner seeks damages for some of these causes of action, and demands a jury trial for those claims that may be heard by a jury. Department 82 does not hear jury trials and does not adjudicate claims for damages.

In the demurrer, Respondents argue that the court should dismiss the entire action because Petitioner’s complaint is “coextensive” with the writ petition. (Dem. 23-24.) By making these arguments, Respondents disregard the stay imposed by this court on September 20, 2018. Moreover, Respondents’ argument that the non-writ claims are entirely duplicative of the writ claim is not persuasive. Petitioner does not solely seek declaratory or injunctive relief in his first through fifth and seventh causes of action. He also seeks damages and/or a jury trial. Furthermore, even if there is overlap between the facts and legal theories that underlie Petitioner’s causes of action, that does not mean they are necessarily the same cause of action. In any event, whether the non-writ causes of action should be dismissed, and whether leave to amend should be granted for any defectively pleaded claims, are determinations to be made by the independent calendar court.

In light of the foregoing, the court does not rule on the demurrer directed at the first through fifth and seventh causes of action. Those causes of action are presently stayed. After resolution of the writ, the court will transfer those causes of action to Department 1 for assignment to an independent calendar department.

General Demurrer to Sixth Cause of Action for Writ of Ordinary Mandate

In the sixth cause of action, Petitioner alleges that Respondents have ministerial duties to administer the Medi-Cal program on a non-discriminatory basis pursuant to provisions of the California Constitution, Government Code, the Medicaid and Medi-Cal statutes, and the Unruh Act. (FAC ¶¶ 1271-72.) Petitioner alleges that Respondents are failing to comply with their ministerial duties “to ensure equivalent access to health care” and “to ensure that Medi-Cal Enrollees are not unlawfully denied full and equal access to the benefits of the Medi-Cal Program.” (Id. ¶ 1272.) Respondents contend that Petitioner has not stated a cause of action for writ of mandate because Petitioner’s underlying claims for constitutional and statutory violations are defective. (Dem. 21.) Respondents also contend that Department of Social Services and its director, Will Lightbourne (“DSS”) are not proper respondents in this case. (Dem. 22-23.)

There are two essential requirements to the issuance of an ordinary writ of mandate under Code of Civil Procedure section 1085: (1) a clear, present and ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty. (California Ass’n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where … the claim is that an agency has failed to act as required by law.” (Id. at 705.) “Generally, a writ will lie when there is no plain, speedy, and adequate alternative remedy …” (Pomona Police Officers’ Ass’n v. City of Pomona (1997) 58 Cal.App.4th 578, 583-84.)

Statutory Background – Medicaid Act and Medi-Cal

“Medicaid is a cooperative federal-state program through which the federal government reimburses states for certain medical expenses incurred on behalf of needy persons.’” (Keffeler v. Partnership Healthplan of California (2014) 224 Cal.App.4th 322, 326-27; see 42 U.S.C. ; 1396 et seq.) "States do not have to participate in Medicaid, but those that choose to do so must comply both with statutory requirements imposed by the Medicaid Act and with regulations promulgated by the Secretary of the U.S. Department of Health and Human Services." (Keffeler, supra at 326-27.) States administer the program and "determine eligibility, the types of services covered, payment levels for services, and other aspects of administration, within the confines of federal law." (Id. at 327.)

To qualify for federal funds, a state must submit its Medicaid plan and any amendments to the federal agency that administers the program, the Centers for Medicare & Medicaid Services (CMS). (Douglas v. Independent Living Center ofSo. Calif., Inc. (2012) 565 U.S. 606, 610.) “Participating states are required to include in their plans reimbursement methods and standards for the medical services provided.” (California Hosp. Ass’n v. Maxwell-Jolly (2010) 188 Cal.App.4th 559, 565; see 42 C.F.R. ; 447.252(b) and ; 430.10 [definition of “State Plan”]; see 42 U.S.C. ; 1396a(a)(30)(A).)

State plans and amendments must "provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan … as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area.” (42 U.S.C. ; 1396a(a)(30)(A) [hereafter section 30(A)].)

Should CMS determine that a state is not in compliance with either its State Plan or the Medicaid Act, CMS may withhold federal funds. (See Developmental Services Network v. Douglas (9th Cir. 2011) 666 F.3d 540, 544; 42 U.S.C. ; 1396c; see Armstrong v. Exceptional Child Center, Inc. (2015) 135 S.Ct. 1378, 1385.)

Medi-Cal is California's state Medicaid program. (See e.g. Welf. & Inst. Code ;; 14132.) Department of Health Care Services is the state agency that administers the Medi-Cal program. (22 C.C.R. ; 50004(a).)

DSS and Director Lightbourne

As argued in the demurrer, DSS does not appear to be a proper respondent for the writ of mandate cause of action. (See Dem. 22-23.) Department of Health Care Services is the state agency that administers the Medi-Cal program. (22 C.C.R. ; 50004(a).) DDS is “the single state agency with full power to supervise every phase of the administration of public social services, except health care services and medical assistance….” (Welf. & Inst. Code ; 10600 [emphasis added].) Petitioner has not sufficiently alleged, or explained in an opposition brief, how DSS and Director Lightbourne failed to perform a legal duty relevant to this action. (See e.g. FAC ¶¶ 42-45, 385-451.)

Petitioner alleges that “DSS conduct[s] State Hearings for Medi-Cal Enrollees that have been wrongfully denied treatment.”[1] (FAC ¶ 245.) Petitioner then alleges various acts of discrimination and procedural or legal error by DSS hearing officers in administrative hearings requested by Petitioner for denials of medical treatment. For instance, Petitioner alleges that at a DSS hearing held in August 2017 “DSS failed to provide the ADA Accommodation Plaintiff previously requested….” (Id. ¶ 297; see also Id. ¶¶ 421-425, 440-446.) Petitioner alleges that various denials of medical treatment prevented him from preparing for DSS hearings. (Id. ¶¶ 392-400.) Petitioner alleges that DSS failed to grant him stays of administrative proceedings as a reasonable accommodation for his incapacitation from surgeries and post-surgery recoveries. (Id. ¶ 406.)

Petitioner has not brought a petition for writ of mandate pursuant to CCP Section 1094.5 to challenge final administrative decisions issued after his DSS hearings. Petitioner cannot challenge the administrative decisions, which were issued after an evidentiary hearing, by petition for writ of ordinary mandate. (See Environmental Protection Information Center v. Cal. Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 520-521.) Moreover, it does not appear from the FAC that Petitioner seeks writ review of any administrative decisions issued after a DSS hearing.

Petitioner’s allegations that DSS hearing officers discriminated against him under the ADA may or may not be relevant to other causes of action in the FAC. For purposes of the sixth cause of action, Petitioner has not alleged some ministerial duty he seeks to enforce against DSS by writ of mandate.

The general demurrer as to the sixth cause of action against DSS and Director Lightbourne is SUSTAINED.

Clear, Present, and Ministerial Duty

In the demurrer, Respondents appear to contend, in essence, that Petitioner has not alleged a failure by Respondents to perform a clear, present, and ministerial duty. (CCP ; 1085.) The ministerial duties that Petitioner alleges are based, in part, on the underlying causes of action for discrimination in violation of Government Code section 11135 and its implementing regulations (see 2 C.C.R. ; 11154), and violations of equal protection and due process. (FAC ¶ 1272.)

Respondents contend that Petitioner’s underlying claims fail because Petitioner has not alleged causation against the State, or an actionable abuse of power. Because the State does not operate or control reimbursement or coverage policies under Medicare or private ESI, Respondents contend that Petitioner fails to allege how the State discriminated against Petitioner in comparison to similarly situated persons. (See Dem. 16-20; see e.g. Woods v. Horton (2008) 167 Cal.App.4th 658, 678 [claim under Government Code section 11135 requires that the comparison groups be similarly situated].) “The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.”  (Cooley v. Sup.Ct. (2002) 29 Cal.4th 228, 253.) Under the California Constitution, “substantive due process does not encompass ‘negligently inflicted harm’, but rather ‘only the most egregious official conduct,’ wherein government officials are '[abusing their] power, or employing it as an instrument of oppression.’” (Galland v. City of Clovis (2001) 24 Cal.4th 1003, 1034.)

Furthermore, Government Code section 11135 requires that the discrimination occur “under” a state “program or activity.”[2] (Gov. Code ; 11135(a).) Thus, the discrimination, to be actionable, must occur within state programs or activities and requires a showing that the State or a State-funded program has in some way singled out members of a protected class and treated them differently than other beneficiaries of state programs or activities. (See Comunidad en Accion v. Los Angeles City Council (2013) 219 Cal.App.4th 1116, 1124-1130 [City's siting of waste facilities in a predominately Latino neighborhood was not part of a “program or activity” funded by the state subject to antidiscrimination protections in section 11135].) Relatedly, the ADA and Rehabilitation Act prohibit discrimination against disabled persons. (42 U.S.C. ; 12132; 29 U.S.C. ; 794; Olmsteadv. L.C. ex rel. Zimring (1999) 527 U.S. 581, 599-600.)

The Unruh Act only bars discrimination by “business establishments”, and “shall not be construed to confer any right or privilege on a person that is conditioned or limited by law.” (Civ. Code ;; 51(b), (c); see Harrison v. City of Rancho Mirage (2015) 243 Cal.App.4th 162, 172-176 [Unruh Act does not apply to a city’s regulatory actions].)

The court finds these contentions persuasive as applied to the writ cause of action. Petitioner has apparently conceded them by failure to file an opposition. (See Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].) Petitioner alleges that he, “like other Medi-Cal enrollees”, was denied equal access to health care comparable to those in Medicare and ESI. (FAC ¶¶ 76-386, 1272.) Petitioner alleges that “all Medi-Cal Enrollees are equally affected … in that all Medi-Cal Enrollees are subject to the same acts and omissions by Defendants that cause the discrimination at issue.” (FAC ¶ 49.) The sixth cause of action is based on these allegations. Respondents do not operate or control reimbursement or coverage policies under Medicare or private ESI. Therefore, Petitioner has not alleged how Respondents have failed to perform ministerial duties under Government Code section 11135, the California Constitution, or other statutory provisions incorporated in the writ cause of action.

Respondents further argue that to the extent Petitioner alleges that the grievance procedures are different between the fee-for service and managed health care plans, Petitioner has not alleged a resulting disparate impact on a particular class based on a protected characteristic. (Dem. 17, fn. 2.) This argument, which Petitioner has not opposed, is also persuasive. Petitioner alleges that he is a person with disabilities in Fee-For-Service Medi-Cal.  (FAP ¶ 17.)  In paragraphs 246-248, Petitioner alleges that “Medi-Cal discriminates against persons with disabilities enrolled in Fee -For -Service Medi-Cal by denying them the same grievance-resolution services it provides Mandatory Managed Care Enrollees because they are trying to force them into mandatory managed care plans.”  (See also FAP ¶ 1242.) However, Petitioner has not alleged that these different grievance procedures have a disparate impact on a particular class on the basis of a protected characteristic. (Gov. Code ; 11135(a).) Moreover, there appear to be rational reasons to provide different grievance procedures for fee-for-service and managed care enrollees. (See Jefferson v. Hackney (1972) 406 U.S. 535, 546 [rational basis standard applies in the area of economics and social welfare so long as the classification is not invidious].) In this context, Petitioner fails to allege a clear, present, and ministerial duty owed by Respondents as a result of these different grievance procedures.

In the sixth cause of action Petitioner also refers generally to unspecified duties in the Medicaid and Medi-Cal statutes. (FAC ¶ 1271.) In the introductory sections of the FAC, Petitioner includes some allegations that Respondents have failed to comply with Medicaid or Medi-Cal statutes, potentially irrespective of a comparison to Medicare or ESI patients. (See e.g. Id. ¶¶ 86, 112-128.) Petitioner alleges, for instance, that “Provider participation in Medi-Cal … does not meet the network adequacy standards set by State regulation to ensure adequate access to care.” (Id. ¶ 86 [emphasis added].) “Defendants fail to ensure adequate health care access to Medi-Cal mandatory managed care plans’ Enrollees, even under their own standards.” (Id. ¶ 112 [emphasis added].) The petition alleges that Respondents create administrative burdens to Medi-Cal providers, thereby limiting access. (Id. ¶¶ 124-128.) Petitioner incorporates these allegations in the sixth cause of action. (Id. ¶ 1269.)

While Respondents have not directly addressed these allegations in their general demurrer, they have argued that federal agencies have authority for ensuring that Respondents comply with the Medicaid Act and the State Plan. (See Dem. 10-14; see Armstrong v. Exceptional Child Center, Inc. (2015) 135 S.Ct. 1378, 1385.) It appears Petitioner is impermissibly seeking to enforce equal access mandates of 42 U.S.C. ; 1396a(a)(30)(A) (Section 30(A)), or other provisions of federal Medicaid law, against state agencies. Moreover, Petitioner has not alleged in the sixth cause of action which specific Medicaid or Medi-Cal statutes or regulations support a writ claim against Respondents. For that reason alone, the sixth cause of action is inadequately pleaded to the extent Petitioner contends Respondents owe a ministerial duty under Medicaid or Medi-Cal statutes or regulations.

Alternative Remedy

Petitioner alleges that he has pursued certain administrative and judicial remedies for his individual requests for medical treatment. (See e.g. FAC ¶¶ 253, 276-303.) However, to the extent Petitioner seeks to enforce equal access mandates of Section 30(A) or other provisions of federal Medicaid law, Petitioner may have other adequate remedies. Specifically, Petitioner may be able to bring an action under the federal Administrative Procedure Act (APA) against the Secretary of the U.S. Department of Health and Human Services challenging the federal Secretary’s approval of rates established in the State Medicaid Plan. (See Dem. 12; see Armstrong v. Exceptional Child Center, Inc. (2015) 135 S.Ct. 1378, 1385.)[3]

Arbitrary or Capricious Agency Decision or Action; Procedural Error

“Normally, mandate will not lie to control a public agency's discretion, that is to say, force the exercise of discretion in a particular manner. However, it will lie to correct abuses of discretion. In determining whether a public agency has abused its discretion, the court may not substitute its judgment for that of the agency, and if reasonable minds may disagree as to the wisdom of the agency's action, its determination must be upheld. A court must ask whether the public agency's action was arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to follow the procedure and give the notices the law requires.” (County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 654.)

The gravamen of the writ cause of action is that Respondents are failing to comply with ministerial duties “to ensure equivalent access to health care” and “to ensure that Medi-Cal Enrollees are not unlawfully denied full and equal access to the benefits of the Medi-Cal Program.” (FAC ¶ 1272.) In addition to those reasons discussed above, the sixth cause of action is defectively pleaded because Petitioner does not challenge a specific non-discretionary decision or action of Respondents as arbitrary, capricious, or procedurally invalid.

The general demurrer to the sixth cause of action as to all Respondents is SUSTAINED.

Leave to Amend

A demurrer may be sustained without leave to amend when there is no reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In assessing whether leave to amend should be granted, the burden is on the complainant to show the court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348-349.)

Petitioner has not filed an opposition and has not explained how he could address the defects in the pleading discussed above. Petitioner has already had an opportunity to amend the petition to address Respondents’ prior demurrer. Thus, it appears unlikely further amendment would cure the defects. The court denies leave to amend.

Conclusion

The court does not rule on the demurrer directed at the first through fifth and seventh causes of action. Those causes of action were stayed on September 20, 2018. The court will transfer those causes of action to Department 1 for assignment to an independent calendar department.

The general demurrer as to the sixth cause of action against all Respondents is SUSTAINED WITHOUT LEAVE TO AMEND.


[1] Respondents represent that DHCS has an interagency agreement with DSS allowing DHCS to use the DSS State Hearings Division for some administrative hearings for programs otherwise administered by DHCS. Respondents contend that DHCS has the final decision-making authority in these cases. (Dem. 23.) The court does not consider these statements, as they are outside the four corners of the pleading.

[2] Implementing regulations define “program or activity” as “any project, action or procedure undertaken directly by recipients of State support or indirectly by recipients through others by contracts, arrangements or agreements, with respect to the public generally or with respect to any private or public entity.” (2 CCR ; 11150.)

[3] However, there appears to be no private right of action to enforce section 30(A) through state equitable claims pursuant to CCP section 1085 or state injunction law. (Armstrong, supra at 1385.) While the U.S. Supreme Court addressed a claim for equitable relief brought in federal court, its reasoning applies to similar equitable claims brought in state court. (See Ibid. [“The sheer complexity associated with enforcing ; 30(A), coupled with the express provision of an administrative remedy, ; 1396c, shows that the Medicaid Act precludes private enforcement of ; 30(A) in the courts.”].)



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