Notice RulingCal. Super. - 6th Dist.May 24, 2018ta ea~ m al we + ae ~ EIA ov 1" L3 K ch~~ a 0 g Jonquil L. Whitehead, Esq., SBN 302277 Ryan M. Williams, Esq., SBN 323249 HALL PRANGLE & SCHOONVELD, LLC 111 N. Market St., Ste. 300 San Jose, CA 95113 (408) 995-3200 - Office (760) 692-4450 - Facsimile 3 iwhiteheadShnslaw.om rwilliamsShoslaw.corn Attorneysfor Defendant Regional Medical Center ofSan Jose 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA 9 LAWRENCE HASHA, ELENA HASHA, CASE NO. 18-CV-328673 First Amended Complaint filed: 08/17/18 11 Plaintiffs, vs. NOTICE OF RULING ON DEFENDANT REGIONAL MEDICAL CENTER OF ARASH PADIDAR, PAUL CIPRIANO, SAN JOSE'S DEMURRER AND 14 EDDY TANG, ABBOTT, REGIONAL MOTION TO STRIKE MEDICAL CENTER OF SAN JOSE, SAINT JUDE MEDICAL, INCORPORATED, MINIMALLY INVASIVE SURGICAL SOLUTIONS MEDICAL CORPORATION, TERUMO MEDICAL CORPORATION, and DOES I - 100 18 Defendants. 20 zi TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 22 PLEASE TAKE NOTICE that on October 3, 2019, Defendant REGIONAL MEDICAL 23 CENTER OF SAN JOSE'S Demurrer and Motion to Strike Portions of the Second Amended 24 Complaint was heard at 9:00 a.m., in Department 2 at the above-captioned Court. zs /// 28 /// ZT /// 38 /// NOTICE OF RULING ON DEFENDANT REGIONAL MEDICAL CENTER OF SAN IOSE'S DEMURRER AND MOTION TO STRIKE Page 1 Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/28/2019 1:53 PM Reviewed By: R. Tien Case #18CV328673 Envelope: 3576031 A copy of the signed Order is attached hereto as Exhibit A. Dated this &day of October, 2019. HALL PRANGLE lk SCHOONVELD, LLC 10 Jonquil L. Whit h ad, Esq. S 302277 Ryan M. Willi, Esq., S N 23249 1-IALL PRANG & SCH NVELD, LLC 111 N. Market St., Ste. 300 San Jose, CA 95113 Attorneys for Defendant Regional Medical Center ofSan Jose 12 13 14 17 19 20 21 22 73 26 27 28 NOTICE OF RULING ON DEFENDANT REGIONAL MEDICAL CENTER OF SAN lOSE'S DEMURRER AND MOTION TO STRIKE Page 2 Case Name: Lawrence Hasha, et al. v. Regional Medical Center of San Jose, et al. Santa Clara County Superior Court Case No. 18-CV-328673 DECLARATION OF SERVICE I hereby declare as follows: I am, and was at the time of service of the papers referred to herein, over the age of eighteen (18) years, not a party to the action, and employed in the County of San Diego, State of California. My business address is 1902 Wright Place, Suite 160, Carlsbad, CA 92008. I caused to be served the following document(s): NOTICE OF RULING ON DEFENDANT REGIONAL MEDICAL CENTER OF SAN JOSE'S DEMURRER AND MOTION TO STRIKE of which THE ORIGINAL DOCUMENT OR A TRUE AND CORRECT COPY is attached hereto, addressed to each such addressee respectively as follows: CJ «u0 0 0 ztz 0 0 zrz trz 1- oR g zr- ztz uu LJ vz0 j Z & aa ei n i 10 12 13 16 16 17 18 19 20 21 22 23 'z4 26 26 27 28 Stephen K. Rose, Esq. P.O. Box 29393 San Francisco, CA 94129 Attorneyfor Plaitztiffs Elspeth V. Hansen, Esq. MAYER BROWN, LLP 2 Palo Alto Square, Suite 300 3000 El Caznino Real Palo Alto, CA 94306 Attorneysfor Defendants ABBOTT, Soinl Jude ttIedical, Inc. and Terutno Medkcal Corporation Bradford J. Hinshaiv, Esq. HINSHAW, MARSH, STILL & HlNSHAW 12901 Saratoga Ave. Saratoga, CA 95070 Auorneysfor Defendazzt Paul Ci priano James Zenere, Esq. SHEUERMAN, MARTINI, TABARI, ZENERE & GARVIN 1033 Willow Street San Jose, CA 95125 Auorneysfor Defendants Arash Padidar and Mi zzi zzzally Invasive Surgical Solutions Medical Corp. 0 BY FACSIMILE: I caused said document(s) to be transmitted by facsimile transmission. The name(s) and facsimile machine telephone number(s) of the person(s) served are set forth above. The sending facsimile machine properly issued a transmission report confirming that the transmission was complete and without error. CI BY OVERNIGHT MAIL: I caused said document(s) to be deposited in a box or other facility regularly maintained by an express service carrier providing overnight delivery in an envelope or package designated by the express service carrier with delivery fees paid or provided. Aaron T. Schultz, Esq. Galloway, Luccese Everson & Picci 2300 Contra Costa Blvd., Ste. 350 Pleasant Hill, CA 94523 Attorneysfor Defetzdazzt Eddy Tazzg 2 g g BY U.S. MAIL: I placed each sealed, prepaid envelope for collection and mailing at 90 Wright Place, Suite 160, Carlsbad, CA 92008. I am readily familiar with the business practice for collection and processing of correspondence for mailing with the United States Postal Service pursuant to which practice the correspondence will be deposited with the United States Postal Service this same day in the ordinary course of business. NOTICE OF RULING ON DEFENDANT REGIONAL MEDICAL CENTER OF SAN lOSE'S DEMURRER AND MOTION TO STRIKE Page 3 CI BY ELECTRONIC SERVICE: I e-served such document(s) through the Court's e- Filing system to the person(s) listed above. BY PERSONAL SERVICE: I hand-delivered such document(s) to the person(s) 3 served hereunder. I declare under penalty of perjury foregoing is true and correct. 5 Executed on October'019. 6 under the I s of the State of Califogi that the A7 la Clark C3 o aa z) O aar ct a7 a7 Y c7 gZ C c «7 LI a7 o X0 ~ a7 = 10 12 13 14 16 17 18 19 70 71 27 23 26 76 77 28 NOTICE OF RULING ON DEFENDANT REGIONAL MEDICAL CENTER OF SAN JOSE'S DEMURRER AND MOTION TO STRIKE Page 4 EXHIBIT AHI I F I LE 0 OCT k 0 2D19 BY I 'v 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 12 LAWRENCE HASHA, et aL, 13 14 15 Plaintiffs, Case No. 18-CV-328673 ORDER RE: DEMURRER AND MOTION TO STRIKE ARASH PADIDAR, et al., 17 18 Defendants, 20 The demurrer and motion to strike by defendant Regional Medical Center of San Iose 21 ("RMCSJ") came on for hearing before the Honorable Mark H. Pierce on October 3, 2019, at 22 9.00 Lm. in Department 2. The matters having been submitted, the Court finds and orders as 23 fi glows: 24 Factual and Procedural Background 25 This action by plaintiffs Lawrence Hasha ("Lawrence") and Elena Hasha ("Elena") 26 (&AIllectively, "Plaintiffs") arises out of interventional radiology procedures performed on 27 ORDER RE: DEMURRER AND MOTION TO STREE I Liwrence by various doctors over the course of two days in March 2017.'Second Amended 2 Complaint {"SAC"), $'JJ FR-2, FR-5, IT-1, & GN-I.) Plaintiffs allege that they did not consent to 3 tl e procedures, they were misled as to who would conduct the procedures, and the doctors failed 4 t& adequately treat and obtain care for Lawrence, (IaL at $'JJ FR-2, FR-3, FR-4, IT-1, &. GN-I.) As 5 a result, Plaintiffs suffered injuries. (Id. at gtJ 11, FR-6, IT-I, & GN-I.) Plaintiffs further allege 6 tl at they were injured by defective Angio-Seal devices that were used in the procedures. (Id at 7 $'J Prod. L-1-Prod. L-7.) 8 Based on the foregoing allegations, Plaintiffs filed the operative SAC against numerous 9 d:fendants, including RMCSJ, alleging causes ofaction for: (1) fraud; (2) violation of the 10 Consumers Legal Remedies Act ("CLRA"); (3) products liability; (4) battery; (5) breach of 11 fiduciary duty; (6) negligence; (7) elder abuse and neglect; {8) negligence; and (9) negligent 12 ii Xliction of emotional distress ("NIED"). 13 On June 25, 2019, RMCSJ filed the pending demurrer and motion to strike. Plaintiffs 14 fi led papers in opposition to the demurrer and motion to strike on September 20, 2019. On 15 September 25, 2019, RMCSJ filed reply papers in support of its demurrer and motion to strike. Discussion 17 I Demurrer 18 RMCSJ demurs to the first, second, fourth, fifth, sixth, seventh, and ninth causes of 19 a:tion of the SAC on the grounds ofuncertainty and failure to allege facts sufficient to constitute 20 a cause ofaction. (See Code Civ. Proc., g 430.10, subds. (e) & (f).) 21 A. Legal Standard 22 'he function ofa demurrer is to test the legal suQiciency of a pleading. (Trs. Ot'Capital . 23 F%olesale Elec. Etc. Fund v. Shearson Leltman Bros. (1990) 221 Cal.App.3d 617, 621.) 24 onsequently, " '[a] demurrer reaches only to the contents of the pleading and such matters as 25 y be considered under the doctrine ofjudicial notice'citation]." (HilItop properties, Inc. v. 26 ate (1965) 233 Cal.App.2d 349, 353; see Code Civ. Proc., (j 430.30, subd. (a).) " 'It is not the 27 'unction of a demurrer to test the truth of the ... allegations [in the challenged pleading] 28 't times, the Court refers to the parties by their first names for purposes ofclarity. (Sao Rubenstein v, Rnbenstein (.'!000) 81 Cal&pp.4th 1131, 1136, fo. 1.) ORDER RE: DEMURRER AND MOTION TO STRIKE 1 oj the accuracy with which [the plaintifl] describes the defendant's conduct.....'Citation.] 2 Thus, ... 'the facts alleged in the pleading are deemed to be true, however improbable they may 3 b . [Citation.]'Citations.j" (Align Technology, Inc. v. Tran (2009) 179 Cal.App,4th 949, 958.) 4 owever, while "[aj demurrer admits all facts properly pleaded, [it does] not [admit] 5 c ntentions, deductions or conclusions of law or fact." (George v. Automobile Club ofSouthern 6 alifornia (2011) 201 Cal.App.4th 1112, 1120.) 7 B. Uncertainty 8 RMCSJ demurs to the first, second, fourth, fifth, sixth, seventh, and ninth causes of 9 action on the ground ofuncertainty. 10 "[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so 11 incomprehensible that a defendant cannot reasonably respond." (Iickiss v. Financial Industry 12 Reg. Authority (2012) 208 Cal.App.4th 1125, 1135; Ehoury v. IvIaly's ofCal., Inc. (1993) 14 13 C aLApp.4th 612, 616 ["A demurrer for uncertainty is strictly construed, even where a complaint 14 ii in some respects uncertain, because ambiguities can be clarified under modem discovery 15 procedures."].) 16 RMCSI's memorandum ofpoints and authorities is devoid ofany argument identifying a 17 sl&ecific aHegation in the SAC that RMCSJ contends is uncertain, ambiguous, and/or 18 ujntefiigible. (See Fenton v. Grove!and Community Services Dist. (1982) 135 Cal.App,3d 797, 19 839 ["failure to specify the uncertain aspects ofa complaint will defeat a demurrer based on the 20 g rounds ofuncertainty"] overruled on other grounds by Eatzberg v. Regents ofUniversity of 21 C'alifornia (2002) 29 CaL4th 300, 328, fn. 30.) 22 Furthermore, the arguments set forth in RMCSJ's memorandum ofpoints and authorities 23 pertain to PlaintifFs'urported failure to allege sufhcient facts to state a cause ofaction. It 24 a ppears that RMCSI misunderstands the nature ofuncertainty as a ground for demurrer. The law 25 is settled that "[a] special demurrer for uncertainty is not intended to reach the failure to 26 incorporate sufficient facts in the pleading but is directed at the uncertainty existing in the 27 allegations already made." (Butler v. Sequiera (1950) 100 Cal.App.2d 143, 145-146.) 28 ORDER RE: DEMURRER AND MOTION TO STRIKE 1 Accordingly, RMCSJ's demurrer to the first, second, fourth, fifth, sixth, seventh, and 2 n nth causes ofaction on the ground ofuncertainty is OVERRULED. 3 C. Failure to State a Claim 1. First and Second Causes of Action 5 RMCSJ argues, among other things, that the first cause ofaction for &aud and the second 6 rinse of action for violation of the CLRA fail to plead sufficient facts establishing that its alleged 7 omduct caused Plaintiffs'amages. (Mem. Ps. k, As., p. 4:3-6.) 8 This argument is well-taken. Causation is an element ofboth causes of action. (See Lasar 9 v, Super. Ct. (1996) 12 Cal.4th 631, 638 ["The elements of &aud, which give rise to the tort 10 a:tion for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); 11 {ii) knowledge of falsity (or 'scienter'); {c) intent to de&aud, i.e., to induce reliance; (d) 12 jietifiable reliance; and (e) resulting damage."]; see also Hale v. Sharp Healthcare {2010) 183 13 Cal.App.4th 1373, 1386 [" 'Reliefunder the CLRA is specifically limited to those who suffer 14 d image, making causation a necessary element ofproof." [Citation.] Accordingly, "plaintifls in s 15 CLRA action [must] show not only that a defendant's conduct was deceptive but that the 16 deception caused them harm." 'Citation.]"].) The claims, as alleged against RMCSJ, are 17 edicated on the allegation that RMCSJ staffmembers falsely represented to Plaintiffs that 18 defendants Paul Cipriano ("Cipriano") and Eddy Tang ("Tang") were vascular surgeons. (4AC, 19 $ ( FR-2-FR-5.) Plaintiffs allege that as a result of the misrepresentation, they allowed Ciprisno 20 and Tang to perform open vascular surgery on Lawrence's right leg. (Id., at $ FR-5.) Plaintiffs 21 f Irther allege that because of their reliance on the alleged misrepresentation, Lawrence suffered 22 "suffered right leg ischemia, arterial occlusion, compartment syndrome, rhabdomyolysis, 23 24 25 ecrosis, and an above the knee amputation ofhis right leg." (Id at $ FR-6.) But Plaintiffs do not lead any facts demonstrating that allowing Cipriano and Tang to perform open vascul'ar surgery used Lawrence's physical injuries. Thus, Plaintiffs have not pleaded sufficient facts to state a 26 claim for &aud or violation of the CLRA. 27 ORDER RE: DEMURRER AND MOTION TO STRIKE I Accordingly, RMCSJ's demurrer to the first and second causes ofaction on the ground of 2 fi ilure to allege facts sufficient to constitute a cause ofaction is SUSTAINED, with 90 days' Ie ave to amend. 4 2. Fourth, Fifth, and Sixth Causes of Action 5 RMCSJ argues that the Court should sustain its demurrer to the fourth cause ofaction for 6 b ittery, fifth cause ofaction for breach of fiduciary duty, and the sixth cause ofaction for 7 nsgligence because those causes of action are duplicative of the eighth cause of action for 8 nsgligence. (Mem. Ps. & As., pp. 4:7-8:27.) 9 However, even assuming for the sake ofargument that the fomth, fifth, and sixth causes 10 of action are duplicative of the eighth cause ofaction, the fact that a cause ofaction is 11 d iplicative is not a ground on which a demurrer may be sustained. (Blicbnan Turbts LP v. MF 12 Lowntown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 890 (Blicbnan); see Tracjone Wireless, 13 IIic. v. Los Angeles County (2008) 163 Cal.App.4th 1359, 1368 [indicating same]; see also Code 14 C iv. Proc., g 430.10 [setting forth the grounds for demurrer].) While some cases indicate that 15 dIrplicative causes ofaction "may be disregarded" or stricken (see e.g. Ponce-Bran v. Trustees of 16 C af State Univ. (1996) 48 Cal.App.4th 1656, 1658, Careau haft Co. v. Security Pacific Business 17 C'redit, Inc. (1990) 222 Cal.App.3d 1371, 1395, and Bionghi v. Metropolitan Water Dist. ofSo. 18 C'alifornia (1999) 70 Cal.App.4th 1358, 1370), the Sixth District Court ofAppeal has found that 19 d uplicativeness "is the sort ofdefect that, if it justifies any judicial intervention at all, is 20 ' y dealt with most economically at trial, or on a dispositive motion such as summary 21 j dgment" (Blicbnan, supra, 162 Cal.App.4th atp. 890; see also Gus v. Bechtel National, Inc. 22 ( 000) 24 Cal.4th 317, 349-350 [on a motionfor summaryjudgment the California Supreme 23 ourt stated that "where breach of an actual term is alleged, a separate implied covenant claim, 24 ed on the same breach, is superfluous"]). This Court follows the Sixth District's guidance and 25 eclines to sustain the demurrer on this basis.2 (See McCallum v. McCallum (1987) 190 26 The Court acknowledges the Fourth District has affirmed decisions by lower courts sustaining demurrers to licaiive causes ofaction. (Ptdttt Springs Villas Ii Homeowners Assn v. Parttt (2016) 24S Cal&pp 4th 26S, 290, 2g g Award Metals, Inc. v. Super. Ct. (1991) 22S CaLApp.3d 1128, 1135 (Award Metals) [finding cause ofaction d[edj nothing to the complaint by way of fact or theory."].) Yet, RMCS3 does not cite these decisions or discuss soundness of their reasoning and applicability here. (See e.g., AwardMetals, supra, 228 Cal.App.3d at 1135 nnnuu uc ousttmuvu sun stnvrAu TA sTRIKR I C al.App.3d 308, 315 [as a practical matter, a superior court ordinarily will follow an appellate 2 o sinion emanating from its own district].) 3 Accordingly, RMCSJ's demurrer to the fourth, fifth, and sixth causes ofaction on the 4 g:ound of failure to allege facts sufficient to constitute a cause ofaction is OVERRULED. 3. Seventh Cause of Action 6 RMCSJ argues that the seventh cause of action for elder abuse and neglect fails to state a 7 c aim because Plaintiffs do not allege that it failed to provide medical care, only with the care 8 provided was delayed and substandard. (Mem. Ps. Bc As., p. 9:1-10:22.) RMCSJ contends that 9 nsglect ofan elder in the context of the performance ofmedical services only occurs when there 10 is a failure to provide medical care. (Ibid) RMCSJ also asserts that Plaintiffs have not pleaded 11 f; tcts establishing that it acted with recklessness, malice, oppression, or engaged in fraudulent 12 c mduct in commission of the alleged neglect. (Ibid.) 13 Welfare and Institutions Code section 15657 provides in part that where it is proven by 14 c lear and convincing evidence that a defendant is liable for physical abuse or neglect ofan 15 elderly or dependent adult, and that the defendant has been guilty ofrecklessness, oppression, 16 f aud, or malice in the commission ofthis abuse, the plaintiff is entitled to heightened remedies. 17 (iVelf. dt Inst. Code, tI 15657; Delaney v. Baker {1999) 20 CaL4th 23, 27.) "Neglect" means 18 either of the following: (1) the negligent failure of any person having the care or custody of an 19 elder or a dependent adult to exercise that degree ofcare that a reasonable person in a like 20 I osition would exercise; or (2) the negligent failure of an elder or dependent adult to exercise 21 t mt degree of selfcare that a reasonable person in a like position would exercise. (Welf. 8c Inst. 22 ('ode, g 15610.57, subd. (a).) "Abuse" means, among other things, battery as defined in Penal 23 Itode section 242. {Welf. db Inst. Code, i'l 15610.63, subd. (b).) A battery is any willful and 24 r nlawful use of force or violence upon the person ofanother (Pen. Code, tl 242), and includes 25 [tolding demurrer lies to duplicative cause of action], citing itodriguer v. Campbell Industries (1978) 87 CaLApp 3d 4 94, 498 [holding trial coutt properly sustained demurrer without leave to amend to cause of action "combin[ingl aU t1tc preceding causes, alleging they are joint snd concurrent causes ofplaintifts'amages" because it was not s 27 r eognizcd cause ofaction].) Accordingly, the Court will not follow these decisions. 28 nnncn uc ncMr tnncn sNn Mnssnw TA sTRtxn 1 medical procedures performed without the patient's consent {Valdez v. Percy {1939) 35 2 C tLApp.2d 485, 491; Dennis v. Southard (2009) 174 Cal.App.4th 540; 544). 3 Here, RMCSJ's argument fails to dispose of the seventh cause of action in its entirety. As 4 eturently pleaded, the seventh cause of action alleges that RMCSJ both neglected and physically 5 al iused Lawrence. (SAC, pp. 11 & 20.) As is relevant here, RMCSJ allegedly physically abused 6 qd battered Lawrence by performing medical procedures on him "with no consent whatsoever." 7 (I d, at p. 20.) Because RMCSJ's argument on demurrer only addresses the claim to the extent it 8 is predicated on allegations ofneglect and does not address the claim to the extent it is predicated 9 o:t allegations ofphysical abuse and battery, RMCSJ has not shown that the seventh cause of 10 action fails to allege facts sufficien to state a claim for elder abuse. (See PHII, Inc. v. Super. Ct. 11 (j 995) 33 Cal.App.4th 1680, 1682 [a demurrer cannot be granted as to only a portion ofa 12 c. aim].) 13 Accordingly, RMCSJ's demurrer to the seventh cause ofaction on the ground of failure 14 to allege facts sufllcient to constitute a cause of action is OVERRULED. 15 4. Ninth Cause of Action 16 RMCSJ argues that the ninth cause of action for NIED fails because Elena was not 17 c sntemporaneously aware of the causal connection between the allegedly negligent conduct and 18 tlute resulting injury to Lawrence. (Mem. Ps. & As., pp. 10:23-12:10.) RMCSJ contends that 19 P lalntiffs fail to demonstrate that Elena was present at the scene of the injury-producing event at 20 tl &e time it occurred and simultaneously aware that it was causing injury to Lawrence. (Ibid.) 21 NIED "is a form of the tort of negligence, to which the elements ofduty, breach of duty, 22 c tusation and damages apply." (Huggins v. Lori gs Drug Stores California, Inc. (1993) 6 Cal.4th 23 124, 129.) A plaintiffmay state a claim for NIED as either a bystander or a direct 24 victim. (g'ooden v. Raveling (1968) 61 Cal.App.4th 1035, 1037.) A claim for NIED based on a 25 bystander theory may be stated when "the plaintiffwas not physically impacted or injured, but 26 i tstead witnessed someone else being injured due to defendant's negligence." (Ibid.) A plaintiff 27 s sserting a claim based on a bystander theory must allege he or she was "present at the scene of 28 t te injury-producing eventat the time it [occurred] and [was] then aware that it [caused] injury to I tbe victim." (Fortman v. Fttrvaltningsbolaget Insulan AB (2013) 212 Cal.App.4th 830, 832, 2 ci Rng Thing v. La Chusa (1989) 48 CaL3d 644, 667-68.) 3 As RMCSJ persuasively argues, there are no facts alleged in the ninth cause ofaction 4 demonstrating that Elena was aware that that the injury-producing event was causing injury to 5 L Iwrence at the time the event was occurring. Plaintiffs merely allege that RMCSJ "so 6 negligently mistreated and delayed the treatment of [Lawrencej within the immediate presence oi 7 [I liens] during and between multiple medical procedures ... as to cause [Lawrence ]" to suffer 8 physical injuries, and "[Elena] suffered severe emotional distress while directly witnessing her 9 hitsband [Lawrence*s] ischemic deterioration, injury, and suffering, during the negligent delay 10 r& suiting from his mistreatment by [RMCSJ], and other injuries and infections." (SAC, p. 13.) 11 Thus, Plaintiffs have not pleaded sufficient facts to state a claim for NIED. 12 Accordingly, RMCSJ's demurrer to the ninth cause of action on the ground of failure to 13 allege facts sufficient to constitute a cause of action is SUSTAINED, with 90 days'eave to 14 aInend. 15 II. Motion to Strike 16 RMCSJ moves to strike Plaintiffs'equest for punitive damages under Civil Code section 17 3 194. 18 A. Legal Standard 19 Under Code of Civil Procedure section 436, a court may strike out any irrelevant, false, 20 o r improper matter inserted into any pleading or strike out all or part of any pleading not drawn 21 or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. 22 P roc., $ 436.) The grounds for a motion to strike must appear on the face of the challenged 23 pleading or &om matters ofwhich the court may take judicial notice. (Code Civ. Proc., f 437, 24 s sbd. (a).) In ruling on a motion to strike, the court reads the pleading as a whole, all parts in 25 tl teir context, and assuming the truth of all well-pleaded allegations. (See Turman v. Turning 26 Eoint ofCentral California, Inc. (2010) 191 CaLApp.4th 53, 63 (Turman), citing Clauson v. 27 ~'uper. Ct. (1998) 67 Cal.App.4th 1253, 1255.) '8 nanRR RR. nRMIIRRRR ANDMOTION TOSTRKE 1 B. Punitive Damages 2 RMCSJ move to strike Plaintiffs request for punitive damages pursuant to Code ofCivil 3 P&ocedure section 425.13 which states, in relevant part: In any action for damages arising out of the professional negligence of a health 5 care provider, no claim for punitive damages shall be included in a complaint or 6 other pleading unless the court enters an order allowing an amended pleading that 7 includes a claim for punitive damages to be filed. The court may allow the filing 8 ofan amended pleading claiming punitive damages on a motion by the party 9 seeldng the amended pleading and on the basis of the supporting and opposing 10 affidavits presented that the plaintiffhas established that there is a substantial 11 probability that the plaintiffwill prevail on the claim pursuant to Section 3294 of 12 the Civil Code. 13 A motion to strike is the proper vehicle for attacking a complaint which unilaterally 14 p.eads a claim for punitive damages in violation ofCode of Civil Procedure section 425.13. (See 15 Cooper v. Super. Ct. (1997) 56 Cal.App.4th 744 (Cooper); see also Cryolife, Inc. v. Super. Ct. 16 {)003) 110 Cal.App.4th 1145 (Cryo1ife).) 17 "To determine what actions require compliance with the pleadings procedure of section 18 415.13, the courts will look to whether the injury for which damages are sought is directly 19 related to the professional services provided by the health care provider." (Cryolife, supra, 110 20 C al.App.4th at p. 1157.) "An action for damages arises out of the professional negligence ofa 21 . th care provider if the injury for which damages are sought is directly related to the 22 Pofessional services provided by the health care provider. Thus, if a claim is 'directly related'o 23 tl &e professional services rendered by a health care provider, section 425.13 applies." {Cooper, 24 s rpra, 56 Cal.App.4th at p. 748; internal citations and emphasis omitted.) 25 27 28 The applicability of section 425.13 does not depend upon technical pleading distinctions between intentional versus negligent tort theories. Identifying a cause ofaction as an 'intentional tort's opposed to 'negligence'oes not itself remove the claim &om the requirements of section 425.13. Instead, the allegations that r enmo um. ncaa&uvuv own MnvrnN vn omnia 1 identify the nature and cause ofa plainti6"s injury must be examined to determine 2 whether each is directly related to the manner in which professional services were 3 provided. Thus a claim ofbattery predicated on treatment exceeding or different 4 from that to which a plaintiffconsented is governed by section 425,13, a claim of 5 ~ fraud in communication of test results is covered, a claim of intentional infliction 6 ofemotional distress arising fiom the rendition ofprofessional services is 7 covered, a claim of falsification ofmedical findings and conspiracy to deprive a 8 patient ofworkers'ompensation benefits is covered, and a claim that a hospital 9 allowed two hospital employees to rape a patient is covered. 10 (id., at p. 749, internal citations and punctuation omitted.) 11 In opposition, Plaintiffs appear to concede that most of their claims require compliance 12 w th Code of Civil Procedure section 425.13 because their alleged damages are directly related 13 to the professional services provided by RMCSJ. {Oppn., p. 1:19-3:18.) Plaintiffs contend that 14 th:y are, nonetheless, entitled to punitive damages because the seventh cause ofaction alleges a 15 claim for elder abuse and neglect. (Ibid) Plainfiffs assert that Code of Civil Procedure section 16 425.13 does not apply to such a claim. (Ibid.) 17 RMCSJ appears to agree that Code of Civil Procedure section 425.13 does not apply to 18 th: seventh cause of action. (Reply, p. 2:7-3:20.) Instead, RMCSJ argues that the seventh cause 19 of action fails to state a viable cause ofaction because Plaintiffs do not plead facts establishing 20 neglect. {Jd, at p. 3:4-9.) This argument lacks merit because, as explained above, the seventh 21 cause of action is also predicated on allegations ofphysical abuse, 22 RMCSJ further argues that Plaintiff's request for punitive damages fails to the extent it is 23 pr xlicated on the seventh cause of action because "the allegations in Plaintiffs'AC ... are 24 based on the theory ofrespondent superior" and the SAC does not comply with subdivision (b) 25 of Civil Code section 3294. (Reply, p. 3:14-20; Mem. Ps. dt As., p. 5:21-27.) This argument is 26 nc t well-taken. Civil Code section 3294, subdivision (b) provides that a request for punitive 27 s against a corporation must allege that an officer, director, or managing agent of the 28 cJrporation was either personally responsible for the allegedly despicable conduct or that an 10 ARAFR Ru'. iiRMIiaaRR AMA MATfAM TA sTRIKa I of ficer, director, or managing agent of the corporation: (I) had advance knowledge of the 2 d& spicable conduct and consciously disregarded it; or (2) authorized or ratified the despicable 3 cr nduct. (See Civ. Code, $ 3294, subd. (b).) Plaintiffs expressly allege that some of the doctors 4 w so allegedly battered and physically abused Lawrence, defendants Arash Padidar ("Padidar") 5 qd Paul Cipriano ("Cipriano"), were managing agents of RMCSJ and acting within the scope of 6 thtir agency. (SAC, pp. 'l l, 14, ik 20.) This allegation satisfies Civil Code section 3294, 7 si bdivision (b). 8 Finally, RMCSJ asserts that the request for punitive damages fails because Plaintiffs do 9 ni&t allege any specific facts demonstrating that it acted with oppression, malice, or &aud. {Mem. 10 P &. P. As., pp. 4:4-27; Reply, p. 3:9-13.) RMCSJ contends that Plaintiffs simply provides 11 c»nclusory allegations that its conduct was malicious, oppressive, and fraudulent. (Ibid.) 12 "In order to state a prima facie claim for punitive damages, a complaint must set forth the 13 e,'ements as stated in the general punitive damage statute, Civil Code section 3294. These 14 tutory elements include allegations that the defendant has been guilty ofoppression, &aud, or 15 malice, 'Malice's defined in the statute as conduct 'intended by the defendant to cause injury to 16 de plaintiff or despicable conduct which is carried on by the defendant with a willful and 17 c mscious disregard of the rights or safety ofothers.'Oppression'eans despicgble conduct that 18 s ibjects a person to cruel and unjust hardship in conscious disregard of that person' 19 r. ghts. 'Fraud's 'an intentional misrepresentation, deceit, or concealment ofa material fact 20 known to the defendant with the intention on the part of the defendant of thereby depriving a 21 person ofproperty or legal rights or otherwise causing injury.' (Turma», supra, 191 22 &',al.App.4th at p. 63, internal citations omitted.) 23 "In determining whether a complaint states facts sufficient to sustain punitive damages, 24 t ie challenged allegations must be read in context with the other facts alleged in the complaint. 25 .. urther, even though certain language pleads ultimate facts or conclusions of law, such language 26 &chen read in context with the facts alleged as to defendants'onduct may adequately plead the 27 c vil motive requisite to recovery ofpunitive damages." {See Mo»ge v. Super. Ct. (1986) 176 28 (M.App.3d 503, 510.) n»na» RE: nEMIIRRER AND MOTION TO STRIKE I Here, Plainnffs allege that Padidar and Cipriano physically abused Lawrence in violation 2 ot Welfare and Institutions Code sections 15610.57, 15610.63, and 15657 "by assaulting and 3 bsttering him while performing medical procedures on him with no consent whatsoever." (SAC, 4 p. 20.) Padidsr and Cipriano "substituted their own closed endovascular procedures for the 5 re luisite open vascular surgery" even though they "knew that [Lawrence] needed a vascular 6 sutgeon to perform timely open vascular surgery on his acutely occluded and emergently 7 is&,hemic right leg in order to save the leg trom tissue necrosis and amputation." (Id., at pp. 14 &, 8 20.) They "knew that a delay in open vascular surgery was highly likely to cause [Lawrence] to 9 lo: e his right leg." (Ibid.) Padidar's and Cipriano's conduct "delayed the open vascular surgical 10 trt atment of [Lawrence's] emergently ischemic and acutely occluded right leg for several hours, 11 beyond the golden hours during which his right leg could have been saved, and thereby 12 pr &ximately caused [Lawrence] to suffer right leg compartment syndrome, rhabdomyolysis, 13 ne +osis, above the knee amputation ofhis right lower extremity, and all of the other damages 14 complained ofherein." (Ibid) 15 Padidsr's and Cipriano's alleged physical abuse of Lawrence, in and of itself, was not 16 frt udulent and, therefore, Plaintiffs have not established the element of Iraud. Moreover, their 17 co»duct was not intended to cause Lawrence injury. Thus, PlaintifFs have not established the 18 eh,ment ofmalice to the extent it requires an intent to harm. For Plaintiffs to otherwise establish 19 thc element ofmalice or the element ofoppression, Plaintiffs must allege facts showing that the 20 sll aged misconduct was despicable. Despicable conduct has been described as conduct that is "so 21 vi] e, base, contemptible, miserable, wretched or loathsome that it would be looked down upon 22 an I despised by ordinary decent people." (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 23 Ct LApp.4th 306, 331 (Mock); Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.) Here, it 24 ca mot be said that Padidar's and Cipriano's alleged conduct-performing "closed endovascular 25 pr»cedures" instead ofhaving a vascular surgeon perform "open vascular surgery"-constitutes 26 co sduct that is "so vile, base, contemptible, miserable, wretched or loathsome that it would be 27 lo& &ked down upon and despised by ordinary decent people." (Mock supra, 4 Cal.App.4th at p. 28 331.) Thus, Plaintiffs fail to establish the elements ofmalice and oppression. ORDER RE: DEMURRER AND MOTION TO STRIKE 1 Accordingly, RMCSJ's motion to strike Plaintiffs'equest for punitive damages is 2 G RANTED, with 90 days'eave to amend. 5 0;tober 2019 oculo 20]9 Mark H. Pierce Judge of the Superior Court 10 12 13 14 15 17 18 19 20 21 22 23 25 26 27 28 ORDER RB: DEMIIRRBR AND MOTION TO STRKE
