Judge Christian R. Gullon, Case Number: 23PSCV00365, Date: 2023-09-20 Tentative Ruling

Judge: Christian R. Gullon, Case: 23PSCV00365, Date: 2023-09-20 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

(1) DEFENDANT HUSSEIN ABIDALI, D.O.'S DEMURRER TO THIRD AMENDED COMPLAINT is SUSTAINED with leave to amend for the sole purpose of modifying the Willful Misconduct COA to a Battery COA.

(2) DEFENDANT HUSSEIN ABIDALI, D.O,'S MOTION TO STRIKE PORTIONS OF THE THIRD AMENDED COMPLAINT is GRANTED without leave to amend, because Plaintiff did not seek leave of court (and the issue was previously addressed).

This is an elder abuse case. Plaintiff EVANGELINE MUNOZ (“decedent” or “Ms. Munoz”), in and through her Successor-In-Interest, Jenny Macias, and JENNY MACIAS allege the following against Defendants CASA COLINA HOSPITAL; CASA COLINA HOSPITAL & CENTERS FOR HEALTHCARE dba CASA COLINA HOSPITAL; CASA COLINA, INC (hereinafter, “Casa Colina”).; JALAL BADDAY, M.D (“Dr. Badday”).; HUSSEIN ABIDALI, D.O (“Dr. Abidali”): Ms. Munoz was a resident of Casa Colina from March 27, 2022 to April 22, 2022 where she was admitted for rehabilitative care following a stroke. Dr. Badday was Ms. Munoz’s attending physician. Due to her poor appetite, Ms. Munoz required one-on-one supervision to ensure she adequately ate. Additionally, Ms. Munoz was to be monitored for a urinary tract infection (“UTI”) and perform bladder scans every six hours. On April 6, 2022, decedent was diagnosed with depression, and prescribed medication, which severely reduced her appetite severely. Thus, Ms. Munoz’s physicians began discussing the possibility of a G-tube insertion due to their concern of her lack of eating. On April 14, 2022, Dr. Abidali performed the G-tube placement, but it was later determined that the tube was improperly place, leading to an infection. After an emergency surgery, Ms. Munoz suffered at least one additional stroke, leading her to become severely impaired and put in a semi-vegetative state, where she remained in a semi-vegetative state until her passing on September 11, 2022.

On September 20, 2023, the court granted Dr. Badday’s motion to abate proceedings (as to the wrongful death COA). That same day, Plaintiffs filed their second amended complaint (SAC) naming Daniel Munoz as a named Plaintiff.[1]

On September 2, 2023, Dr. Badday filed is Reply to Plaintiffs’ opposition to Dr. Badday’s demurrer and motion to strike portions of the FAC.

On November 9, 2023, the court issued the following minute order regarding Hearing on Motion to Strike Portions of First Amended Complaint; Hearing on Demurrer - with Motion to Strike (CCP 430.10); Hearing on Demurrer - with Motion to Strike (CCP 430.10); Case Management Conference; Informal Discovery Conference (IDC): Defendant Casa Colina, Inc., dba Casa Colina Hospital and Centers for Healthcare's Notice of Motion and Motion to Strike Portions of Plaintiff's First Amended Complains is GRANTED. Demurrer of Defendant Jalal Badday, M.D., to Plaintiffs' First Amended Complaint is SUSTAINED without leave to amend. Motion of Defendant Jalal Badday, M.D., to Strike Portions of Plaintiffs' First Amended Complaint is MOOT. Defendant Hussein Abidali, D.O.'s Motion to Strike Portions of Plaintiffs' First Amended Complaint is GRANTED with leave to amend. Defendant Hussein Abidali, D.O.'s Demurrer to First Amended Complaint is SUSTAINED with leave to amend.

On January 10, 2024, Dr. Badday and Casa Colina filed their respective answers. That same day, Dr. Abidali filed the instant demurrer w/a MTS.

On January 12, 2024, the parties filed a ‘STIPULATION TO STRIKE CERTAIN DAMAGES FROM PLAINTIFFS' THIRD AMENDED COMPLAINT AND ORDER THEREON.’

In pertinent part, a demurrer may be asserted on any one or more of the following grounds: (e) The pleading does not state facts sufficient to constitute a cause of action. (Code of Civ. Proc., §430.10.) A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Blank v. Kirwan, (1985) 39 Cal.3d 311, 318.)

Previously, Dr. Abidali demurred to the 1^st (Elder abuse) through 3^rd (willful misconduct) COAs.

In its ruling, the court sustained the demurrer reasoning that an unsuccessful surgery is a medical negligence COA, not one of willful misconduct.

In order to establish willful misconduct, a plaintiff must prove not only the elements of a negligence cause of action, that is, duty, breach of duty, causation, and damage, but also (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril. (Motion p. 5, citing Doe v. United States Youth Soccer Association, Inc. (2017) 8 Cal.App.5th 1118, 1140.) “‘[W]illful misconduct is not marked by a mere absence of care. Rather, it “ ‘ “involves a more positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences.” (Ibid, emphasis added.) “No amount of descriptive adjectives[, adverbs] or epithets may turn a negligence action into an action for intentional or wilful misconduct.” (Motion p. 5, quoting Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 413, quoting Mahoney v. Corralejo (1974) 36 Cal.App.3d 966, 973.)

As Ms. MUNOZ’s surgeon, Dr. ABIDALI failed to provide and ensure that Ms. MUNOZ received basic custodial needs. Dr. ABIDALI failed to protect Ms. MUNOZ from health and safety hazards by puncturing her colon while performing the G-tube surgery and placing the G-tube too tightly on her abdomen. Additionally, Dr. ABIDALI failed to provide medical care by ensuring the surgery went well by performing an ultrasound or x-ray to confirm that there were no issues caused by the surgery. Additionally, prior to surgery, Dr. ABIDALI failed to receive informed consent to perform the G-tube surgery, violating Ms. MUNOZ’s Patient Rights. Once he went forward with the surgery, he willfully committed a battery against her knowing that he did not receive informed consent. The Department of Public Health investigated Ms. MUNOZ’s care and found that Defendants violated Ms. MUNOZ’s Patient Rights by failing to receive informed consent from Ms. MUNOZ’s responsible party prior to surgery. Dr. ABIDALI failed to secure the G-tube correctly, and secured it too tightly to Ms. MUNOZ’s abdomen which he knew would cause leakage of the G-tube feedings and gastric contents onto Ms. MUNOZ’s abdomen. As a result, it was highly probable Ms. MUNOZ would develop cellulitis on the areas of her abdomen exposed to acidic gastric contents. (3AC P128, emphasis and underline added.)

Effectively, the COA is predicated upon two (2) allegations: (1) relating to the surgery itself and (2) battery.

As for the surgery, the court adheres to its analysis in the previous tentative which, essentially stated that failing to perform a successful surgery amounts to medical negligence, not willful misconduct. In fact, as Plaintiffs’ own 3AC alleges, Dr. Abidali allegedly “breached the standard of care,” suggesting medical or professional negligence. (3AC P39.)

Now, Plaintiffs largely focus on post-surgery actions. (Opp. p. 13:1-4 [“This is not a case where a surgeon performed a bad surgery and was unaware of it. Here, there were many symptoms showing something went wrong with the surgery, and instead of conducting further testing to confirm whether it was due to wrong placement of the G-tube, Dr. Abidali chose to ignore them.”], emphasis added.)

But failing to perform mandatory tests (e.g., x-ray) to ensure a procedure went well would still again amount to at most medical negligence (i.e., another physician would have performed a certain test). To the extent that Plaintiff is arguing that Dr. Abidali “chose to ignore” that the surgery went wrong, Plaintiff has conclusively made such an allegation without the ultimate facts to support that conclusion. Plaintiff is not alleging that Dr. Abidali knew that he had to confirm the placement of the G-tube or else Plaintiff would suffer from blood clots from the severe abdominal wound infection and suffer another stroke that left her semi-vegetative. Therefore, absent allegations of intentional conduct to harm Plaintiff, the allegations regarding the performance of the surgery does not amount to willful misconduct.

In the 3AC, Plaintiffs make the new allegation that Dr. Abidali’s alleged failure to receive consent to perform the G-tube surgery amounts to willful misconduct.

In demurrer, Dr. Abidali argues that “a surgery that did not go well and a lack of informed consent is the basis of a medical negligence cause of action, not a willful misconduct cause of action.” (Demurrer p. 6, citing Cobbs v. Grant (1972) 8 Cal.3d 229, 241.) While Defendant’s case citation may be accurate, the case is inapposite as it doesn’t encompass the instant facts (different doctor performing the surgery).

On April 8, 2022, Ms. MUNOZ informed her physicians that she did not want a G-tube. . . On April 11, 2022 . . .Ms. MACIAS was briefed about the G-tube being a temporary option as Ms. MUNOZ continued her recovery, therefore, Ms. MUNOZ agreed to move forward with the G-tube placement with Krishan Malhotra, M.D as the surgeon. On April 13, 2022, Ms. MUNOZ’s G-tube placement was scheduled for 2:00 p.m. the next day. Dr. ABIDALI was scheduled to perform the G-tube placement, at the insistence of Dr. BADDAY, instead of Dr. Malhotra who Ms. MUNOZ and Ms. MACIAS wanted to perform the G-tube placement. Dr. ABIDALI failed to receive consent from Ms. MUNOZ or Ms. MACIAS prior to the surgery. (3AC p. 9, emphasis added.)

In any event, battery and willful misconduct are not the same COAs. Therefore, the court SUSTAINS the demurrer, but only for the limited purpose of changing the COA from willful misconduct to battery.[2]

Section 425.13(a) establishes a procedure for claiming punitive damages in certain cases. It provides, “In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code....” (emphasis added.) “[I]dentifying a cause of action as an “intentional tort” as opposed to “negligence” does not itself remove the claim from the requirements of section 425.13(a).” (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192 (Central Pathology).

Because the claim for punitive damages arises from the provision of medical services, section 425.13 applies, and punitive damages cannot be alleged against Dr. Abidali absent leave of court. (See MTS pp. 7-8.)

Therefore, regardless of whether Plaintiff asserts a battery COA in its fourth amended complaint, the court GRANTS the MTS WITHOUT leave to amend because the Central Pathology argument was raised and addressed in Dr. Abidali’s previous demurrer and was left unaddressed then and remains unaddressed now.

Based on the foregoing, the demurrer is SUSTAINED with leave to amend, and the MTS is GRANTED without leave to amend.

[1] As the SAC’s only change was naming Daniel Munoz as a plaintiff, the court informed the parties they need not file new motions/papers as to the SAC.

[2] Should Plaintiff seek to maintain the willful misconduct COA, leave to amend is DENIED as Plaintiff has not cured the defect despite previous leave to amend and plaintiff failed to meet and confer prior to the filing of this demurrer.