Judge William A. Crowfoot, Case Number: 24NNCV00159, Date: 2025-01-17 Tentative Ruling

Judge: William A. Crowfoot, Case: 24NNCV00159, Date: 2025-01-17 Tentative Ruling

On March 8, 2024, plaintiff Jorge Alfaro filed this action against defendants James J. Jaber, M.D. (“Dr. Jaber”), Penrose Therapeutx, Inc. (“Penrose Therapeutx”), Southern California Head and Neck Surgery, and Tribar Healthcare Partners (“Tribar”).

On July 31, 2024, Plaintiff filed the operative First Amended Complaint (“FAC”). Plaintiff asserts causes of action for: (1) medical negligence, (2) intentional infliction of emotional distress (“IIED”), (3) fraud, (4) constructive fraud, and (5) violation of Business & Professions Code § 17200 (“UCL”).

On September 4, 2024, Dr. Jaber and Southern California Head and Neck Surgery (collectively, “Defendants”) filed this demurrer to the Second, Third, Fourth, and Fifth Causes of Action in Plaintiff’s FAC for IIED, fraud, constructive fraud, and violation of the UCL. Defendants also filed a motion to strike Plaintiff’s requests for $20,000,000 in damages, punitive damages, and attorney’s fees.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) 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.)

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Plaintiff alleges that in 2018, he began treating with Dr. Jaber, a head and neck doctor, for HIV with an experimental drug. (FAC, ¶¶ 11-13.) Dr. Jaber allegedly instructed Plaintiff to stop taking the medicine prescribed by Plaintiff’s previous doctors and to only take Dr. Jaber’s experimental drug manufactured by Penrose Therapeutx. (FAC, ¶¶ 14-15.) Dr. Jaber advised Plaintiff that this experimental drug worked by “eliminating his immune system and that way [Dr. Jaber] could work on rebuilding his immune system again.” (FAC, ¶ 16.) Dr. Jaber also told Plaintiff “not to worry since the experimental drug would help him fight off any virus and protect him against any disease.” (FAC, ¶ 17.) Plaintiff took this experimental drug for approximately 4 years and in or around the summer of 2022, he started feeling sick. (FAC, ¶¶ 17-18.) He developed rectal pain and bleeding (later diagnosed as condyloma) and “also developed skin lesions on his face and flu synthons [sic] as well as mental health conditions such as ADHD, anxiety, and depression.” (FAC, ¶ 18.) In March 2023, Plaintiff was hospitalized due to pneumonia and decided not to take this experimental drug anymore. (FAC, ¶ 19.) Plaintiff was hospitalized a second time in April 2023 due to viral and bacterial infections, which caused tissue damage. (FAC, ¶ 20.) Plaintiff alleges he was never advised regarding side effects of the drug or the chemical composition of the experimental drug, and due to Dr. Jaber’s actions, his HIV has now progressed into AIDS. (FAC, ¶ 21.)

The elements of an intentional infliction of emotional distress cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (See Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780; Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) To satisfy the element of extreme and outrageous conduct, defendant’s conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’” (Moncada, supra, 221 Cal.App.4th at 780 (quoting Tererice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883).)

Defendants argue that Plaintiff unsuccessfully attempts to expand his claim for medical negligence and has not pled facts demonstrating an intent to cause emotional distress or reckless disregard of the probability of doing so because Plaintiff alleges that Dr. Jaber intended to “test their medication [on Plaintiff] without consent, among other reasons.” (Demurrer, p. 7; FAC, ¶ 49.)

In opposition, Plaintiff argues that the FAC goes beyond challenging the manner in which medical treatment was provided because he alleges that Dr. Jaber intentionally acted with an ulterior purpose. This alleged ulterior purpose, testing medication on Plaintiff without consent, is belied by the other allegations in the FAC, namely that Plaintiff was apparently aware that the medication was experimental and that Defendant was aware that the medication would not be effective. (FAC, ¶ 12.) That Plaintiff did not understand the extent of the side effects goes more to a claim for lack of informed consent premised on medical malpractice, not an intentional tort. (See Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 351.)

In response to Plaintiff’s Third Cause of Action for fraud, Defendants argue that Plaintiff fails to plead specific facts showing that Dr. Jaber intended to defraud him and that Plaintiff is merely repeating his professional negligence claim. In opposition, Plaintiff argues again that his allegations are distinct from malpractice because Dr. Jaber acted with the “ulterior purpose” of unauthorized testing.

Plaintiff’s allegation that Dr. Jaber knew the medication would not work is at odds with his allegation that Dr. Jaber had intended to “test” the medication on Plaintiff without consent. (FAC, ¶¶ 47-49.) It is possible that Plaintiff meant to imply that Dr. Jaber was fraudulently peddling a medication that he knew was ineffective in order to profit off Plaintiff (in lieu of alleging that he treated Plaintiff as an unknowing test subject). However, fraud must be pled with specificity. Accordingly, Defendants’ demurrer to the Third Cause of Action is SUSTAINED.

As for Plaintiff’s Fourth Cause of Action for constructive fraud, constructive fraud differs from actual fraud in that no fraudulent intent is required. (Civ. Code, § 1573(1).) Rather, if one who is under a fiduciary duty to provide complete and accurate information to the plaintiff and fails to do so, and the plaintiff is misled to the plaintiff’s prejudice, there is a claim for constructive fraud despite any intent to mislead or deceive.

Here, Plaintiff alleges that Dr. Jaber deceived him by “provid[ing] him with medications that were not FDA approved, and which caused side effects, and that Defendant had no intention of curing his condition.” (FAC, ¶ 54.) However, Plaintiff fails to allege that he was misled because he does not allege that he was ever under the impression that the experimental drug was FDA approved or that he would not have taken the medication if he knew that the FDA had not approved this experimental drug. Also, Plaintiff does not allege that had he known about the side effects of this experimental drug, he would not have taken it.

Accordingly, the demurrer to the Third and Fourth Causes of Action is SUSTAINED.

The UCL prohibits “unlawful, unfair, or fraudulent business practices.” (Bus. & Prof. Code, § 17200.) Plaintiff alleges that Defendants engaged in “repeated deception and harassment of patients” and “provided non-FDA approved medication without proper prescription or informed consent.” (FAC, ¶¶ 58-59.) Plaintiff does not identify a particular statute or law that was violated, such as any prohibition on the sale, prescription, or advertisement of FDA-approved experimental drugs, and therefore fails to identify any unlawful practice.

However, Plaintiff adequately alleges an unfair business practice. In the consumer context, an act or practice is unfair under the UCL if the consumer injury is substantial, the injury is not outweighed by any countervailing benefits to consumers or to competition, and the injury is not an injury that consumers themselves could reasonably have avoided. (See Camacho v. Automobile Club of Southern California (2006) 142 Cal.App.4th 1394, 1403.) Here, Plaintiff alleges a substantial injury, including the progression of HIV into AIDS and his inability to work, that is not outweighed by the perceived benefits of an ineffective drug. (FAC, ¶¶ 22, 25.) Plaintiff’s injuries are also not ones which he could have avoided. Accordingly, the demurrer to the Fifth Cause of Action is OVERRULED.

Since the only viable claims remaining are Plaintiff’s medical malpractice claim and the UCL claim, Defendants’ motion to strike Plaintiff’s claims for punitive damages is GRANTED. (Code Civ. Proc., § 425.13 [punitive damages against medical provider may only be asserted on motion]; Bus. and Prof. Code, §§ 17203-17206 [only injunctive relief and restitution available for UCL claims].)

Defendants’ motion to strike attorneys fees under Code of Civil Procedure section 1033.5(a)(10) is also GRANTED. Plaintiff’s lawsuit primarily seeks to recover compensation for his personal injuries. (Schwartz v. City of Rosemead (1984) 155 Cal.App.3d 547, 555 [“The private attorney general theory, as codified in this section, authorizes an award of attorney’s fees when: (1) the action has resulted in the enforcement of an important right affecting the public interest, (2) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons; and (3) the necessity and financial burden of private enforcement.”])

Defendants’ motion to strike Plaintiff’s allegation of $20,000,000 in damages in paragraph 26 is GRANTED. (Code Civ. Proc., § 425.10, subd. (b) [amount demanded shall not be stated in the complaint for a personal injury action].)

Defendants’ demurrer to the Second, Third, and Fourth Causes of Action is SUSTAINED with 20 days leave to amend.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.