Judge: Stephen P. Pfahler, Case: 24STCV00989, Date: 2024-09-11 Tentative Ruling

Case Number: 24STCV00989    Hearing Date: September 11, 2024    Dept: 68

Dept. 68

Date: 9-11-24

Case 24STCV00989

Trial Date: Not Set

DEMURRER

MOVING PARTY: Defendants, Cedars-Sinai Medical Center, et al.

RESPONDING PARTY: Plaintiffs, Candy and Edward Bubar

RELIEF REQUESTED

Demurrer to the Complaint

·         12^th Cause of Action: Negligent Misrepresentation

·         13^th Cause of Action: Negligent Infliction of Emotional Distress

Motion to Strike

SUMMARY OF ACTION

Plaintiff Candy Bubar alleges suffering severe injuries and hospitalization as a direct and proximate result of defects in her Medtronic SynchroMed II Programmable Implantable Infusion Pump System, which was implanted in her body for intrathecal drug delivery, and/or suffered severe injuries and hospitalization as a direct and proximate result of negligently performed medical procedure(s).

On January 12, 2024, Plaintiffs filed a complaint for 1. Strict Product Liability – Manufacturing Defect 2. Negligent Manufacturing Defect 3. Strict Product Liability – Failure to Warn 4. Negligent Failure to Warn 5. Negligence Per Se 6. Breach of Express Warranty 7. Breach of Implied Warranty of Merchantability 8. Breach of Implied Warranty of Fitness for a Particular Purpose 9. Fraud 10. Medical Negligence 11. Failure to Obtain Informed Consent 12. Negligent Misrepresentation 13. Negligent Infliction of Emotional Distress – Bystander, and 14. Loss of Consortium.

RULING

Demurrer: Overruled in Part/Sustained with Leave to Amend in Part.

Request for Judicial Notice: Denied.

·         The court cannot take judicial notice of documents filed with a state agency for any factual findings for the truth of the matter asserted unless and until an official action on the document under authority of the director occurs. (Cal. Evid. Code § 452, subd. (c); Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1484; Elmore v. Oak Valley Hospital Dist. (1988) 204 Cal.App.3d 716, 721.)

·         The court declines to make a finding of undisputed facts from within the content of the filed document itself given the objections. (Evid. Code § 452, subd. (h).)

Defendants Cedars-Sinai Medical Center and Cedars-Sinai Health System, submits the subject demurrer to the negligent misrepresentation and negligent infliction of emotional distress causes of action. Defendants challenge the two causes of action on grounds of insufficient factual basis, and an improperly named defendant, Cedars-Sinai Health System. Plaintiffs in opposition contends any challenge based on the status of Cedars-Sinai Health System improperly relies on extrinsic evidence, and the complaint sufficiently articulates the two challenged causes of action. Defendants in reply reiterates the position regarding Cedars-Sinai Health System, challenges the opposition response to the demurrer to the negligent misrepresentation and negligent infliction of emotional distress causes of action.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.  (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

The demurrer of Cedars-Sinai Health System based on its entity status relies on extrinsic information not subject to judicial notice. The demurrer is overruled on this basis.

12^th Cause of Action: Negligent Misrepresentation

Defendants challenge the factual deficiency of the subject cause of action. Plaintiffs specifically reference section IV of the complaint as well as the incorporated provisions in the tenth and eleventh causes of action for Medical Negligence and Failure to Obtain Informed Consent.

“Negligent misrepresentation is a separate and distinct tort, a species of the tort of deceit. ‘Where the defendant makes false statements, honestly believing that they are true, but without reasonable ground for such belief, he may be liable for negligent misrepresentation, a form of deceit.’” (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 407.) “The tort of negligent misrepresentation does not require scienter or intent to defraud. (Citation.) It encompasses ‘[t]he assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true’ (Citation), and ‘[t]he positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true’ (Citation)…’” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173–174.) Misrepresentations must be made about past or existing fact. (Neu-Visions Sports, Inc. v. Soren/McAdam/Bartells (2000) 86 Cal.App.4th 303, 309–310; Agricultural Ins. Co. v. Superior Court (1999) 70 Cal.App.4th 385, 390.) Misrepresentations must be made about past or existing fact. Opinions are not treated as representations of fact. (Neu-Visions Sports, Inc. v. Soren/McAdam/Bartells (2000) 86 Cal.App.4th 303, 309–310; Agricultural Ins. Co. v. Superior Court (1999) 70 Cal.App.4th 385, 390.)

The operative cause of action consists of the pled elements with limited to no factual articulation. Section IV of the complaint presents extensive product liability allegations regarding the device itself, but it remains unclear how said product liability allegations support the basis of negligent misrepresentation as to the health care providers. [Comp., ¶¶ 188, 189(c-d).] While Defendants apparently concede to the validity of the pled allegations in the tenth and eleventh causes of action for medical negligence and failure to obtain informed consent for purposes of the demurrer, and the subject cause of action incorporates the prior allegations, the actual cause of action still lacks any specific distinction from the prior causes of action articulating separate and independent misrepresentation under the standard. (See Cobbs v. Grant, supra, 8 Cal.3d at p. 243; Jamison v. Lindsay (1980) 108 Cal.App.3d 223, 243; Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1267.) A failure to communicate constitutes different considerations not part of the claim for misrepresentation. The demurrer is sustained with leave to amend as to this cause of action.

13^th Cause of Action: Negligent Infliction of Emotional Distress

Defendants challenge the subject cause of action on grounds that Plaintiffs fail to allege a contemporaneous awareness of the injury producing event, thereby supporting a claim for bystander emotional distress. Plaintiffs in opposition alleges contemporaneous awareness of a substantial injury causing event as a result of the overdose caused during the procedure.

“The law of negligent infliction of emotional distress in California is typically analyzed ... by reference to two ‘theories' of recovery: the ‘bystander’ theory and the ‘direct victim’ theory.” (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1071.) Under the bystander theory, the plaintiff seeks to recover damages for serious emotional distress suffered as a result of an injury to a close family member. Recovery is limited as a matter of public policy to those cases where the plaintiff was present at the scene of the injury-producing event and was aware that the event was causing injury to the victim. (Id. at pp. 1072-1073; Thing v. La Chusa (1989) 48 Cal.3d 644, 667-668.) “To be sure, Thing’s requirement that the plaintiff be contemporaneously aware of the injury-producing event has not been interpreted as requiring visual perception of an impact on the victim. A plaintiff may recover based on an event perceived by other senses so long as the event is contemporaneously understood as causing injury to a close relative.” (Bird v. Saenz (2002) 28 Cal.4th 910, 916; Krouse v. Graham (1977) 19 Cal.3d 59, 76; Wilks v. Hom (1992) 2 Cal.App.4th 1264, 1273. The medical context can present a situation where the bystander must be aware that the care and treatment rendered by the health care provider directly caused the emotional response inducing event. (Bird v. Saenz, supra, 28 Cal.4th at p. 916; Morton v. Thousand Oaks Surgical Hospital (2010) 187 Cal.App.4th 926, 935 Breazeal v. Henry Mayo Newhall Memorial Hospital (1991) 234 Cal.App.3d 1329, 1342; Golstein v. Superior Court (1990) 223 Cal.App.3d 1415, 1427.)

The complaint alleges Edward Bubar’s presence during the “refill” procedure and observation of the subsequent complications from the conduct of the treating physician. [Comp., ¶¶ 44, 194.] The court acknowledges the conclusive nature of the pleading, but declines to engage in qualitative distinction given the sufficiency of the elements. (Bird v. Saenz, supra, 28 Cal.4th at p. 916.)

The demurrer is overruled as to this cause of action.

Motion to Strike: Granted.

Cedars-Sinai Medical Center and Cedars-Sinai Health System move to strike the punitive damages allegations. Plaintiffs agree to strike the claims as to the subject defendants, and the parties will present a stipulation. The court grants the motion to strike.

In summary, the demurrer of Cedars-Sinai Medical Center and Cedars-Sinai Health System is overruled as to the challenge of Cedars-Sinai Health System and the negligent infliction of emotional distress cause of action, and sustained with leave to amend as to the negligent misrepresentation cause of action. The motion to strike is granted; the parties may present the stipulation as to the existing or any potential amended pleadings.

The court normally grants 30 days leave to amend on a first demurrer. A demurrer brough by the Medtronic defendants remains set for October 3, 2024. Any first amended complaint potentially rendering the next demurrer moot would be required at the time of the opposition due date, which is September 19, 2024 (September 27, 2024, is a court holiday). (Code Civ. Proc., § 472.) The filing of any amended complaint following the lapse of the opposition date can still require a ruling on the submitted demurrer, which the court will consider in future rulings should the pled complaint limit reach a third amended pleading. (Code Civ. Proc., § 430.41, subd. (e)(1).) The moving parties may request a continuance of the October 3, 2024, demurrer, but the court otherwise leaves the hearing date as scheduled.

Defendants Cedars-Sinai Medical Center and Cedars-Sinai Health System to give notice to all parties.