United States District Court, N.D. California, San Jose Division
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO
DISMISS THIRD AMENDED COMPLAINT RE: DKT. NO. 85
VIRGINIA K. DEMARCHI UNITED STATES MAGISTRATE JUDGE
Kelly Schramm sues Community Hospital of the Monterey
Peninsula (“CHOMP”), its employees, and related
entities for the following: (1) violation of the Emergency
Medical Treatment and Active Labor Act, 42 U.S.C. §
1395dd et seq.; (2) violation of Title III of the Americans
with Disabilities Act, 42 U.S.C. § 12181 et seq.; (3)
violation of section 504 of the Rehabilitation Act of 1973,
as amended at 29 U.S.C. § 794; (4) violation of the
Unruh Civil Rights Act, Cal. Civ. Code §§ 51 et
seq.; (5) intentional infliction of emotional distress; (6)
assault and battery; (7) false imprisonment; and (8)
violation of the Lanterman Petris Short Act (“LPS
Act”), Cal. Welf. & Inst. Code §§ 5000 et
seq. Dkt. No. 84. Defendants CHOMP, Montage Health, James
Montgomery, Kelly Schmidt, Randeep Singh, M.D., and Steven
Packer, M.D. move to dismiss claims 5, 6, and 7 in the Third
Amended Complaint (“TAC”) for intentional
infliction of emotional distress, assault and battery, and
false imprisonment for failure to state a claim pursuant to
Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Dkt. No. 85. In addition, defendants move
to dismiss claims 5, 6, and 7 on the ground that they are
immune from suit under the LPS Act. Finally, defendants move
to dismiss all claims against Dr. Packer.
Court heard oral argument on defendants' motion on April
9, 2019. Dkt. No. 95. Having considered the parties'
briefs and the arguments made at the hearing, the Court
grants in part and denies in part defendants' motion to
dismiss the TAC.
Schramm alleges that in May 2015, she was taken to CHOMP
against her wishes for medical attention following a sexual
assault, where defendants failed to administer a rape kit or
take her rape allegation seriously because they knew she
suffered from bipolar disorder. Dkt. No. 84 ¶¶
34-80. Ms. Schramm describes this behavior as
“diagnostic overshadowing, ” in which mentally
ill patients receive inadequate or delayed treatment on
account of the misattribution of their physical symptoms to
their mental illness. Id. ¶¶ 76-79. After
she concluded that she would not receive the appropriate
medical attention, Ms. Schramm attempted to leave CHOMP to
seek care elsewhere. Id. ¶¶ 80-82. She
says she was not permitted to leave and was instead forcibly
restrained (resulting in additional physical injuries),
administered inappropriate and harmful medication,
catheterized her without her consent, and eventually formally
(and unlawfully) detained pursuant to California Welfare and
Institutions Code § 5150 for three days and two nights.
Id. ¶¶ 84-153. Because defendants did not
administer a rape kit, Ms. Schramm says she was unable to
obtain evidence necessary to pursue criminal charges against
her assailant. Id. ¶¶ 160-161.
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief can
be granted ‘tests the legal sufficiency of a
claim.'” Conservation Force v. Salazar,
646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro
v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). When
determining whether a claim has been stated, the Court
accepts as true all well-pled factual allegations and
construes them in the light most favorable to the plaintiff.
Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681,
690 (9th Cir. 2011). While a complaint need not contain
detailed factual allegations, it “must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is facially plausible when it “allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id.
Defendant Steven Packer, M.D. Defendants move to dismiss Dr.
Packer because Ms. Schramm has not named him as a defendant
under any of the TAC's causes of action. Dkt. No. 85 at
7. Ms. Schramm does not oppose dismissing Dr. Packer. Dkt.
No. 87 at 2. The Court therefore grants defendants'
motion to dismiss Dr. Packer.
Claim 5: Intentional Infliction of Emotional
state a claim for intentional infliction of emotional
distress, a plaintiff must plausibly allege: “(1)
extreme and outrageous conduct by the defendant with the
intent to cause, or reckless disregard for the probability of
causing, emotional distress; (2) suffering of severe or
extreme emotional distress by plaintiff; and (3)
plaintiff's emotional distress is actually and
proximately the result of defendant's outrageous
conduct.” Cline v. Reetz-Laiolo, 329 F.Supp.3d
1000, 1053 (N.D. Cal. 2018) (quoting Conley v. Roman
Catholic Archbishop of San Francisco, 85 Cal.App.4th
1126, 1133 (2000)) (internal quotation marks omitted).
Defendant James Montgomery
argue that the TAC fails to plead sufficient facts supporting
a claim for intentional infliction of emotional distress
against Mr. Montgomery, a security guard at the hospital.
Dkt. No. 85 at 9.
defendants argue that Ms. Schramm does not plead outrageous
conduct by Mr. Montgomery. Whether conduct is outrageous is
“generally a question of fact for the jury.”
Doe v. City & Cty. of San Francisco, No.
C10-04700 TEG, 2012 WL 2132398, at *5 (N.D. Cal. June 12,
2012). Defendants acknowledge that a plaintiff's
susceptibility to emotional distress due to her physical or
mental condition can support a finding of outrageous conduct.
Dkt. No. 89 at 5 (citing Symonds v. Mercury Sav. &
Loan Ass'n, 225 Cal.App.3d 1458, 1469 (1990)). The
relationship between the parties may also affect whether
conduct is deemed outrageous. Outrageous “conduct may
arise from an abuse by the actor of a position, a relation
with the other, which gives him actual or apparent authority
over the other, or power to affect his interests.”
Bundren v. Superior Court, 145 Cal.App.3d 784, 792
(1983) (quoting Restatement (Second) of Torts § 46
(1965)); see also Agrawal v. Johnson, 25
Cal.3d 932, 946 (1979) (“Behavior may be considered
outrageous if a defendant (1) abuses a relation or position
which gives him power to damage the plaintiff's interest;
(2) knows the plaintiff is susceptible to injuries through
mental distress; or (3) acts intentionally or unreasonably
with the recognition that the acts are likely to result in
illness through mental distress.”), disapproved of on
other grounds in White v. Ultramar, Inc., 21 Cal.4th
563 (1999). Additionally, battery performed in the course of
medical care may be sufficient to support a claim for
emotional distress. See, e.g., Nelson v.
Gaunt, 125 Cal.App.3d 623, 645 (1981).
Ms. Schramm says that by the time she arrived at the hospital
she had already been injured, was already extremely
distressed as a result of a sexual assault, and became
further distressed following discriminatory treatment on the
basis of her bipolar status when Mr. Montgomery physically
prevented her from leaving the hospital. Dkt. No. 84
¶¶ 46-94. She says Mr. Montgomery then used
excessive force to body slam her onto a metal table, causing
her further physical injuries, even though her demeanor was
peaceful and non-threatening. Id. ¶¶
Ms. Schramm's circumstances, and the relationship between
Ms. Schramm as a patient and Mr. Montgomery as a security
guard, the allegations of the TAC adequately support her
claim that Mr. Montgomery's conduct was outrageous.
defendants argue that Ms. Schramm does not adequately plead
that Mr. Montgomery intended to cause her emotional distress.
Dkt. No. 85 at 9. Ms. Schramm counters that Federal Rule of
Civil Procedure 9(b) permits a plaintiff to generally plead
intent, which she argues she has done here. Dkt. No. 86 at
14. Defendants argue that Rule 9(b) applies only to
allegations of fraud or mistake, and that Ms. Schramm's
bare allegation that Mr. Montgomery intended to cause
emotional distress fails to satisfy the Twombly/Iqbal
standard. Dkt. No. 87 at 8- 10.
Court has not been able to locate any case law within the
Ninth Circuit applying Rule 9(b) to general allegations of
intent in the context of a claim for emotional distress.
Nevertheless, “[a] plaintiff seeking to recover for
intentional infliction of emotional distress may also
demonstrate that the defendant acted with ‘reckless
disregard of the probability of causing' severe emotional
distress.” Cline, 329 F.Supp.3d at 1053 (quoting
Inland Mediation Bd. v. City of Pomona, 158
F.Supp.2d 1120, 1157 (C.D. Cal. 2001)). Such reckless
disregard may be shown when a defendant “devote[s]
little or no thought to the probable consequences of [her]
conduct.” Id. (quoting KOVR-TV, Inc. v.
Superior Court, 31 Cal.App.4th 1023, 1032 (1995)).
Ms. Schramm alleges that Mr. Montgomery laughed at her while
preventing her from leaving the hospital, butted her backward
with his chest, blocked her from moving around him, and body
slammed her onto a metal gurney, breaking her ribs. Dkt. No.
84 ¶¶ 84-94. The Court finds that these allegations
are sufficient to support an inference that Mr. Montgomery
intended to cause emotional distress or acted with reckless
disregard of the probability of causing emotional distress.
Severe or extreme emotional distress
defendants also contend that Ms. Schramm did not sufficiently
plead that she suffered “severe or extreme emotional
distress.” Dkt. No. 85 at 10. Ms. Schramm alleges that
after she was physically restrained by defendants, including
Mr. Montgomery, she experienced “shock and disbelief,
” “had a severe stress reaction and started
having . . . an asthma attack, ” and “started
yelling for help very loudly.” Dkt. No. 84 ¶¶
93, 102, 115. The Court finds that these allegations are
sufficient to allege severe or extreme emotional distress.
the Court denies defendants' motion to dismiss the
emotional distress claim against Mr. Montgomery.
Defendant Kelly Schmidt
arguments for dismissing the emotional distress claim against
Ms. Schmidt, a nurse at the hospital, track those for Mr.
Montgomery. They contend that Ms. Schramm failed to plead
outrageous conduct by Ms. Schmidt, intent to cause emotional
distress, or sufficiently severe emotional distress. Dkt. No.
85 at 10-11.