Donorovich-Odonnell v. Harris

Decision Date29 October 2015
Docket NumberD068758
CourtCalifornia Court of Appeals Court of Appeals
PartiesChristy Lynne DONOROVICH–ODONNELL et al., Plaintiffs and Appellants, v. Kamala D. HARRIS, as Attorney General, etc., et al., Defendants and Respondents.

241 Cal.App.4th 1118
194 Cal.Rptr.3d 579

Christy Lynne DONOROVICH–ODONNELL et al., Plaintiffs and Appellants,
Kamala D. HARRIS, as Attorney General, etc., et al., Defendants and Respondents.


Court of Appeal, Fourth District, Division 1, California.

Filed 10/29/2015

O'Melveny & Myers, John Kappos, Newport Beach, Dimitri Portnoi, Jason A. Orr, Los Angeles; Horvitz & Levy, Jon B. Eisenberg, Oakland, Barry R. Levy, Dean A. Bochner, Encino; Arnold & Porter, Jerome B. Falk, Jr., San Francisco, Adam J. Kretz; and Kevin Díaz for Plaintiffs and Appellants.

Kamala D. Harris, Attorney General, Kathleen Kenealy, Chief Assistant Attorney General, Julie Weng–Gutierrez, Assistant Attorney General, Niromi W. Pfeifferand Darrell W. Spence, Deputy Attorneys General, for Defendant and Respondent.

Manning & Kass, Ellrod, Ramirez, Trester, Eugene P. Ramirez, Los Angeles, and Darin L. Wessel, San Diego, for Defendant and Respondent Jackie Lacey.

John F. Whisenhunt, County Counsel (Sacramento), Krista C. Whitman and June Powells–Mays, Deputy County Counsel, for Defendant and Respondent Ann Marie Schubert.

Thomas E. Montgomery, County Counsel (San Diego), and Thomas E. Bunton, Deputy County Counsel, for Defendant and Respondent Bonnie Dumanis.

194 Cal.Rptr.3d 582


241 Cal.App.4th 1124

Most states, including California, do not classify suicide or attempted suicide as a crime. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1373, 112 Cal.Rptr.2d 620(Ryan N.).) Most states, however, including California, impose criminal liability on a person aiding and abetting suicide. (Cruzan v. Director, Missouri Dept. of Health (1990) 497 U.S. 261, 280, 110 S.Ct. 2841, 111 L.Ed.2d 224; Ryan N., at p. 1374, fn. 4, 112 Cal.Rptr.2d 620.) Penal Code section 401, in effect since 1873, provides: “Every person who deliberately aids, or advises, or encourages another to commit suicide, is guilty of a felony.”1The crime is punishable by a state prison term of 16 months, two years, or three years (§ 18, subd. (a); Ryan N., supra, 92 Cal.App.4th at p. 1374, fn. 4, 112 Cal.Rptr.2d 620), and a fine of up to $10,000 (§ 672).

On appeal, plaintiffs contend section 401is inapplicable to physician aid-in-dying because prescribing a lethal dose of drugs a patient may or may not have filled or take is not direct participation in suicide and, in any event, the legislative history of section 401shows the Legislature never intended that section 401apply to a person furnishing the means of suicide. Alternatively, plaintiffs contend section 401as applied to physician aid-in-dying violates the state constitutional right to autonomy privacy. (Cal. Const., art. 1, § 1.)

On October 5, 2015, Governor Jerry Brown signed the End of Life Option Act, which authorizes a terminally ill patient with the capacity to make medical decisions to request a prescription for a lethal dose of drugs, insulates a prescribing physician from criminal liability, and sets forth rigorous procedures and safeguards to protect against abuse. (Assem. Bill No. 15 (2015–2016 2d Ex. Sess.) § 1 (Assembly Bill 15).)2The parties agree Assembly Bill 15 does not render the appeal moot because it will likely not become effective in time to benefit plaintiffs, particularly Christy Lynne Donorovich–Odonnell, given her life expectancy,3and the measure's future is uncertain because opponents have filed paperwork with the Attorney General to challenge it by referendum on the state ballot in 2016.

We have great compassion for plaintiffs, but we conclude their statutory and constitutional arguments lack merit. We agree with defendants that physician aid-in-dying, and attendant procedures and safeguards against

241 Cal.App.4th 1125

abuse, are matters for the Legislature. We affirm the judgment for defendants entered after their demurrers to the complaint were sustained.


Plaintiffs Donorovich–Odonnell, Elizabeth Antoinette Melanie Gobertina Wallner, and Wolf Alexander Breiman, are all terminally ill. Donorovich–Odonnell, who

194 Cal.Rptr.3d 583

resides in Santa Clarita, suffers from stage IV adenocarcinomaof the left lung, which has metastasized to her brain, liver, spine, and rib. At the time of the complaint's filing in May 2015, her estimated life expectancy was less than six months. She is morphineintolerant and cannot benefit from many of the most common and effective forms of pain management. Wallner, who resides in Sacramento, has stage IV colon cancer, which has metastasized to her liver and lung. Breiman, who resides in Ventura, has multiple myeloma, a blood cancer.

Donorovich–Odonnell, Wallner, and Breiman are competent adults who “desire the option of a peaceful death without suffering, and they want [a]id-in-[d]ying to be an option in their end-of-life health care.” They “all want to live,” but “accept their terminal prognoses.” Having a prescription for a lethal dose of drugs “they could self-administer if their suffering became too great in the final days would provide great comfort to them and would alleviate some anxiety related to the dying process.”

Plaintiff Lynette Carol Cederquist, M.D., resides in San Diego. She is board certified in hospice and palliative medicine and internal medicine. In addition to being a medical school clinical professor, she regularly treats patients and advises them on end-of-life options. She does not provide aid-in-dying because she fears prosecution under section 401. If such treatment were lawful in California, “she would be willing to write a prescription for medication to terminally ill, competent adults who, at their own discretion, could exercise the option to self-administer the drug.” She considers aid-in-dying “a compassionate and ethical choice in appropriate circumstances,” and believes some of her terminally ill patients would choose that option.

In May 2015, plaintiffs brought an action in San Diego County Superior Court for declaratory and injunctive relief. Defendants are public officials with the power of criminal prosecution: Kamala D. Harris, Attorney General of California; Jackie Lacey, District Attorney for Los Angeles County; Ann Marie Schubert, District Attorney for Sacramento County; and Bonnie Dumanis, District Attorney for San Diego County.

241 Cal.App.4th 1126

The complaint sought a judicial declaration that section 401is inapplicable to physicians who provide the option of aid-in-dying to terminally ill, competent adults who request such aid. It also sought an injunction permanently prohibiting defendants from prosecuting physicians “who provide advice and write a prescription for [lethal] medication” under such circumstances. The complaint alleged that as applied to physicians providing aid-in-dying to terminally ill patients, section 401violates state constitutional rights of privacy and liberty (Cal. Const., art 1, § 1); free speech (Cal. Const., art. 1, § 2); and equal protection (Cal. Const., art. 1, § 7). The court granted plaintiffs' request for trial preference.

Attorney General Harris and District Attorney Lacey separately demurred to the complaint, and District Attorneys Schubert and Dumanis joined in Harris's demurrer. At the July 2015 hearing on the demurrers, the court stated: “[T]he first point I want to make is what is not on the table here today. This is not a case about the right to die. In California, suicide is legal. It's not illegal to take one's own life. There is constitutional authority that's settled law that a patient can decline treatment even if that ... results in the patient's death. So that's really not an issue. Whether the plaintiff [s] ... can travel to a state that allows assisted suicide

194 Cal.Rptr.3d 584
is also] ... not an issue. Clearly they can.”

The court characterized the issue as “whether there is a constitutional right to have an assisted suicide with concomitant immunity to the assisting party.” The court determined that under established precedent, Donaldson v. Lungren (1992) 2 Cal.App.4th 1614, 4 Cal.Rptr.2d 59(Donaldson), Washington v. Glucksberg (1997) 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772(Glucksberg), and Vacco v. Quill (1997) 521 U.S. 793, 117 S.Ct. 2293, 138 L.Ed.2d 834(Vacco), there is no such right. The court believed the issue was for the Legislature, and “the answer is not to declare a statute [section 401], which is clearly constitutional, unconstitutional.” The court granted the demurrers without leave to amend.

Judgment for defendants was entered in August 2015. This appeal followed, and we granted in part plaintiffs' request for calendar preference.



Standard of Review

A demurrer is intended to test the sufficiency of a complaint as a matter of law, and thus we independently review a judgment sustaining a demurrer without leave to amend. (

[241 Cal.App.4th 1127

Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420, 13 Cal.Rptr.3d 766.) “We assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law. [Citation.] It is error for the trial court to sustain a demurrer if the plaintiff has stated a cause of action under any...

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  • Kligler v. Attorney General
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    • December 19, 2022
    ...implicit in State Constitution do not "remotely hint[ ] at" right to physician-assisted suicide); Donorovich-Odonnell v. Harris, 241 Cal. App. 4th 1118, 1139, 194 Cal.Rptr.3d 579 (2015) (rejecting argument that terminally ill patients have privacy interest in assisted suicide); People v. Ke......
  • People v. Simmons
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    ...did not present a developed argument on this point until his reply brief, the argument is untimely. (Donorovich-Odonnell v. Harris (2015) 241 Cal.App.4th 1118, 1141, 194 Cal.Rptr.3d 579 ; In re Luke H. (2013) 221 Cal.App.4th 1082, 1090, 165 Cal.Rptr.3d 63.) In any event, as we explain, it i......
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