Motion-Secondary: REBECCA CHAMORRO ET AL VS. DIGNITY HEALTH ET AL

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MANATT, PHELPS & PHILLIPS, LLP

BARRY S. LANDSBERG (Bar No. CA 117284)
blandsberg @manatt.com

HARVEY L. ROCHMAN (Bar No. CA 162751)
hrochman @ manatt.com

JOANNA S. MCCALLUM (Bar No. CA 187093)
jmccallum@manatt.com

CRAIG S. RUTENBERG (Bar No. CA 205309)
crutenberg @manatt.com

11355 West Olympic Boulevard

Los Angeles, CA 90064-1614

Telephone: (310) 312-4000 / Fax: (310) 312-4224

MANATT, PHELPS & PHILLIPS, LLP

BARRY W. LEE (Bar No. CA 088685)
bwlee@manatt.com

One Embarcadero Center, 30th Floor

San Francisco, CA 94111

Telephone: (415) 291-7400 / Fax: (415) 291-7474

Attorneys for Defendant
Dignity Health dba
Mercy Medical Center Redding

ELECTRONICALLY

FILED

Superior Court of Caltfornia,
County of San Francisco

01/10/2017

Clerk of the Court
BY:GARY FELICIANO

Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN FRANCISCO

REBECCA CHAMORRO and
PHYSICIANS FOR REPRODUCTIVE
HEALTH,
Plaintiffs,

v.
DIGNITY HEALTH; DIGNITY HEALTH
d/b/a MERCY MEDICAL CENTER
REDDING,

Defendant.

Case No. CGC 15-549626

DEFENDANT DIGNITY HEALTH DBA
MERCY MEDICAL CENTER REDDING’S
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION
FOR JUDGMENT ON THE PLEADINGS

[Filed concurrently with: (1) Notice of Motion;
(2) Request for Judicial Notice; (3) and
Payment for Court Reporter Fee}

Date: February 2, 2017
Time: 9:30 a.m.
Dept.: 302

Hearing Reservation No. 12090202-05

MERCY MEDICAL CENTER REDDING’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT.
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TABLE OF CONTENTS

FACTS ooo
A. Dignity Health.
B. The ERDs and MMCR’s Ste:
Cc. MMCR’s Review Process and Decision .......cccccseccscessesesseensssesenssesseessesessesneseenes
PROCEDURAL HISTORY
LEGAL STANDARD FOR JUDGMENT ON THE PLEADINGS
ARGUMENT... : Saeeaee
A. Plaintiffs Fail to Allege a UCL Claim Based 1 Upon an n Alleged V Violation of

ation Polic

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Section 1258 8
B. Plaintiffs Do Not Allege Economic ic Injury as as a Result of Applicaton 0 of
Socio-Economic Factors Tle TTT sla ledededadedetetatelatorsbel LG

Cc. Plaintiffs Cannot Base a Violation of Section 1258 on the ERDs and the
Sterilization Policy

D. The Court May Not Enter a UCL Injunction Ordering MMCR to Perform
Procedures Prohibited by Hospital Policy.

E. The Court Should Abstain From Adjudicating the UCL Claim
CON CLUSION i vtesetetntststetsscesetadstntatsbstrressesvdesededstetntebstevessssedutedaietetatesshrvessadetstednietstetersta 15

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TABLE OF AUTHORITIES

Page
CASES

Acosta v. Brown,
213 Cal. App.4th 234 (2013)... .ccccccccccescsceceseseessenessseseeseetssseeseesssessssesssenssessissesisensnesseusseeneane 13

Alvarado v. Selma Convalescent Hosp.,
153 Cal.App.4th 1292 (2007).

Angelucci y. Century Supper Club,

a3, 13, 14, 15

Al Cal. Ath 160 (2007) .oeesseecsesssesssesssecsseesseesecesecssessseesessnessnessessusssesssssssesssecssesssssssssnsssessseesseeess
Anton v. San Antonio Comm. Hosp.

19 Cal.3d 802 (1977) 213
Blank y. Palo Alto-Stanford Hospital Center,

234 Cal.App.2d 377 (1965) 12
Cal. Med. Ass'n vy. Aetna U.S. Healthcare of California, Inc.,

94 Cal.App.4th 151 (2001)... cece cesesestessssessesnesnenasessssesessessssesnssesnsseseseesssnsssacesesussnareneaeeseanenee 8

California Medical Association v. Lackner,
124 Cal.App.3d 28 (1981).....

Catholic Charities of Sacramento v. Sup. Ct.,
32 Cal.4th 527 (2004)

Cel-Tech Communications, Inc. v. L.A. Cellular Tel. Co.
20 Cal.4th 163 (1999) ....

Crusader Ins, Co. v. Scottsdale h
54 Cal.App.4th 121 (1997)...

Desert Healthcare Dist. v. PacifiCare FHP, Inc.,
94 Cal. App.4th 781 (2001)... ccssesscsessesesseseresessressereseesessessesensemesbenesseeseesessessesseseseacseenesestoe 13

Diaz v. Kay-Dix Ranch,
9 Cal.App.3d 588 (1970)

Hall v. Time Inc.,
158 Cal. App.4th 847 (2008).....ccccscsecesscsesnessstssesnessseensseeesserassessssresesesssesessetssesssseseeseensserense 10

Hambrick v. Healthcare Partners Med. Grp.,
238 Cal.App.4th 124 (2015)..cccceccesssccecseeeessessesesssesesnsensanssssssesessesseesnereesneesesnseissistsesessuseneenens 14

Harris v. Capital Growth Inv.,
52 Cal.3d 1142 (1991)

Hay v. Scripps Mem. Hosp.-La Jolla,
183 Cal.App.3d 753 (1986)... cecsccececeesesessersiesetenesnesnesessesssssermesieeesseeensnesieseeesssssnseneeree 3

Kwikset Corp. y. Sup. Ct.,
51 Cal.4th 310 (2011)

Co.,

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MERCY MEDICAL CENTER REDDING’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF ITS MOTION FOR SUMMARY JUDGMENTTABLE OF AUTHORITIES
(continued)

Lazzareschi Inv. Co. v. San Francisco Fed. Sav. & Loan As
22 Cal.App.3d 303 (1971).

Lewin v. St. Joseph Hosp. of Orange,
82 Cal.App.3d 368 (1978)..ccscseessseesesesneseseseeseeees

Mateo-Woodburn v. Fresno Community Hospital & Medical Center,
221 Cal. App.3d 1169 (1990)... ec eccecseecesseesesseeseesessecssesesessseenssseesssnssssssesrscsessessnssessaesrereseee 2

Means v. U.S. Conference of Catholic Bishops,
2015 WL 3970046 (W.D. Mich. June 30, 2015), aff'd 836 F.3d 643 (6th Ci

Patane v. Kiddoo,
167 Cal.App.3d 1207 (1985)

Redding v. St. Francis Medical Center,
208 Cal. App.3d 98 (1989)..ccessssssessssesssesvssssesesusssssessesssesssssussssssususssstssssnsssesnasessessasesseensl 2

Saltarelli & Steponovich v. Douglas,
40 Cal. App.4th 1 (1995) ..iecscsessssseessesecsnseresesnserssessessessessseseessessssessssssssessnssessussessecsessscaneeseese

Shuts v. Covenant Holdco LLC,
208 Cal. App.4th 609 (2012)....cccccssessesesssssessesresesesessessererssecsssesnsesessessesenereresresncetsesseseeesase LA:

Stoops v. Abbassi,
100 Cal. App.4th 644 (2002)...csccsesesssssssessseseessssesseneeresseersessssssssssssseesecsissteressnssnssncesssneeneenseneee D

Unnamed Physician v. Board of Trustees of Saint Agnes Medical Center,
93 Cal.App.4th 607 (2001).

Yanting Zhang v. Sup. Ct.,
57 Cal.4th 364 (2013) detetatabebstsrdedededatetetetatetebensidbshtoteiatatatetall I

Bus. & Prof. Code § 17200
Bus. & Prof. Code § 17204..

Cal. Code Regs., Title 22, § JO1O1(C)...ccececssssessessssesessersseesesesssssesssssssesnsnssessssesissnsasseseteeneesarenes 14
Cal. Code Regs., Title 22, § 70108 occ eesresneseeeerssessessesieesecressusseesncesessesssesesseeseeeseeneeseeeraee 14
Cal. Code Regs., Title 22, § TOLD] ..eceececccesseesesstessessesseseessesserssssaneenssnseseeseesessesssssnensesneesenneaserrere 14
Cal. Code Regs., Tithe 22, § 70135(a)..eessssecsseeseesessseeseesseessisssssssecesessuesssesesecasecsseensecaneesseaneesninens 14
Cal. Code Regs., Tithe 22, § 70707.2 .o.cccececesssesessseseseesseseeeerererecenensnsnensssasscaceresessnsnsnansnsnsnaneneneneas 14

(ASG AO SAB arse aca Pb ean sa nnn nts peepee
Code Civ. Proc. § 438(c)..
Code Civ. Proc. § 438(d) .

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Page
Code Civ. Proc. § 438(g)(2) cesecscecesssssessssessesssessssssssssessessesnesesnesestesseensecsesissesensusiteisenanseseseeseeaeee 7
COME Ci APOC GOB Bia cedadadatatt chats bcicededadadalatatabahabdhandadedadatatetatshchchddadad tolabchctalahdlakdedsdatatate 12, 13
Health & Saf. Code § 1258 wiececcesscseseseeeseseseseenevenstesseseeereneneeenanenesnsneneeeseeinarrenenenenenaneees passim
Health & Saf. Code § 1290 .oecccccccccsessscsesesccsseccsssnessnseneseecesnssecseseseseneeeecseeescsesesesesesessaeneceeeneneneenen LA
Health & Saf. Code § 1293 oo... cccccceceeeceeseesesesescseseseeceeeseeetenensnsnsnsnsnensnsneneisasssssseseananeeaneneneneees 14

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L INTRODUCTION

A single cause of action remains in this case: a claim for unfair competition based upon an
alleged violation of Health & Safety Code section 1258 (“Section 1258”). Plaintiffs assert that
Mercy Medical Center Redding (“MMCR’”) applies prohibited nonmedical qualifications to
determine whether to permit a sterilization to proceed at MMCR. That claim fails because the
First Amended Complaint (“FAC”) and judicially noticeable documents establish that MMCR
utilizes only medical qualifications to decide whether to grant an exception to its general ban on
sterilization procedures. Section 1258 only prohibits hospitals that permit contraceptive
sterilization procedures from applying nonmedical factors to deny sterilization procedures when
such factors are not also imposed on individuals seeking other procedures. Section 1258
precludes neither MMCR’s ban on sterilization procedures nor MMCR’s use of medical factors to
grant an exception. Therefore, the claim should be dismissed without leave to amend.

At the hearing on MMCR’s demurrers to the FAC, the Court’s tentative ruling was to
dismiss the entire FAC without leave to amend. However, after substantial argument, the Court
overruled MMCR’s demurrers as to Plaintiff’s fifth cause of action for unfair competition based
upon MMCR’s purported violation of Section 1258, but on a different basis from that alleged in
the FAC. Specifically, in the FAC Plaintiffs alleged that MMCR violated Section 1258 by
applying the Ethical and Religious Directives for Catholic Health Care Services (“ERDs”) and
MMCR’s sterilization policy to restrict sterilizations. (Request for Judicial Notice (“RJN”), Ex.
2, FAC 44.) The Court’s August 31, 2016 Order (“Demurrer Order”) concluded that Plaintiffs
had alleged a UCL claim on a different theory: that MMCR allegedly violated Section 1258 by
applying nonmedical qualifications to determine whether to permit a sterilization as an exception
to the general ban on sterilization. (RJN, Ex. 5, Demurrer Order at 6:15-23.)

The Court’s ruling cited “advanced maternal age” and “grand multiparity” as the
“nonmedical” factors allegedly considered by MMCR in its evaluations of whether to grant an
exception to its general ban on sterilizations.' But as shown by the FAC itself and the documents

' “Grand multiparity” refers to “the condition of a woman who has had five or more previous pregnancies.”
http://www.encyclopedia.com/caregiving/dictionaries-thesauruses-pictures-and-press-releases/grand-

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incorporated therein, “advanced maternal age” and “grand multiparity” are examples of medical
risk factors for uterine rupture during pregnancy or childbirth, potentially weighing in favor of a
sterilization. As a Catholic hospital, MMCR prohibits sterilization unless its sterilization review
committee determines there is a sufficient medical basis to justify the procedure under the ERDs.
MMCR considers advanced maternal age and grand multiparity as factors that may permit a
particular woman to undergo a tubal ligation as an exception to the ban on sterilization. This
review process is clearly permitted by Section 1258.

Section 1258 was enacted to prohibit the “evil” of health providers using “socio-economic
factors” such as “age” and “number of natural children” in a paternalistic fashion to deny
sterilizations to some women if the provider believed that a younger woman with none or few
children would be more likely to later regret having undergone sterilization. See California
Medical Association v. Lackner, 124 Cal.App.3d 28, 37 (1981) (“The ‘nonmedical qualifications’
named in [Section 1258] ~ age, marital status, number of children — unambiguously imply that the
evil in mind is the use of socio-economic factors to determine whether or not permit an individual
to be sterilized”); see Section V(A), infra. Section 1258 has no application to a hospital that
generally bans sterilization for everyone, but makes exceptions where medical risk factors for
uterine rupture exist, including advanced maternal age and at least five prior pregnancies.

Plaintiffs have not alleged that MMCR imposes nonmedical qualifications on patients
seeking sterilization procedures, as required to show a violation of Section 1258. In fact, the FAC
admits just the opposite — that MMCR bans sterilizations in general but does consider medical
factors in determining whether to grant an exception. That is not a violation of Section 1258. As
alleged in the FAC, Dr. James De Soto, MMCR’s Vice President of Medical Affairs and a
member of its sterilization review committee, identified medical factors in response to a request
from Ms. Chamorro’s physician seeking to “learn the exact clinical criteria that MMCR
considers in determining whether to approve a postpartum tubal ligation.” (FAC {{ 59 (emphasis
added).) Dr. De Soto’s response, incorporated by reference into the FAC, makes clear that

MMCR employs medical criteria when deciding whether to permit a tubal ligation. Specifically,

multiparity.
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Dr. De Soto cited to an article in Medscape,” which states that “advanced maternal age” and
“grand multiparity” are specific risk factors for uterine rupture. (RIN, Ex. 12.) Plaintiffs’
UCL/Section 1258 claim based on application of supposed nonmedical factors fails.

As noted, the Court previously declined to allow Plaintiffs to proceed on the theory that
MMCR violated Section 1258 merely by adopting and applying the ERDs. As MMCR argued
previously, any UCL claim based upon the Sterlization Policy or ERDs must be dismissed
because the ERDs are not a qualification to obtain care and they apply to all patients at MMCR.
Section 1258, by its express terms, does not bar qualifications placed upon all patients. Nor does
it prohibit a hospital from declining to perform sterilizations at all. Indeed, California’s Attorney
General has recognized that “private hospitals can refuse to perform sterilizations, as well as
abortions, in their facilities.”

Finally, even if Plaintiffs could articulate a claim under the UCL, the Court nonetheless
should decline to adjudicate the claim for two additional reasons. UCL claims are not proper
vehicles for challenging a hospital’s quasi-legislative policy, which is what Plaintiffs seek to do
here by asking the Court to issue an injunction mandating that MMCR perform procedures in
conflict with its policy. See Lewin v. St. Joseph Hosp. of Orange, 82 Cal.App.3d 368, 384-85
(1978) (“Judges are untrained and courts ill-equipped for hospital administration, and it is neither
possible nor desirable for the courts to act as supervening boards of directors for every nonprofit
hospital corporation in the state”). In addition, courts may abstain from adjudicating UCL claims
when to do so would require the court to assume the functions of an administrative agency.
Section 1258 is a facility-specific hospital licensing statute that is enforceable by the California
Department of Public Health (“DPH”) and local district attorneys. Government, not private,
enforcement of alleged violations of Section 1258 is the most effective and efficient avenue.
Alvarado v. Selma Convalescent Hosp., 153 Cal.App.4th 1292, 1298, 1303-04 (2007) (abstaining

because courts “are not well-equipped” to assume regulatory powers over health care industry).

° “Medscape is the leading online global destination for physicians and healthcare professionals worldwide,

offering the latest medical news and expert perspectives; essential point-of-care drug and disease
nformation; and relevant professional education and CME.” http://www.medscape.com/public/about.
hup://oag.ca.gov/publications/womansrights/chS#5_2.

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As Plaintiffs have failed to allege that MMCR imposes special nonmedical qualifications on
patients seeking tubal ligations at MMCR, Plaintiffs’ FAC should be dismissed without leave to
amend

IL. FACTS

A. Dignity Health,

Dignity Health is a California nonprofit public benefit corporation that operates 24
Catholic hospitals in California, including MMCR. (FAC {ff 4, 19.) Dignity Health is
“committed to furthering the healing ministry of Jesus” by delivering high-quality, affordable
health care services in a, compassionate environment that is attuned to patients’ physical, mental,
and spiritual needs.’ MMCR, a hospital owned and operated by Dignity Health, was established
as Saint Caroline Hospital in 1907 and was acquired by the Sisters of Mercy, one of Dignity
Health’s Sponsoring Congregations, in the 1940s.° MMCR’s mission is to “further[] the healing
ministry of Jesus.”

Dignity Health’s Bylaws provide that Dignity Health is committed to continuing “a
healing ministry based on the life and works of Jesus in the provision of healthcare services... ,”
and that Dignity Health’s Catholic hospitals must follow the ERDs, which are promulgated by the
U.S. Conference of Catholic Bishops. (FAC {f 4, 48-50.) The Bylaws also provide that Dignity
Health’s officers may not facilitate procedures contrary to Catholic teaching. (RJN, Ex. 8.)

B. The ERDs and MMCR’s Sterilization Policy.

As a Catholic hospital, MMCR is bound by the ERDs. (FAC {{ 50, 51.) The ERDs’
purpose is to “‘reaffirm the ethical standards of behavior in health care that flow from the

Church’s teachings about the dignity of the human person’” and “‘to provide authoritative

guidance on certain moral issues that face Catholic health care today.’” Means v. U.S.
Conference of Catholic Bishops, 2015 WL 3970046, at *3 (W.D. Mich. June 30, 2015), aff'd 836

F.3d 643 (6" Cir. 2016). Directive 5 provides that “Catholic health care services must adopt

* Dignity Health, Mission, Vision and Values, https://dignityhealth.org/about-us/our-organization/mission-
yision-and- values, last visited January 9, 2017.

® http://www.dignityhealth.org/mercy- Se onan us/history
7 Mercy Medical Center Redding, Mission. ion and Values, http://www.dignityhealth.org/merey-
redding/about-us/mission-vision- values), last visited January 9, 2017.

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these Directives as a policy, [and] require adherence to them within the institution as a condition
for medical privileges and employment . . . .” (RJN Ex. 7.)

Directive 53 bars direct sterilization procedures. (RIN, Ex. 2, FAC {.49.) “Direct
sterilization of either men or women, whether permanent or temporary, is not permitted... .
Procedures that induce sterility are permitted when their direct effect is the cure or alleviation of a
present and serious pathology and a simpler treatment is not available.” (/d. {| 49 (quoting ERD
53).) Directive 70 prohibits cooperation with direct sterilization: “Catholic health care
organizations are not permitted to engage in immediate material cooperation in actions that are
intrinsically immoral, such as . . . direct sterilization.” (RJN Ex. 7.)

MMCR’s Sterilization Policy adheres to the ERDs. (RJN, Ex. 2, FAC { 52.) The policy
provides that MMCR’s “[mlission is accomplished in accordance with the teachings of the
Roman Catholic Church . . . , and is specifically guided by the [ERDs]. . ..” Therefore, the
policy bars procedures that induce sterility for the purpose of contraception. (RJN, Ex 11.)
Consistent with this policy and with Directive 53, MMCR bans sterilizations, but will consider
requests for sterilizations and permit them when certain medical factors are established.

c. MMCR’s Review Process and Decision.

On September 15, 2015, Dr. Van Kirk sought authorization to perform a tubal ligation on
Ms. Chamorro. (FAC {[ 12; RJN, 13.) On the Request for Sterilization form, in a section titled
“medical indications,” Dr. Van Kirk noted that “the patient desires to have a tubal ligation
performed,” and “the obstetrician requests permission to perform a tubal ligation if the uterine
scar [from her prior Cesarean section] is found to [be] pathologically thin at the time of repeat
Cesarean section, thus placing the patient at risk of a future pregnancy.” (RJN, Ex. 2, FAC { 45.)
On September 18, 2015, MMCR denied the request on the ground that it did not “meet the
requirement of [MMCR’s| sterilization policy or the [ERDs].” (RJN, Ex. 2, FAC { 12.)

On October 6, 2015, Dr. De Soto sent an email to Dr. Van Kirk, referencing their recent
conversation about the “risk factors” that were considered by MMCR in determining whether to
make an exception to its general prohibition and permit sterilization in certain cases. (RJN, Ex, 2,

FAC 459; RIN, Ex. 14.) Dr. De Soto’s email quoted from the Medscape article Uterine Rupture
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in Pregnancy by Gerard G. Nahum, MD, FACOG, which identifies the following risk factors for
uterine rupture, a serious medical complication with a high incidence of fetal and maternal
morbidity: “[cJongenital uterine anomalies, multiparity, previous uterine myomectomy, the
number and type of previous cesarean deliveries, fetal macrosomia, labor induction, uterine
instrumentation, and uterine trauma” as well as “grand multiparty” and “maternal age.” (RIN,
Ex. 12; RJN, Ex. 1, Complaint, 41.) Dr. De Soto’s email also listed additional medical risk
factors for uterine rupture noted in the Nahum article, including “previous scar
rupture/dehiscence, some malpresentations, uterine over distention . . . some abnormal
placentation, medication controlled diabetes mellitus, previous hx of uterine infection, [and]
unknown scar-type.” (RJN, Ex. 1, FAC {.59; RIN, Ex. 2, Complaint {[ 41; RJN, Ex 14.) Dr. De
Soto further noted, “It is the totality of risk factors, including any findings at the time of surgery,
that is important” to whether a tubal ligation is medically indicated. (/d.)

Plaintiffs do not allege that Ms. Chamorro had any of these risk factors. Nor do they
allege that Dr. Van Kirk provided MMCR with any additional medical information regarding Ms.
Chamorro in response to Dr. De Soto’s October 6 email.

MI. PROCEDURAL HISTORY

Plaintiffs filed their FAC on February 29, 2016. As relevant here, the FAC alleged a
fourth cause of action for violation of Section 1258 and a fifth cause of action for violation of the
UCL, Business and Professions Code § 17200. The UCL cause of action expressly alleged that
MMCR violated Section 1258, and hence Section 17200, because it limited sterilizations
performed at the hospital by applying the ERDs and a sterilization policy derived from the ERDs.
(FAC {| 86 and 90.)

MMCR demurred to the FAC on multiple grounds. On August 16, 2016, the Court issued
the Demurrer Order, in which it sustained without leave to amend MMCR’s demurrers to the
Section 1258 cause of action on the ground that Section 1258 does not provide a private right of

action. (Demurrer Order at 5:16-21.) At the hearing, the Court observed that Plaintiffs’

"The article is a review of 133 articles regarding uterine rupture, pregnancy, and prior cesarean sections
published between 1976 and May 2012. (RIN, Ex. 14.)

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“statutory challenge to the ethical directive fails for the reasons [] stated in the tentative.” (RJN
Ex. 5 at 22:12-21.) However, the Court ruled that, construing the allegations of the FAC
liberally, Plaintiffs had alleged a violation of the UCL based on a different theory of a purported

Section 1258 violation:

[M]y rejection of plaintiffs’ fourth cause of action on the grounds that there is no
private right of action under section 1258 does not preclude plaintiffs from stating
a viable 17200 claim based on section 1258... . Paragraphs 23 and 53-61 of the
first amended complaint allege sufficient facts to show that Dignity Health
violated section 1258 because it (1) allows some partum tubal ligations to be
performed at its hospitals and (2) prohibits others from being performed at its
hospitals because the women seeking such procedures do not meet “special
nonmedical qualifications” such as “advanced maternal age” and “grand
multiparity.” ... [Plaintiffs have sufficiently alleged a substantive violation of
section 1258 as a predicate unlawful practice for their section 17200 claim... .

(Demurrer Order at 6:6-23.)°
IV. LEGAL STANDARD FOR JUDGMENT ON THE PLEADINGS

A common law motion for judgment on the pleadings, like a general demurrer, may be
granted when a cause of action fails to allege facts sufficient to state a cause of action. See Stoops
v. Abbassi, 100 Cal.App.4th 644, 650 (2002). The grounds for the judgment must appear on the
face of the complaint or be subject to judicial notice. See Saltarelli & Steponovich v. Douglas, 40
Cal.App.4th 1, 5 (1995). There is no deadline for a nonstatutory motion for judgment on the
pleadings. See Stoops, 100 Cal.App.4th at 650. Alternatively, under Code of Civil Procedure
section 438, the Court may grant a motion for judgment on the pleadings where the complaint
“does not state facts sufficient to constitute a cause of action against that defendant.” Code Civ.
Proc. § 438(c). A statutory motion for judgment on the pleadings, like a general demurrer, tests
the allegations of the complaint, supplemented by any matter of which the trial court takes
judicial notice, to determine whether the plaintiff has stated a cause of action. Angelucci v.
Century Supper Club, 41 Cal.4th 160, 166 (2007); Code Civ. Proc. § 438(d). MMCR did not
previously demur to the FAC on the basis that the allegations identified by the Court in the

Demurrer Order do not state a UCL/Section 1258 claim. See Code Civ. Proc. § 438(g)(2).

* As discussed below, advanced maternal age and grand multiparity are in fact medical factors.

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Vv. ARGUMENT

's Fail to Allege a UCL Claim Based Upon an Alleged Violation of
ction 1258.

The UCL incorporates or borrows other laws and treats violations of those laws as
“unlawful” business practices. Cel-Tech Communications, Inc. y. L.A. Cellular Tel. Co., 20
Cal.4th 163, 180 (1999). But where a plaintiff cannot allege a violation of the “borrowed” law, a
UCL claim for “unlawfulness” fails. See Cal. Med. Ass’n v. Aetna U.S. Healthcare of California,
Inc., 94 Cal.App.4th 151, 169-70 (2001). The crux of Plaintiffs’ UCL/Section 1258 claim as
allowed by the Court is that MMCR allegedly violates Section 1258 by considering a patient’s
advanced maternal age and grand multiparity when evaluating whether to permit a patient to
undergo a sterilization at MMCR. This allegation clearly fails to state a claim for violation of
Section 1258 and therefore of the UCL.

Section 1258 provides in relevant part:

No health facility which permits sterilization operations for contraceptive purposes

to be performed therein, nor the medical staff of such health facility, shall require

the individual upon whom such a sterilization operation is to be performed to meet

any special nonmedical qualifications, which are not imposed on individuals

seeking other types of operations in the health facility. Such prohibited nonmedical

qualifications shall include, but not be limited to, age, marital status, and number

of natural children. (Emphasis added).°
It is clear from the plain language of the statute that it is does not apply to MMCR’s sterilization
policy. Section 1258 applies to hospitals that permit sterilizations but deny them when a patient
does not meet nonmedical criteria. In contrast, Section 1258 does not apply to hospitals, like
MMCR, that generally prohibit sterilizations but may permit them for patients that meet certain

medical criteria.'° “Advanced maternal age” and “grand multiparity” are clinical, medical risk

factors that are appropriately considered in determining whether a tubal ligation is medically

ly, the statute is facility-specific. In this case, it can apply only to MMCR, not to Dignity Health or
all Dignity Health affiliated hospitals. Plaintiffs improperly seek to bootstrap one patient’s request for
sterilization at one health facility in one district into a system-wide attack on Dignity Health, despite the fact
{hat the statute expressly applies to a single health facility.

Plaintiffs contend that all tubal ligations are necessarily for contraceptive purposes. MMCR disagrees,
but in any event this is irrelevant because, regardless of the purpose of the sterilization, Section 1258 does
not prohibit a hospital policy that generally bans sterilization procedures unless certain medical risk factors
are present.

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MERCY MEDICAL CENTER REDDING’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF ITS MOTION FOR SUMMARY JUDGMENTindicated because of the increased potential for uterine rupture.'' Section 1258’s references to
“age” and “number of natural children” as “nonmedical qualifications” relate to the practice of
some health care providers of denying sterilizations to women whom they deemed too young (as
opposed to of “advanced” age) or having too few children (as opposed to at least five
pregnancies), on the theory that younger women with no or few children might later regret having
been sterilized. Considering a woman’s advanced age and large number of prior pregnancies as
factors potentially supporting medical reasons for sterilization is qualitatively different, despite

the similar terminology.

Until 1969, the American College of Obstetricians and Gynecologists endorsed an “age-
parity stipulation,” which required that a woman could not qualify for voluntary sterilization
unless her age multiplied by the number of her children equaled 120.'? As evidenced by Senate
analyses of the legislation that became Section 1258, the statute was passed in order to prohibit
California hospitals from applying the “120-point system”:

As a matter of internal administration, some hospitals and clinics have imposed
certain non-medical criteria (usually as to age and number of children) as
qualifications for voluntary sterilizations. The most common standard in this
regard have been the so-called ““120-point” system under which the patient’s age
times number of present children (30 times 4) must equal 120 or more before the
operation is permitted.

SB 1258 would prohibit the imposition of such non-medical standards for
sterilizations where they are not imposed for other types of operations.

(RJN, Ex. 6.) The legislative history of Section 1258 thus confirms that the statute was not
intended to prevent a Catholic hospital from considering a patient’s medical condition in
connection with a request to permit a sterilization, but rather was intended to prevent hospitals
from applying socio-economic, non-medical factors to prohibit sterilization. See Lackner, 124
Cal.App.3d at 37 (“The ‘nonmedical qualifications’ named in [Section 1258] age, marital status,

" The FAC itself acknowledges that “advanced maternal age” and “grand multiparity” are “clinical
criteria,” when it notes that Dr. De Soto identified these criteria in response to Dr. Van Kirk’s attempt to
ascertain “the exact clinical criteria that MMCR considers in determining whether to approve postpartum
tubal ligations.” (RIN, Ex. 2, FAC §[ 59.) Plaintiffs’ original complaint also admitted that MMCR evaluates
“clinical criteria” including “risk factors for uterine rupture,” and includes the references to “advanced
maternal age” and “grand multiparity” in a longer list of factors, all of which are clearly medical. (RJN, Ex.
1, Complaint {{ 41.) Plaintiffs are bound by pled admi ns in the Complaint that evidence a “fundamental
weakness” in their case. Patane v. Kiddoo, 167 Cal.App.3d 1207, 1213 (1985) (original verified complaint
disclosed statutory bar to action that was not disclosed in amended complaint).

™ hutp://emedicine.medscape.com/article/266799-overview.

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number of children unambiguously imply that the evil in mind is the use of socio-economic
factors to determine whether or not permit an individual to be sterilized.”).

In contrast, it is well-recognized that both advanced maternal age and grand multiparitty
are independent risk factors for certain adverse outcomes in pregnancy including uterine rupture a
potentially fatal condition. (RJN, Ex. 12.) As Dr. Van Kirk was informed, the review committee

is focused upon “risk factors for uterine rupture.” Any request by a patient and his or her
physician for a sterilization procedure must be supported by “medical indications,” or as Plaintiffs
admit, “clinical criteria,” warranting the procedure. (RJN, Ex. 2, FAC J 59; RJN, Exs. 12 and
14.) Thus, Plaintiffs cannot allege a violation of Section 1258 based upon MMCR’s
consideration of factors such as “advanced maternal age” and “grand multiparity” because these
are clearly medical considerations to which Section 1258 does not apply.

Plaintiffs have never alleged that MMCR denied Ms. Chamorro’s request for sterilization
because her age and number of children disqualified her under the 120-point system or because of
any other socio-economic factor. MMCR denied her request because MMCR does not permit
sterilization unless it is medically indicated under its policy. Sterilization was not medically
indicated for Ms. Chamorro.

Of course, even if Section 1258 did apply to MMCR’s consideration of medical criteria in
evaluating requests to permit a sterilization despite the ban, any injunction would be ineffective
because MMCR could simply cease performing any tubal ligation procedures and avoid the
statute altogether. See Health & Saf. Code § 1258 (applying only to facilities that “permit[]
sterilization operations”); see also Catholic Charities of Sacramento v. Sup. Ct., 32 Cal.4th 527,
562 (2004) (religious entity may avoid interference with free exercise by refusing to provide any

pharmaceutical coverage). That would eliminate any purported violation of Section 1258.

B. Plaintiffs Do Not Allege Economic Injury as a Result of Application of Socio-

Economic Factors.

In order to have standing to bring a UCL claim, a plaintiff must allege and then prove that
she suffered economic injury “as a result of the unfair competition.” Bus. & Prof. Code § 17204.

“(T]he phrase ‘as a result of’ in the UCL imposes a causation requirement; that is, the alleged
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unfair competition must have caused the plaintiff to lose money or property.” Hall y. Time Inc.,
158 Cal.App.4th 847, 849 (2008) (sustaining demurrer for failure to plead causation); see also
Yanting Zhang v. Sup. Ct., 57 Cal.4th 364, 372 (2013) (“Standing under the UCL is now limited
to those who have ‘suffered injury in fact and [have] lost money or property as a result of ...
unfair competition”) (citing Bus. & Prof. Code § 17204); Kwikset Corp. v. Sup. Ct., 51 Cal.4th
310, 326 (2011). While the Court previously found that Ms. Chamorro had alleged an economic
injury as a result of the denial of the sterilization procedure, the alleged “unfair competition” at
issue in her surviving UCL claim is not the denial of the procedure, but rather the denial of the
procedure based on application of nonmedical factors in violation of Section 1258.

The FAC does not allege any economic injury “as a result” of the purported violation of
Section 1258 by applying socio-economic factors such as age or number of children. Plaintiffs
know that such factors played no role in MMCR’s evaluation of Dr. Van Kirk’s request for
sterilization on behalf of Ms. Chamorro. Accordingly, Plaintiffs’ UCL/Section 1258 is fatally

defective for this reason as well.

Cc Plaintiffs Cannot Base a Violation of Section 1258 on the ERDs and the
Sterilization Policy.

The Court already rejected Plaintiffs’ UCL/Section 1258 claim to the extent it was based
upon the ERDs and MMCR’s sterilization policy and any such claim must fail. Section 1258
prohibits a hospital from placing “special nonmedical qualifications” on an “individual ... which
are not imposed on individuals seeking other types of operations in the health facility.” Health &
Saf. Code § 1258 (emphasis added). Application of the ERDs is a protected exercise of religion
and a policy applied to all patients. MMCR imposes no special requirements on “individuals”
seeking sterilization procedures. Pursuant to the ERDs, MMCR generally bans sterilizations as
well as other procedures that conflict with its religious principles. As Judge Goldsmith noted in
denying Plaintiffs’ motion for a preliminary injunction, MMCR’s application of the ERDs was
“not placing restrictions or qualifications on the individual. It’s not a qualification because it

applies to everybody.” (RIN, Ex. 3 at 12:14-16.)

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The ERDs apply to every patient that walks through MMCR’s doors. The Dignity Health
Bylaws, the MMCR Bylaws, and the MMCR Rules & Regulations of the Medical Staff all
uniformly provide that all care provided at MMCR shall conform to the ERDs. Thus, all patients,
including those seeking fertility treatments, abortion, or physician-assisted suicide, are subject to
the same qualifications as patients seeking sterilization. Even if the Court were to consider the
ERDs, Plaintiffs cannot prove that sterilization procedures are subject to nonmedical
qualifications that are not imposed on other patients, which is an essential element of a violation
of Section 1258.

D. The Court May Not Enter a UCL Injunction Ordering MMCR to Perform
Procedures Prohibited by Hospital Policy.

Plaintiffs’ FAC asks the Court to “[e]nter a permanent order enjoining Dignity Health
from performing immediate postpartum tubal ligation in its hospitals based on nonmedical
religious directives.” (FAC p. 22 { B.) Such an order would compel a hospital to perform
procedures in direct conflict with a properly promulgated hospital policy and bylaws. It is not the
role of the courts to overseé and second-guess hospital policy. See Lewin, 82 Cal.App.3d at 384-
85 (“Judges are untrained and.courts ill-equipped for hospital administration, and it is neither
possible nor desirable for the courts to act as supervening boards of directors for every nonprofit
hospital corporation in the state.”); Redding v. St. Francis Medical Center, 208 Cal.App.3d 98,
106 (1989) (refusing to intrude on a “hospital’s ability to change its procedures and thus
encroach{] on a hospital’s power to manage and control its legitimate business. . . .”); Blank v.
Palo Alto-Stanford Hospital Center, 234 Cal.App.2d 377, 391-93 (1965) (same). “An important
public interest exists in preserving a hospital’s ability to make managerial and policy
determinations and to retain control over the general management of the hospital’s business.”
Mateo-Woodburn v. Fresno Community Hospital & Medical Center, 221 Cal.App.3d 1169, 1183,
1184 (1990).

Such decisions can only be reviewed by writ of mandate under Code of Civil Procedure
section 1085. The case law establishes that rule-making decisions of a hospital board are

analogous to those of state agencies. As such, challenges to those decisions must be pursued in
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the same procedural manner as is required for challenging quasi-legislative state agency action—
a petition for writ of mandamus under section 1085. Lewin, 82 Cal.App.3d 368, 384 (‘we are
confident the limited judicial review applicable to the quasi-legislative actions of a governmental
administrative agency is also appropriately applied to judicial review of rule-making or policy-
making actions of a nonprofit hospital corporation”); Anton v. San Antonio Comm. Hosp., 19
Cal.3d 802, 816-17 (1977) (“It has long been clear, of course, that section 1085 mandate is
available not only to compel official acts on the part of governmental agencies but also to compel
nongovernmental bodies or officers to perform their legal duties”) (footnotes omitted; emphasis
in original); id. at 816-17 nn. 14, 15 (collecting cases). Thus, a hospital’s quasi-legislative act is
reviewable only by traditional mandamus. Hay v. Scripps Mem. Hosp.-La Jolla, 183 Cal.App.3d
753, 758 (1986) (challenge to hospital policy reviewable by traditional mandamus); Unnamed
Physician v. Board of Trustees of Saint Agnes Medical Center, 93 Cal.App.4th 607, 618, 620-21
(2001) (challenges to bylaws changes are reviewable by traditional mandamus). Plaintiff did not
petition for a mandamus writ as they were required to do.

E. The Court Should Abstain From Adjudicating the UCL Claim.

Finally, California courts often recognize that there are circumstances in which a court
should not adjudicate a UCL claim, even if the claim is adequately pleaded (which is not the case
here). See Desert Healthcare Dist. v. PacifiCare FHP, Inc., 94 Cal.App.4th 781, 795 (2001)
(“[B]ecause the remedies available under the UCL, namely injunctions and restitution, are
equitable in nature, courts have the discretion to abstain from employing them.”); Diaz v. Kay-Dix
Ranch, 9 Cal.App.3d 588, 599-600 (1970) (abstaining based upon federal law and burden of
enforcement). Courts have refused to grant UCL relief where to do so would require the court to
assume the functions of an administrative agency, or where it would be burdensome for the trial
court to monitor and enforce an injunction given the availability of more effective means of
redress, “Judicial abstention is appropriate when granting the requested relief would require a
trial court to assume the functions of an administrative agency, or to interfere with the functions
of an administrative agency.” Alvarado, 153 Cal.App.4th at 1298, 1303-04 (2007) (abstaining

from deciding UCL claim because courts “are not well-equipped” to assume regulatory powers
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over health care industry); see also Acosta v. Brown, 213 Cal.App.4th 234, 245-49 (2013)
(relying on Alvarado in declining to adjudicate claim asking court to enforce compliance with
requirements that should be “devised, monitored and enforced” by an agency); Hambrick v.
Healthcare Partners Med. Grp., 238 Cal.App.4th 124, 149 (2015) (affirming trial court’s decision
to dismiss a case that would require the court to define in the first instance the level of risk that a
medical group could assume before it was required to be licensed under the Knox-Keene Act,
where the Legislature had not defined the standard and the agency had provided no guidance);
Harris vy. Capital Growth Inv., 52 Cal. 3d 1142, 1166, 1168 (1991) (“In the absence of clear
legislative direction, ... we are unwilling to engage in complex economic regulation under the
guise of judicial decisionmaking.”), overruled in part on other grounds; Lazzareschi Inv. Co. v.
San Francisco Fed. Sav. & Loan Ass'n, 22 Cal. App. 3d 303, 311 (1971) (“we remark that the
control of [lender prepayment] charges, if it be desirable, is better accomplished by statute or by
regulation authorized by statute than by ad hoc decisions of the courts. Legislative committees
and an administrative officer charged with regulating an industry have better sources of gathering
information and assessing its value than do courts in isolated cases.”); Crusader Ins. Co. v.
Scotisdale Ins. Co., 54 Cal. App. 4th 121, 138 (1997) (refusing to enact “court-created regulation”
of insurance brokers, explaining that “[i]nstitutional systems . . . are in place to deal with [the
issue]”).!°

Section 1258 is a licensing statute enforced by DPH through its district offices as well as
by the district attorney.'* Health & Saf. Code §§1290, 1293; Cal. Code Regs., tit. 22, § 70135(a).
DPH requires that every hospital have its own license," that the hospital license be renewed on an
annual or biannual basis, and that the hospital be inspected at least every two years, at which
point DPH notifies the hospital of any deficiencies in compliance with licensing statutes and

regulations. Cal. Code Regs., tit. 22, §§ 70101(c), 70103, 70117. DPH has issued regulations

7 Cf. Shuts v. Covenant Holdco LLC, 208 Cal. App. 4th 609 (2012) holding abstention not proper;
distinguishing Alvarado because of evolution of regulatory scheme in the interim, making judicial
gpforcement easier and less intrusive).

Members of the public can easily report alleged violations to the DPH here:
https://hfcis.cdph.ca.gov/LongTermCare/ConsumerComplaint.aspx.
™MMCR operates under license number 230000024.
http://hfcis.cdph.ca.gow/LongTermCare/Facility aspx ?fac=230000010

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governing sterilization procedures. Cal. Code Regs., tit. 22, § 70707.2. DPH is far better
equipped to determine compliance with Section 1258 than the Court. Alvarado, 153 Cal.App.4th
at 1305 (abstaining from UCL claim where licensing statute evidenced legislative intent that
Department of Health Services enforce statute); Diaz, 9 Cal.App.3d at 599 (abstaining in favor of
a “more orderly, more effectual, less burdensome” enforcement scheme). Interpretation and
application of the Sterilization Policy are matters not suited to judicial intervention. DPH has the
power, expertise, and statutory mandate to regulate and enforce Section 1258, and the existing
regulatory scheme provides a more orderly, effective, and less burdensome means of doing so.
VI. CONCLUSION

Plaintiffs’ FAC does not allege a violation of Section 1258 as a matter of law.
Accordingly, the Court should grant MMCR’s motion for judgment on the pleadings and enter

judgment in favor of MMCR.

Dated: January 10, 2017 MANATT, PS & PHILLIPS, LLP

By: AA

i vey L. Rockman ct,
torneys for Defendant Dignity Health dba
ercy Medical Center Redding

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