Judge: Frank M. Tavelman, Case: 23BBCV00088, Date: 2024-06-14 Tentative Ruling

Case Number: 23BBCV00088    Hearing Date: June 14, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER & MOTION TO STRIKE

MP:     Steven Taback M.D. and Erik Sitker M.D. (Defendants)

RP:     Mary Baghikian & the Estate of Sarkis Baghikian (Plaintiff)

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS:

Mary Baghikian and the Estate of Sarkis Baghikian (Plaintiffs) bring this action against Providence Health, Providence Saint Joseph Medical Center (collectively Providence), Jarod Michael Keller, M.D., Jilbert Issai, M.D., Dr. Steven Taback (Taback), Dr. Erik Sitker (Sitker), Dr. Conrad, Dr. Harris, Vanessa Nicole Ybarra, R.N., Gilead Sciences, Inc., Veklury, and Genentech Inc. Plaintiff allege that Sarkis Baghikian (Decedent) was a Providence patient who was treated for Covid-19. Plaintiffs allege that Decedent was given medication for Covid-19 and intubated against his will, resulting in his eventual death.

Plaintiffs’ Complaint states 14 causes of action: (1) Wrongful Death-Negligence, (2) Wrongful Death-Negligent Supervision, (3) Intentional Infliction of Emotional Distress, (4) Negligent Infliction of Emotional Distress, (5) False Imprisonment, (6) Discrimination, (7) Strict Products Liability, (8) Products Liability-Failure to Warn, and (9) Premises Liability.

Taback and Sitker (hereinafter Moving Defendants) now demur to each cause of action on the ground the Court does not have subject matter jurisdiction because it is barred by the Federal Public Readiness and Emergency Preparedness Act (“PREP Act”) (42 U.S.C. §§ 247d-6d, 247d-6e.) Moving Defendants also move to strike portions of the Complaint which request punitive damages. Plaintiffs oppose and Moving Defendants reply.

ANALYSIS:

I.                    LEGAL STANDARDS

Demurrer

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Id.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at 318.)

Pursuant to Code of Civil Procedure (“C.C.P.”) §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

Motion to Strike

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See C.C.P. §§ 435, 436, and 437.) The proper procedure to attack false allegations in a pleading is a motion to strike. (C.C.P. § 436(a).) In granting a motion to strike made under C.C.P. § 435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (C.C.P. § 436(a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (C.C.P. § 431.10.)

The court may also “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (C.C.P. § 436 (b).)

To succeed on a motion to strike punitive damages allegations, it must be said as a matter of law that the alleged behavior was not so vile, base, or contemptible that it would not be looked down upon and despised by ordinary decent people. (Angie M. v. Superior Court (1995) 37 Cal. App. 4th 1217, 1228-1229.)

II.                 MERITS

Meet and Confer

C.C.P. §§ 430.41(a) and 435.5(a) require that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer and/or motion to strike. Upon review the Court finds the meet and confer requirements were met. (Tredway Decl. ¶¶ 2-3.)

Grounds for Demurrer

As a preliminary matter the Court notes that a demurrer under C.C.P. § 430.10(a) may be used to secure dismissal of a superior court action based on federal law preemption. (Ball v. GTE Mobilnet of Cal. (2000) 81 Cal.App.4^th 529, 535.) This may be shown from the “explicit language of a federal statute.” (Id.)

The PREP ACT

The PREP Act was signed into law in 2005 granting immunity from liability for claims of loss caused, arising out of, relating to, or resulting from administration or use of countermeasures to disease, threats, and conditions.

The PREP Act’s immunity applies to any “covered person” with respect to all “claims for loss” caused by, arising out of, relating to, or resulting from the “administration” or the “use” of a “covered countermeasure” if a declaration has been issued with respect to that countermeasure. (42 U.S.C. § 247d-6d(a)(1).) If all requirements of the PREP Act and the declaration are met, immunity covers claims for loss sounding in tort or contract, as well as claims for loss relating to compliance with local, state, or federal laws, regulations, or other legal requirements. (42 U.S.C. § 247d-6d(b)(1).) Immunity applies when a covered person engages in activities related to an agreement or arrangement with the federal government, or when a covered person acts according to an “Authority Having Jurisdiction” to respond to a declared emergency-i.e., any activity that is part of an authorized emergency response at the federal, regional, state, or local level. (Id.)

A “covered person” includes “a qualified person who prescribed, administered, or dispensed such countermeasure” or its agent or employee. (42 U.S.C. § 247d-6d(i)(2).) A “covered countermeasure” includes a “qualified pandemic or epidemic product” which is further defined as a product manufactured or developed to “limit the harm such pandemic or epidemic might otherwise cause.” (42 U.S.C. § 247(i)(1) and (7).)

42 USC § 247d-6d(d)(1) provides that “the sole exception to the immunity from suit and liability of covered persons ... shall be for an exclusive Federal cause of action against a covered person for death or serious physical injury proximately caused by willful misconduct ... by such covered person.” Such an action “shall be filed and maintained only in the United States District Court for the District of Columbia.” (42 U.S.C. § 247d-6d(e)(1). An individual may not bring a suit unless the individual has exhausted the remedies available under 42 U.S.C. § 247d-6e(a), the Covered Countermeasure Process Fund. (42 U.S.C. § 247d-6e(d)(1).)

In response to COVID-19, the Secretary of Health and Human Services for the United States issued a declaration that provided PREP Act immunity for individuals and entities responding to Covid-19. (85 Fed. Reg. 15198, Mar. 17, 2020.)

Facts  

In order to determine whether the PREP Act applies to the instant action, the Court must analyze the facts as they appear on the face of the Complaint. The Court notes that Plaintiff’s general facts section is without paragraph numbers and so facts appearing there will be referred to by page number. The relevant factual allegations of Plaintiff’s Complaint are as follows:

·         Moving Defendants are employed or contracted by Providence. (Compl. ¶ 17.)

·         On December 12, 24, 2021 Decedent was admitted to Providence “as a covid patient” (Compl. p. 5.)

·         Nurses and Doctors ignored Decedent for hours at a time after learning he was unvaccinated (Compl. p. 5.)

·         Decedent was administered the medications Remdesevere and Actemra without explanation of side effects. (Compl. p. 5.)

·         Providence and Doctors placed Decedent with other patients who were infected with Covid-19, thus increasing his chances for infection. (Compl. p. 5.)

·         Decedent was intubated without his family’s consent. (Compl. p. 5.)

Discussion

The issue of Federal Preemption of state law claims under the PREP Act constitutes relatively uncharted waters. At current, the parties have not cited nor is the Court aware of any California Appellate Court decisions which address the issue. Accordingly, the Court turns to federal authority for guidance. The most relevant federal authority is found in Zalman v. Windsor Vallejo Care Ctr., LLC (E.D.Cal. July 22, 2022, No. 21-01395) 2022 U.S. Dist. LEXIS 131491. In Zalman, the California Eastern District examined at length the preemptive effect of the PREP Act. In order to grant more context to the ruling in Zalman, the Court must first examine the concept of preemption more generally.

Federal preemption generally falls into four categories (1) Express Preemption, (2) Conflict Preemption, (3) Obstacle Preemption, and (4) Field Preemption. Express Preemption occurs when Congress explicitly includes language which is intended to supersede state law. (See Shaw v. Delta Air Lines, Inc. (1983) 463 U.S. 85, 95-98.) Conflict Preemption occurs in instances where a state law actually conflicts with federal law such that it is impossible for a party to comply with both. (See U.S. Const. Art. VI; See also Freightliner Corp. v. Myrick (1995) 514 U.S. 280, 286.) Obstacle Preemption occurs when, “under the circumstances of a particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” (Crosby v. National Foreign Trade Council (2000) 530 U.S. 363, 373.) Lastly Field Preemption occurs in instances where federal law regulates so comprehensively that it leaves no room for state regulation, thereby impliedly preempting state law. (See Freightliner Corp. v. Myrick (1995) 514 US 280, 288.)

Courts also consider the procedural function of a claim for preemption. Claims of preemption which are presented as a defense to a state law claim are said to be “Defensive” in nature. (See Bruneau v. F.D.I.C. (5th Cir. 1992) 981 F.2d 175, 179.) Defensive preemption claims cannot be the basis for federal subject matter jurisdiction. (Id.) On the other hand, “Complete” preemption claims can serve as the basis for federal subject matter jurisdiction. (See Holman v. Laulo-Rowe Agency (9th Cir. 1993) 994 F.2d 666, 668.) Complete preemption occurs in limited cases where the effect of a federal law is so complete that the claim is recharacterized as one arising under federal law. (Id.) “The test is whether Congress clearly manifested an intent to convert state law claims into federal-question claims.” (Id.)

The distinction between Defensive and complete federal preemption is significant for purposes of determining jurisdiction in federal court. The opinion in Zalman was written in response to a motion to remand an action to state court. (Zalman, supra, *1) The plaintiff sought removal to state court for lack of original federal jurisdiction and defendant opposed, arguing that the PREP Act created original federal jurisdiction by virtue of Complete preemption. (Id. at *3.)

In Zalman, the plaintiff was a resident at the defendant's skilled nursing facility who contracted Covid-19 which ultimately led to her death. (Id.) The plaintiff alleged claims for elder abuse, negligence, and wrongful death. (Id.) To interpret the PREP Act’s potential preemptive effect, the Zalman court looked to the Ninth Circuit decision in Saldana v. Glenhaven Healthcare, LLC (9th Cir. 2022) 27 F.4th 679. Saldana also concerned claims by a resident nurse who had contracted Covid-19 and sought to remand the case to state court for lack of jurisdiction. (Saldana supra, at 686.) The Saldana court found that the PREP Act did not constitute “complete preemption” such that federal jurisdiction was created. (Id.) In so holding, the Court reasoned that the language of the PREP Act only showed that Congress intended to create a federal cause of action for willful misconduct. (Id.) As the PREP Act did not create a private right of action for recklessness or negligence, those claims had no basis in federal law and thus original federal jurisdiction was lacking. (Id.)

Citing Saldana, the Zalman court found the plaintiff’s claims for elder abuse, negligence, and wrongful death were lacking in original federal jurisdiction because the PREP Act created no such causes of action. (Zalman supra, at *3.) The court went on to hold that because the plaintiff did not allege a claim for willful misconduct, the only claim created by the PREP Act, jurisdiction was lacking in federal court and the case was to be remanded. (Id.)

The Court finds the rulings in Zalman and Saldana to be illuminating but also distinguishable from the instant motion. The procedural posture of the motions in Zalman and Saldana and the instant demurrer are entirely different. This procedural posture is important because, as previously stated, it plays a large role in the jurisdictional nature of preemption claims. In Zalman and Saldana the question before the courts was “Do the plaintiffs’ claims arise under Federal law such that Original Federal jurisdiction exists?” In this case, the question is “Does the language of the PREP Act preempt state law causes of action such that the demurrer must be sustained?” To put it more succinctly, the Zalman and Saldana courts considered a question of “Complete” preemption while this Court considers a question of “Defensive” preemption”.

In reviewing the holdings of Zalman and Saldana, the Court finds their holdings are too focused on the issue of complete preemption to be controlling here. The issues of jurisdiction are too dissimilar to say that what was done in Zalman should be done here. Whether or not the PREP Act creates federal rights of action is irrelevant to the consideration of whether state law claims are preempted here.

As such, the Court must look to the language of the PREP Act to determine its preemptive effect. Congress’s intent to preempt state law primarily is discerned from the language of the preemption statute and the statutory framework surrounding it, but also relevant is the structure and purpose of the statute as a whole, as revealed not only in the text, but through the reviewing court's reasoned understanding of the way in which Congress intended the statute and its surrounding regulatory scheme to affect business, consumers, and the law. (See People v. Guiamelon (2012) 205 Cal.App.4th 383 at 401.)

Here, the PREP Act reads in relevant part “a covered person shall be immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure.” (42 U.S.C. § 247d-6d(a)(1).) The Court finds this language clearly evidences Congress’ intent to preempt state law claims when they arise out of, relate to, or result from the provision of a covered countermeasure. This language, specifically the phrase “relate to”, is extremely broad. Here, all of Plaintiff’ s claims appear to relate to Decedent’s Covid-19 treatment in the common sense meaning of the phrase. The question thus becomes whether each of these claims relates to Decedent’s Covid-19 treatment in light of how that phrase is interpreted under the law.  

In Pilot Life Ins. Co. v. Dedeaux, the United States Supreme Court was tasked with examining 29 U.S.C. § 1114(a)(1), which provides in relevant part “the provisions of this subchapter and subchapter III shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title. The Pilot Life court held that a state law is preempted if it “relates to” an employee benefit plan and that “relates to” meant the law had a connection with or reference to such a plan. (Pilot Life Ins. Co. v. Dedeaux (1987) 481 U.S. 41, 45, citing Shaw supra, 463 U.S. at 96-97.) The Pilot Life court noted that this language was in keeping with the expansive preemptive sweep of U.S.C. § 1114(a)(1). (Id.)

Taking cues from Pilot Life, the Court finds the language of “relate to” in 42 U.S.C. § 247d-6d(a)(1) is similarly intended to create a broad scheme of preemption of state law claims. Had Congress intended to par back the preemptive effect of the PREP Act, it does not stand to reason they would have employed such broad language in writing the statute.

Further, the Court struggles to see the purpose of the PREP Act if it does not preempt claims related to covered countermeasures other than willful misconduct. By its clear language the PREP Act is intended by Congress to provide immunity to individuals providing care from suit and liability under Federal and State law. The Court fails to see the function of granting statutory immunity if that immunity does not preempt claims brought under state law.

In short, the Court concludes from the relevant authority that the PREP Act serves as a basis for preemption of state law claims which arise out of, relate to, or result from covered care provided under the 42 U.S.C. § 247d-6d.

The Court finds the allegations of the Complaint make it clear that each of Plaintiff’s fourteen causes of action at the very least relate to the administration of a covered countermeasure within the meaning of the PREP Act. Plaintiff clearly alleges that Decedent was admitted to Providence as a Covid-19 patient. Plaintiff then alleges that Decedent was administered medication in the course of his treatment and that Decedent believed this medication made him worse. The Court does not see how the administration of medication by doctors in the process of treating a patient for Covid-19 can be construed as anything other than the issuance of a covered countermeasure by a covered person. Given the sweeping language of the PREP Act, the Court does not see how any of the currently alleged 14 causes of action do not arise out of, relate to, or result from Decedent’s treatment for Covid-19.

In opposition, Plaintiffs first argue that Moving Defendants only asserted immunity under the PREP Act after this case was remanded from federal court. The Court does not see how the removal of this case from the U.S. District Court for the Central District of California bears any weight on the merit of an argument presented in a timely filed demurrer. A review of the federal court’s minute order shows this action was remanded to California Superior Court after the dismissal of certain parties resulted in the loss of diversity jurisdiction. The minute order contains no reference to preemption or federal jurisdiction on any other basis.

Plaintiffs then argue that while the administration of medication may be covered under the PREP Act, the willful misconduct of Moving Defendants does not. The Court notes that Plaintiffs cite to no authority in making this argument. Further, the Court notes that the PREP Act specifically provides for an exception in cases alleging willful misconduct. In such instances a plaintiff is entitled to file an action after they have exhausted their administrative remedies. This action is confined strictly to be filed in the U.S. District Court for the District of Columbia. As such, the exception does not apply here. Regardless of Plaintiffs’ allegations of Decedent’s mistreatment, the PREP Act makes clear that this Court does not have jurisdiction over such claims.

Accordingly, the Court sustains the demurrer to each cause of action on grounds that they are barred by the PREP Act. Given that the Plaintiff’s claims are necessarily barred by statute, the Court finds there is no reasonable possibility that the deficiency can be cured upon amendment. As such, the demur is SUSTAINED without leave to amend. 

As the Court has sustained the demurrer to the entire Complaint with leave to amend, the Motion to Strike is MOOT.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the Court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the Court’s records.

ORDER

Steven Taback M.D. and Erik Sitker M.D.’s Demurrer and Motion to Strike came on regularly for hearing on June 14, 2024, with appearances/submissions as noted in the minute order for said hearing, and the Court, being fully advised in the premises, did then and there rule as follows:

THE DEMURRER TO EACH CAUSE OF ACTION IS SUSTAINED WITHOUT LEAVE TO AMEND.

THE MOTION TO STRIKE IS MOOT.

UNLESS ALL PARTIES WAIVE NOTICE, DEFENDANT TABACK TO GIVE NOTICE.

IT IS SO ORDERED.

DATE:  June 14, 2024                                    _______________________________

                                                                        F.M. Tavelman, Judge

                                                                        Superior Court of California

County of Los Angeles