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 Judge overseeing this case is MARY H. STROBEL. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
MARY H. STROBEL
DOES 1 TO 20
CALIFORNIA DEPARTMENT OF HEALTH CARE SERV
CALIFORNIA HEALTH AND HUMAN SERVICES AGEN
CALIFORNIA DEPARTMENT OF SOCIAL SERVICES
MEXICAN AMERICAN LEGAL DEFENSE
BROWN GREGORY D. DEPUTY ATTY. GENERAL
BROWN GREGORY DAVID
MATSUSHIMA CRISTINA MARIA
BARCA DANE CHRISTIAN
1/11/2021: Notice - NOTICE OF CONTINUED HEARING ON PLAINTIFFS ADA ACCOMMODATION REQUEST
2/23/2021: Minute Order - MINUTE ORDER (HEARING RE ACCOMMODATION)
3/9/2021: Minute Order - MINUTE ORDER (COURT ORDER)
11/12/2020: Notice - NOTICE NOTICE OF NON-RECEIPT OF OPPOSITION TO DEFENDANTS' DEMURRER TO PLAINTIFF'S FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT
11/20/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 11/20/2020
3/30/2020: Minute Order - MINUTE ORDER (COURT ORDER)
12/17/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 12/17/2019
10/30/2019: Minute Order - MINUTE ORDER (COURT ORDER)
10/11/2019: Minute Order - MINUTE ORDER (COURT ORDER)
6/21/2019: Notice of Ruling
3/8/2019: Minute Order - Minute Order (NON-APPEARANCE CASE REVIEW)
9/18/2018: AMENDED COMPLAINT NOTICE OF AND PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES;
3/15/2018: NOTICE OF ENTRY OF ORDER AFTER TRIAL SETTING CONFERENCE
6/4/2018: Minute Order -
6/4/2018: NOTICE RE: CONTINUANCE OF HEARING
8/17/2018: Minute Order -
10/10/2017: SUMMONS -
Hearing04/29/2021 at 13:30 PM in Department 82 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Demurrer - without Motion to StrikeRead MoreRead Less
Docketat 4:04 PM in Department 82; Court OrderRead MoreRead Less
DocketCertificate of Mailing for ((COURT ORDER) of 03/09/2021); Filed by ClerkRead MoreRead Less
DocketMinute Order ( (COURT ORDER)); Filed by ClerkRead MoreRead Less
DocketNotice (Of Plaintiff's ADA Accommodation Request Being Taken Under Consideration); Filed by CALIFORNIA HEALTH AND HUMAN SERVICES AGEN (Respondent); DIANA DOOLEY (Respondent); CALIFORNIA DEPARTMENT OF HEALTH CARE SERV (Respondent) et al.Read MoreRead Less
Docketat 09:30 AM in Department 82; Hearing - Other (RE ACCOMMODATION) - HeldRead MoreRead Less
DocketMinute Order ( (HEARING RE ACCOMMODATION)); Filed by ClerkRead MoreRead Less
Docketat 2:09 PM in Department 82; Court OrderRead MoreRead Less
Docketat 1:56 PM in Department 82; Court OrderRead MoreRead Less
DocketMinute Order ( (COURT ORDER)); Filed by ClerkRead MoreRead Less
DocketSTIPULATION AND ORDER EXTENDING TIME FOR DEFENDANTS/RESPONDENTS TO RESPOND TO PETITION AND COMPLAINTRead MoreRead Less
DocketNOTICE RE: CONTINUANCE OF HEARINGRead MoreRead Less
DocketNotice Re: Continuance of Hearing and Order; Filed by ClerkRead MoreRead Less
DocketNotice of Trial Setting Conference and Attached Orders Thereon; Filed by ClerkRead MoreRead Less
DocketNOTICE OF TRIAL SETTING CONFERENCE & ATTACHED ORDERS THEREONRead MoreRead Less
DocketNotice of Trial Setting Conference and Attached Orders Thereon; Filed by ClerkRead MoreRead Less
DocketPETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGESRead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketPetition; Filed by nullRead MoreRead Less
DocketORDER ON COURT FEE WAIVERRead MoreRead Less
Case Number: BS171070 Hearing Date: April 29, 2021 Dept: 82
California Health and Human Services Agency, et al.,
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.)
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.)
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.” (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.” (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.
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.)
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.
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.
 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.
 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.)
 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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