Donald Austen v. County of Los Angeles et al

Filing 132

ORDER RE: DEFENDANT DEANCO HEALTHCARES MOTION TO STRIKE 121 AND MOTION TO DISMISS 120 by Judge Dean D. Pregerson: Defendant MCHs Motion to Strike portions of the Third Amended Complaint is GRANTED in part and DENIED in part and Motion to Dismiss M onell claims in the Third Amended Complaint is DENIED. Plaintiff is ORDERED to file a Fourth Amended Complaint in accordance with this Order within fourteen days. The FAC shall conform strictly to this Order, and shall not include additional allegations. (lc)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DONALD AUSTEN,

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Plaintiff,

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v.
COUNTY OF LOS ANGELES, et al.,

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Defendants.

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Case No. 15-07372 DDP (FFMx)
ORDER RE: DEFENDANT DEANCO
HEALTHCARE’S MOTION TO
STRIKE AND MOTION TO DISMISS
[Dkt. Nos. 120 and 121]

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Presently before the court is Defendant Deanco Healthcare, LLC, d/b/a Mission

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Community Hospital (“MCH”)’s Motion to Strike portions of Plaintiff Donald Austen’s

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Third Amended Complaint (“TAC”) pursuant to Rule 12(f) and Motion to Dismiss Monell

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claims in the first and second causes of action in the TAC pursuant to Rule 12(b)(6).

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Having considered the parties’ submissions, the court adopts the following Order.

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I. BACKGROUND

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Plaintiff Donald Austen is the president and founder of the non-profit Thursday’s
Child, a “national charity for endangered children.” (TAC ¶ 3.) On February 2, Austen

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contacted the Los Angeles County Department of Public Social Services (“DPSS”) to

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inquire about mental health grants for Thursday’s Child. (Id. ¶ 18.) The next day, Austen

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and Jessica Cruz, an employee of the Mental Health Services division of DPSS spoke by

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phone. (Id. ¶ 19.) Although the parties dispute the specific details of the conversation,

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they do not dispute that Cruz called 911 afterwards. (Id. ¶ 25.) Cruz informed the 911

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operator that Austen had purportedly made suicidal statements and threats towards

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others, including Ms. Cruz and the police. (Id. ¶¶ 27-32.) Austen denies making any of

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these statements. (Id.) In response to the call, the Los Angeles Police Department

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dispatched officers to Plaintiff’s house. (Id. ¶¶ 33-34.) One of the units sent was a team

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focused on mental health responses and was comprised of Officer Alfredo Morales and

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his partner, Sandra Holguin, a registered psychiatric nurse employed by the Los Angeles

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County Department of Mental Health. (Id. ¶ 38.) After an encounter with Plaintiff at his

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residence, Morales and Holguin took Plaintiff into custody to perform a psychiatric

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evaluation. (Id. ¶¶ 38-44.) Plaintiff was then detained under Welfare and Institutions

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Code Section 5150, which provides that

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[w]hen a person, as a result of a mental health disorder, is a danger to others, or to
himself or herself, or gravely disabled, a peace officer, professional person in
charge of a facility designated by the county for evaluation and treatment,
member of the attending staff . . . or professional person designated by the county
may, upon probable cause, take, or cause to be taken, the person into custody for a
period of up to 72 hours for assessment, evaluation, and crisis intervention, or
placement for evaluation and treatment in a facility designated by the county for
evaluation and treatment and approved by the State Department of Health Care
Services.

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Cal. Welf. & Inst. Code § 5150(a). Plaintiff was then transferred to Mission Community

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Hospital where he was held for seventy-two hours for evaluation and observation.

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Plaintiff’s care was handled by Dr. Hassan Farrag and Plaintiff was ultimately released

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on February 7, 2015. (Id. ¶¶ 44, 60-62, 87.)

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Plaintiff brought suit alleging that his detention was not justified by probable

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cause, as required by section 5150. Plaintiff’s First Amended Complaint (“FAC”) asserted

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eleven causes of action against the County of Los Angeles, Jessica Cruz, and Sandra

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Holguin (the “County Defendants”); City of Los Angeles, Los Angeles Police
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Department, and Alfredo Morales (the “City Defendants”); and Denaco Healthcare (d/b/a

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MCH). Plaintiff alleges, inter alia, violations of his Fourth and Fourteenth Amendment

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Rights under 42 U.S.C. § 1983, multiple violations of WIC § 5150, false arrest and

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imprisonment, negligent and intentional infliction of emotional distress, and invasion of

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privacy. (See FAC.) The gravamen of Plaintiff’s case is that Cruz intentionally made false

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statements to the police so that Plaintiff would be detained under section 5150, and that

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the officers, nurses, and doctors who interacted with Plaintiff during this incident failed

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to meet their various obligations by giving undue weight to Cruz’s statements while

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ignoring their own observations that Plaintiff presented no threat to himself or others.

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In the FAC, Plaintiff makes a number of references to individual defendants acting

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in accordance with the “policies and practices” of their respective departments. (See FAC

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¶¶ 22, 24, 26, 31, 71 (alleging that Cruz’s initial decision to call the police was in

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accordance with County policies and practice); id. ¶ 47 (alleging that Officer Morales

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followed police practices and polices when deciding whether to detain Plaintiff); id. ¶¶

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49, 54, 58 (alleging that MCH’s admittance and evaluation of Plaintiff was conducted in

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accordance with policies and practices).) Plaintiff also names several municipal

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defendants in the FAC. Plaintiff does not, however, expressly articulate a claim for

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municipal liability or invoke Monell v. Dept of Soc. Servs., 436 U.S. 658, 701 (1978), in the

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FAC.

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On February 28, 2017, Plaintiff moved for leave to file a Second Amended

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Complaint to specifically allege Monell claims. The court granted the motion in part,

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allowing Plaintiff “to file a Second Amended Complaint for the sole purpose of alleging a

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claim for Monell liability against Defendant MCH on the ground specified in this Order.”

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(Dkt. 107 at 12.) That ground, as explained in the Order, was the contention that “MCH’s

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policies for handling section 5150 hold applications are inconsistent with the legal

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requirement that an individual be afforded an in-person assessment prior to a seventy-

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two hour admission for evaluation and treatment.” (Id. at 9.) Plaintiff was not granted

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leave to add Monell claims against other City and County Defendants.
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On April 17, 2017, Plaintiff timely filed a Second Amended Complaint. (Dkt. 111.)

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Counsel for Plaintiff and MCH then engaged in a telephonic meet and confer where they

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discussed the possibility of MCH filing a motion to dismiss the Monell claims. (Def. MCH

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Mot. Strike (“MTS”) at 7; Pl. Opp’n Mot. Strike (MTS Opp’n) at 1.) Rather than file an

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unnecessary motion, the parties stipulated to allow Plaintiff to file “a Third Amended

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Complaint on or before May 8, 2017, so as to plead a Monell claim against MCH.” (Dkt.

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116.) The court approved the stipulation, and Plaintiff filed the instant Third Amended

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Complaint. (Dkts. 117, 118.)

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Defendant MCH now moves to strike specific portions of the TAC and to dismiss

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Plaintiff’s Monell claims against MCH in the first and second causes of action of the TAC.

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II. LEGAL STANDARD

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A. Motion to Strike

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Under Federal Rule of Civil Procedure 12(f), the “Court may strike from a

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pleading . . . any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ.

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P. 12(f). Immaterial matter is that which has no bearing on the claims for relief or the

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defenses being pled. Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974 (9th Cir. 2010).

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Impertinent matter consists of statements that do not pertain and are not necessary to the

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issues in question. Id. The court has the discretion to strike an entire pleading or portions

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thereof. MGA Entm’t, Inc. v. Mattel, Inc., No. CV 05-2727 NM (RNBx), 2005 WL 5894689,

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at *4 (C.D. Cal. Aug. 26, 2005). Generally, motions to strike are “disfavored,” and “courts

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are reluctant to determine disputed or substantial questions of law on a motion to strike.”

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Whittlestone, 618 F.3d at 1165-66; see also Miller v. Fuhu, Inc., No. 2:14-cv-06119-CAS (ASx),

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2014 WL 4748299, at *1, (C.D. Cal. Sept. 22, 2014). In considering a motion to strike, the

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court views the pleadings in the light most favorable to the non-moving party. See In re

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2TheMart.com Secs. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000)). Grounds for a motion

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to strike must be readily apparent from the face of the pleadings or from materials that

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may be judicially noticed. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1528 (9th Cir. 1993) rev’d

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on other grounds, 510 U.S. 517 (1994).
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B. Motion to Dismiss

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A complaint will survive a motion to dismiss when it contains “sufficient factual

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matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

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(2007)). When considering a Rule 12(b)(6) motion, a court must “accept as true all

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allegations of material fact and must construe those facts in the light most favorable to

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the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Although a complaint

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need not include “detailed factual allegations,” it must offer “more than an unadorned,

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the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. Conclusory

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allegations or allegations that are no more than a statement of a legal conclusion “are not

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entitled to the assumption of truth.” Id. at 679. In other words, a pleading that merely

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

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assertions” will not be sufficient to state a claim upon which relief can be granted. Id. at

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678 (citations and internal quotation marks omitted).

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

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veracity and then determine whether they plausibly give rise to an entitlement of relief.”

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Id. at 679. Plaintiff must allege “plausible grounds to infer” that their claims rise “above

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the speculative level.” Twombly, 550 U.S. at 555. “Determining whether a complaint states

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a plausible claim for relief” is a “context-specific task that requires the reviewing court to

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draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

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III. DISCUSSION

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A. Motion to Strike

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Defendant MCH moves to strike thirty-nine paragraphs, or portions of

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paragraphs, of the TAC. MCH’s primary contention is that the contested paragraphs

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introduce allegations that go beyond the scope of amendment allowed by both this

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Court’s April 13 Order granting leave to file a Second Amended Complaint and the

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parties’ subsequent May 1 Stipulation for leave to file a Third Amended Complaint.

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(MTS at 1-2.) 1 Specifically, the Motion asserts that the allegations at issue are irrelevant to

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stating a Monell claim against MCH. MCH also argues that the paragraphs must be

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stricken because they are variously immaterial, impertinent, or scandalous. (Id.) The

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court considers each of these contested paragraphs in turn, grouping allegations where

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the objections are related.
1. (a) Paragraph 1, lines 4-9; (b) Paragraph 2, lines 23-26

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MCH objects to portions of the first two paragraphs because they do not contain

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any factual allegations and because they are irrelevant to the Monell claims against MCH.

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Plaintiffs respond that the allegation in Paragraph 1 is one of several paragraphs that

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establish “[e]veryone (including non-professionals) who encountered Plaintiff in person

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did not objectively see or hear anything from Plaintiff to suggest he was mentally

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disordered or a danger to himself or others.” (MTS Opp’n 4.) The opposition is silent as

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to Paragraph 2. In order to state a Monell claim against MCH, Plaintiff must allege, inter

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alia, what specific policies and practices MCH had in place for addressing individuals

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who are admitted as section 5150 holds; whether MCH acted in accordance with those

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policies and practices with regards to Plaintiff; and how MCH is responsible for

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Plaintiff’s alleged constitutional deprivation. Subjective assertions that Plaintiff appeared

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normal to those who encountered him are both immaterial to stating this claim and

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redundant to later more specific allegations about Plaintiff’s interactions with the various

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Defendants. Accordingly, the court shall STRIKE these lines.
2. (a) Paragraph 47, lines 10-18; (b) Paragraph 52, lines 20-24; (c) Paragraph
53, page 14, line 25 – page 15, line 2

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These lines pertain to information that Nurse Holguin and Officer Morales

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included in their section 5150(e) Application. MCH objects to these lines as “assail[ing]

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Under Rule 15, a party may amend its pleading either “with the opposing party’s
written consent or the court’s leave.” See Fed. R. Civ. P. 15(a)(2). Given that the May 1
Stipulation, which generally permits Plaintiff to state a Monell claim against MCH, is
broader than the court’s April 13 Order, which limited Plaintiff to stating a Monell claim
against MCH on only the grounds specified in that Order, the court will primarily
consider whether the allegations exceed the scope of the May 1 Stipulation.
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the propriety of the Application” and immaterial to whether MCH provided an in-person

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assessment. The court shall not strike these lines because the hold application is one of

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the pieces of information that MCH reviews when admitting a section 5150 patient. Thus,

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the specific contents of the application may have some bearing on understanding the

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hospital’s policies.

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3. (a) Paragraph 48, page 12, line 19 – page 13, line 10; (b) Paragraph 49,
line 11-26; (c) Paragraph 50, page 13, line 27 – page 14, line 6; (d)
Paragraph 51, line 7-9

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These lines contain allegations about the conduct of Nurse Holguin and Officer

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Morales when they first encountered Plaintiff, recite the legal standards that might apply

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to their initial evaluation, and recount their subjective understanding of their

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responsibilities during the initial encounter. While the specific written Application that

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Holguin and Morales submitted to MCH may have some bearing on the Monell claim

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against MCH, Holguin and Morales’ actions during the initial encounter with Plaintiff

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and their subjective appraisal of their responsibilities are immaterial to whether MCH

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maintains policies and practice that led to Plaintiff’s alleged constitutional violations.

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Accordingly, the court shall STRIKE these lines.
4. (a) Paragraph 55, lines 12-14; (b) Paragraph 56, lines 15-22; (c)
Paragraph 57, lines 23-28

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These three paragraphs primarily consist of quotes from potentially applicable

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provisions of section 5150 and citations to other provisions of the Lanterman-Petris-Short

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Act. Defendant objects to these paragraphs because they do not expressly set forth an “in

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person assessment” requirement and assert legal conclusions. MCH also contends that

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citations to section 5150 in particular are immaterial because section 5151 governs a

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receiving hospital’s responsibilities. The court will not strike these provisions. First,

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whether or not these statutory sections set forth an in person assessment requirement, the

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overall statutory scheme may provide material context for Plaintiff’s general contention

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that MCH’s policies are inconsistent with applicable law and thus led to Plaintiff’s

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constitutional deprivation. Second, while conclusory legal allegations may not be

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adequate to survive a motion to dismiss after the Supreme Court’s decision in Twombly,
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see 550 U.S. at 544, that is not reason alone to strike these allegations. Indeed, barring a

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showing that the allegations are redundant, immaterial, impertinent, or scandalous,

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courts typically decline to strike even conclusory legal arguments barring some prejudice

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to the defendant. See Pain Prevention Lab, Inc. v. Elect. Waveform Labs, Inc., 657 F. Supp.

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1486, 1490 (N.D. Ill. 1987); see also Aliya Medcare Fin., LLC v. Nickell, No. CV 14-07806

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MMM (EX), 2015 WL 11072179, at * 17 (C.D. Cal. Oct. 28, 2015). Given that there is no

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assertion of prejudice and that the legal conclusions do not run afoul of Rule 12(f), the

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court will allow these lines.
5. (a) Paragraph 60, page 16, line 18 – page 17, line 2; (b) Paragraph 61,
lines 3-6; (c) Paragraph 62, lines 7-26

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These paragraphs pertain to allegations about Dr. Farrag’s interactions with

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Plaintiff during his time at MCH and Dr. Farrag’s understanding of MCH’s policies

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pertaining to section 5150 hold candidates. MCH moves to strike these paragraphs as

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irrelevant because “Dr. Farrag is not an agent or an employee of MCH” and thus his acts

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or omissions cannot be imputed to MCH. Although the precise relationship between Dr.

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Farrag and MCH may be a point of dispute, there is no question that Plaintiff was

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examined by Dr. Farrag while he was detained at MCH. Accordingly, allegations about

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Dr. Farrag’s conduct—including his examination of Plaintiff and how he understood his

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duties—may be material to understanding MCH’s general policies and practices. It may

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be the case that Dr. Farrag’s conduct cannot be imputed to MCH, but Defendant’s

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assertion to that effect at this stage of the proceedings is not a valid basis for striking the

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allegations. Accordingly, the court will not strike these paragraphs.

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6. Paragraph 64, lines 6-16
This paragraph addresses the conduct of the charge nurse when Plaintiff was first

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brought to MCH, as well as an allegation that MCH “collaborated and conspired with the

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applicable municipal agency involved” by allegedly accepting Holguin and Morales’

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representations. MCH moves to strike this allegation on the ground that asserting

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“collusion and conspiracy” between MCH and co-defendants goes beyond alleging

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Monell liability. The bulk of this paragraph, however, pertains to MCH’s conduct when
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Plaintiff was first brought to the hospital, and thus may be material to establishing the

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policies and practices in place for addressing section 5150 hold applications. As for the

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“collaboration and conspiracy” issue, it appears from the TAC that the purpose of this

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allegation is not to assert a standalone conspiracy claim but rather demonstrate that

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MCH qualifies as a state actor for purposes of raising a Monell claim. Given that the

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precise relationship between MCH and other state actors will ultimately establish

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whether MCH can be liable for Monell claims, the court will not strike any portion of this

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paragraph.

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7. Paragraph 84, footnote 5
This footnote contains information about the condition of a chair while Plaintiff

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was detained at MCH. MCH moves to strike as immaterial and beyond the scope of the

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parties’ stipulation. Plaintiff does not object. The court shall STRIKE this footnote as

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immaterial to stating a Monell claim against MCH.

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8. Paragraph 86

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This paragraph alleges that Det. McPartland, an individual who saw Plaintiff

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while he was at MCH, testified that he saw no indication Plaintiff was mentally disturbed

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or in need of involuntary detention. Defendant moves to strike because Det. McPartland

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is not qualified to offer an opinion about Plaintiff’s mental state and his passing

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observation is irrelevant to stating a claim regarding MCH’s policies and practices.

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Plaintiff’s opposition makes no reference to this paragraph. The court shall STRIKE this

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Paragraph as immaterial to stating a Monell claim against MCH.

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9. Paragraphs 113 – 117

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Paragraph 113 contains allegations about the testimony of MCH’s Director of

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Behavioral Health and 30(b)(6) witness, Renee Ruiz, regarding her understanding of

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MCH’s policies for addressing section 5150 Applications. Paragraph 114 alleges that

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MCH acted jointly with public officials in depriving Plaintiff of his liberty by accepting

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their representations without conducting their own in person assessment. Paragraph 115

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quotes section 5150(e). Paragraph 116 reiterates that MCH conspired and cooperated
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with the City and County by no conducting an independent assessment of Plaintiff.

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Paragraph 117 alleges that MCH contracted with the County to serve as an LPS facility

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and thus directly coordinated with the City and County as a state actor. MCH moves to

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strikes these allegations as generally beyond the scope of the Stipulation and an improper

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allegation of collusion and conspiracy between MCH and the City and County

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Defendants. The court will not strike these paragraphs. In order to state a Monell claim

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against MCH, Plaintiff must establish both that MCH is a state actor and that its policies

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and practices led to Plaintiff’s constitutional deprivations. The allegations contained in

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these paragraphs are material both to establishing MCH’s alleged conduct when Plaintiff

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was admitted and whether MCH was acting in accordance with any policies or practices.

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The allegations are also material to demonstrating MCH’s relationship with the City and

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County and whether it qualifies as a state actor in this case.

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10. Paragraphs 119 – 121
These paragraphs contain allegations pertaining to Dr. Farrag’s testimony about

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his understanding of MCH’s policies for handling involuntary holds and his examination

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of Plaintiff during the involuntary hold. As with Paragraphs 60–62, MCH moves to strike

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these allegations as immaterial because Dr. Farrag is not an agent or employee of MCH.

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MCH also quotes a prior order of this Court for the proposition that “[a]n employee’s

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subjective belief that they generally acted in accordance with ‘policies and practices’ . . .

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does not indicate whether there was actually a relevant policy in place.” (MTS 15.) This

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proposition is inapplicable here where Plaintiff is not alleging that Dr. Farrag “generally

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acted in accordance with policies and practice” but has alleged that Dr. Farrag believed

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he was following specific policies. (See, e.g., TAC ¶ 120 (“[Dr. Farrag] was under the

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mistaken impression that LP Act gives him 24 hours AFTER admission to evaluate

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Plaintiff and 72 hours to continue that evaluation . . . .”) It may be that Dr. Farrag’s

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subjective understanding of MCH’s policies will not be sufficient to establish that any

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such policy or practice existed but the court cannot conclude that these allegations are

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immaterial at this stage. Accordingly, for these reasons and the ones noted above, see

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III.A.5, the court will not strike these paragraphs.
11. Paragraphs 122 – 125

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These paragraphs contain allegations pertaining to Los Angeles County Mental

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Health Program Manager Charles Lennon’s explanation of the requirements of section

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5150 and 5151 and the ways in which MCH’s policies allegedly differed from these

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requirements. MCH moves to strike these allegations as irrelevant because Mr. Lennon is

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not an agent or employee of MCH and is not familiar with MCH’s precise policies and

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practices. Whether or not Mr. Lennon’s testimony can establish what MCH’s policies and

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practice are with regard to section 5150 applications, it is material to Plaintiff’s Monell

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claim against MCH. At bottom, Plaintiff’s Monell claim is that MCH maintains a policy or

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practice for handling section 5150 applications that was inconsistent with applicable law

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and led to Plaintiff’s alleged constitutional deprivation. As Plaintiff acknowledges,

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establishing Monell liability may require demonstrating that it was MCH’s policy and not

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some other factor, such as the operative law, that led to Plaintiff’s alleged injury. (MTS

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Opp’n 4.) Thus, allegations that state how the applicable law operates are material to

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establishing how MCH’s policy differs. Accordingly, the court will not strike these

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paragraphs.

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12. Paragraphs 126–128, 130, and 132

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Paragraphs 126 to 128 and Paragraph 130 allege that MCH maintained obsolete

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policies and practices that failed to comply with applicable law and were the “moving

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force” behind Plaintiff’s alleged injury. Specifically, these paragraphs allege that MCH’s

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policies did not require an in-person assessment and did not require its physicians to

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receive 5150 training and certification. MCH moves to strike these allegations as beyond

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the scope of the parties’ stipulation and as immaterial because it misunderstands how

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MCH’s policies concerning section 5150 applications actually function. Plaintiff’s

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allegations in these paragraphs about which precise MCH policies he believes led to his

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constitutional deprivation fall within the scope of “stat[ing] a Monell claim against
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MCH.” MCH’s contention that Plaintiff misunderstands these policies is irrelevant to

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whether these allegations should be struck. Eventually, a trier of fact will have to

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determine what exactly MCH’s policies say, if anything, about handling section 5150

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involuntary holds and whether these policies were the moving force behind Plaintiff’s

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asserted injury. At this juncture, however, the only question is whether Plaintiff’s

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allegations, which invariably reflect his understanding and not MCH’s understanding of

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the events at issue, are material to stating a Monell claim. The court finds they are and

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will not strike these paragraphs.

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13. Paragraph 129

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MCH contends that Paragraph 129, which alleges that MCH is not entitled

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qualified immunity, should be struck because it contains irrelevant legal argument.

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However, in order to state a claim for Monell liability against MCH, Plaintiff will have to

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ultimately establish that MCH is not entitled to qualified immunity. Thus, even if this

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contention is not strictly an element of stating a prima facie Monell claim, it is material to

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the cause of action. Furthermore, as noted above, absent a showing of prejudice to the

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Defendant, courts typically do not strike legal argument. Accordingly, the court will not

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strike Paragraph 126-130.

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14. Paragraph 131
This paragraph alleges that no one who interacted with Plaintiff had any basis to

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believe that he was a danger to himself or other. It references both Plaintiff’s interactions

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at MCH and his encounters with officers prior to his admission to MCH. As with

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Paragraph 1, this paragraph is largely beyond the scope of establishing what policies and

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practices MCH had in place and whether they complied with statutory requirements.

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Moreover, the general allegations about MCH personnel contained in this paragraph are

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redundant with earlier paragraphs that state in detail the precise events at MCH that

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might give rise to a Monell claim. Accordingly, the court shall STRIKE this paragraph.

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15. Paragraphs 133 – 134

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In these paragraphs, Plaintiff alleges that municipalities may be found liable on a

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Monell claim where there is evidence of a policy of deliberate indifference. Plaintiff

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presents his understanding of the applicable law governing “deliberate indifference” and

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then states how MCH’s actions would qualify as such. Defendant moves to strike these

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paragraphs as impermissible legal argument, a misunderstanding of MCH’s policies, and

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improperly relying on the testimony of Dr. Farrag. For the reasons noted above, the court

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will not strike these paragraphs. The Stipulation agreed to by the parties does not limit

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the theory on which Plaintiff may state a Monell claim against MCH. In these paragraphs,

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Plaintiff is alleging Monell liability on a theory of deliberate indifference. Whether or not

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this theory is ultimately viable, it is within the scope of the parties’ Stipulation.

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B. Motion to Dismiss Monell Claims

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“To state a cause of action under section 1983, [a plaintiff] must show that (1) [the

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defendant] acted under color of state law; and (2) [the defendant] deprived [the plaintiff]

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of rights secured by the Constitution or federal law.” Barry v. Fowler, 902 F.2d 770, 772

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(9th Cir. 1990). In Monell v. Dept of Soc. Servs., the Supreme Court held that municipalities

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and other local government units could be held liable under section 1983. 436 U.S. at 691.

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The Court explained, however, that “a municipality cannot be held liable solely because it

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employs a tortfeasor—or, in other words . . . on a respondeat superior theory.” Id. at 691.

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Rather, a plaintiff must establish that the constitutional violation was caused by “a

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policy, practice, or custom of the entity.” Dougherty v. City of Covina, 654 F.3d 892, 900

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(9th Cir. 2011). In Tsao v. Desert Palace, Inc., the Ninth Circuit clarified that Monell liability

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extends not only to municipalities but also to private entities acting under color of state

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law. To make out a Monell claim against a private entity, a plaintiff must show that “[the

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defendant] acted under color of state law, and (2) if a constitutional violation occurred,

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the violation was caused by an official policy or custom of [the defendant].” 698 F.3d

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1128, 1139 (9th Cir. 2012) (citing Harper v. City of Los Angeles, 533 F.3d 1010, 1024 (9th Cir.

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2008)).
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Based on the allegations remaining in the TAC, Plaintiff’s claim of Monell liability

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against MCH can be summarized as follows. First, Plaintiff alleges that MCH acts under

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color of law because it has contracted with the City and County of Los Angeles to “serve

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as a holding facility for persons involuntarily taken into custody under California

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Welfare and Institutions Code section 5150.” (TAC ¶ 69.) Next, Plaintiff asserts that

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“Welfare and Institutions Code Section 5151 requires [that] ‘[p]rior to admitting a person

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to the facility for treatment and evaluation pursuant to Section 5150, the professional

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person in charge of the facility or his or her designee shall assess the individual in person

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to determine the appropriateness of the involuntary detention.’” (Id. ¶ 54 (quoting Welf.

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& Inst. Code § 5151).) Plaintiff then alleges that, contrary to the requirements of section

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5151, MCH’s policy or practice for handling section 5151 admission does not require an

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in-person assessment before admission and instead is limited to a “paperwork function”

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where a nurse reviews that the section 5150 application is completed and signed. (Id. ¶

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59.) In support, Plaintiff quotes deposition testimony from MCH’s Director of Behavioral

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Health and 30(b)(6) witness, Renee Ruiz, laying out the requirements policy and

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allegedly admitting that MCH’s policies did not incorporate section 5151’s in-person

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assessment requirement. (See, e.g., id.; see also Dkt. 120-3 (Ruiz Depo.) at 38:22-39:13).

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Plaintiff also alleges that he never received an in-person assessment prior to admission as

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further substantiation for his claim that MCH’s policies are deficient. (TAC ¶ 63.)

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MCH responds that Plaintiff’s allegations have failed to state a claim for Monell

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liability and contends that the claims must be dismissed. As a preliminary matter, MCH

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asks the court to consider excerpts of Renee Ruiz’s deposition transcript. (MCH Mot. To

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Dismiss (“MTD”) 7.) Ordinarily, “a district court may not consider any material beyond

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the pleadings in ruling on a Rule 12(b)(6) motion.” Branch v. Tunnell, 14 F.3d 449, 453 (9th

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Cir. 1994), overruled on other grounds, Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125

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(9th Cir. 2002) (citation omitted). However, a court may consider “documents whose

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contents are alleged in a complaint and whose authenticity no party questions, but which

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are not physically attached to the pleading” without “convert[ing] the motion to dismiss
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into a motion for summary judgment.” Branch, 14 F.3d at 454 (internal quotations and

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citations omitted). Given that Plaintiff expressly quotes Ruiz’s deposition and no party

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disputes the authenticity of the transcript, the court will consider the attached excerpts

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for purposes of ruling on this motion.

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MCH first argues that, contrary to Plaintiff’s allegation that he did not receive an

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in person assessment prior to admission, Ruiz’s testimony demonstrates that a nurse

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designated as the “professional person in charge of the facility”—RN Carlos Megia—

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conducted an in-person evaluation. (MTD 8 (citing Ruiz Depo 42:21-6; 45:13-15; 46:20-

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47:8.) This argument is unavailing at the motion to dismiss stage and runs afoul of the

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rule that the court must accept all factual allegations in the complaint as true. See Resnick,

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213 F.3d at 447. Although the court may take account of Ruiz’s testimony because there is

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no dispute as to the authenticity of the transcript record, this does not mean that the

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contents of Ruiz’s statements are assumed to be true. A valid use of this document might

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be to ensure, for example, that the TAC accurately quotes the testimony; it is not to credit

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Defendant’s account of events over Plaintiff’s or to draw inferences against the Plaintiff.

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Furthermore, a review of the relevant excerpt does not contradict Plaintiff’s base

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allegations, which is that he did not receive an in person assessment at the time of

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admission. Ruiz testified that Nurse Megia performed an assessment sometime between

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10:30 PM and 11:53 PM. (See Ruiz Depo. at 45:13-16.) An earlier line of questioning,

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however, suggests that Dr. Farrag ordered acceptance to a unit of the hospital at 3:42 PM.

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(See id. at 41:16-20.) Thus, there remains a question as to when Plaintiff was admitted to

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MCH and whether an in-person assessment was conducted at that time.

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MCH’s second argument is that Plaintiff’s Monell allegations fail because they are

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premised on a “misunderstanding of MCH’s policy and practice.” (MTD 9.) According to

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MCH, Plaintiff has mistakenly assumed that the “paperwork function,” which requires

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an admitting nurse to check that the section 5150 application is properly completed and

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signed, is the only relevant policy MCH has for handling section 5150 admissions. To the

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contrary, MCH contends that Ruiz’s testimony also demonstrates that “the policy and
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procedure of MCH at the time of Plaintiff’s admission was that the admitting RN

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performs the in person assessment on admission, and that Plaintiff received such in

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person assessment.” (MTD 8 (citing Ruiz Depo. 39:14-19; 40:3-41:11).) They key testimony

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on this issue begins with an exchange where Plaintiff’s counsel asks if there is a policy or

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procedure that indicates that someone from MCH has to conduct an in-person

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assessment prior to admission and Ruiz responds, “Not verbatim,” but follows-up that

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the practice is reflected in the paperwork section. (Ruiz Depo. 39:5-13.) Counsel than asks

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whether there is any other place that reflects an in-person assessment requirement prior

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to admission and Ruiz responds “That’s done by the admitting RN on the admission.”

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(Id. 39:14-19.) This exchange does not reflect a “misunderstanding” on Plaintiff’s part but

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instead a basic dispute between the parties. Plaintiff alleges that MCH’s policies and

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practices require a nurse to complete only a paperwork function prior to admission and

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do not require an in-person assessment. Plaintiff acknowledges that he was examined at

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one or more points during his seventy-hour hold at MCH but contends that no in-person

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assessment was conducted at admission specifically and that this lapse was a result of

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MCH’s policies. MCH responds that it does conduct in-person assessments and cites to

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the fact that one was performed on Plaintiff’s first evening at MCH. While this dispute

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will eventually have to be resolved, drawing all inferences in favor of Plaintiff, it is not a

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basis for dismissing the Monell claims at this stage. Accordingly, Defendant MCH’s

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Motion to Dismiss is DENIED.

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IV. CONCLUSION
For the reasons stated above Defendant MCH’s Motion to Strike portions of the

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Third Amended Complaint is GRANTED in part and DENIED in part and Motion to

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Dismiss Monell claims in the Third Amended Complaint is DENIED. Plaintiff is

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ORDERED to file a Fourth Amended Complaint (“FAC”) in accordance with this Order

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//

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//

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//
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within fourteen days. The FAC shall conform strictly to this Order, and shall not include

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additional allegations.

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IT IS SO ORDERED.

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Dated: June 16, 2017

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___________________________________

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DEAN D. PREGERSON

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UNITED STATES DISTRICT JUDGE

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