Judge: Carolyn M. Caietti, Case: 37-2022-00036224-CU-NP-CTL, Date: 2023-08-04 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 03, 2023

08/04/2023  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Non-PI/PD/WD tort - Other Motion Hearing (Civil) 37-2022-00036224-CU-NP-CTL SONIA ESPINO BY AND THROUGH HER SUCCESSOR-IN-INTEREST AND AS PERSONAL REPRESENTATIVE MARCO ANTONIO ESPINO VS SHARP CAUSAL DOCUMENT/DATE FILED: Joinder to Motion and Supporting Declarations, 02/28/2023

Defendants Nicholas Huynh and Spyros Kamarinos' Demurrer to the First Amended Complaint is OVERRULED.

Defendant Sharp Healthcare's (Joinder) Demurrer to the First Amended Complaint is OVERRULED.

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no 'speaking demurrers'). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) Plaintiffs' FAC alleges Decedent Sonia Espino walked into Sharp Memorial with flu-like symptoms on May 19, 2021, and was diagnosed with COVID. 'Approximately 6 months later, she was dead.' On October 6, 2021, she died 'with a recent history of stage 4 pressure sore, sepsis, kidney failure, compromised hematological and pulmonary systems and zero dignity. She died because Sharp Memorial Hospital's owners, administrators and lead doctors decided it was her time by forcing an involuntary DNR [] upon her – against her wishes and against the wishes of her husband and children.' (FAC, at ¶ 1.) The first cause of action for Dependent Adult Abuse is against Sharp Healthcare (Sharp) and the second and third causes of action for Negligence Through A Survival Action and Wrongful Death, respectively, are against all three defendants.

As an initial matter, Sharp has not provided legal authority authorizing a joinder to Defendants Huynh and Kamarinos' Demurrer. While the Court recognizes there is overlap in the facts and arguments, Sharp seeks relief on a least one additional cause of action, causing it to also file supplemental arguments. (ROA 29 – Sharp's Memorandum; see, Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group, June 2023 Update), at § 9:27.2 ['joinder may not be in order if you have different facts or authorities, or if the relief sought by the moving party would not, on its own terms, benefit your client.'].) This also amounts to two motions being heard on one hearing reservation, which impacts the Court's impacted calendar and case load. Notwithstanding, the Court will consider the Calendar No.: Event ID:  TENTATIVE RULINGS

2941503  43 CASE NUMBER: CASE TITLE:  SONIA ESPINO BY AND THROUGH HER SUCCESSOR-IN-INTEREST  37-2022-00036224-CU-NP-CTL demurrer.

Demurrers for uncertainty under C.C.P. section 430.10(f) are disfavored and granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond. (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 685.) They are strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified in discovery. (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.) Further, a demurrer for uncertainty should be overruled when the facts as to which the complaint is uncertain are presumptively within the defendant's knowledge. (Ibid.) Here, while the FAC is not a model of clarity, there are sufficient facts alleged. In liberally construing the FAC and assuming the truth of the allegations, Defendants Huynh and Kamarinos, 'failed to use ordinary skill and care while SONIA ESPINO incurred decubitis [sic] ulcers due to neglecting to check the flack seal on her buttocks and while SONIA ESPINO was on the ECMO device, including failure to maintain and clean.' (FAC, at ¶ 56.) This is sufficient to apprise Defendants of the claims against them and any ambiguities can be clarified in discovery.

In liberally construing the FAC, resolving inferences in favor of Plaintiffs and assuming the truth of the allegations, it is premature to determine whether the claims are barred by the Federal Public Readiness and Emergency Preparedness Act (PREP Act), 42 U.S.C. §§ 247d-6d, 247d-6e. To start, Defendants did not request judicial notice of any documents but rely on extrinsic evidence. (Eg. ROA 32 – Ex. A, Letter to Thomas Baker [acknowledging the letter 'addresses only whether senior living communities can be 'covered persons' and '[t]o receive PREP Act immunity, the covered person must satisfy other requirements of the PREP Act and the Secretary's declaration under the Act'; and, further, the letter 'is not a final agency action or a final order. Nor does it bind HHS or the federal courts. It does not have the force or effect of law.']; Ex. B, Advisory Opinion [including similar language at page 5]; Ex. C, Enforcement Policy for Extracorporeal Membrane Oxygenation and Cardiopulmonary Bypass Devices During the Coronavirus Disease 2019 (COVID-19) Public Health Emergency).) Rather, the FAC alleges Defendants neglected to check the flack seal on her buttocks and, while on the ECMO device, failed to maintain and clean it. (FAC, at ¶ 56; see also, FAC, ¶ 41.) Further, despite the decedent and her family's refusal to sign a Do Not Resuscitate and request to keep the decedent alive, Defendants 'refused and instead decided that they would provide comfort care only and not resuscitate her or take any advanced measures to keep Sonia alive.' (FAC, at ¶ 34.) Taken as a whole, and based on these allegations, it cannot be determined whether immunity authorized by the PREP Act applies.

The Court also notes Defendants do not demur on the grounds of subject matter jurisdiction.

For these reasons, the demurrer is OVERRULED in its entirety.

Defendants are ordered to file and serve an answer by August 18, 2023.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final order.

Defendants Huynh and Kamarinos are also ordered to serve notice of the Court's final order on all appearing parties by August 8, 2023, unless all parties submit on the tentative ruling or waive notice at the hearing.

Plaintiff and Defendants Huynh and Kamarinos are reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of their motion paperwork.

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