Yaya v. SC Medical CA2/2 ( 2024 )

Filed 9/11/24 Yaya v. SC Medical CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
PETER N. YAYA, B330912
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 22CHCV00124)
v.
SC MEDICAL, INC.,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Stephen P. Pfahler, Judge. Affirmed.
Peter N. Yaya, in pro. per., for Plaintiff and Appellant.
Cole Pedroza, Kenneth R. Pedroza, Alysia B. Carroll;
Carroll, Kelly, Trotter & Franzen, Michael J. Trotter and Michael
Edward deCoster for Defendant and Respondent.
Peter N. Yaya (appellant) appeals from a judgment entered
after the trial court granted judgment on the pleadings pursuant
to Code of Civil Procedure section 438 on appellant’s claims
against respondent SC Medical, Inc., doing business as AFC
Urgent Care of Valencia (AFC). We affirm.
FACTUAL BACKGROUND
Appellant’s first amended complaint alleges on or about
December 21, 2021, appellant entered AFC’s facility in Valencia,
California, seeking medical treatment. Appellant has a deviated
septum, which “is an impairment that substantially limits one or
more major life activity, including the functions of the respiratory
system.” When appellant entered the facility, he was asked by
the receptionist if he had a face mask. Appellant responded he
has a disability and is unable to wear one. The receptionist
asked appellant to fill out intake paperwork and then wait
outside. Appellant complied.
After a while the receptionist called appellant’s cell phone
and told him in order to reenter the facility appellant was
required to wear a face mask as a condition of being seen for
treatment. Appellant disconnected the call and reentered the
facility without a face mask. He asked to speak to the facility
office manager.
The facility office manager, Alexandra Martinez, told
appellant it was company policy for all patients to wear a face
mask. Appellant responded the policy was in violation of Civil
Code section 51 and several other state and federal laws.
Martinez repeated AFC’s policy of requiring all patients to wear
face masks. Appellant asked that his paperwork be returned, his
2
personal information deleted, and then left the facility without
receiving treatment.
PROCEDURAL HISTORY
On February 24, 2022, appellant filed the initial complaint
in this matter against AFC. On April 1, 2022, AFC filed an
answer, and on October 24, 2022, AFC filed a motion for
judgment on the pleadings. The hearing was scheduled for
November 17, 2022.
On November 3, 2022, before the hearing on AFC’s motion
for judgment on the pleadings, appellant filed the operative first
amended complaint without leave of court. On November 8,
2022, appellant filed opposition to AFC’s motion for judgment on
the pleadings. Appellant also filed a “doe amendment” correcting
AFC’s title and adding Martinez as a named defendant. Causes
of action for violation of Civil Code section 51 (Unruh Civil Rights
Act); slander per se in violation of Civil Code section 46,
subdivision (2); violation of the Patient’s Bill of Rights, California
Code of Regulations, title 22, section 72527, subdivision (a)(4);
and intentional infliction of emotional distress were included.
AFC filed a reply in support of its motion on February 1,
2023. The motion was heard on February 7, 2023. After
considering the moving papers and oral argument, the trial court
determined the filing of the first amended complaint prior to the
hearing on AFC’s motion “constitute[ed] a concession to the
merits of the motion” challenging the original complaint. The
court granted AFC’s motion without prejudice and deemed
appellant’s first amended complaint filed as of November 3, 2022.
On March 14, 2023, AFC filed a motion for judgment on the
pleadings as to appellant’s first amended complaint. AFC took
3
the position it was immune from liability for appellant’s claims
under the Public Readiness and Emergency Preparedness Act
(PREP Act) (42 U.S.C. § 247d-6d). Further, AFC argued that
even if it were not immune under the PREP Act, it was entitled
to judgment on the pleadings because appellant failed to plead
facts sufficient to support any of his causes of action.
Appellant filed an opposition to AFC’s motion for judgment
on the pleadings on March 28, 2023. AFC’s reply was filed on
April 4, 2023. The matter was heard on April 11, 2023.
After considering the papers and hearing oral argument,
the trial court granted AFC’s motion and issued a written ruling
the same day. The court noted the operative complaint alleged
appellant sought medical treatment on December 21, 2021,
during a time when the Secretary of Health and Human Services
had declared a public health emergency due to COVID-19. The
time frame and COVID-19 emergency declaration were
undisputed. The court found AFC was a covered person under
the PREP Act, “engaging in defined countermeasures” thus
“categorically and unequivocally” precluding any state or federal
claims regardless of any claimed disability. Appellant provided
no basis for any exception. Further, the court noted, even if
appellant could state an exception to immunity, the trial court
was an improper forum. Finally, the court noted, regardless of
immunity, appellant’s claims lacked merit. The court granted
AFC’s motion for judgment on the pleadings with prejudice.
On May 3, 2023, the court entered judgment in favor of
AFC. Notice of entry of judgment was served the same date.
Appellant filed his notice of appeal from the judgment on June 9,
2023.
4
DISCUSSION
I. Standard of review
A motion for judgment on the pleadings is “equivalent to a
demurrer and is governed by the same standard of review.”
(Mack v. State Bar (2001) 92 Cal.App.4th 957, 961.) “All material
facts which were properly pleaded are deemed true, but not
contentions, deductions, or conclusions of fact or law.” (Ibid.)
“If leave to amend was not granted, we determine whether
the complaint states a cause of action and whether the defect can
reasonably be cured by amendment.” (Mack v. State Bar, supra,92 Cal.App.4th at p. 961.) The appellant bears the burden of
proof as to whether the pleading defect can be cured. (Ibid.) The
trial court’s denial of leave to amend is reviewed for abuse of
discretion. (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82
Cal.App.4th 592, 602.)
II. PREP Act immunity
Appellant first argues the trial court erred in applying
PREP Act immunity to AFC’s conduct.
A. The PREP Act
“‘Congress passed the [PREP] Act in 2005 to encourage
during times of crisis the “development and deployment of
medical countermeasures” (such as diagnostics, treatments, and
vaccines) by limiting legal liability relating to their
administration.’” (Hampton v. California (9th Cir. 2023) 83 F.4th
754, 762 (Hampton).) “The statute offers ‘covered person[s]’
immunity ‘from suit and liability’ for claims ‘caused by, arising
out of, relating to, or resulting from the administration to or the
use by an individual of a covered countermeasure.’” (Ibid.; see 42
U.S.C. § 247d-6d(a)(1).) The immunity “‘applies to any claim for
loss that has a causal relationship with the administration to or
5
use by an individual of a covered countermeasure.’” (Ibid.; see 42
U.S.C. § 247d-6d(a)(2)(B).)
Immunity under the PREP Act lies dormant until the
Secretary of Health and Human Services “makes a determination
that a disease . . . constitutes a public health emergency” and
“make[s] a declaration, through publication in the Federal
Register,” that the Act’s immunity “is in effect.” (42 U.S.C. 247d-
6d(b)(1).)
On March 17, 2020, the Secretary of Health and Human
Services issued a declaration that COVID-19 “constitutes a public
health emergency” and “immunity as prescribed in the PREP
Act” was in effect for the “manufacture, testing, development,
distribution, administration, and use of” covered
countermeasures. (Declaration Under the Public Readiness and
Emergency Preparedness Act for Medical Countermeasures
Against COVID-19, 85 Fed.Reg. 15198, 15201 (Mar. 17, 2020)
(Declaration).) “Covered [c]ountermeasures” were broadly
defined to include “any antiviral, any other drug, any biologic,
any diagnostic, any other device, or any vaccine, used to treat,
diagnose, cure, prevent, or mitigate COVID-19.” (Id. at p. 15202.)
The sole exception to the immunity from suit is for “an
exclusive Federal cause of action against a covered person for
death or serious physical injury proximately caused by willful
misconduct.” (42 U.S.C. § 247d-6d(d)(1).) Any lawsuit for willful
misconduct “shall be filed and maintained only in the United
States District Court for the District of Columbia.” (42 U.S.C.
§ 247d-6d(e)(1).) Thus, the PREP Act provides an exclusive,
federal remedy in the Federal District Court for the District of
Columbia for plaintiffs seeking to circumvent the immunity
provided by the PREP Act.
6
B. Application of the PREP Act to appellant’s
claims
Appellant does not dispute that AFC is a “covered person”
under the PREP Act. The statute specifically includes a licensed
health professional or other individuals who are authorized to
prescribe, administer, or dispense countermeasures under the
law. (42 U.S.C. 247d-6d(i)(2)(B)(iii)-(iv).) Thus, AFC is covered
under the PREP Act.
Appellant’s claims are for loss under the PREP Act. The
statute provides broad immunity to covered persons “with respect
to all claims for loss caused by, arising out of, relating to, or
resulting from the administration to or the use by an individual
of a covered countermeasure.” (42 U.S.C. § 247d-6d(a)(1).) The
term “loss” is defined as “any type of loss,” including “death; [¶]
. . . physical, mental, or emotional injury, illness, disability . . . ;
[¶] . . . fear of physical, mental, or emotional injury, illness,
disability, or condition, including any need for medical
monitoring; and [¶] . . . loss of or damage to property, including
business interruption loss.” (42 U.S.C. § 247d-6d(a)(2)(A).)
Appellant’s claims of severe emotional distress and continued
physical discomfort fall within the PREP Act’s definition of loss.
The statute provides no exception for civil rights violations, and
appellant provides no binding legal authority suggesting such an
exception exists.1 We therefore reject appellant’s suggestion that
PREP Act immunity does not include civil rights violations.
1 Appellant’s citation to two articles (The Law and the
Pandemic: Civil Rights, the PREP Act, and Liability by Bruce
Adelson and Public Readiness and Emergency Preparedness Act
(PREP Act) Overview, Oregon Health Authority) do not convince
7
Pursuant to the PREP Act, immunity applies to any claim
for a loss that has a causal relationship with the administration
or use of a covered countermeasure, including “a causal
relationship with the design, development, clinical testing or
investigation, manufacture, labeling, distribution, . . . promotion,
sale, purchase, donation, dispensing, prescribing, administration,
licensing, or use of such countermeasure.” (42 U.S.C. 247d-
6d(a)(2)(B).) Covered countermeasures under the PREP Act
include devices authorized for emergency use and respiratory
protective devices. (42 U.S.C. 247d-6d(i)(1).) AFC’s face mask
policy constituted the use of a covered countermeasure under the
PREP Act.2
Appellant’s claimed injuries were caused by the
administration or use of covered countermeasures under the
us the PREP Act is inapplicable in this case, in that appellant’s
claims for civil rights violations fall squarely within the PREP
Act’s immunity.
2 Hampton, supra, 83 F.4th 754, relied upon by appellant, is
distinguishable. In Hampton, the spouse of an inmate who died
of COVID-19 after being transferred from one prison to another
during the COVID-19 pandemic sued various state officials
claiming violations of Hampton’s constitutional and statutory
rights. The plaintiff alleged that Hampton’s death was caused at
least in part by the defendants’ failure to administer COVID tests
to inmates prior to transferring them. (Id. at p. 763.) The Ninth
Circuit held that PREP Act immunity did not apply, as “the
PREP Act provides immunity only from claims that relate to ‘the
administration to or the use by an individual of’ a covered
countermeasure—not such a measure’s non-administration or
non-use.” (Ibid.) Here, appellant is suing based on AFC’s use of a
covered countermeasure—enforcement of a mask policy at a
medical facility engaged in COVID testing and treatment.
8
PREP Act. The Secretary of Health and Human Service’s March
2020 declaration defined the term “Administration of a Covered
Countermeasure” to include “physical provision of a
countermeasure to a recipient, . . . and to activities related to
management and operation of programs and locations for
providing countermeasures to recipients, such as decisions and
actions involving security and queuing.” (Declaration, section IX,
85 Fed.Reg. 15200.) AFC’s establishment and enforcement of its
mask policy was part of the operation and management of its
facility, therefore there is a causal relationship between
appellant’s claims for loss and AFC’s administration or use of a
covered countermeasure. AFC is immune from appellant’s claims
under the PREP Act.
Appellant asserts AFC’s actions failed to recognize the
state’s exemption from the mask mandate for those with a
disability. Appellant cites the November 16, 2020 California
Department of Public Health “Guidance for the Use of Face
Coverings,” as well as the Los Angeles County Public Health
“Mask Wearing Rules and Recommendations” as support for his
argument that such policies provided exceptions for people with
disabilities that prevent wearing face masks. Appellant cites no
authority suggesting that AFC, a private entity, was required to
follow the referenced publications. To the extent appellant
attempts to allege willful conduct falling outside the PREP Act,
an action in the Federal District Court in the District of
Columbia is his exclusive remedy.3 (42 U.S.C. § 247d-6d(c)(4),
(e)(1)(5).)
3 Appellant cites Saldana v. Glenhaven Healthcare LLC (9th
Cir. 2022) 27 F.4th 679 as support for his position that
9
III. Leave to amend
Appellant asserts the trial court should have granted him
leave to amend. However, he fails to support this contention by
demonstrating how the complaint can be amended to state a
cause of action. (Dey v. Continental Central Credit (2008) 170
Cal.App.4th 721, 731 [“To show an abuse of discretion, ‘“the
plaintiff must show how the complaint can be amended to state a
cause of action.”’”].) Instead, appellant asserts the present
matter has nothing to do with the PREP Act and his claims
warrant adjudication as they are. Appellant has failed to meet
his burden of showing the trial court abused its discretion in
denying appellant leave to amend.
jurisdiction in California state court is proper. Saldana is not
persuasive as it involved different claims. The plaintiffs,
relatives of a nursing home resident who allegedly died of
COVID-19, brought claims of elder abuse, custodial negligence,
and wrongful death against the care facility. The defendant
removed the case to federal court and appealed when the matter
was remanded to state court. The Saldana court found complete
federal preemption was not a ground for federal jurisdiction,
holding the PREP Act does not “completely preempt all state-law
claims related to the pandemic.” (Saldana, at p. 688.) Saldana
does not convince us that appellant’s claims, which arise directly
from AFC’s use of a covered countermeasure, may be heard in
state court.
10
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs
of appeal.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
ASHMANN-GERST, J.
11