Valley Surgical Center LLC v. County of Los Angeles et al

Filing 226

ORDER GRANTING DEFENDANTS MOTION TO DISMISS IN PART AND DENYING IN PART #210 by Judge Dean D. Pregerson: Plaintiffs Fourth Amendment claim is DISMISSED, with prejudice. Plaintiffs retaliation claims regarding Defendant Calmes presentations and the amended autopsy report are DISMISSED, with prejudice. Plaintiffs Monell claims regarding custom, usage, or practice and ratification are DISMISSED, with prejudice. Plaintiff shall file an amended complaint consistent with this Order and addressing the state law issues within fourteen days of the date of this Order. (lc)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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VALLEY SURGICAL CENTER LLC.,
a California Limited
Liability Company,

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Plaintiff,

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v.
COUNTY OF LOS ANGELES, a
government entity, et al.,

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Case No. CV 13-02265 DDP (AGRx)

ORDER GRANTING DEFENDANTS’ MOTION
TO DISMISS IN PART AND DENYING IN
PART

[Dkt. 210]
Defendants.
___________________________

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Presently before the Court is Defendants County of Los Angeles

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(the “County”), Lakshamanan Sathyavagiswaran, Adrian Marinovich,

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Raffi Djabourian, Denis C. Astarita, Selma Calmes, John Kades, and

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Ed Winter (collectively, “Defendants”)’s Motion to Dismiss Valley

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Surgical Center, LLC. (“Valley”)’s Second Amended Complaint

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(“SAC”). Having considered the parties’ submissions and heard oral

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argument, the Court adopts the following order.

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I.

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BACKGROUND
This case arises out of an investigation conducted by the Los

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Angeles County Coroner’s Office (the “Coroner’s Office”) into the

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death of Paula Rojeski (“Rojeski”). On September 8, 2011, Rojeski,
a 55 year old woman, underwent laparoscopic surgery at Valley for

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the placement of an adjustable gastric Lap-Band to treat

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longstanding obesity.

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approximately 30 minutes.

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surgeon closed the incisions, seeing no indications of bleeding or

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cardiac complications.

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minutes after the procedure was completed, Rojeski suffered

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pulseless electrical activity (“PEA”) and cardiac arrest.

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(SAC ¶ 12.)
(Id.)

(Id.)

The surgery lasted
At the end of surgery, the

At 10:55 a.m., approximately 70

(Id.)

Valley alleges that within 24 hours of her death, Rojeski’s
sister authorized two separate agencies to harvest Rojeski’s organs

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and body parts.

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the bones in Rojeski’s limbs as well as the skin from her abdomen

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and back.

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Rojeski’s heart valves and pericardium on September 9, 2011, the

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day after the procedure.

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organ and tissue harvesting was completed the Coroner’s Office took

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possession of Rojeski’s body.

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performed an autopsy on September 12, 2011.

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that Defendants Djabourian and Marinovich were present and that

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Defendant Sathyavagiswaran directed and controlled the autopsy,

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including the permission to harvest organs and tissue.

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Valley further contends that the Coroner’s Office failed to

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supervise, monitor or limit the harvesting as required under

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Coroner protocols and instead only requested that the “recovery

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avoid[s] operation site.”

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Rojeski suffered a 4 mm perforation of her lower abdomen aorta.

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(Id. ¶ 17.)

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state their opinion as to what caused the aortic perforation,

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Valley asserts that the likely causes were “(a) a negligently

(Id.)

(Id. ¶ 15.)

The first agency, One Legacy, removed

The second agency, Doheny Eye & Tissue, removed

(Id.)

On September 9, 2011, after the

(Id. ¶ 16.)

(Id. ¶ 50.)

The Coroner’s Office
(Id.)

Valley contends

(Id. ¶ 16.)

The autopsy showed that

While Defendants Djabourian and Marinovich did not

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misguided surgical instrument which caused [] Rojeski to bleed into

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retroperitinum for 60 minutes during her recovery followed by

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cardiac arrest; or (b) a perforation from vigorous cardiac massage

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from the paramedics following cardiac arrest.”

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argues that although both possible causes of the aortic perforation

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show that Rojeski’s death was caused by an accident, Defendants

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Sathavagiswaran, Winter, Kades, Djabourian, Astarita, and Calmes

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attempted to attribute Rojeski’s death to homicide for most of the

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investigation (Id. ¶¶ 17-18.)

(Id.).

Valley

Following the autopsy, Rojeski’s

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body was released to her sister and was buried on September 13,

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2011.

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(Id. ¶ 16.)
On October 17, 2011, the Coroner’s Office received an

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anonymous letter alleging that during Rojeski’s surgery: (1) oxygen

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tanks were empty; (2) anesthetic fluids leaked onto the floor; (3)

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the anesthesiologist recorded false information; (4) the monitoring

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equipment was broken; and (5) that Rojeski suffered cardiac arrest

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much earlier than reported.

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letter was written by Dyanne Deule (“Deule”) and that Deule

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informed the Coroner’s Office that she was not present during the

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surgery and had no proof of the allegations contained in the

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letter.1

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interviewed nurses who were present during Rojeski’s surgery in

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April 2012, and they informed the Defendants that nothing stated in

(Id. ¶ 20.)

(Id. ¶ 19.)

Valley argues that the

Valley further argues that Defendants

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On January 17, 2012 Deule filed a lawsuit against Valley.
(SAC ¶ 26.) Deule alleged that she was subjected to employment
retaliation after complaining about Valley’s medical services.
(Id.) Deule admitted that she had complained to the Coroner’s
Office regarding Rojeski and claimed Valley retaliated against her
in response. (Id.)
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the letter occurred during the procedure. (Id.)

Valley contends

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that this shows that the anonymous letter was false.

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In late November 2011, Defendant Kades informed Valley that

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the Coroner’s Office wished to inspect Valley’s premises with an

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anesthesia consultant, Defendant Calmes.

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1, 2011 Valley responded to the Coroner’s Office, protesting the

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assignment of Defendant Calmes as the anesthesia consultant, citing

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“her lack of professional competence and personal and competitive

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bias against Valley and surgical centers.”

(Id. ¶ 21.)

On December

(Id.; SAC Ex. 1.)

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Valley contends that on December 5, 2011, in retaliation for its

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protest regarding Calmes, Defendant Kades, under the supervision of

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Defendants Sathyavagiswaran and Winter, issued a Coroner’s

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subpoena.

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Rojeski as well as an inspection of Valley’s premises.

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Valley alleges that Defendants used the subpoena to unlawfully

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compel a search.

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Winter and Kades admitted at the inspection that their sole purpose

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in issuing the subpoena was to force Valley to allow Defendant

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Calmes onto Valley property.

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Valley contends that Defendants became aware of evidence

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demonstrating that the anonymous letter was false.

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(Id. ¶ 21.)

(Id.)

The subpoena sought medical records of
(Id. ¶ 22.)

Valley further alleges that Defendants

(Id. ¶ 23.)

During the search,

(Id. ¶ 25.)

Valley contends that Defendants leaked the information to the

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media despite the security hold on the case.

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alleges that despite a security hold on the Rojeski case, on April

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6, 2012 media outlets published stories that the Coroner’s Office

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had referred Rojeski’s case to the Los Angeles Police Department

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(the “LAPD”) Robbery-Homicide division.

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further asserts that on May 11, 2012 news outlets reported that
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(Id.

(Id. at 28)

¶ 27.)

Valley

Valley

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LAPD homicide detectives were assigned to investigate the Rojeski

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death to determine whether a crime had been committed.

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Valley contacted the LAPD and was informed that Valley was under

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criminal investigation for homicide. (Id. ¶ 28.)

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(Id.)

On August 7, 2012, the LAPD informed the Coroner’s Office that

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it was continuing to investigate Rojeski’s death.

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Valley alleges that the LAPD requested a 60-day security hold on

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the case and that the Coroner’s Office refused to communicate with

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Valley as a result.

(Id.)

(Id. ¶ 38.)

Despite the LAPD security hold, Valley

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alleges that Defendant Calmes, with the assistance of Defendants

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Sathyavagiswaran, Winter, Kades, Djabourian, and Marinovich, gave

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two retaliatory presentations. (Id.) Calmes’ first presentation,

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“What’s an Anesthesiologist Doing at the Morgue,” took place on

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August 8, 2012.

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allegedly stated that there were “a number of deaths” at 1-800-GET-

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THIN centers, which included Valley, and that the investigations

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were ongoing.

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Disasters” took place on September 21, 2012.

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presentation, Calmes made similar allegations regarding surgery

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centers affiliated with 1-800-GET-THIN.

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contends that Calmes acted under color of state law and violated

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the security hold in these presentations.

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(Id. ¶ 39.) During this presentation Calmes

(Id. ¶ 41.)

The second, “Ambulatory Surgery
(Id.)

(Id. ¶ 42.)

At this

Valley

(Id.)

Valley alleges that two weeks before the September 21, 2012

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presentation it submitted another letter, protesting the Coroner’s

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investigation.

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Rojeski’s medical history, including records that demonstrated that

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Rojeki had a history of using prescription weight loss medication

(Id. ¶ 43.)

Valley included information regarding

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which caused her significant cardiac damage.2

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providing this information to Defendants, Valley contends that

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Defendants refused to investigate Rojeski’s medical history and

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instead continued their attempts to blame Valley for Rojeski’s

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death.

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(Id.)

Despite

(Id. ¶ 35.)

On January 15, 2013 the Coroner’s Office agreed to meet with

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Valley.

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revealing the contents of the autopsy report to Rojeski’s sister

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and agreed to release a copy of the final report to Valley’s

(Id. ¶ 44.)

Defendant Winter allegedly admitted to

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counsel.

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out as cause of death, that the attending surgeon and

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anesthesiologist were grossly negligent and should be referred to

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the California Medical Board, and that Valley departed from the

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standard of care based on the anonymous letter.

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Additionally, the report contained a separate opinion by Defendant

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Calmes that erroneously stated that anesthesia was not given for

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the last hour and a half of Rojeski’s surgery.

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alleges that Calmes’ opinion was clearly contradicted by the

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operating records, which showed that surgery ended much earlier and

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that anesthesia had been administered for the entire length of

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surgery.

(Id.)

The report found: that homicide could not be ruled

(Id. ¶¶ 61-63.)

(Id. ¶ 45.)

(Id. ¶ 60.) Valley

Valley further alleges that Calmes based

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Valley contends that after conducting an independent
investigation it discovered that Rojeski was a lead plaintiff in a
lawsuit against the manufacturer of the weight loss medication she
had been taking since 2001. (SAC ¶¶ 29-30.) According to Valley,
the filings in that case demonstrate that Rojeski suffered abnormal
echocardiography showing aortic regurgitation and heart valve
damage. (Id. ¶ 30.) Valley maintains that Rojeski never disclosed
any of this information nor did she inform Valley that on August
11, 2011 she visited the emergency room complaining or radiating
pain in her neck and shoulders, heart palpitations and an abnormal
EKG. (Id. ¶ 33.) Valley asserts that Rojeski’s medical history
did not make her a good candidate for laparoscopic surgery. (Id.)
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her entire portion of the report on the anonymous letter.

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64.)

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to the report relied on Calmes’ findings, despite knowing they were

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false.

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it retained seven experts to review it.

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experts criticized the report’s reliance on the anonymous letter

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and concluded that the Rojeski’s death was the result of an

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accident, not homicide.

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the report failed to mention that the organ, bone and tissue

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harvesting rendered the autopsy and the doctor’s conclusions

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unreliable.

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(Id. ¶

Valley contends that the other pathologists who contributed

(Id. ¶ 67-70.)

After Valley received a copy of the report

(Id. ¶¶ 46-47.)

(Id. ¶ 46.)

Valley’s

Valley also alleges that

(Id. ¶ 48.)

On April 1, 2013, the Coroner’s Office issued a supplemental

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autopsy report.

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report only partially retracted the errors in the original report,

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and that it was internally inconsistent and a deliberate

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misrepresentation of the facts surrounding Rojeski’s death.

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¶¶ 71-78.) Valley further alleges that the supplemental report

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continued to rely on the anonymous letter and included the original

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report without explaining the errors it contained.

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(Id. ¶ 71.) Valley alleges that the supplemental

(Id.

(Id. ¶ 73.)

Valley has filed a SAC for violation of civil rights under 42

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U.S.C. section 1983 against the individual defendants, violations

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of civil rights under 42 U.S.C. section 1983 against the Los

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Angeles County Coroner and Defendant Sathyavagiswaran in his

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official capacity, violation of California Civil Code section 52.1,

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defamation, intentional interference with prospective economic

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advantage, and negligent interference with prospective economic

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advantage. Defendants now move to dismiss Valley’s SAC for failure

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to state a claim.
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II.

LEGAL STANDARD
A complaint will survive a motion to dismiss when it contains

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“sufficient factual matter, accepted as true, to state a claim to

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relief that is plausible on its face.”

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662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

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570 (2007)).

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“accept as true all allegations of material fact and must construe

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those facts in the light most favorable to the plaintiff.”

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v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

Ashcroft v. Iqbal, 556 U.S.

When considering a Rule 12(b)(6) motion, a court must

Resnick

Although a complaint

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need not include “detailed factual allegations,” it must offer

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“more than an unadorned, the-defendant-unlawfully-harmed-me

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accusation.”

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allegations that are no more than a statement of a legal conclusion

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“are not entitled to the assumption of truth.” Id. at 679.

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other words, a pleading that merely offers “labels and

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conclusions,” a “formulaic recitation of the elements,” or “naked

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assertions” will not be sufficient to state a claim upon which

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relief can be granted.

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quotation marks omitted).

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Iqbal, 556 U.S. at 678.

Conclusory allegations or

In

Id. at 678 (citations and internal

“When there are well-pleaded factual allegations, a court

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should assume their veracity and then determine whether they

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plausibly give rise to an entitlement of relief.” Id. at 679.

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Plaintiffs must allege “plausible grounds to infer” that their

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claims rise “above the speculative level.” Twombly, 550 U.S. at

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555. “Determining whether a complaint states a plausible claim for

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relief” is a “context-specific task that requires the reviewing

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court to draw on its judicial experience and common sense.”

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556 U.S. at 679.
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Iqbal,

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III. ANALYSIS

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A.

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After Rojeski’s death, the Coroner issued a subpoena that

Fourth Amendment Claim

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sought medical records and an inspection of certain medical

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equipment.

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bring medical equipment to the Coroner’s office, but rather

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inspected and seized certain equipment at Valley’s facility.

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23.)

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search in violation of the Fourth Amendment.

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(SAC 22).

The Coroner did not request that Valley

(SAC

Valley asserts that this inspection constituted an unlawful
(Id.)

The parties appear to agree that the Coroner has the power to

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subpoena witnesses and to compel those witnesses to produce “any

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books, records, documents, or other things under the control of the

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witness which, in the opinion of the coroner, are necessary to the

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conduct of the inquest . . . .”

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The crux of Valley’s argument appears to be that although the

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Coroner could subpoena Valley to produce the medical equipment, he

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could not inspect the equipment at Valley’s office without first

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obtaining an inspection warrant pursuant to California Code of

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Civil Procedure Sec. 1822.50-1822.57.3

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framework, however, is not applicable to the Coroner’s

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investigation at issue here.

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warrant as a signed order directing an official to conduct an

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inspection “relating to building, fire, safety, plumbing,

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electrical, health, labor, or zoning” laws and regulations.

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Code Civ. Pro 1822.50.

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that a Coroner’s investigation falls into any of these categories.

Cal. Gov’t Code Sec. 27498(a).

(Opp. at 8.)

That

Section 1822.50 defines an inspection

Valley does not assert, nor does it appear,

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Cal.

The court considers the Coroner’s investigation as
administrative in nature.
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California courts have recognized the existence of two

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different sets of rules regarding administrative searches, one

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concerning regulatory schemes of general application and another

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regarding specific, licensed industries.

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155, 92 Cal.App.3d 570, 578-579 (1979).

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scheme of which Section 1822.50 is a part was established to govern

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situations regarding the former.

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however, are not the product of general regulations akin to fire or

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housing inspections, but rather are specifically tailored to

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determine the circumstances, manner, and cause of death of a

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particular decedent.

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County of San Francisco, 387 U.S. 523 (1967); See v. City of

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Seattle, 387 U.S. 541 (1967); Cal. Gov’t Code Sec. 27498(a).

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cases cited by Valley, too, are inapposite.

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Id.

People v. Firstenberg,
The administrative warrant

Coroner’s inspections,

See Camara v. Municipal Court of City and

The

Valley’s argument, therefore, depends solely on a narrow

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reading of Government Code Section 27498(a) that would permit the

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Coroner to subpoena “other things,” including medical equipment,

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“forthwith or at such time and place as the coroner appoints,” but

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not permit the coroner to inspect such equipment on-site.

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Valley does not appear to argue for such an interpretation, and

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neither party has addressed the issue directly.

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parties dispute whether the individual Defendants are entitled to

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qualified immunity from Valley’s Fourth Amendment claim.

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Valley has provided no authority, and indeed no real argument, for

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a constrained reading of Section 27498(a) that would not include an

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administrative search power, the court concludes that a reasonable

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officer could well have believed Section 27498(a) to include such

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authority.

Notably,

Instead, the

Because

Accordingly, the individual Defendants are entitled to
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qualified immunity.

See Ashcroft v. Al-Kidd, 131 S.Ct. 2074, 2083

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(2011); Pearson v. Callahan, 555 U.S. 223, 231 (2009).

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B.

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The SAC alleges that Defendants retaliated against Valley for

Retaliation Claims

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its objections to Defendant Calmes’ involvement and for its

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criticism of the investigation and autopsy report.

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that retaliatory acts included the search described above,

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Defendant Calmes’ two public presentations, the leaking of the

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existence of a homicide investigation, and the issuance of a flawed

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supplemental autopsy report.

Valley alleges

(Opp. at 17.)

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“To allege a First Amendment retaliation claim under § 1983 a

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plaintiff must show: ‘(1) he engaged in constitutionally protected

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activity; (2) as a result, he was subjected to adverse action by

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the defendant that would chill a person of ordinary firmness from

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continuing to engage in the protected activity; and (3) there was a

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substantial causal relationship between the constitutionally

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protected activity and the adverse action.’”

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Joint Union School Dist. No. 12-cv-1612 GSA, 2015 WL 641657 (E.D.

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Cal. Feb. 13, 2015) (quoting Pinard v. Clatskanie School Dist. 6J,

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467 F.3d 755, 770 (9th Cir.2006); see also Ford v. City of Yakima,

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706 F.3d 1188, 1193 (9th Cir. 2013).

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Gallardo v. Hanford

Defendants raise a threshold plausibility challenge to

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Valley’s allegations, focused largely on the motivation element of

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the retaliation claims.

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allegations are, at best, conceivable, rather than plausible.

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Iqbal, 556 U.S. at 680.

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Defendants issued the supplemental autopsy report in retaliation

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for Valley’s critique of the original report.

The court agrees that certain of Valley’s
See

Valley alleges, for example, that

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(Opp. at 24-25.)

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The “obvious alternative explanation,” however, is that Defendants

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made changes to the report because it considered Valley’s critique.

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Valley, having asked that Defendants amend the report, cannot now

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plausibly claim retaliation simply because Defendants did not adopt

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Valley’s position in its entirety.

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Nor does the SAC address the deficiencies highlighted by the

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court in its prior dismissal of claims regarding Defendant Calmes’

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two public presentations.

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Calmes’ references to deaths at ambulatory surgery centers like

Valley does not adequately allege how

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Valley was plausibly motived by a desire to chill protected

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activity.

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speeches are sufficient to support an inference of retaliatory

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motive.

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speech in August 2012 was given in retaliation for Valley’s letter

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objecting to Dr. Calmes’ involvement on December 1, 2011, over

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eight months earlier.

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eleven months can support an inference of retaliation, that

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argument is not persuasive.

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employment cases.

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968, 977-978 (9t Cir. 2003).

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acknowledge, “a specified time period cannot be a mechanically

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applied criterion,” as the gap supporting an inference will vary

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with the circumstances.

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that “the presentation criticizing Valley was clearly retaliatory,

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based on the circumstances” is not convincing in light of the

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eight-month separation and relative opacity of Calmes’ remarks.

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While the issue is a closer one with respect to Calmes’ second

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presentation, which followed a second Valley protest letter by two

Valley argues that “the timing and nature” of Calmes’

The court disagrees.

Valley alleges that Calmes’ first

Although Valley argues that gaps of even

First, the cases Valley cites are

See,, e.g., Coszalter v. City of Salem, 320 F.3d

Id.

Second, as even those cases

at 978. Valley’s conclusory assertion

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weeks, the circumstances of the presentation do not support an

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inference of retaliation.

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rather referred to a group of 1-800-GET-THIN centers and made

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reference to an investigation that was already public knowledge.

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The nature of the speech, therefore, does not support the

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allegation that Calmes acted with the intent to dissuade Valley

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from criticizing the Rojeski investigation.

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9

Calmes did not single Valley out, but

Other of Valley’s allegations regarding retaliation, however,
are sufficient to survive a Motion to Dismiss.

Valley alleges that

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Defendants retaliated by “inciting a false homicide investigation”

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and leaking the existence of that investigation to the press in

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April, 2012, just over four months after Valley’s initial protest

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letter.

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inference of retaliatory motive, although the issue is a close one.

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However, Valley also makes numerous allegations regarding the

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medical evidence.

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sufficient information to know that homicide was not a potential

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cause of Rojeski’s death.

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must at this juncture, Defendants’ actions could be explained by

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retaliatory animus.

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The timing of this alleged adverse action might support an

In short, the SAC alleges that Defendants had

Assuming that to be true, as the court

The administrative search discussed at length, above, occurred

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on December 5, just four days after Valley objected to Dr. Calmes.

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Although the court has rejected Valley’s arguments regarding the

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lack of an administrative warrant, other facts regarding the search

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do support a retaliation claim.

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search, the SAC alleges that Defendants Winter and Kades stated at

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the time of the search that the only reason they issued the

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subpoena was to “compel Valley to allow Dr. Calmes onto the

In addition to the timing of the

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1

premises.”

(SAC p. 23.)

Given that the purpose of Valley’s

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December 1 letter was primarily to object to Dr. Calmes’ very

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involvement in the investigation, it is unclear whether Defendants

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would otherwise have issued a subpoena to guarantee her access to

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Valley’s facilities.

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Accordingly, Valley’s retaliation claims regarding the

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administrative search and the leaking of the existence of a

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homicide investigation premised on an obviously flawed report

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survive.

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C.

Monell Claims

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Valley argues that its Monell claim is premised on Defendant

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Sathyavagiswaran’s acts as a final policy maker and ratifier of his

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subordinates’ actions, and on the existence of a custom or

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practice.

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constitutional violations, the motion must fail, for the reasons

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discussed above regarding Valley’s retaliation claims.

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the SAC alleges that Sathyavagiswaran personally instructed

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Defendant Kades to search Valley’s premises because of his close

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personal friendship with Defendant Calmes.

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undertaken as the final policymaker, could support a Monell claim.

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To the extent Defendants argue that there are no

Further,

(SAC p. 86.)

That act,

The remainder of Valley’s Monell allegations, however, are

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conclusory, and are not entitled to the presumption of truth.

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Perhaps cognizant of this deficiency, Valley’s ratification

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argument consists of a single sentence asserting, without

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explanation, that “Sathyavagiswaran ratified his subordinate’s

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unconstitutional actions.”

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paragraphs of the factual allegations of the SAC, which do not

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mention Sathyavagiswaran, do little to sustain Valley’s

(Opp. 28.)

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References to several

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ratification claim.

2

allegation fares no better, and is supported only by Valley’s brief

3

argument that the acts alleged here somehow constitute an

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unspecified “custom or usage of which Defendant Sathyavagiswaran

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must have been aware.”

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Valley’s conclusory custom and practice

Accordingly, Valley’s Monell allegation regarding

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Sathyavagiswaran’s personal acts as final policymaker are

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adequately pled.

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with prejudice.

The remainder of the Monell claims are dismissed

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D. State law claims

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Defendants raise several arguments regarding Valley’s state

12

law claims.

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somewhat uncertain.

14

timely present certain facts underpinning its claims to the state.

15

Valley further appears to acknowledge that, absent leave to amend

16

to allege delayed discovery or equitable tolling, certain claims

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for damages may be barred, and requests leave to amend.

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request is granted.

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claims until such time as the scope of those claims has been

20

determined.

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IV.

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The factual predicate for those claims, however, is
Valley appears to acknowledge that it did not

Valley’s

The court will reserve discussion of state law

CONCLUSION
For the reasons stated above, Defendants’ Motion is GRANTED in

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part and DENIED in part.

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DISMISSED, with prejudice.

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regarding Defendant Calmes’ presentations and the amended autopsy

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report are DISMISSED, with prejudice.

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regarding custom, usage, or practice and ratification are

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DISMISSED, with prejudice.

Plaintiff’s Fourth Amendment claim is
Plaintiff’s retaliation claims

Plaintiff’s Monell claims

Plaintiff shall file an amended
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complaint consistent with this Order and addressing the state law

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issues within fourteen days of the date of this Order.

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IT IS SO ORDERED.

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Dated: March 31, 2016
DEAN D. PREGERSON
United States District Judge

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