Filed 7/28/23 Rhonda S. v. Kaiser Foundation Health Plan CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

RHONDA S.

, as Conservator , etc.

,

Plaintiff and Appellant

,

v.

KAISER FOUNDATION HEALTH

PLAN et al.

,

Defendant s and Respondent s

. B3 1 8650

Los Angeles County

Super. Ct. No. 20STCV 05001

APPEAL from a judgment of the Superior Court of Los

Angeles County. Carolyn B. Kuhl

, Judge. Affirmed.

Kantor & Kantor, Lisa S. Kantor, J. David Oswalt ; Law

Office s of Kathryn Trepinski and Kathryn M. Trepinski for

Plaintiff and Appellant.

Sheppard, Mullin, Richter & Hampton, Moe Keshavarzi

, Robert J. Guite and Matthew G. Halgren f or Defendants and

Respondent s

.

______________ __2 Plaintiff and appellant Rhonda S. is the conservator

, appointed pursuant to section 5350 of the Lanterman

- Petris

Short Act (LPS ; Welf. & Inst. Code, 1 § 5000 et seq.), of her adult

son David S. Plaintiff sue d d efendant s and respondents Kaiser

Foundation Health Plan, Inc. and Kaiser Foundation Hospitals 2

for a declaration of their obligations , under LPS and the terms of

David’s health plan

, to transport and accept for “ assessment and

evaluation ” (each as defined in LPS ) conservatees like David

upon their conservators’ demand

. The trial court sustained

Kaiser’s demurrer . We affirm.

BACKGROUND

Plaintiff and David are enrollee s under an HMO health

plan issued by Kaiser Health Plan. David suffers from

schizophrenia with symptoms of paranoia and psychosis. He

received treatment for his condition from Dr. Nathalie Maullin, a

p sychiatrist practicing at a Kaiser healthcare facility in Los

Angeles’s Chinatown neighborhood

.

Dr. Maullin recommended plaintiff become David’s

conservator. LPS conservatorships may be established only for

persons who are “gravely disabled

. ” (§ 5350. ) A “ g ravely

disabled” person includes one who , “a s a result of a mental health

disorder, is unable to provide for his or her basic personal needs

for food, clothing, or shelter .” (§ 5008, subd. (h)(1)(A).)

1 Undesignated statutory references are to the Welfare and

Institutions Code.

2 We refer to defendants collectively as “ Kaiser. ” Where

necessary to distinguish between them, we refer to Kaiser

Foundation Health Plan, Inc. as “Kaiser Health Plan” and Kaiser

Foundation Hospitals as “Kaiser Hospitals.”3 In September 2018, foll owing a hearing attended by

Dr. Maullin, the Los Angeles County Mental Health C ourt found

David to be gravely disabled and appointed plaintiff his

conservator. The conservatorship order authorized plaintiff to,

among other things, “ transport, or cause another to transport,

[David] to a psychiatric facility designated by the County within

the meaning of

. . . Section 5150, or to a member of the attending

staff of such facility, for purpose of evaluation for intensive

treatment .”

In April 2019, David became suicidal. Plaintiff contacted

David ’ s then

- treating psychiatrist, Dr. Eric L ee, and requested

that David be transported to the Kaiser Chinatown facility to be

admitted and administered psychotropic medication. The

Chinatown facility is a “ facility designated by the county for

evaluation and treatment ” within the meaning of section 5008,

subdivision (n), 3 a designation Kaiser voluntarily sought to obtain

attendant rights and benefits under LPS

. Dr. Lee explained he

was unable to help plaintiff with her request. According to

plaintiff’s allegations, Dr. Lee alluded to a “personal mobile team

that Kaiser used for transport, but he could not access it

, ” and

was unable

, per Kaiser policy, to secure a bed for David under the

circumstances

.

3 The parties us e the term “county designated treatment

facility,” which is not defined in LPS but appears in

section 5358.5. Because plaintiff’s explanation of the process for

becoming a “county designated treatment facility” is the same as

that for becoming a “facility designated by the county for

evaluation and treatment

, ” we understand the parties to use

“county designated treatment facility” as shorthand for “facility

designated by the county for evaluation and treatment

. ” We

follow the parties’ convention

.4 Three days later , Kaiser sent a follow

- up letter to plaintiff

rega rding her requests for “David to be admitted to an inpatient

psychiatric hospital without prior evaluation” and

“ [ t ] ransportation for David to a psychiatric hospital

. ” It

explained these requests had been denied as “not medically

necessary ” because David had not been evaluated by a doctor to

validate plaintiff’s concerns

. The letter noted that plaintiff had

declined Dr. Lee ’s offers of in

- person and telephonic

appointments in the preceding month , and that Kaiser had

suggested that plaintiff “ conside r arranging an evaluation with

the Psychiatric Mobile Response Teams .

. . which can usually

arrive within an hour. ” The letter further recommended “David

present for an evaluation for possible psychiatric hospitalization,”

and that plaintiff call 911 for assistance from “an ambulance or

law enforcement” if she was concerned David would not comply.

Plaintiff alleges she “ did not want to ask for the assistance

of law enforcement because it created a risk of harm to David,

who was suffering from schizophre nia with symptoms of

paranoia.” Her allegations do not address Kaiser’s alternative

suggestion of requesting an ambulance.

After Kaiser sent its follow

- up letter

, “ David continue d to

decompensate until he was ultimately apprehended by police and

placed on a Section 5150 involuntary hold.”

Plaintiff sued Kaiser

, on her own behalf and on behalf of

“[a]ll California residents who, during the C lass P eriod , were LPS

Conservators whose Conservat e es were covered by a health plan

or policy issued by [ Kaiser Health Plan ]

. ” He r operative second

amended complaint “ seeks a declaration that, under [LPS],

[Kaiser Hospitals ] must accept for assessment and evaluation

and

, if necessary, treatment a conservat e e who has been removed5

to one of its county designated treatment facilities by a

conservator pursuant to S ection 5358.5 ” and a further

“declaration that [ Kaiser Health Plan] must provide insurance

coverage for the trans port of the conservat e e to the county

designated treatment facility pursuant to S ection 5358.5 and,

once transported, for the conservat e e ’ s assessment and

evaluation at the Kaiser county designated treatment facility as

required by [LPS].”

The trial court sustained Kaiser’s demurrer to the second

amended complaint. It found plaintiff had failed to adequately

plead any basis for the duties she alleged Kaiser owed her. It

found no such duties could arise under section 5358.5 because

that sec tion “ does not create any rights or obligations of a county

designated treatment facility vis

- [á]

- vi s a conservatee or LPS

conservator.” A nd it found that no such duties could arise under

section 5150 because plaintiff is not a member of the class of

pers ons entitled to subject a person to custody under that

provision

. Finally, the trial court rejected plaintiff’s claim for a

declaration of Kaiser’s obligations to transport a conservatee at

the conservator’s request because the claim was one to “ ‘provide

coverage ,’ not a request for a declaration that Kaiser must comply

with the requirements of the existing contractual agreement for

coverage .” The trial court gave plaintiff the opportunity to file a

third amended complaint. Rather than do so, plaintiff requested

dismissal and filed this appeal.

DISCUSSION

1. Standard of Review

Altho ugh plaintiff acknowledges that a judgment on a

cause of action for declaratory relief is sometimes reviewed for

abuse of discretion, Kaiser argues that our review is de novo. As6

it appears the relevant facts are undisputed and the issues turn

on questions of statutory and contract interpretation, we review

the judgment de novo. ( Cf. Widders v. Furchtenicht (2008)

167 Cal.App.4th 769, 776 [ “ The sustaining of a demurrer on a

cl aim for declaratory relief is generally reviewed for an abuse of

discretion. [ Citation. ] Our review is de novo where the relevant

facts are essentially undisputed and the issue involves statutory

interpretation. ”].)

2

. Declaratory Judgment

Code of Civil Procedure section 1060 provides that a party

to a contract may bring an action to declare the legal rights and

duties of the parties that are in “actual controversy.” ( Ibid. )

Disputed rights and obligations arising by statute are likewise

the proper subject of an action for declaratory relief. (See Bess v.

Park (1955) 132 Cal.App.2d 49, 52 [ “ statutes are inherently

proper subjects of declaratory relief” ].)

The plaintiff must show that an actual controversy exists

involving justiciable questions relating to the rights or

obligations of a party. ( Brownfield v. Daniel Freeman Marina

Hospital (1989) 208 Cal.App.3d 405, 410.) “The ‘actual

controversy’ requirement concerns the existence of present

controversy relating to the legal rights and duties of the

respective parties pursuant to contract [citation]

, statute or

order.” ( Ibid .) “ Where the allegations of the complaint reveal the

controversy to be conjectural, anticipated to occur in the future

,

or an attempt to obtain an advisory opinion from the court, the

fundamental basis of declaratory relief is lacking. ” ( Ibid .)

3. Analysis

We consider plaintiff’s requested declarations against

Kaiser Hospitals and Kaiser Health Plan in turn.7 a. Kaiser Hospitals

Plaintiff first seeks a declarati on that section 5358.5

authorizes an LPS conservator to cause the transport of her

conservatee

, who is enrolled in a Kaiser Health Plan HMO

, to a

Kaiser county

- designated treatment facility without the aid of

law enforcement. Plaintiff asserts in briefing that Kaiser does

not dispute this proposition. In the absence of a dispute

, declaratory relief is inappropriate and we affirm the trial court’s

denial of a declaration as to this issue

. (See Auberry Union

School Dist. v. Rafferty (1964) 226 Cal.App.2d 599, 6 03 [“ Where it

is apparent that the defendant does not actually oppose the

position taken by the plaintiff, there obviously can be no

controversy and there is nothing to be determined by the court. ”];

see also Application Group, Inc. v. Hunter Group, Inc. (1998)

61 Cal.App.4th 881, 893 [ in declaratory relief action where the

defendant “ never really disputed

, and indeed, conceded ” the

plaintiff ’ s interpretation, “ declaratory relief would be

inappropriate ”]

. )

P laintiff says in her reply brief

, “the real question is what

happens when the conservat e e arrives at the Kaiser facility [?] ”

This brings us to p laintiff ’ s second request ed declaration

— that

,

once a Kaiser

- covered conservatee has been transported and

delivered to a Kaiser county

- designated treatment facility, th e

facility is “required to conduct an assessment and evaluation and,

if necessary, placement of the conservatee under the provisions of

[ LPS ].”

Put simply, plaintiff seeks a declaration that she, as a

conservator, has authority under LPS to require Kaiser Hospitals

to evaluate and treat her conservatee simply by delivering him to8

a Kaiser county

- designated treatment facility

. Plaintiff relies

exclusively on section 5150 for this proposition.

Whether LPS imposes the obligations plaintiff claims is a

question of statutory interpretation. W e apply well

- settled rules

of statutory construction to ascertain legislative intent. We look

first to the statutory language and give the words t heir usual and

ordinary meaning. ( Reid v. Google, Inc. (2010) 50 Cal.4th 512,

527.) “ ‘ “The statute’s plain meaning controls the court’s

interpretation unless its words are ambiguous.” ’ ” ( Ibid .) If the

words are ambiguous, we may consider other interpretive tools,

such as the statute’s purpose, legislative history, and public

policy. ( Ibid. )

We must follow the construction that “ ‘ comports most

closely with the apparent intent of the Legislature, with a view to

promoting rather than defeating the general purpose of the

statute, and avoid an interpretation that would lead to absurd

co nsequences. ’ ” ( Chaffee v. San Francisco Library Com . (2004)

115 Cal.App.4th 461, 468.) When possible, we “give effect to the

statute as a whole, including every clause, so that no provision is

rendered useless or meaningless.” ( In re Marriage of Watt ( 1989)

214 Cal.App.3d 340, 352; see also Code Civ. Proc., § 1858.)

S ection 5150

, subdivision (a) provides: “ When a person, as

a result of a mental health disorder, is a danger to others, or to

themselves, or gravely disabled, a peace officer, professional

person in charge of a [ county

- designated treatment facility]

,

member of the attending staff, as defined by r egulation, of a

[ county

- designated treatment facility]

, designated members of a

mobile crisis team, or professional person designated by the

county may, upon probable cause, take, or cause to be taken, the

person into custody for a period of up to 72 hours for assessment,9

evaluation, and crisis intervention, or placement for evaluation

and treatment in a [ county

- designated treatment facility] and

approved by the State Department of Health Care Services. The

72

- hour period begins at the time when the p erson is first

detained. At a minimum, assessment, as defined in

Section 5150.4, and evaluation, as defined in subdivision (a) of

Section 5008, shall be conducted and provided on an ongoing

basis. Crisis intervention, as defined in subdivision (e) of

Sec tion 5008, may be provided concurrently with assessment,

evaluation, or any other service. ”

Kaiser argues plaintiff lacks authority to trigger Kaiser

Hospitals ’ obligations under section 5150, subdivision (a) because

she is not a member of the limited class of persons

— peace officers

and certain designated professionals

— the statute authorizes to

do so. Kaiser also points to the statute’s permissive language

—

that the specifi cally authorized persons “may, upon probable

cause, take

. . . the person into custody for a period of up to

72 hours for assessment, evaluation, and crisis intervention, or

placement for evaluation and treatmen t ” ( ibid. )

— as establishing

that a section 5150 process may be commenced only by a

statutorily designated person in the exercise of their professional

judgment

.

Plaintiff acknowledges the permissive language but notes

the statute contains mandatory language as well. In her reading,

section 5150, subdivision (a)’s penultimate sentence requires a

county

- designated treatment facility

, when a conservat or

presents her conservatee for care, to perform “ [ a ] t a minimum

,

assessment, as defined in Section 5150.4, and evaluation, as

defined in subdivision (a) of Section 5008 ” before making the

decision whether to take the conservatee into custody

.10 Kaiser reason s

, as the trial court did, that the obligations

imposed by the penultimate sentence arise only after the

professional determination has been made to take the patient

into custody. In Kaiser’s view, i f such a decision has not been

made, “ the duty to assess has not been triggered.”

Based on the plain language of section 5150

, subdivision

(a), 4 we agree with Kaiser that the penultimate sentence does not

obligate a county

- designated treatment facility t o perform a

section 5150.4 assessment and section 5008, subdivision ( a )

evaluation of a conservatee merely on his or her conservator’s

demand

. Rather, the se obligation s are triggered only once an

authorized person has exercised his or her professional judgment

,

on probable cause, to take the conservatee into custod y in

accordance with the first sentence of section 5150, subdivision (a).

First, plaintiff’s interpretation of section 5150,

subdivision (a)’s penultimate sentence fails to account for the

word “ongoing.” Plaintiff’s interpretation would requi re Kaiser

Hospitals to assess and evaluate a conservatee “on an ongoing

basis” even in the absence of probable cause for custody and

based solely on the judgment of a lay conservator. ( Ibid .) This

interpretation would lead to absurd consequences. The

obligations of the penultimate sentence can therefore only arise

after an authorized person makes the determination to take

custody of the conservatee pursuant to the first sentence,

whereupon assessment and evaluation are “ongoing” thro ughout

the period of custody of up to 72 hours.

4 Because we find the language of section 5150 unambiguous,

we d eny Kaiser’s motion for judicial notice of certain LPS

legislative history. ( Green v. Laibco, LLC (2011) 192 Cal.App.4th

441, 449 .)11 Second, section 5150, s ubdivision (a) plainly states that

custody may be taken of a person in order to perform an

assessment

. ( Ibid. [authorized persons “may

, upon probable

cause, take

. . . the person into custody for a period of up to

72 hours for assessment

, evaluation, and crisis intervention, or

placement for evaluation and treatment ” (italics added) ].)

Finally, s ection 5150, subdivision (c) does not change the

analysis. That a professional person must “a ssess the person t o

determine whether the person can be properly served without

being detained ” does not mean the person is not in custody at the

time of the assessment. Section 5150, subdivision (c) requires a

professional person to ascertain through “assess[ment]” whether

maintaining custody is appropriate. It does not require

assessment before the person is in custody.

b. Kaiser Health Plan

Plaintiff seeks declaration s “[ t ] hat Kaiser Health Plan is

required to provide coverage under C lass members ’ health plans

for an LPS Conservator ’ s request for ambulance transportation of

his or her c onservat ee to Kaiser county designated treatment

facility for assessment and evaluation

, ” and, “[t]hat once

transported, Kaiser Health Plan is required to provide coverage

under C lass members ’ health plans for the conservat e e ’ s

assessment and evaluation and

, if necessary

, placement at the

Kaiser county designated treatment facility.”

Plaintiff does not assert that Kaiser Health Plan owes any

duty to her or David under LPS. The only source of Kaiser

Health Plan obligations she identifies is David’s health plan. We

agree with the trial court that plaintiff fail ed to establish a right

under the terms of David’s health plan to the declarations she

requests.12 Plaintiff alleges that David’s health plan provides coverage

for ambulance services “if a ‘reasonable person would have

believed that the medical condition was an Emergency Medical

Condition which required ambulance services. ’ ” “ Emergenc y

Medical Condition ” is further defined in the plan and includes

mental health conditions under certain circumstances

. Among

other things, a mental health condition is an “ Emergency Medical

Condition ” when manifested “ by acute symptoms of sufficient

severity ” such that “ [t]he person is immediately unable to provide

for, or use, food, shelter, or clothing

, due to the mental disorder.”

Plaintiff notes that inability to feed, clothe, or shelter oneself due

to a mental disorder amounts to a “grave disability” under LPS

(§ 5008, subd. (h)(1)(A))

, and David was judicially determined to

be gravely disabled when plaintiff was made his conservator.

Plaintiff’s requested declaration that ambulance coverage is

mandatory based solely on a n LPS conservator’s request for the

conservatee’s transport would substantially modify the terms of

David’s health plan.

First, we reject plaintiff’s implication that a n LPS

conservatee is per se suffering from an “Emergency Medical

Condition” at all times following the judicial determination of

grave disability. The purpose s of LPS conservatorship include

providing treatment to the conservatee

. (§ 5350.1.) To assume a

conservatee’s condition remains static foll owing the

conservatorship order is to assume treatment is always

ineffectual. We are offered no basis for such an assumption. For

a mental health condition to be an “Emergency Medical

Condition” under the plan, “ acute symptoms of sufficient

severity” must result in an “immediate” specified danger or

mental health disorder induced disability. Plaintiff’s suggestion13

that a past finding of grave disability results in a perpetual

“ Emergency Medical Condition ” would read these elements out of

the plan. Entitlement to coverage for ambulance service under

David’s plan is measured at the time of the request, not at the

time of a prior judicial order.

Second, even if conservatees were in a state of perpetual

“ Emergency Medical Condition ” within the meaning of the plan,

plaintiff’s request ed declaration would eliminate the coverage

requirement that a “reasonable person would have believed that

the medical condition was an Emergency Medical Condition

which required ambulance services .” (Italics added.) Not every

trip to see a doctor requires an ambulance. Co nsiderations such

as distance

, alternative transportation options

, traffic conditions,

and the character and severity of the medical condition are

relevant to whether an ambulance is required. Indeed, plaintiff’s

allegations reflect that

, at the time of the episode that prompted

her lawsuit

, she did not believe an ambulance was required

. At

best, she believed an ambulance was desirable

, provided it was

sent by Kaiser and not by a 911 dispatcher. This is evident from

the fact that she did not call 911 when her preferred avenues of

obtaining an ambulance were unavailing

, and days passed

between her initial request for an ambulance and when David

was apprehended and placed on a section 5150 hold.

Plaintiff’s last requested declaration

— “[t]hat once

transported, Kaiser Health Plan is required to provide coverage

under C lass members ’ health plans for the conservat e e ’ s

assessment and evaluation and

, if necessary

, placement at the

Kaiser county designated treatment facility”

— is not

substantively addressed in her appellate briefing. We therefore14

deem it forfeited. (See Rodriguez v. County of Los Angeles (2013)

217 Cal.App.4th 806, 809, fn. 5.)

DISPOSITION

The judgment is affirmed

. Defendants are to recover their

costs on appeal.

GRIMES, J

.

WE CONCUR:

STRATTON

, P. J.

VIRAMONTES, J.