Judge: Kevin C. Brazile, Case: 22STCV15070, Date: 2022-08-17 Tentative Ruling

Hearing Date: August 17, 2022

Case Name: Contreras v. Kaiser Permanente International, et al.

Case No.: 21STCV34627

Matter: Demurrer; Motion to Strike

Moving Party: Defendant Kaiser Permanente International

Responding Party: Plaintiff Emely Contrereas

Notice: OK


Ruling: The Demurrer is sustained as to the fourth cause of action, but is 

otherwise overruled.  Leave to amend is denied.  An answer is due 

within twenty days.


The Motion to Strike is granted as to punitive damages, but is 

otherwise denied.  Leave to amend is denied.


Moving party to give notice.


If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 



On June 30, 2022, Plaintiff Emely Contreras filed the operative Third Amended Complaint (“TAC”) against Defendants Kaiser Permanente International, Kaiser Permanente, Kaiser Foundation Health Plan Inc., and Southern California Permanente Medical Group for (1) discrimination against Medi-Cal beneficiary in violation of 22 CCR § 51007, (2) discrimination against Medi-Cal beneficiary in violation of Gov. Code § 11135, (3) violation of the UCL, (4) violation of the Unruh Civil Rights Act, and (5) negligence.  

The allegations of the TAC are as follows.  Plaintiff is an overweight, Latina female, who received medical care for her leg pain from Defendants.  Because Defendants’ medical providers had implicit biases against individuals with Plaintiff’s characteristics, they failed to timely diagnose Plaintiff with a malignant tumor in her leg.  This delay resulted in Plaintiff’s leg being amputated from above the knee.  Defendants intentionally failed to properly train and supervise their medical providers to ensure that such implicit biases were eliminated.


Defendant Kaiser Permanente International demurs to the TAC’s first through fourth causes of action for failure to state sufficient facts.  

When considering demurrers, courts read the allegations liberally and in context, and “treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747.)  It is error “to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.”  (Aubry v. Tri-City Hospital Dist.¿(1992) 2 Cal.4th 962, 967.)

Defendant argues that the first and second causes of action are not viable because these claims only provide for equitable relief, which is irrelevant to Plaintiff’s claims relating to her amputated leg.  

The Court continues to agree that only equitable relief is available for these claims.  Previously, the Court ruled that Plaintiff failed to request such relief.

While Plaintiff’s allegations in the TAC supporting an injunction are rather sparse, the Court believes the issue of whether Plaintiff would be entitled to an injunction is ultimately factual.  For the purposes of the Demurrer, the Court will accept as true that Plaintiff may be injured in the future by Defendant because she will continue to seek medical care from Defendant.  (See TAC ¶ 59; TAC (prayer) ¶ 6.)   

In Reply, Defendant argues that the first and second causes of action cannot be premised on implicit bias.  However, this is a new argument that cannot properly be raised by a reply brief.  (See, e.g., High Sierra Rural All. v. Cnty. of Plumas (2018) 29 Cal.App.5th 102, 112.)

The Demurrer is overruled as to the first and second causes of action.

The Demurrer is also overruled as to the derivative third cause of action for violation of the UCL.

The Demurrer is sustained, without leave to amend, as to Plaintiff’s fourth cause of action for violation of the Unruh Act.  This is because the Court sustained Defendant’s prior demurrer to this claim, without leave to amend.  Plaintiff states she only included this claim again because she wanted to preserve the issue for appeal.  This lacks merit.  Plaintiff can appeal from the Court’s prior order/judgment.  There is no basis to reassert these claims against Defendant Kaiser Permanente International.

In sum, the Demurrer is sustained as to the fourth cause of action, but is otherwise overruled.  Leave to amend is denied.  The objections are sustained.


Defendant Kaiser Permanente International seeks to strike the TAC’s references to the first through fourth causes of action and punitive damages.

Given the ruling on the Demurrer, the Motion to Strike is denied as moot as to the first through fourth causes of action.

As to punitive damages, Defendant argues that (1) 22 CCR § 51007 and Gov. Code § 11135 do not support punitive damages; (2) Plaintiff failed to comply with Code Civ. Proc. § 425.13; (3) Plaintiff failed to plead malice, oppression, or fraud; and (5) Plaintiff failed to plead the involvement of a managing agent, officer, or director.

Punitive damages are requested for Plaintiff’s first and second causes of action.  As the Court previously concluded, “22 CCR § 51007 is a regulation supporting Gov. Code § 11135 (See 22 CCR § 51007 [‘Authority cited: Sections 10725 and 14124.5, Welfare and Institutions Code. Reference: Sections 10000 and 14100.1, Welfare and Institutions Code; and Section 11135, Government Code.’]), and Gov. Code § 11139 relates to the enforcement of Gov. Code § 11135.  As Plaintiff mentions, Gov. Code § 11139 states, ‘This article and regulations adopted pursuant to this article may be enforced by a civil action for equitable relief, which shall be independent of any other rights and remedies.’  This section clearly states that violations of Gov. Code § 11135 and 22 CCR § 51007 can be enforced via a claim for equitable relief only, but other valid causes of action can provide for additional remedies, like damages.”

Because Plaintiff’s first and second causes of action can only seek equitable relief, the request for punitive damages is stricken.  

In sum, the Motion to Strike is granted as to punitive damages, but is otherwise denied.  Leave to amend is denied.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 









Case Number: 22STCV15070    Hearing Date: August 17, 2022    Dept: 20

Tentative Ruling

Judge Kevin C. Brazile

Department 20