United States District Court, E.D. California
matter comes before the court again following the tragic
death of young Israel Stinson. Plaintiff is Israel's
mother, Jonee Fonseca. Defendant is Karen Smith, M.D., whom
plaintiff is suing in her official capacity as Director of
the California Department of Health. On August 31, 2016,
defendant filed a motion to dismiss plaintiff's second
amended complaint. ECF No. 68. Plaintiff opposes. ECF No. 70.
On October 7, 2016, the court heard arguments, in which Kevin
Snider appeared on behalf of plaintiff and Ashante Norton
appeared on behalf of defendant. Oct. 7, 2016 Hr'g Mins.,
ECF No. 77. For the reasons stated below, defendant's
motion to dismiss is GRANTED.
requests the court take judicial notice of the following
Exhibit A: documents from the Assembly Health Committee
Analysis of Senate Bill 2004;
Exhibit B: a copy of the Uniform Determination of Death Act
drafted by the National Conference of Commissioners on
Uniform State Laws;
Exhibit C: plaintiff's Ex Parte Petition for a Temporary
Restraining Order/Injunction and Request for Order of
Independent Neurological Exam, filed August 18, 2016, in
Fonseca v. Children's Hospital Los Angeles, Los
Angeles County Superior Court, Case No. BS164387;
Exhibit D: a copy of the Temporary Restraining Order and
Order to Show Cause Re Preliminary Injunction filed August
18, 2016, in Fonseca v. Children's Hospital Los
Angeles, Los Angeles County Superior Court, Case No.
Exhibit E: Order on Ex Parte Application to Dissolve
Temporary Restraining Order filed August 25, 2016, in
Fonseca v. Children's Hospital Los Angeles, Los
Angeles County Superior Court, Case No. BS164387.
Def.'s Req. for Judicial Notice (“RJN”), ECF
legislative history is properly a subject of judicial notice,
Anderson v. Holder, 673 F.3d 1089, 1094 n.1 (9th
Cir. 2012), the court declines to take judicial notice of
Exhibits A and B because they are not relevant to the
court's decision on the pending motion. The court does
take judicial notice of Exhibits C through E, as state court
filings and orders also are properly subjects of judicial
notice, and they are relevant to the court's decision.
See Holder v. Holder, 305 F.3d 854, 866 (9th Cir.
2002) (taking judicial notice of a state court opinion and
briefs filed in that proceeding).
FACTUAL AND PROCEDURAL BACKGROUND
April 1, 2016, Israel Stinson suffered a severe asthma attack
and was taken to Mercy General Hospital, where he was
intubated. Second Am. Compl. (“SAC”) ¶ 6,
ECF No. 64. Israel was eventually transferred to University
of California Davis Medical Center in Sacramento (“UC
Davis”) and admitted to the pediatric intensive care
unit. Id. On April 10, after performing a series of
tests, including a magnetic resonance imaging
(“MRI”) and computed tomography
(“CT”) scan, doctors at UC Davis concluded Israel
had suffered brain death. Id. ¶ 19.
next day, on April 11, Israel was transferred to Kaiser
Permanente Roseville Medical Center - Women and
Children's Center (“Kaiser”). Id.
¶ 20. On April 14, doctors performed further tests that
confirmed Israel had suffered brain death. See Id .
¶¶ 20-23. That day a doctor at Kaiser, Dr. Myette,
filled out and signed a Certificate of Death that declared
Israel deceased, id. ¶ 36, and Kaiser sought to
remove him from life support, id. ¶ 40. Also on
that day, the Placer County Superior Court granted
plaintiff's application for a temporary restraining order
requiring Kaiser to maintain life support. Id.
¶¶ 40-41. After the Superior Court found on April
27, 2016 that Kaiser had satisfied all medical protocols in
determining Israel's death, plaintiff filed this action
in federal court. Id. ¶¶ 41-42; Ex. G,
April 27, 2016 Hr'g Mins., ECF No. 14-8.
April 28, plaintiff's original complaint in this case
named Kaiser and Dr. Myette, alleging violation of, inter
alia, plaintiff's right to privacy as guaranteed by
the Fourteenth Amendment. ECF No. 1. On May 2, the court
heard arguments and granted plaintiff's request for a
temporary restraining order requiring Kaiser to maintain life
support. ECF No. 22.
3, plaintiff filed an amended complaint in which she added as
a defendant Karen Smith, M.D., in her official capacity as
Director of the California Department of Public Health,
alleging, inter alia, defendants violated
plaintiff's right to due process as guaranteed by the
Fifth and Fourteenth Amendments. First Am. Compl.
(“FAC”), ECF No. 29. Plaintiff also sought a
declaration that the California Uniform Determination of
Death Act (“CUDDA”), a statute that defines death
in California, is unconstitutional on its face. FAC Prayer
6, plaintiff filed a motion for a preliminary injunction
against Kaiser, seeking to enjoin Kaiser from removing Israel
from life support pending trial. ECF No. 33. On May 13, the
court issued an order denying plaintiff's motion for a
preliminary injunction; however, the court allowed the
temporary restraining order to remain in place until May 20
to give plaintiff time to appeal. ECF No. 48.
14, plaintiff filed a notice of interlocutory appeal to the
Ninth Circuit. ECF No. 49. On May 20, the Ninth Circuit
stayed dissolution of this court's temporary restraining
order to afford the Circuit time to review the matter. ECF
No. 55. Days later, a medical facility outside the United
States admitted Israel as a patient, SAC ¶ 42, and
plaintiff withdrew her Ninth Circuit appeal, ECF No. 59.
8, plaintiff stipulated to the dismissal of Kaiser and Dr.
Myette as defendants in this case. ECF No. 60. On July 1,
plaintiff filed the operative second amended complaint.
See SAC. Plaintiff's second amended complaint
names only one defendant: Karen Smith, M.D., in her official
capacity as Director of the California Department of Health.
Id. As Director of the California Department of
Health, Karen Smith, M.D., has a supervisorial, regulatory,
and enforcement role over California hospitals, and her
Department issues death certificates. Id. ¶ 4.
The second amended complaint includes five claims, all
stemming from California's definition of death under
CUDDA: (1) Deprivation of Life and Liberty in violation of
Due Process under the Fifth and Fourteenth Amendments (42
U.S.C. § 1983); (2) Deprivation of Parental Rights in
violation of Due Process under the Fifth and Fourteenth
Amendments (42 U.S.C. § 1983); (3) Deprivation of Life
(Cal. Const. Art. I § 1); (4) violation of federal
Privacy Rights (42 U.S.C. § 1983); and (5) violation of
state Privacy Rights (Cal. Const. Art. I § 1).
Id. Plaintiff also seeks a declaration that CUDDA is
unconstitutional on its face and as applied to the facts in
this case. SAC Prayer ¶¶ 2-3.
July 1, the following events have taken place and are
referenced in the motion to dismiss; they also are relevant
to whether plaintiff should be granted leave to amend. On
August 6, 2016, plaintiff transported Israel back to the
United States, where he was admitted to Children's
Hospital of Los Angeles (“Children's
Hospital”). Ex. C, Def.'s RJN at 29, ECF No. 68-3.
On August 16, Children's Hospital informed plaintiff it
intended to remove Israel from life support. Id. at
30. Two days later, the Los Angeles County Superior Court