Lopez v. Hay

ROBERT LOPEZ, decedent, by andthrough his successor-in-interest CYNTHIA LOPEZ;and CYNTHIA LOPEZ, individually, and on behalf of general public, Plaintiffs, v. BRADLEY GLENN HAY, in his individual capacity; PATTY MAYSENT,in her individual capacity; GERARD MANECKE, JR.,in his individual capacity; THE REGENTS OF THE UNIVERSITY OF CALIFORNIA; andDOES 1 through 100, Defendants.

Case No.: 20-cv-171-GPC-MSB

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

January 26, 2021

ORDER DISMISSING CASE WITH LEAVE TO AMEND

[ECF Nos. 9, 19]

Before this Court are two Motions to Dismiss the First Amended Complaint ("FAC"), one filed by Defendants Patty Maysent, Gerard Manecke, Jr., and the Regents of the University of California (collectively "Hospital Defendants"), and the other filed by Defendant Bradley Hay. ECF Nos. 9, 19. Based on the FAC, the moving papers, and applicable law, the Court DISMISSES without prejudice as to the Fourth Cause of Action and with prejudice as to the Fifth Cause of Action in the FAC.

With the Fourth and Fifth Causes of Action dismissed, however, only state law claims remain as to the first three causes of action. Further, the FAC does not sufficiently demonstrate that jurisdiction is proper on the remaining causes of action. Thus, the Court sua sponte DISMISSES without prejudice the remaining causes of action contained in the FAC for lack of subject matter jurisdiction. Plaintiffs may amend the FAC to cure the deficiencies in the Fourth Cause of Action, or otherwise demonstrate subject matter jurisdiction on the remaining causes of action.

I. Background

A. Procedural Background

On April 22, 2020, Cynthia Lopez, both as a successor-in-interest of Robert Lopez, decedent, and individually and on behalf of the general public, filed the FAC. ECF No. 3. The FAC asserts five causes of action: (1) violation of California's Unfair Competition Law ("UCL"); (2) breach of contract; (3) breach of implied contract; (4) denial of access to courts, in violation of 42 U.S.C. § 1983 ("Section 1983"); and (5) conspiracy to violate Section 1983.

The Hospital Defendants filed the first Motion to Dismiss ("1st MTD") on July 14, 2020. ECF No. 9. Hay filed the second Motion to Dismiss ("2d MTD") on September 18, 2020. ECF No. 19. Both Motions argue that the Court should dismiss the FAC pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), because Ms. Lopez lacks standing, the contract claims fail, and the denial of access to courts and the related conspiracy claims fail. The 1st MTD also argues that Plaintiffs' UCL claims fail as well. Plaintiffs filed an Opposition to each Motion, ECF Nos. 18, 30, and Defendants filed their respective Replies, ECF Nos. 27, 39.

B. Factual Allegation

Hay, an anesthesiologist, had experienced drug addiction. During his residency, he had diverted drugs such as fentanyl for personal use. FAC 4-5, ECF No. 3. Staff at the University of California San Diego Hospital in Hillcrest ("UCSD Hospital") raised concerns about Hay's behavior during his residency, but ultimately UCSD Hospital offered Hay a full-time position, which he accepted in November 2007. Id. at 5.

In the summer of 2008, Hay was confronted by the UCSD Hospital staff, including Manecke, then-chair of UCSD Hospital's Anesthesiology Department. Id. at 6. The staff advised Hay "that they knew and had reason to believe he was abusing drugs at work and diverting drugs," to which Hay denied the concerns. Id. The staff gave Hay an ultimatum: either report to the Betty Ford Foundation Drug Addiction Treatment Center, or be fired and reported to the Medical Board of California. Hay chose the former, checked himself in, and participated in the Center's rehabilitation program. Id.

Hay returned to work in November 2008 and maintained sobriety from 2009 to 2014. However, around April 2016, he relapsed and again began diverting patients' drugs for his personal use. Id. at 7. This time, the UCSD Hospital was not monitoring Hay for substance abuse and/or diversion. Id. at 8.

"On or about January 27, 2017, Respondent [Hay] was scheduled to perform anesthesia on surgical patients R.L., [Robert Lopez] and R.D. [Randy Dalo] at UCSD. At some point that morning, Respondent accidentally cut his finger while cutting a bagel, causing tendon damage. Despite the injury, Respondent returned to his assigned surgical cases in order to steal medication for his own use." FAC Ex. 1, Accusation ¶ 33, ECF No. 3-1.

Ultimately, Hay overdosed that day from the drugs that he diverted from Mr. Randy Dalo. See id. ¶¶ 34-37; FAC ¶ 40, ECF No. 3. Subsequently, Hay took a leave of absence. Id. at 8. The Medical Board of California filed an Accusation and StipulatedSurrender of License and Disciplinary Order against Hay in October 2017. Hay signed the Stipulation, admitted the truth of each charge and allegation in the Accusation, and surrendered his medical license. Id. at 8-9. Mr. Dalo filed a medical malpractice lawsuit against Hay, several staff members of the UCSD Hospital (including Manecke), and the Regents of the University of California. See Dalo v. Hay, No. 37-2018-00017017 (Super. Ct. Cal.). Mr. Dalo is represented by the same counsel as Plaintiffs. See Hosp. Defs.' Req. Judicial Notice ("RJN") Ex. 1, ECF No. 10-1.¹

Specifically relating to Mr. Robert Lopez's surgery on January 27, 2017, Hay performed anesthesia on Mr. Lopez and prescribed Mr. Lopez sufentanil and fentanyl. While the staff at UCSD Hospital informed the family that the surgery went well and did not report any issues, Mr. Lopez later experienced inordinate and unusual amounts of pain after the surgery and requested additional pain medication. Mr. Lopez passed away several months after the surgery. FAC 17, ECF No. 3.

Throughout these sequences of events, the UCSD Hospital did not identify and notify patients to whom Hay had provided anesthesia. The UCSD Hospital did not analyze whether Hay's conduct contributed to any adverse event to the patients. And the UCSD Hospital did not investigate whether Hay's patients had been billed for medication they never received because it was diverted by Hay for his own use. Id. at 6, 9-10. Instead, Ms. Cynthia Lopez first heard about the whole incident—including the fact that Hay was Mr. Lopez's anesthesiologist for the January 2017 surgery—in May 2018, through an investigator for the California Medical Board.

II. Legal Standard

A. Federal Rule of Civil Procedure 12(b)(1)

Standing pertains to a federal court's subject matter jurisdiction under Article III of the Constitution. Therefore, challenges based on lack of standing are properly raised in a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1). White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (citations omitted). "A Rule 12(b)(1) jurisdictional attack may be facial or factual." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citing White v. Lee, 227 F.3d at 1242). The Hospital Defendants bring a facial attack, 1st MTD Mem. 4, ECF No. 9-1, and Hay brings a factual attack, 2d MTD Mem. 3, ECF No. 19.

In a facial attack, the assertion is that the allegations are insufficient on their face to invoke federal jurisdiction. Accordingly, the Court resolves the facial attack as it would handle a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Accepting Plaintiffs' allegations as true and drawing all reasonable inferences in Plaintiffs' favor, the Court must determine "whether the allegations are sufficient as a legal mater to invoke the court's jurisdiction." Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (citations omitted).

In contrast, a factual attack "disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Safe Air for Everyone, 373 F.3d at 1039. Here, the Court need not presume the truthfulness of Plaintiffs' allegations. Id. (citing White v. Lee, 227 F.3d at 1242). Instead, once the moving party presents evidence, the party opposing the motion must furnish evidence necessary to satisfy the burden of establishing subject matter jurisdiction. Id. (citing Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cty., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003)).

B. Federal Rule of Civil Procedure 12(b)(6)

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under this Rule if the complaint lacks either a cognizable legal theory or facts sufficient to support such a theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988) (citing Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984).

In considering a motion to dismiss pursuant to Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the non-moving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). At the same time, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). See generally Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

When ruling on the motion to dismiss, the court may consider the facts alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested, and matters of which the court takes judicial notice. Lee v. Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001); cf. Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049, 1061 (9th Cir. 2008) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)).

C. Federal Rule of Civil Procedure 12(h)(3)

"If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss...