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January 21, 2004.

DAVID BURROWS, et al., Plaintiffs
ADVENTIST HEALTH INC., et al., Defendants

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge

Now before the Court are several motions: (i) plaintiffs' motion to dismiss the lawyer-defendants (LynchGilardi & Grummer, Robert Lynch and Matthew Miller) from the complaint; and (ii) various defendants' motions to dismiss plaintiffs' current action. On September 26, 2003, this Court heard argument on defendants' 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. At that time, the Court gave both parties an opportunity to resolve the procedural conflict posed in the current action for an ongoing case involving plaintiffs, defendant Schug and his counsel, Robert Lynch and Matthew Miller of Lynch Gilardi & Grummer. See Burrows v. Redbud Cmty, Hosp., C-96-4345 SI, (N.D. Cal. filed Dec. 3, 1996) ("Burrows I"). In order to remedy this procedural conflict, plaintiffs filed their motion to dismiss the lawyer-defendants. Finding that the resolution of this motion will not adequately remedy the procedural conflicts between this case and the earlier filed case, the Court finds it necessary to address and resolve defendants' earlier motion regarding the merits of plaintiffs' claims at this time.

Having carefully considered the papers submitted and the arguments of counsel, the Court GRANTS defendants' motions to dismiss plaintiffs' actions for failure to state a claim upon which relief can be granted.


  Plaintiffs filed this action on May 13, 2003, seeking monetary damages and injunctive relief against Page 2 defendants for their alleged illegal conduct in conspiring to deny plaintiffs their civil rights by, inter alia, fraudulently altering medical records and obstructing justice in plaintiffs' attempts to seek redress for the wrongful death of their infant son, Cody Burrows. Below is a detailed discussion of the factual and procedural background of both the present case and Burrows I, on which the current action is based.

  I. Burrows I

  A. Factual background

  This actionarose out of the death of Cody Burrows, an eleven-month old infant, on February 26, 1996. Order, C-96-4345 SI, at 1-2 (filed Oct. 22, 1997). Plaintiffs David Burrows and Rhoda Thomas, the parents of Cody Burrows, alleged the following facts and incidents in their complaint: On February 23, 1996, plaintiffs took Cody to the emergency department of Redbud Community Hospital in Clearlake, California, for care and treatment of their son. Id. Cody was examined at the hospital and subsequently released. Id. On February 25, 1996, in the early morning hours, plaintiffs brought Cody back to Redbud Community Hospital because he was still ill. Id. Plaintiffs alleged that doctors failed to perform an appropriate or competent screening exam, failed to render competent medical care, and discharged Cody notwithstanding his unstable condition. Id.

  On February 25, 1996, at about 11 a.m., plaintiffs returned with Cody to Redbud Community Hospital for further care and treatment. Id. Medical records showed that Cody was dehydrated and his fever ranged from 101 to 105 degrees. Order, C-96-4345, at 2 (filed Nov. 10, 1999). Attempts to administer fluids intravenously, through both his femoral and jugular veins, were unsuccessful Id. Throughout his stay in the emergency room, Cody continued to vomit, and ingested only three ounces of Pedialyte fluid. At 7:00 p.m., Cody's chart indicated that he "remain[ed] very lethargic." Id. After nearly eight and a half hours in the emergency room and no apparent improvement, Cody was discharged by the hospital. Plaintiffs were given a map and told to take Cody to Santa Rosa Community Hospital, a drive of over two hours. Id. When plaintiffs arrived at Santa Rosa, Cody was no longer breathing. Id. A few hours later, after being transferred to the University of California Medical Center in San Francisco, Cody died of a cardiac arrest. Id.

  The following day, February 27, 1996, Nurse DeLashmutt, an employee of Redbud Hospital, recorded additional notations on Cody's chart, one stating that he was "active in the sink . . . drinking [water] from the Page 3 faucet . . ." Id. Also that day, Dr. Schug composed an addendum to Cody's medical records, describing the child's treatment. Id. To prepare this addendum, Dr. Schug copied notes in pencil from Cody's chart to yellow post-it slips, which he took home with him. Id. He drafted in his own handwriting and also dictated the addendum, added it to Cody's medical records, and destroyed the yellow notes and draft addendum by burning them. Id. Dr. Schug's addendum described Cody as active, "playful," and "splashing" in a bath. These descriptions appeared to contradict most contemporaneous descriptions of the child as listless and tired. Id.

  B. Procedural history

  On December 2, 1996, plaintiffs filed a complaint in federal court against: Dr. Wolfgang Schug, a doctor on call with the emergency room at Redbud Community Hospital who examined Cody; Dr. M. Fred Brewer, a pediatrician on call and available for consultation with the emergency room at Santa Rosa who examined Cody; Redbud Community Hospital District ("Redbud"/"District"), the owner and operator of Redbud Community Hospital; Emergency Medical Management Services, Inc.; and unnamed physicians, nurses, and health care professionals who, plaintiffs allege, negligently treated Cody prior to his death. The original complaint alleged negligence, spoliation of evidence, and violations of the Emergency Medical Treatment and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd, and Cal. Health & Safety Code § 1317. Order, C-96-4345 SI, Oct. 22, 1997 at 2.

  On January 24, 1997, plaintiffs filed an amended complaint, naming as an additional defendant Adventist Health, Inc. ("Adventist Health") and substituting J. J. & R. Emergency Management Group, Inc. ("J. J. & R.") in lieu of Emergency Medical Management Services, Inc. The first amended complaint alleged the following causes of action: Count One (EMTALA), Count Two (EMTALA — emotional distress), Count Three (wrongful death), Count Four (wrongful death — emotional distress), Count Five (personal injuries — claim brought on behalf of Cody Burrows), Count Six (spoliation of evidence), Count Seven (Cal. Health & Safety Code § 1317), Count Eight (Cal. Health & Safety Code § 1317 — emotional distress), and Count Nine (injunctive relief). Defendants filed separate answers to the first amended complaint in March 1997.

  Plaintiffs amended the initial complaint twice more during the pleading stage. The third amended Page 4 complaint, most relevant to the case at hand, was filed by plaintiffs on June 23, 1998.*fn1 By order dated March 24, 1999, this Court dismissed Count Six of plaintiffs' third amended complaint, which was captioned "violation of Cal. Penal Code § 471.5, obstruction of justice and conspiracy." Order Re: Mots. Concerning Third Am. Compl. at 2:2-4, C-96-4345 SI (March 24, 1999). This count substituted for what had previously been charged as "spoliation of evidence, obstruction of justice and conspiracy" in the Second Amended Complaint. Id. at 2:3-5. The Court found that under the circumstances of the case, plaintiffs did not and could not state a private cause of action premised on Penal Code § 471.5, because no private right was included by the Legislature when it enacted the statute. 14 at 2:13-14, The Court dismissed Count Six of the Third Amended Complaint and struck the accompanying allegations as unnecessary to the remaining causes of action. Id. at 2:19-21.

  Plaintiffs filed a Fourth Amended Complaint on July 6, 1999, in which they set forth Count Six for the sole purpose of preserving the cause of action and the allegations for possible appeal. Plaintiffs did appeal this case to the Ninth Circuit in David Burrows v. Redbud Community Hospital, 34 Fed. Appx. 363, 2002 WL 857873 (9th Cir. 2002). The status of the case at the time of appeal was as follows:

  On June 17, 1998, Dr. Brewer was dismissed from this case. Order, C-96-4345 SI, at 1-2 (filed July 23, 2003). On March 17, 1999, this Court granted summary judgment in favor of defendant J.J. & R. on the grounds that it was not liable vicariously, directly under statute, or under theories of general negligence. 14. This Court also granted summary judgment in favor of defendant Adventist Health, Inc. on the grounds that it was not liable directly or vicariously. Id. On March 21, 2000, this Court granted summary judgment in favor of defendant Adventist Health, Inc. on the grounds that it did not have successor liability to Redbud Community Hospital. On March 22, 2000, this Court granted plaintiffs' motion for voluntary dismissal of their claims against the Redbud Community Hospital District with prejudice. 14 Plaintiffs no longer had pending EMTALA claims because the remaining defendant, Dr. Schug, is not a "hospital" as defined under EMTALA. 42 U.S.C. § 1395dd. Id. Likewise, plaintiffs no longer had pending § 1317 claims because Dr. Schug is not a "healthcare facility" under thatstatute. However, this Court retained jurisdiction of the remaining state law claims. Id. citing Page 5 Order Den. Defs.' Mot. to Dismiss State Claims, May 8, 2000. The Redbud District settled with plaintiffs for $750,000. Burrows, 34 Fed. Appx. 363, 364, 2002 WL 857873 at * 1. Plaintiffs' settlement with ...

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