Judge Mark C. Kim, Case 20STCV45208 2023-02-28 Tentative Ruling

Judge: Mark C. Kim, Case: 20STCV45208, Date: 2023-02-28 Tentative Ruling

Case Number: 20STCV45208 Hearing Date: February 28, 2023 Dept: S27

1. Background Facts

Plaintiff, Jack Brown filed this action against Defendants, Daniel Capen, M.D., Philip Sobol, M.D., Healthsmart Pacific, Inc., dba Pacific Hospital of Long Beach, and Michael D. Drobot for medical malpractice and related claims. Plaintiff filed the suit on 11/24/20.

The case was originally assigned to the personal injury hub court but was ultimately transferred to Department S27 due to its complicated nature.

On January 10, 2023, Defendants Healthsmart Pacific Inc., dba Pacific Hospital of Long Beach and Michael D. Drobot (“Hospital Defendants”) filed this instant demurrer with motion to strike.

On February 14, 2023, Plaintiff filed an opposition.

On February 17, 2023, Defendants filed a reply.

2. Demurrer

a. Parties’ Positions

Hospital Defendants generally demurrer to the First Amended Complaint (“FAC”) on the grounds that it is time-barred and the FAC fails to state facts sufficient to state a cause of action for the first, second, fourth, fifth, sixth, seventh, and eighth causes of action.

Plaintiff opposes the motion. He argues the FAC is not barred by the statute of limitations because Code of Civil Procedure section 340.5 does not apply given that neither of the Hospital Defendants are “Health Care Providers.” Plaintiff claims that the applicable statute of limitations is in Code of Civil Procedure Section 340.3, which was enacted as part of the Victim’s Bill of Rights (Proposition 8). Plaintiff also states why each cause of action has sufficient facts to constitute a cause of action.

Defendants, in reply, contends that Plaintiff fails to provide any substantive argument in the Opposition and claims Mr. Drobot’s guilty plea supports all causes of action. Defendants also note that Plaintiff brings theories of liabilities not pleaded in the FAC including that Code of Civil Procedure Section 340.3 governs the statute of limitations and that Hospital Defendants are liable for elder abuse. Defendants also state the Court should not give Plaintiff leave to amend because he has not shown how he can amend the complaint, particularly in the claim for medical malpractice where he concedes that Hospital Defendants are not medical care providers.

b. Legal Standard on Demurrer

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be.

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 39 Cal.3d 311 (1985).) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under CCP § 430.10 [grounds], § 430.30 [as to any matter on its face or from which judicial notice may be taken], and § 430.50(a) [can be taken to the entire complaint or any cause of action within]. Specifically, a demurrer may be brought per CCP § 430.10(e) if insufficient facts are stated to support the cause of action asserted. Per CCP §430.10(a) a demurrer may be brought where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. Furthermore, demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. CCP § 430.10(f).

However, in construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) And, if the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control. Further, irrespective of the name or label given to a cause of action by thplaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief. Special demurrers are not allowed in limited jurisdiction courts. (CCP § 92(c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, CCP section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (CCP § 430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP § 430.41(a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (CCP § 430.41(a)(3).)

c. Meet and Confer

Defense Counsel declares he had a discussion over the phone with Plaintiff’s Counsel on January 6, 2023 in which he explained the grounds for Defendants’ position that the FAC is legally insufficient. On the same day, Defense Counsel declares he also emailed Plaintiff’s Counsel a draft of the Demurrer. On January 9, 2023, parties’ counsel had a follow up discussion wherein they agreed to discuss the demurrer again the following day. On January 10, 2023, Plaintiff’s Counsel informed Defense Counsel that he would be willing to amend but that he needed to discuss issues with Counsel for Co-Defendant Dr. Strobol such that Defense Counsel could proceed with filing this instant demurrer since January 10, 2023, was the deadline to file.

Plaintiff’s Counsel declares facts which corroborate Defense Counsel’s presentation of facts.

The Court finds that parties have sufficiently met and conferred to satisfy the requirement under Code of Civil Procedure Section 430.41.

d. Analysis

a. First Cause of Action for Medical Negligence

Hospital Defendants contend that MICRA’s three-year statute of limitation as provided in Code of Civil Procedure Section 340.5 applies since Plaintiff’s claims are against a health care provider on a legal theory other than negligence. Hospital Defendants contend that Plaintiff’s claims against Drs. Capen and Sobol pertain to professional services provided by Dr. Caben and the alleged fraud or concealment which Dr. Capen allegedly failed to disclose to Plaintiff. Hospital Defendants argue that since Plaintiff admitted that following the surgery, he “continued to be symptomatic in the back and was subsequently diagnosed with spinal injury, radiculopathy, neuralgia. headaches, Failed Back Surgery Syndrome, and Major Depression,” the statute of limitations began following the surgery in 2007 and expired in 2010, three years later.

Next, Hospital Defendants contend that Plaintiff has not and cannot plead that Hospital Defendants are health care providers as defined by statute and required for a claim of medical negligence under Code of Civil Procedure Section 340.5.

Finally, Hospital Defendants contend that Plaintiff’s claims for medical malpractice cannot be asserted against them under the Corporate Practice of Medicine, which prohibits a hospital from obtaining informed consent, involvement in the decision-making of, or the performance of surgeries and implantation of medical devices. Hospital Defendants point to case authority which states that there is no common law duty owed by a hospital to prevent, warn, or be liable for “failing to advise” a patient – even where the patient contracted highly infectious, contagious and poisonous disease. (Derrick v. Ontario Community Hospital (1975), 47 Cal.App.3d 146, 154.)

In opposition, Plaintiff argues that Code of Civil Procedure Section 340.5 does not apply because it only applies to health care providers and Defendant Drobot never held a medical license, and that even if section 340.5 applied, Defendant Drobot’s fraudulent actions tolled the statute. Plaintiff contends the applicable statute of limitations is found in Code of Civil Procedure section 340.3, which was enacted as part of the Victim’s Bill of Rights (Proposition 8). Plaintiff claims that he did not discover, and a reasonable and diligent investigation would not have disclosed that he had been harmed by Defendant Drobot’s criminal/fraudulent actions since Plaintiff was completely ignorant of those facts which form the basis of Plaintiff’s cause of action until he received the letter from the Department of Justice on August 23, 2019.

In opposition, Plaintiff also argues that Hospital Defendants are vicariously liable under a theory of ostensible agency for the acts and omissions of its physicians including Dr. Daniel Capen and Dr. Philip Sobol.

In reply, Hospital Defendants argue that Plaintiff concedes that he cannot maintain a claim for medical malpractice by arguing that Code of Civil Procedure section 340.5 does not apply since Mr. Drobot has never held a medical license. Hospital Defendants argue this necessarily precludes them from liability since hospitals cannot obtain informed consent, be involved in the decision making or performance of surgeries and implementation of devices under the Ban on the Corporate Practice of Medicine.

The Court finds that Hospital Defendants sufficiently satisfied their burden to show that Plaintiff’s claim fails as a matter of law as discussed above. However, Plaintiff fails to satisfy his burden. Plaintiff contends that Code of Civil Procedure Section 340.5 does not apply in this case because Hospital Defendants are not health care providers as defined in that statute, but Plaintiff fails to explain how Code of Civil Procedure section 340.3 applies given that it appears his cause of action arose following his surgery in 2007. Plaintiff does not connect the discovery of Defendant Drobot’s criminal/fraudulent actions to his claim for medical malpractice. Although Plaintiff’s claim regarding vicarious liability may have merit, Plaintiff fails to sufficiently explain how it applies in connection with the applicable statute of limitations. Finally, Plaintiff fails to address Hospital Defendants’ Corporate Practice of Medicine claim which appears to have merit. Thus, the Court GRANTS Hospital Defendants’ demurrer as to the first cause of action for medical negligence.

b. Second Cause of Action for Lack of Informed Consent

Next, Hospital Defendants contend that Plaintiff has not and cannot plead that Hospital Defendants are doctors, which is required for a lack of informed consent claim that arises from a fiduciary relationship between a doctor and patient.

Hospital Defendants also contend that Plaintiff’s claims for medical malpractice cannot be asserted against them under the Corporate Practice of Medicine, which prohibits a hospital from obtaining informed consent, involvement in the decision-making of, or the performance of surgeries and implantation of medical devices. Hospital Defendants point to case authority which states that there is no common law duty owed by a hospital to prevent, warn, or be liable for “failing to advise” a patient – even where the patient contracted highly infectious, contagious and poisonous disease. (Derrick v. Ontario Community Hospital (1975), 47 Cal.App.3d 146, 154.)

In opposition, Plaintiff argues that Code of Civil Procedure Section 340.5 does not apply because it only applies to health care providers and Defendant Drobot never held a medical license, and that even if section 340.5 applied, Defendant Drobot’s fraudulent actions tolled the statute. Plaintiff contends the applicable statute of limitations is found in Code of Civil Procedure section 340.3, which was enacted as part of the Victim’s Bill of Rights (Proposition 8). Plaintiff claims that he did not discover and a reasonable and diligent investigation would not have disclosed that he had been harmed by Defendant Drobot’s criminal/fraudulent actions since Plaintiff was completely ignorant of those facts which form the basis of Plaintiff’s cause of action until he received the letter from the Department of Justice on August 23, 2019.

In reply, Hospital Defendants argue that Plaintiff concedes that he cannot maintain a claim for medical malpractice, including lack of informed consent by arguing that Code of Civil Procedure section 340.5 does not apply since Mr. Drobot has never held a medical license. Hospital Defendants argue this necessarily precludes them from liability since hospitals cannot obtain informed consent, be involved in the decision making or performance of surgeries and implementation of devices under the Ban on the Corporate Practice of Medicine.

The Court finds that Hospital Defendants sufficiently satisfied their burden to show that Plaintiff’s claim fails as a matter of law as discussed above. However, Plaintiff fails to satisfy his burden. Plaintiff contends that Code of Civil Procedure Section 340.5 does not apply in this case because Hospital Defendants are not health care providers as defined in that statute, but Plaintiff fails to explain how Code of Civil Procedure section 340.3 applies given that it appears his cause of action arose following his surgery in 2007. Plaintiff does not connect the discovery of Defendant Drobot’s criminal/fraudulent actions to his claim for lack of informed consent. Although Plaintiff’s claim regarding vicarious liability may have merit, Plaintiff fails to sufficiently explain how it applies in connection with the applicable statute of limitations. Finally, Plaintiff fails to address Hospital Defendants’ Corporate Practice of Medicine claim which appears to have merit. Thus, the Court GRANTS Hospital Defendants’ demurrer as to the second cause of action for lack of informed consent.

c. Fourth Cause of Action for Breach of Fiduciary Duty

Hospital Defendants contend that Plaintiff’s claim is time barred since the statute of limitations for breach of fiduciary duty is 4 years. However, when breach of fiduciary duty amounts to a claim for professional negligence, the statute of limitations for professional negligence will apply, and as discussed above, Plaintiff’s claim is time barred under that period as well.

Hospital Defendants also contend that they did not owe a fiduciary duty to Plaintiff since they did not stand in a fiduciary relationship with Plaintiff nor had the duty to obtain Plaintiff’s informed consent to medical procedures. Hospital Defendants argue that the only duty they owed to Plaintiff was the duty to exercise reasonable care in accordance with that of a person of ordinary prudence under the circumstances, which does not amount to a fiduciary duty.

In opposition, Plaintiff argues that Code of Civil Procedure Section 340.5 does not apply because it only applies to health care providers and Defendant Drobot never held a medical license, and that even if section 340.5 applied, Defendant Drobot’s fraudulent actions tolled the statute. Plaintiff contends the applicable statute of limitations is found in Code of Civil Procedure section 340.3, which was enacted as part of the Victim’s Bill of Rights (Proposition 8). Plaintiff claims that he did not discover and a reasonable and diligent investigation would not have disclosed that he had been harmed by Defendant Drobot’s criminal/fraudulent actions since Plaintiff was completely ignorant of those facts which form the basis of Plaintiff’s cause of action until he received the letter from the Department of Justice on August 23, 2019.

In opposition, Plaintiff also states that Hospital Defendants' specific demurrer to this cause of action seems to be somewhat disingenuous in light of Defendant Drobot’s felony conviction for Conspiracy and Payment of Kickbacks (essentially fraud / intentional misrepresentation) and the fact that Defendant Drobot admitted to under penalty of perjury in his plea agreement.

In reply, Hospital Defendants point out that Plaintiff fails to present argument or rebut the precedent in Moore, which found that the hospital did not stand “in a fiduciary relationship with [the patient] or had the duty to obtain [a patient’s] informed consent to medical procedure.” (Moore v. Regents of University of California (1990) 51 Cal.3d 120.) Hospital Defendants contend that they did not owe Plaintiff any duty to disclose the financial interests of Drs. Capen and Sobol in connection with his surgery.

The Court finds that Hospital Defendants sufficiently satisfied their burden to show that Plaintiff’s claim fails as a matter of law as discussed above. However, Plaintiff fails to satisfy his burden. Plaintiff contends that Code of Civil Procedure Section 340.5 does not apply in this case because Hospital Defendants are not health care providers as defined in that statute, but Plaintiff fails to explain how Code of Civil Procedure section 340.3 applies given that it appears his cause of action arose following his surgery in 2007. Plaintiff does not connect the discovery of Defendant Drobot’s criminal/fraudulent actions to his claim for breach of fiduciary duty. In fact, Plaintiff fails to explain the existence of a fiduciary relationship and why Hospital Defendants owed Plaintiff a fiduciary duty. Thus, the Court GRANTS Hospital Defendants’ demurrer as to the fourth cause of action for breach of fiduciary duty.

d. Fifth Cause of Action for Fraud/Intentional Misrepresentation and Concealment

Hospital Defendants contend that there are no facts to show that they intentionally concealed or suppressed a fact with the intent to defraud Plaintiff since Hospital Defendants’ alleged failure to disclose the kickbacks to the doctors fails to demonstrate that this was intended to prevent plaintiff from bringing suit within the applicable statute of limitations period. Additionally, Hospital Defendants contend that Plaintiff’s claim fails because it is premised on the fact that Mr. Drobot owed Plaintiff a fiduciary duty to disclose all information that would be relevant to the decision to undergo surgery at Pacific Hospital and to disclose facts known by Defendants that would affect Plaintiff’s surgical procedure, but as previously discussed, neither Pacific Hospital nor Mr. Drobot owed Plaintiff a fiduciary duty.

In opposition, Plaintiff argues that Code of Civil Procedure Section 340.5 does not apply because it only applies to health care providers and Defendant Drobot never held a medical license, and that even if section 340.5 applied, Defendant Drobot’s fraudulent actions tolled the statute. Plaintiff contends the applicable statute of limitations is found in Code of Civil Procedure section 340.3, which was enacted as part of the Victim’s Bill of Rights (Proposition 8). Plaintiff claims that he did not discover and a reasonable and diligent investigation would not have disclosed that he had been harmed by Defendant Drobot’s criminal/fraudulent actions since Plaintiff was completely ignorant of those facts which form the basis of Plaintiff’s cause of action until he received the letter from the Department of Justice on August 23, 2019.

Plaintiff also states that Hospital Defendants' specific demurrer to this cause of action seems to be somewhat disingenuous in light of Defendant Drobot’s felony conviction for Conspiracy and Payment of Kickbacks (essentially fraud / intentional misrepresentation) and the fact that Defendant Drobot admitted to under penalty of perjury in his plea agreement.

In reply, Hospital Defendants argue that it did not owe a duty to disclose since they did not share a confidential relationship with Plaintiff such that any fiduciary duties arose.

The Court finds that Hospital Defendants sufficiently satisfied their burden to show that Plaintiff’s claim fails as a matter of law as discussed above. However, Plaintiff fails to satisfy his burden. Plaintiff contends that Code of Civil Procedure Section 340.5 does not apply in this case because Hospital Defendants are not health care providers as defined in that statute, but Plaintiff fails to explain how Code of Civil Procedure section 340.3 applies given that it appears his cause of action arose following his surgery in 2007. Plaintiff does not connect the discovery of Defendant Drobot’s criminal/fraudulent actions to his claim for fraud/intentional misrepresentation and concealment. In fact, Plaintiff fails to explain the existence of a fiduciary relationship and why Hospital Defendants owed Plaintiff a fiduciary duty. Thus, the Court GRANTS Hospital Defendants’ demurrer as to the fifth cause of action for fraud/intentional misrepresentation and concealment.

e. Sixth Cause of Action for Negligent Infliction of Emotional Distress

Hospital Defendants contend that Plaintiff’s negligent infliction of emotional distress claim is time barred because it is grounded in medical malpractice and as discussed previously, Plaintiff failed to bring suit after discovering the facts which would support this cause of action.

Hospital also Defendants contend that Plaintiff fails to allege facts to support a cause of action for NIED, which necessarily requires a bystander plaintiff to be “present at the scene of the injury-producing event at the time it occurs and ... then aware that it is causing injury to the victim.” (Thing v. La Chusa (1989) 48 Cal.3d 644, 668.)

Plaintiff concedes that the FAC fails to state a cause of action for negligent infliction of emotional distress and states he is willing to strike that cause of action from the FAC.

In light of Plaintiff’s concession, the Court GRANTS Hospital Defendants’ demurrer as to the sixth cause of action for negligent infliction of emotional distress.

f. Seventh Cause of Action for Intentional Infliction of Emotional Distress

Hospital Defendants contend that the IIED claim is time barred because the applicable statute of limitations is one year and Plaintiff filed the complaint on November 24, 2020, which is more than a year after he discovered the kickbacks on August 23, 2019, when he learned that Defendants had been convicted of white collar crime/fraud.

Finally, Hospital also Defendants contend that the IIED claim fails because Plaintiff has not and cannot plead that Hospital Defendants engaged in that conduct with the intent to cause any injury to Plaintiff or with the realization that injury would result. Additionally, Hospital Defendants contend that Plaintiff fails to state how Hospital Defendants’ conduct and concealment constitutes extreme and outrageous conduct.

In opposition, Plaintiff argues that Code of Civil Procedure Section 340.5 does not apply because it only applies to health care providers and Defendant Drobot never held a medical license, and that even if section 340.5 applied, Defendant Drobot’s fraudulent actions tolled the statute. Plaintiff contends the applicable statute of limitations is found in Code of Civil Procedure section 340.3, which was enacted as part of the Victim’s Bill of Rights (Proposition 8). Plaintiff claims that he did not discover and a reasonable and diligent investigation would not have disclosed that he had been harmed by Defendant Drobot’s criminal/fraudulent actions since Plaintiff was completely ignorant of those facts which form the basis of Plaintiff’s cause of action until he received the letter from the Department of Justice on August 23, 2019.

In opposition, Plaintiff also contends that there are sufficient facts to support this cause of action given his allegations that Hospital Defendants conspired to perpetrate a massive workers compensation/health care fraud operation for profit, and intentionally performed unnecessary spinal surgery upon him using substandard non-medical grade equipment, in conscious disregard for his safety and well-being. Plaintiff states that given his constant pain and depression, it is difficult to imagine more extreme and outrageous conduct. Additionally, Plaintiff points to Defendant Drobot’s signed plea agreement, under penalty of perjury, which admits to all of the facts necessary to prove this cause of action.

In reply, Hospital Defendants largely repeat their arguments regarding the untimeliness of the claim and the failure to allege sufficient facts to constitute a cause of action for IIED.

The Court finds that Hospital Defendants sufficiently satisfied their burden to show that Plaintiff’s claim fails as a matter of law as discussed above. However, Plaintiff fails to satisfy his burden. Plaintiff contends that Code of Civil Procedure Section 340.5 does not apply in this case because Hospital Defendants are not health care providers as defined in that statute, but Plaintiff fails to explain how Code of Civil Procedure section 340.3 applies given that it appears his cause of action arose following his surgery in 2007. Plaintiff does not connect the discovery of Defendant Drobot’s criminal/fraudulent actions to his claim for intentional infliction of emotional distress. Additionally, the FAC fails to state facts sufficient to show how Hospital Defendants engaged in intentional conduct to cause Plaintiff’s injuries. Thus, the Court GRANTS Hospital Defendants’ demurrer as to the seventh cause of action for intentional infliction of emotional distress.

g. Eighth Cause of Action for Corporate Negligence

Hospital Defendants contend that Plaintiff’s claim for corporate negligence fails because he has not pleaded that the payment of kickbacks to the doctors caused the doctors to commit malpractice.

In opposition, Plaintiff argues that Code of Civil Procedure Section 340.5 does not apply because it only applies to health care providers and Defendant Drobot never held a medical license, and that even if section 340.5 applied, Defendant Drobot’s fraudulent actions tolled the statute. Plaintiff contends the applicable statute of limitations is found in Code of Civil Procedure section 340.3, which was enacted as part of the Victim’s Bill of Rights (Proposition 8). Plaintiff claims that he did not discover and a reasonable and diligent investigation would not have disclosed that he had been harmed by Defendant Drobot’s criminal/fraudulent actions since Plaintiff was completely ignorant of those facts which form the basis of Plaintiff’s cause of action until he received the letter from the Department of Justice on August 23, 2019.

In opposition, Plaintiff also contends that Hospital Defendants' specific demurrer to this cause of action fails for the same reason that the demurrer to the medical negligence cause of action fails because Hospital Defendants are vicariously liable on a theory of ostensible agency for the felonious physicians' acts and/ or omissions, which Plaintiff reasonably believes were ratified by the Hospital that employed them.

In reply, Hospital Defendants argue that since they are not medical care providers, they cannot, as a matter of law be sued for corporate negligence.

The Court finds that Hospital Defendants sufficiently satisfied their burden to show that Plaintiff’s claim fails as a matter of law as discussed above. However, Plaintiff fails to satisfy his burden. Plaintiff contends that Code of Civil Procedure Section 340.5 does not apply in this case because Hospital Defendants are not health care providers as defined in that statute, but Plaintiff fails to explain how Code of Civil Procedure section 340.3 applies given that it appears his cause of action arose following his surgery in 2007. Plaintiff does not connect the discovery of Defendant Drobot’s criminal/fraudulent actions to his claim for corporate negligence. Thus, the Court GRANTS Hospital Defendants’ demurrer as to the eighth cause of action for corporate negligence.

e. Motion to Strike

In light of the foregoing, the Court GRANTS Hospital Defendants’ motion to strike punitive damages since Plaintiff’s causes of action fail as a matter of law.

Defendants are ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.