Judge: Matthew C. Braner, Case: 37-2023-00036685-CU-PO-CTL, Date: 2024-06-14 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 13, 2024

06/14/2024  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2023-00036685-CU-PO-CTL BUSTRIA VS SCRIPPS HEALTH [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants Scripps Health, Ayana Jeanine Boyd King, DO, Duc Thu, DO, and Stephen Harris Thurston, PA-C's demurrer is SUSTAINED.

Defendants' requests for judicial notice nos. 1-4 are granted. As to Defendants' RJN nos. 5-9, which are for the orders of trial courts and one federal district court in Oklahoma, the court takes note of the existence of these court documents, but these requests are otherwise denied; they are not persuasive authority for the court's ruling. (San Diego County Employees Retirement Assn. v. County of San Diego (2007) 151 Cal.App.4th 1163, 1184 ['A trial court judgment cannot properly be cited in support of a legal argument . . . .']; Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 831 ['[A] written trial court ruling has no precedential value.'].) A demurrer shall be sustained if the pleading 'does not state facts sufficient to constitute a cause of action.' (Code Civ. Proc., § 430.10, subd. (e).) To test the sufficiency of a cause of action, the court treats as true 'all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.' (Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010.) The court may also consider matters that have been judicially noticed. (Id.) The court shall give the complaint a 'reasonable interpretation, reading it as a whole and its parts in their context.' (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The court previously sustained Defendants' demurrer to the original complaint, concluding the federal Public Readiness and Emergency Act ('PREP Act') immunized Defendants from Plaintiffs Frederick, Victoria, and Matthew Bustria's claims for constructive fraud and elder abuse. (ROA #26.) The court also found that a claim based on the PREP Act's willfulness exception must be maintained in the United States District Court for the District of Columbia, which has exclusive jurisdiction. (42 U.S.C. § 247d-6d, subds. (d)(1), (e)(1) The court had tentatively decided not to afford Plaintiffs an opportunity to amend the complaint, as it was skeptical Plaintiffs could allege additional new facts to overcome PREP Act immunity. (ROA #24.) But based on representations from Plaintiffs' counsel that such facts could be alleged, the court granted leave to amend.

However, the amended complaint is substantively no different than the original complaint. The FAC admits the drugs remdesivir and baricitinib are covered countermeasures under the PREP Act. (FAC, ¶¶ 25.i, 27.f.) Notwithstanding Plaintiffs' attempt to artfully plead around the nature of their claim by calling it constructive fraud, the claim sounds in medical negligence; thus, there is no legitimate dispute Defendants are covered persons under the PREP Act.

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3107447  27 CASE NUMBER: CASE TITLE:  BUSTRIA VS SCRIPPS HEALTH [IMAGED]  37-2023-00036685-CU-PO-CTL The allegations Plaintiffs added in the FAC do not compel a conclusion their claim does not fall within the scope of the PREP Act. The crux of the claim remains: Decedent's doctors had a financial incentive to administer remdesivir and baricitinib to treat her illness and due to the incentive, hid from her that 'well-studied off-label drugs (SOLD)' were a safe, low risk treatment that Decedent would have chosen to use instead of remdesivir and baricitinib, had she been informed of their availability. The choice to use those drugs instead of others (even if allegedly influenced by a financial incentive) necessarily has a causal relationship to Plaintiffs' claim for loss (Decedent's wrongful death), and is therefore covered by the PREP Act. (42 U.S.C. § 247d-6d, subd. (a)(2)(B).) The Ninth Circuit's decision in Hampton v. California does not compel or even suggest a different result.

(Hampton v. California (9th Cir. 2023) 83 F.4th 754.) There, an inmate at San Quintin contracted 'COVID-19 pneumonia' due to the failure to comply with recommended health and safety measures, including adequate testing. (Id. at pp. 759-60.) The Ninth Circuit concluded PREP Act immunity did not apply to the plaintiff's (the inmate's widow) claim for wrongful death because such immunity does not apply to the 'non-administration or non-use' of a covered countermeasure. Here, Plaintiffs claim the covered countermeasures were used in lieu of other (purportedly safer and more effective) non-covered countermeasures.

In sum, PREP Act immunity applies to Plaintiffs' claim. Accordingly, Defendants' demurrer is sustained without leave to amend.

The minute order is the order of the court.

Defendants are instructed to provide a proposed judgment for the court's signature.

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