Richard L Cain vs Goleta Valley Cottage Hospital
Richard L Cain vs Goleta Valley Cottage Hospital
Case Number
23CV01757
Case Type
Hearing Date / Time
Fri, 11/03/2023 - 10:00
Nature of Proceedings
CMC; Demurrer
Tentative Ruling
# 23CV01757 Richard L. Cain v. Goleta Valley Cottage Hospital
Hearing Date: 11/3/2023
HEARING: Demurrer by defendant Cottage Health to First Amended Complaint
ATTORNEYS: Plaintiff is in pro per
William Clinkenbeard of Clinkenbeard, Ramsey, Spackman & Clark, LLP
for defendant Cottage Health
TENTATIVE RULING:
The demurrer will be sustained, without leave to amend.
Background: Plaintiff’s original complaint, filed April 21, 2023, named only Goleta Valley Cottage Hospital (GVCH) as a defendant, and set forth causes of action for professional negligence, medical battery, nonconsensual implantation of subcutaneous device (Civ. Code, § 52.7), and non-disclosure and fraudulent concealment.
The complaint alleged that it is related to Santa Barbara Superior Court Case No. 1402957 (Richard L. Cain v. Pueblo Radiology Associates, Inc., et al.), which plaintiff contends was dismissed without prejudice so that plaintiff could gather more information about the technology and research about the secretly implanted devices and to identify all defendants. That action had named as defendants both GVCH and Santa Barbara Cottage Hospital. The complaint alleges that Cain is bringing the action to seek compensation for the unauthorized, secret implantation into his body of manufactured biomedical devices, components, and wiring, known as Remote Neural Monitoring technological and Micro-electro-mechanical systems, along with “stems” which are designed to stimulate, surveil, influence, manipulate the body, and collect information about physiological (including muscular, glandular, organ, and systems) and neurological processes affecting diverse areas of bodily function. It alleges that Cottage Health System, aka Goleta Valley Cottage Hospital, is a health care institution which provides professional medical services.
The complaint set forth a personal history of plaintiff beginning in 2008 when he began having strange symptoms and was treated with various medical practitioners at various medical facilities, and his ultimate claimed discovery of implants in his body and surgical scars after obtaining x-rays from GVCH. Plaintiff alleges that he had gone to GVCH on April 4, 2004, to have his blood pressure checked after experiencing strange symptoms, was placed in a curtained-off room, was provided with intravenous medications to lower his blood pressure, and did not authorize or consent to any other type of treatments or surgical procedures while visiting GVCH. It alleges that plaintiff was evaluated in 2013 by Dr. Hildegard Staninger, Ph.D., and Dr. Daniel Farrier, M.D., who determined he had been implanted with foreign bodies, and had numerous surgical scars. In 2013 he also met with a private investigator, who conducted frequency scans on his body, which scanned positive for having frequencies emanating from within his body. Their 2013 reports are attached to the complaint. These persons advised that this had to have taken place in a medical facility, and he therefore ordered his medical records from GVCH, which revealed a chest X-ray which depicts an implant lead anchor mounted on each shoulder, with leads extending downward from the backs of his ears, through his chest cavity, and connected to other components. A 2013 MRI at UCLA Medical Center depicted foreign bodies located at the base of his skull, on both sides, in plaintiff’s brain, and other areas of his head.
The complaint alleges that plaintiff had been secretly implanted with remote neural monitoring technology, without his consent. It alleged that the devices gathered personal and private information about plaintiff without his permission, and that defendant operated in concert with co-conspirators to non-consensually implant radio frequency identification-controlled devices (RFIDs) into plaintiff for experimental purposes, to acquire personal information about plaintiff, and for personal gain. The complaint prayed for medical and related expenses, damages to personalty, damages for loss of personal possessions, general damages, special damages, incidental damages, exemplary damages, restitution, civil penalties, attorneys’ fees, and a court order to allow removal of the remaining foreign objects.
In his First Amended Complaint (FAC), filed on June 14, 2023, plaintiff omitted Goleta Valley Cottage Hospital and named Cottage Health as a defendant. The FAC set forth causes of action for intentional infliction of emotional distress, negligent infliction of emotional distress, medical battery, non-disclosure and fraudulent concealment, and extrinsic fraud. The FAC omitted the allegation that the lawsuit is related to Case No. 1402957, and added allegations that everyday the devices remain in his body is considered a continuous medical battery, that the discoveries outlined in the complaint occurred “on March 15, 20223 [sic],” that the discovered 2004 GVCH X-ray was read and foreign bodies depicted therein identified a leads and lead implant anchors, and that the foreign bodies located in his skull and brain have been identified as components of Remote Neural Monitoring.
The FAC reiterated the allegations with respect to the status of Goleta Valley Cottage Hospital as a health care institution, and further alleged that newly named defendant, Cottage Health, is the owner and operator of Goleta Valley Cottage Hospital. It also adds the allegation that Cottage Health is being sued as principal/agent, servant, and employee “of each other.”
The FAC further adds general allegations that unknown federal agents have provided cover, obstructed justice, and prevented him from litigating the case, and he intend to file a civil rights claim with the Department of Justice. It further ads that if plaintiff had not been told of the devices, his family would have been told he had a heart attack; that the devices cause sleep deprivation and make it difficult to litigate, and attorneys are afraid of taking the case because of who they believe is behind the crimes; and that plaintiff believes he was framed and placed on a terror watchlist in order to cover up a wrongful profile or human experimentation. The federal agents or co-conspirators began a scorched earth campaign including homelessness, joblessness, and many other tactics to make plaintiff go away permanently. While trying to fight in the courtroom plaintiff was fighting for his life outside of the courtroom.
The FAC briefly alleges a new cause of action for negligent infliction of emotional distress, which alleges that plaintiff suffered emotional distress as a result of defendants’ conduct. The FAC’s added cause of action for negligent infliction of emotional distress includes virtually all of the allegations that had been contained in the original complaint’s now-omitted cause of action for professional negligence, and added to them allegations regarding his suffering of emotional distress, as well as allegations that defendants did not provide sufficient supervision to ensure his safety, and that he was harmed by being placed unconscious and implanted with a plethora of biomedical devices, that his blood pressure issues are caused by the devices, and his blood pressure will never be normal again until the devices are removed.
The medical battery and fraud causes of action set forth in the FAC are largely identical to those set forth in the original complaint. Finally, the newly-alleged cause of action for extrinsic fraud alleges what plaintiff contends is a definition of “extrinsic fraud,” and concludes that “The plaintiff has provided overwhelming evidence that extrinsic fraud is prevalent in this case as described above.”
The FAC omitted the exhibits attached to the original complaint, although it maintained the references to those exhibits within the allegations of the pleading. (See FAC @ ¶¶ 42, 44, 46, 48, 50-51.)
Finally, the FAC sought the same relief as did the original complaint, i.e., medical and related expenses, damages to personalty, damages for loss of personal possessions, general damages, special damages, incidental damages, exemplary damages, restitution, civil penalties, attorneys’ fees, and a court order to allow removal of the remaining foreign objects.
Demurrer: Defendant Cottage Health has demurred to the FAC, and seeks judicial notice of a series of court documents and Secretary of State filings for Cottage Health Systems and Cottage Health. The demurrer first sets forth a brief history of plaintiff Cain’s 2012 lawsuit (Case No. 1402957). It discusses the original complaint in the current action containing nearly identical allegations to those in the 2012 lawsuit, including a clarification that the previous action was not dismissed without prejudice, but in fact summary judgment was granted in favor of GVCH and SBCH in that action, which was upheld on appeal, and plaintiff’s amendment of the complaint to omit GVCH and name Cottage Health (which he alleges “owns and operates” GVCH) as a defendant, and to replace the “nonconsensual implantation of subcutaneous device” cause of action with one for “extrinsic fraud.” The demurrer contends that the FAC is a “sham pleading,” given its attempt to avoid defects in the original complaint by merely deleting them without explanation, and that the Court therefore need not accept as true the allegations of the FAC which are inconsistent with those of the original complaint, including that he discovered his claims “on or about March 15, 20223 [sic].”
Cottage Health argues further that the first (intentional infliction of emotional distress), second (negligent infliction of emotional distress), and third causes of action (medical battery) are barred by the one- and three-year statutes of limitation set forth in Code of Civil Procedure section 340.5, since each are based upon defendants’ alleged provision of medical services in around 2004, which were discovered no later than 2012. Cottage Health argues further that the first (intentional infliction of emotional distress), second (negligent infliction of emotional distress), third (medical battery), and fourth (non-disclosure and fraudulent concealment) causes of action are barred by res judicata and collateral estoppel, arising from this Court’s entry of summary judgment in that action in favor of the two Cottage Health entities.
Cottage Health asserts that the fourth cause of action for “non-disclosure and fraudulent concealment” is barred by the three-year statute of limitations for fraud, found in Code of Civil Procedure section 338(d), given that his 2012 complaint and amended complaint spelled out in detail his discovery of the alleged concealment and conspiracy.
Finally, Cottage Health asserts that the cause of action for “extrinsic fraud” fails to state facts sufficient to constitute a cause of action (given that there is no such cause of action, and “extrinsic fraud” is merely a description of the type of conduct that will allow a complaining party to have a prior action set aside when the party was precluded from presenting her claim or defense due to extrinsic fraud, and was therefore denied a fair proceeding) and is barred by the three year statute of limitations for fraud under Section 338(d).
Cottage Health contends that no leave to amend should be permitted, because the same claims were previously litigated to a final adjudication against plaintiff, and are barred by the statutes of limitation and res judicata.
Opposition: Plaintiff has opposed the demurrer, contending that the 2012 case was not won on the merits by defendants, that Cottage Health was not named as a defendant, and that this case involves different claims not mentioned in the previous case, and presents new evidence in the form of additional devices having been discovered in plaintiff’s brain, eyes, and skull, which were not known due to fraudulent concealment. He argues that he discovered the matters on January 15, 2023.
With respect to the res judicata demurrer, plaintiff asserts that res judicata will not bar a second suit based on a contract raised in a prior action when the claim subsequently raised involves a second, independent contractual breach, or when the second claim is for a continuing wrong. He argues that a prior judgement on the merits will only preclude a second suit when it involves the same transactions or occurrences raised in the first action, and when the second lawsuit requires the same evidence to support it and is based on facts that were present in the first lawsuit. (No authority is cited.)
With respect to “Fraudulent Concealment/Statute of Limitations,” plaintiff states only that fraudulent concealment is a principle that prevents a defendant from invoking the statute of limitations if they have fraudulently concealed the existence of a claim or the identity of any person who is liable for the claim from the knowledge of the person entitled to sue, and that a plaintiff can bring evidence that a defendant prevented the discovery of the injury through intentional misrepresentation. (No authority is cited.)
Continuance: The Court, on its own motion, continued the hearing on the demurrer to November 3, 2023, based upon caseload considerations.
ANALYSIS: The Court will sustain the demurrer to the complaint, without leave to amend.
1. Judicial Notice.
In support of its demurrer, Cottage Health has requested judicial notice of plaintiff’s complaint and first amended complaint in this action; a series of documents from both the Santa Barbara Superior Court and the Second District Court of Appeal, Division Six related to plaintiff’s 2012 action entitled Richard L. Cain, et al., v. Sansum Clinic, et al., Case No. 1402957; a series of court documents related to his 2014 action entitled Richard L. Cain v. Kai Z. Kinder, M.D., Case No. 1468564; and corporate documents for Cottage Health System which show that its name was changed to Cottage Health.
Matter to be judicially noticed must be relevant to the issues in the case. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, disapproved on other grounds by In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) Pursuant to Evidence Code section 452(d), judicial notice may be taken of the records of any state court. Plaintiff has not challenged the propriety of the request for judicial notice of the Superior Court and Court of Appeal records, and the Court will therefore grant the request to judicially notice all such records.
Evidence Code section 452, subdivisions (c) and (h), respectively, permit a court, in its discretion, to take judicial notice of the official acts of any state of the United States, and facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Plaintiff has not challenged the propriety of the request for judicial notice of the records filed with the Secretary of State’s Office, which reflect the same corporate number for Cottage Health System and Cottage Health, and the Court will therefore grant the request to judicially notice such records.
2. Standards on demurrer.
The court’s task in ruling on a demurrer is to determine whether the complaint states a cause of action. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer admits the truth of all material facts properly pleaded (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967), no matter how unlikely or improbable they may be (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604), or how unlikely it will be that plaintiff will be able to prove the claim (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214). The court also assumes the truth of all reasonable inferences that may be drawn from the properly pleaded facts. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083.) The assumption of truth does not apply, however, to contentions, deductions, or conclusions of law or fact. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters, and therefore lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.)
Where the allegations of the complaint or matters of which judicial notice may be taken reveal a defense to the action, such as a statute of limitations bar, the plaintiff must “plead around” the defense by alleging specific facts which would avoid the apparent defense. Absent such allegations, the complaint is subject to demurrer for failure to state a cause of action. (See Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 825; Lee v. Escrow Consultants, Inc. (1989) 210 Cal.App.3d 915, 917, 921-922.) Similarly, where plaintiff relies on a theory of fraudulent concealment to save a cause of action that otherwise appears on its face to be time-barred, he or she must specifically plead facts that, if proved, would support the theory. (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 641.) Additionally, if a plaintiff relies upon the discovery rule, the complaint must specifically allege facts showing “(1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.)
Generally speaking, an amended pleading making substantive changes supersedes the original pleading. (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130-1131.) However, under the sham pleading doctrine, an amended pleading that contradicts facts alleged in an earlier pleading is subject to challenge unless it satisfactorily explains the contradiction. Such a pleading is subject to demurrer as a “sham.” (See Amid v. Hawthorne Comm. Med. Group (1989) 212 Cal.App.3d 1383, 1390.) Similarly, if allegations in an original pleading which rendered it vulnerable to demurrer are omitted from an amended pleading without explanation, the court will read into the amended pleading the allegations of the original complaint that rendered it defective, and need not accept as true the allegations of the amended pleading. (Vallejo Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th 929, 946.) Courts have applied the doctrine where an amended pleading omitted the dates which disclosed that the original complaint was barred on its face by the statute of limitations (Kenworthy v. Brown (1967) 248 Cal.App.2d 298, 302), and where an amended complaint deleted the facts which refuted plaintiff’s claim of delayed accrual. (Foxen v. Carpenter(2016) 6 Cal.App.5th 284, 295.)
3. Statute of limitations for professional medical negligence.
Cottage Health has demurred to the first cause of action for negligent infliction of emotional distress, the second cause of action for intentional infliction of emotional distress, and the third cause of action for medical battery, on grounds that each such cause of action is based upon alleged professional negligence, and is therefore barred by the provisions of Section 340.5.
The second cause of action for intentional infliction of emotional distress alleges that GVCH failed to provide safety and the requested treatment that plaintiff sought, and negligently failed to monitor plaintiff, causing irreparable harm. Defendant breached its duty to use due care by failing to ensure plaintiff’s safety, and he was harmed because he was rendered unconscious and implanted with biomedical devices, which are causing his abnormal blood pressure. It alleges further that defendants breached their duties to plaintiff by (a) failing to inform him they would be performing nonconsensual surgeries and implanting subcutaneous devices within him, (b) failing to offer him a choice about being implanted with RFIDs, (c) failing to inform him of the risks of being implanted, failing to inform him he was the subject of an experiment, (3) failing to obtain his informed consent to the surgery to implant the devices, (f) performing surgery without his knowledge and approval, (g) negligently performing the surgery, (h) failing to supervise the doctors, (i) failing to intervene in the surgeries, (j) failing to train doctors, (k) failing to notify plaintiff of the surgeries that were performed, and (l) permitting the doctors to carry out experiments on plaintiff for financial gain. It alleges that in carrying out their negligent acts, defendant failed to adhere to the standard of care and skill ordinarily and reasonably required of physicians, surgeons, hospitals, nurses, etc., and their negligent acts caused plaintiff’s injuries, in having been non-consensually implanted with leads and RFIDs, and being prevented from obtaining professional medical care to remove the devices.
The third cause of action for medical battery alleges that defendants, between December 28, 1999, and March 10, 2008, performed and supervised non-consensual procedures to implant subcutaneous devices into plaintiff for purposes of financial gain and medical experimentation, without his consent, knowledge, or authorization. The nonconsensual implantation was conducted by doctors within the scope of their employment by GVCH, constituting an offensive contact with plaintiff’s body. In doing so, each defendant acted recklessly, and in violation of public policy and ethical standards for medical professionals. As a result, plaintiff was injured, and has sustained mental, physical, and nervous pain and suffering, including scarring from the implantation surgeries. The electronic activations have led to unwarranted personality and behavioral changes in plaintiff, and the continuing interference with his brain function have produced mental aberrations characterized as paranoid and delusional. He has been prevented from leading a normal healthy life, and from participating in various activities until the devices are removed. Removal could cause death or injury requiring lifetime medical attention. Plaintiff has suffered lost wages and earning capacity, and emotional pain and suffering. He alleges that defendants intentionally caused him injury and harm.
A. Authority
Code of Civil Procedure section 340.5 provides, in relevant parts:
In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person. . . .
For the purposes of this section:
(1) “Health care provider” means . . . any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. . . .
(2) “Professional negligence” means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital. [Emphasis added.]
Section 340.5 contains two separate statutes of limitation, both of which must be satisfied to render a plaintiff’s action timely. (Trantafello v. Medical Center of Tarzana (1986) 182 Cal.App.3d 315, 318.) If a malpractice litigant brings an action within three years from the date of injury, he or she must still satisfy the one-year limitations period, or the action is barred. Conversely, if the action is properly brought within one year of reasonable discovery, the action is nevertheless barred if the three-year period is not also satisfied. (Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 757-758.) The two periods are not triggered by the same event. The three-year limitation period is triggered by the date of injury (Tresemer v. Barke (1978) 86 Cal.App.3d 656, 664), and specifically the date of the damaging effect of the wrongful act, rather than the date of the act itself. (Steingart v. White (1988) 198 Cal.App.3d 406, 413.) For purposes of the three-year provision, a plaintiff’s injury occurs at the point at which appreciable harm first manifests itself physically (Brown v. Bleiberg (1982) 32 Cal.3d 426, 437, fn. 8), and commences to run when the plaintiff is aware of the physical manifestations of the injury, without regard to awareness of the negligent cause. (Hills v. Aronsohn, supra, 152 Cal.App.3d at p. 760..)
The one-year limitation period runs from the date the injury and its cause were discovered, or with due care and diligence should have been discovered. (Hills v. Aronson, supra, 152 Cal.App.3d at 759.) The one-year period requires that the plaintiff understand the negligent cause of the injury. (Marriage & Family Center v. Superior Court (1991) 228 Cal.App.3d 1647, 1652.) For purposes of the one-year provision, “injury” means both a person’s physical condition and its negligent cause. Once a patient knows, or by reasonable diligence should have known, that she has been harmed through professional negligence, the patient has one year to bring suit. The patient is charged with presumptive knowledge of the negligent injury, and the statute commences to run, once the patient has notice or information of circumstances to put a reasonable person on inquiry, or the opportunity to obtain knowledge from sources open to investigation by the patient; when the patient’s reasonably founded suspicions have been aroused and the patient has actually become alerted to the necessity for investigation and pursuit of remedies, the one-year period for suit begins. (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896-897.)
As set forth in Section 340.5, the three-year provision—but not the one-year provision—may be tolled (1) on proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body which has no therapeutic or diagnostic purpose or effect in the person of the injured person. (Code Civ. Proc., § 340.5; Gutierrez v. Mofid, supra, 39 Cal.3d at 896.)
While non-discovery will toll the one-year period, concealment by the defendant will not toll the one-year period if discovery has occurred. (Young v. Haines (1986) 41 Cal.3d 883, 901.) Further, intentional concealment is something more than a failure to obtain the patient’s informed consent. (Trantafello, supra, 182 Cal.App.3d at 321.) The concealment must relate to the existence of a cause of action, whether defined as one for negligence or one for lack of informed consent. (Id. at p. 322.)
The foreign body tolling limitation gives a patient an unlimited time to discover or to use reasonable diligence to discover the presence of the foreign body. However, once the patient discovers or through reasonable diligence would have discovered the foreign body and its role in his or her injury, he or she has only one year to file a lawsuit against the practitioners responsible for leaving the foreign body inside of him or her. (Ashworth v. Memorial Hospital (1988) 206 Cal.App.3d 1046, 1058.) The patient is not free to completely ignore the statute of limitations just because he or she finds out a foreign body was left in his or her body, which is causing harm; the plaintiff must still act within one year of discovering the foreign body exists and is the negligent cause of injury. (Ibid.)
Finally, when additional claims arise out of the same facts that support a professional negligence claim, including claims for battery, fraud, breach of contract, and intentional or negligent infliction of emotional distress, courts must determine whether a claim made on such theories is nonetheless based on the health care provider’s professional negligence. If the gravamen of the claim is professional negligence, the MICRA statute of limitations set forth in Section 340.5 applies, regardless of the label or form of action the plaintiff has selected. (Larson v. UHS of Rancho Springs, Inc.(2014) 230 Cal.App.4th 336, 347.)
B. Arguments and application of law.
Based on the allegations of Cain’s Fourth Amended Complaint (4AC) in the 2012 action, Cottage Health argues that it is clear that plaintiff knew no later than its filing date, April 4, 2013, that he was injured due to Cottage Health aka GVCH, arising from the implantation of the devices, and the misreading of the 2004 radiologic film as normal when it was not. In that 4AC, he alleged that defendants, including Cottage Health aka GVCH, conspired with each other to both implant the devices, and to conceal their implantation from him. The April 21, 2023 filing of the current action is well beyond the one-year statute of limitations set forth in Section 340.5, and the action is time-barred. The alternative 3-year limit is not subject to tolling, and his complaint about an X-ray performed without his consent in 2004 was time barred in 2007 under this limit, regardless of when he discovered the negligence or his injury. This action was filed 8 years after final adjudication of the prior action, 11 years after the prior complaint was filed, and 19 years after the alleged wrongful conduct.
Plaintiff’s opposition brief does not address the demurrer based upon the professional negligence statute of limitations in Section 340.5, or any of the authorities cited by Cottage Health with respect to how Section 340.5 operates and is applied. Rather, it only notes that “[t]he discoveries outlined in the current lawsuit were discovered on or about January 15, 2023”—a date which contradicts the allegations of the FAC, which alleges the discoveries were identified on “March 15, 20223 [sic]” [FAC at ¶ 3.]—and then discusses fraudulent concealment of a claim.
Each of these three causes of action are based upon the alleged non-consensual implantation of RFIDs in plaintiff’s body at GVCH, and misreading of scans which depicted the implanted devices as “unremarkable,” in breach of the standard of care required of physicians, surgeons, hospitals, or nurses, resulting in plaintiff’s sustaining of injuries. Under the express allegations of plaintiff’s FAC, plaintiff has acknowledged that he was aware no later than 2013 that he had been implanted with RFIDs, likely at GFCH in 2004. [FAC @ ¶¶ 41-49, & 51-54.] Additionally, these same allegations were clearly articulated in the allegations of plaintiff’s 2012 and 2013 pleadings in Case No. 1402957. Plaintiff’s claims based upon defendant’s alleged professional negligence were therefore barred no later than one year after the latest of those pleadings, on April 4, 2014.
While plaintiff throws an allegation into the medical battery cause of action that defendants intentionally caused him injury or harm, even if the Court were to remove the application of the professional negligence limitations set forth in Section 340.5, the cause of action would still be barred by the applicable statute of limitations, even with application of the discovery rule. Plaintiff’s allegations, both here and in his earlier action, make clear that he had discovered the implantations and their impact on his body and health, no later than 2013. Additionally, the FAC fails to make any factual allegations, specific or otherwise, to support his theory that his causes of action were fraudulently concealed from him, which is necessary in order to permissibly claim delayed accrual of his claims. (See Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 641.)
The Court will therefore sustain the demurrers to the first through third causes of action, on the ground that they are barred by the MICRA statute of limitations found in Code of Civil Procedure section 340.5.
4. Statute of limitations for fraud-based claims.
Code of Civil Procedure section 338(d) establishes a three-year limitation period for any action for relief made on the ground of fraud or mistake. Pursuant to its terms, the cause of action is not deemed to have accrued until the aggrieved party’s discovery of the facts constituting the fraud or mistake.
Plaintiff’s fourth cause of action for non-disclosure and concealment alleges that defendants knew or should have known the risk of complications that could occur in the non-consensual implantation of subcutaneous devices into nonsuspecting patients, but failed to disclose and concealed that (a) plaintiff had been implanted without his consent, (b) plaintiff was the subject of experiments, (c) defendants were being paid to participate in the experiments by supervising, upgrading, record-keeping, and concealing the implants by fabricating the radiology reports in an effort to conceal the unlawful experiments, (d) plaintiff was not informed of the risks and hazards associated with having implant leads and RFIDs non-consensually implanted in his body, and (e) medical imaging studies indicated the presence of foreign objects within plaintiff’s body. Defendants failed to disclose the information necessary to enable plaintiff to make informed decisions regarding the procedures defendants intended to subject him to, and failed to inform him that a surgery would take place or obtain his consent to undergo such surgery. He relied on the failure to disclose, in that he would not have consented to the surgeries and the implantation of subcutaneous devices. Plaintiff sustained permanent injuries to his body. The FAC alleges further that as a result of defendants’ failure to disclose, plaintiff was unable to seek appropriate medical services for a period, so that the implanted devices could be removed. He alleges that unknown rogue federal agents played a role, given the sophistication of the network and the technologies involved. He believes the devices are being implanted “in a particular race” to cause high blood pressure, strokes, and heart attacks, contending that he was healthy up until 2004, concluding that it is an obvious hate crime.
Plaintiff’s fifth cause of action for “extrinsic fraud” alleges only that extrinsic fraud induces one not to present a case in court or deprives one of the opportunity to be heard, and is defined as fraudulent acts which keep a person from obtaining information about his/her rights to enforce a contract or get evidence to defendant against a lawsuit. It could include destroying evidence or misleading a person in their right to sue. He concludes that he has provided overwhelming evidence that extrinsic fraud is prevalent in this case “as described above.”
Cottage Health has demurred on statute of limitations grounds to both the fourth cause of action for “non-disclosure and fraudulent concealment,” and the fifth cause of action for “extrinsic fraud.” Cottage Health argues that plaintiff was on notice of the alleged fraudulent concealment no later than July 24, 2012, when he filed the underlying complaint which, along with his amended complaints in that action, detailed his discovery of the concealment and conspiracy. With respect to “extrinsic fraud,” Cottage Health asserts that to the extent any such cause of action might exist (which it contends it does not), this cause of action, too, is barred by the three-year statute of limitations of Section 338(d).
In his opposition, plaintiff contends that fraudulent concealment is a principle that prevents a defendant from invoking the statute of limitations if they have fraudulently concealed the existence of a claim or the identity of any person liable, and that a plaintiff can bring evidence that a defendant prevented discovery of the injury through means of fraud.
The Court will sustain the demurrer to the fourth and fifth causes of action, on grounds that they are barred by the three-year statute of limitations set forth in Code of Civil Procedure section 338(d). The FAC’s express allegations make clear that plaintiff was aware of all facts constituting the fraud no later than 2013, when he alleges that he was evaluated by Drs. Staninger and Farrier and the private investigator, who determined he had been implanted with foreign bodies, had numerous surgical scars, frequencies were emanating from inside his body, and that the implantations had to have occurred in a medical facility. [FAC @ ¶¶ 41-47, 53.] It alleges that after receiving this information, he sought his medical records from GVCH, which contained an X-ray which depicted implanted devices in an area where Dr. Farrier had discovered surgical scars. [FAC @ ¶¶ 47-49.] He also obtained an MRI at the UCLA Medical Center in 2013, which he contends depicts foreign bodies at the base of his skull, connected to a wire lead, which connects to another foreign body, and shows other foreign bodies implanted in his brain and head. [FAC @ ¶¶ 51-52 (the Court notes that the FAC contains two separate ¶ 51s).]
The statute of limitations demurrers to the fourth and fifth causes of action will be sustained.
5. Res judicata bar.
In addition to asserting statute of limitations bars, Cottage Health has also demurred to the first (negligent infliction of emotional distress), second (intentional infliction of emotional distress), third (medical battery), and fourth (non-disclosure and fraudulent concealment) causes of action on res judicata grounds.
A. Authority
The doctrine of res judicata precludes parties or their privies from relitigating an issue that has been finally determined by a court of competent jurisdiction. (Levy v. Cohen (1977) 19 Cal.3d 165, 171.) Any issue necessarily decided in such litigation is conclusively determined as to the parties or their privies if it is involved in a subsequent lawsuit on a different cause of action. (Ibid.) Application of the doctrine depends upon an affirmative answer to three questions: (1) Was the issue decided in the prior adjudication identical with the one presented in the action in question? (2) Was there a final judgment on the merits? (3) Was the party against whom the plea is asserted a party to or in privity with a party to the prior adjudication? (Ibid.)
As described by the California Supreme Court in Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896, “res judicata” describes the preclusive effect of a final judgment on the merits, and prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Collateral estoppel, or issue preclusion, precludes relitigation of issues argued and decided in prior proceedings. Under the doctrine, all claims based on the same cause of action must be decided in a single suit, and if they are not, they may not be raised at a later date; it precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief. (Id. at p. 897.)
The res judicata doctrine is based on the primary right theory, under which a cause of action is comprised of a ‘primary right’ of the plaintiff, a corresponding ‘primary duty’ of the defendant, and a wrongful act by the defendant constituting a breach of that duty. A primary right is indivisible—its violation gives rise to but a single cause of action. (Id. at p. 904, quoting Crowley v. Katleman (1994) 8 Cal.4th 666, 681-682.) It is a plaintiff’s right to be free from the particular injury suffered—regardless of the legal theory on which liability is premised. Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief. (Ibid.) The primary right theory is invoked when a plaintiff attempts to divide a primary right and enforce it in two suits. The theory prevents this result by either of two means: (1) if the first suit is still pending when the second is filed, the defendant in the second suit may plead that fact in abatement; or (2) if the first suit has terminated in a judgment on the merits adverse to the plaintiff, the defendant in the second suit may set up that judgment as a bar under the principles of res judicata. (Ibid.)
B. Arguments and application of law.
In its demurrer, Cottage Health contends that the first through fourth causes of action are barred by res judicata, since the issue decided in the 2012 lawsuit was the same as the issue presented herein, and that action was resolved on its merits in favor of Cottage Health’s privies, GVCH and SBCH. That entry of summary judgment was affirmed on appeal by the Second District Court of Appeal, Division Six. Referring to its Request for Judicial Notice Exhibits B through F with respect to the pleadings in the 2012 action, and Exhibits P and Q for the corporate documents,
Cottage Health asserts that it is a party in privy with GVCH, which was a party to the 2012 lawsuit, for purposes of the application of res judicata. In the 2012 lawsuit, plaintiff alleged that Cottage Health System was also known as GVCH. [Ex. F, @ ¶¶ 14-15.] Cottage Health System is a California corporation incorporated in 1996, which later changed its name to Cottage Health; the two entities have the same corporation number. [Exs. P & Q.] Plaintiff initially named GVCH as a defendant in the 2023 action, and in his FAC named Cottage Health as the sole defendant. Regardless of its name, Cottage Health asserts that it remains in privy with GVCH, and plaintiff is barred from relitigating the causes of action and issues decided against plaintiff in the 2012 action.
This Court is well familiar with plaintiff’s 2012 action (Case No. 1402957), over which it presided, and the documents of which judicial notice was requested by Cottage Health have permitted it to refresh its recollection of that case. The initial complaint was filed on July 24, 2012. [Exhibit B to CH Request for Judicial Notice.] The final operative complaint in that case was the Fourth Amended Complaint, which plaintiff Cain filed on April 4, 2013 [Exhibit F to CH Request for Judicial Notice]. After resolution of the demurrers to that pleading, plaintiff’s surviving causes of action were for medical battery, non-consensual implantation of subcutaneous devices, fraudulent concealment and nondisclosure, and professional negligence. It named as defendants Goleta Valley Cottage Hospital and Santa Barbara Cottage Hospital, among many other individual and entity defendants. It identified “Defendant Cottage Health System” as the “aka” of both GVCH and Santa Barbara Cottage Hospital. It included many of the allegations contained in the current complaint, including a recitation of plaintiff’s April 4, 2004 visit to the emergency room at GVCH, and discussed the discovery of implanted subcutaneous RFID biomedical devices through X-rays, MRIs and CT scans in the 2012-2013 time frame, as well as the discovery of surgical scars on plaintiff’s body. It alleged a scheme and conspiracy among the various defendants to non-consensually implant RFIS to induce illnesses, thereafter misreading as “normal” or “unremarkable” scans which revealed the implanted devices, all for defendants’ financial gain. It prayed for the identical damages which are prayed for in plaintiff’s current complaints.
Case No. 1402957 was not dismissed without prejudice in order to allow plaintiff to gather more information, as was represented in plaintiff’s original complaint in this action. Rather, that action was largely resolved through grant of motions for summary judgment filed by various of the defendants, some of which plaintiff opposed, and some of which he did not. The motion for summary judgment brought by GVCH was granted by the Court after a hearing on June 27, 2014, after which formal judgment was entered on August 19, 2014. [Exhibits G & H to CH Request for Judicial Notice.] That judgment was affirmed by the Second District Court of Appeal, Division Six, on April 23, 2015, and the Remittitur issued on July 5, 2015. [Exhibits I & J to CH Request for Judicial Notice.]
Further, Cottage Health System was an expressly named defendant in Case No. 1468564, entitled Richard L. Cain v. Kai Z. Kinder, M.D, et al., also based upon the reading of a CT scan taken at the Cottage Center for Advanced Imaging in 2012 as “unremarkable” and showing only a benign nodule when, in fact, it depicted implanted RFIDs. [Exhibit L to CH Request for Judicial Notice.] That complaint discussed the 2013 evaluations by Dr. Hildegard Staninger, Ph.D., and Dr. Daniel Farrier, M.D., his use of the private investigator who scanned him and found him positive for electromagnetic frequencies coming from his body. Based on those allegations, it alleged causes of action for professional negligence, breach of fiduciary duty, fraud by concealment, fraud by misrepresentation, and negligent misrepresentation.
That case, too, was resolved in favor of related Cottage Health System defendants by grant of the Cottage Health System motion for summary judgment, after a hearing held on August 7, 2015. [Exhibit M to CH Request for Judicial Notice.] Judgment was then entered in favor of Santa Barbara Cottage Hospital and Cottage Health Systems on August 21, 2015. [Exhibit N to CH Request for Judicial Notice.]
While plaintiff appears to believe that the fact that “Cottage Health” was not a party to the previous action precludes the application of res judicata, plaintiff has failed to take into account the application of res judicata to those in privity with parties to the earlier action.
In each of Cain’s five complaints in Case No. 1402957 [See Cottage Health Request for Judicial Notice, at Exhibits B-F], he identified Cottage Health System as a party, “aka Goleta Valley Cottage Hospital” and “aka Santa Barbara Cottage Hospital.” They do not allege any independent conduct by Cottage Health System—only by Goleta Valley Cottage Hospital and Santa Barbara Cottage Hospital. In plaintiff’s original complaint in the current action, he identifies defendant Goleta Valley Cottage Hospital as a health care institution, and also expressly alleges that “Cottage Health System, aka Goleta Valley (Goleta Valley Cottage Hospital) is a medical institution located at 351 S. Patterson Avenue Santa Barbara, CA 93111.”
Plaintiff’s operative FAC in this action retains all of the allegations about Goleta Valley Cottage Hospital in its section identifying the parties to the action [FAC @ ¶¶ 7-9], and expressly alleges that “Cottage Health is the owner and operator of Goleta Valley Cottage Hospital) [sic] is [sic] a medical institution located at 351 S. Patterson Ave Goleta, 93111.” [FAC @ ¶ 10.] It alleges on information and belief that Cottage Health employs many professionals, “including does 12-50 and Defendant.” [FAC @ ¶ 11.] It alleges that “Defendant Cottage Health is being sued as principals and/or agents, servants and employees of each other. All of the acts each performed as agents and employees of the other were performed within the course and scope of each defendant’s authority and employment and/or agency and with the consent of the other defendants.” [FAC @ ¶ 16.] Cottage Health is not mentioned at any other place in the FAC, and is not alleged to have independently performed any acts or conduct which form the basis for the action. Rather, the allegations set forth events which occurred while plaintiff was a patient at Goleta Valley Cottage Hospital on April 4, 2004 [FAC @ ¶¶ 31-32], his order of his medical records from Goleta Valley Cottage Hospital, apparently in 2013, and his discovery of a chest X-ray with his name on it among the records, which he contends shows implanted devices [FAC @ ¶¶ 47-49.]
The individual causes of action do not allege any conduct by Cottage Health, and only allege conduct or liability by Goleta Valley Cottage Hospital. [See, e.g., FAC @ ¶ 64, where it alleges that “Defendant Goleta Valley Cottage Hospital negligently failed to provide safety and the requested treatment that Plaintiff sought;” and ¶ 88, where it alleges that at all relevant times “Goleta Valley Cottage Hospital omissions of personnel/doctors who were employed by them and the work they performed.. The non-consensual implantation of the subcutaneous devices into the body of the Plaintiff were performed with the scope of their employment.881. . . .”]
While the documents of which judicial notice are reflected establish that both Cottage Health System and Cottage Health are the same corporate entity with the same corporation number, even without reference to those documents, the allegations of plaintiffs FAC here in the 2023 action are sufficient to show that Cottage Health System and Cottage Health are the same entity and/or are in privity with one another, sued not because it is alleged to have committed any affirmative misconduct toward plaintiff, but because of plaintiff’s claim that it is an “aka” of GVCH, and/or that it is liable for GVCH’s conduct because it owns and operates GVCH. As a result, the fact that Cottage Health was not named in the earlier action is of no consequence to the res judicata analysis.
Plaintiff further contends that this case presents new facts, evidence, claims, and describes the names and medical technology that has been implanted into him, none of which were mentioned in the prior case. The issue in conducting a res judicata analysis isn’t whether specific facts were mentioned in the earlier case; rather, it is whether plaintiff is asserting a violation of the same primary right or a different primary right, from that asserted in the earlier action, regardless of the legal theory upon which recovery is predicated. (See Mycogen Corp. v. Monsanto Co., supra, 28 Cal.4th at p. 904.)
Plaintiff’s claims in both cases arise from the alleged implantation of RFIDs within plaintiff’s body during visit to GVCH in 2004, and the injuries and damages which he alleges he sustained arising from that implantation. His contention that he has discovered new facts and evidence, or additional implanted devices, and can now place a name to the medical technology involved, does not constitute an invasion of a separate primary right.
Plaintiff’s current causes of action for intentional infliction of emotional distress, negligent infliction of emotional distress, medical battery, and non-disclosure and fraudulent concealment, are all based upon the invasion of the same primary right, as was the subject of his 2012 action. Consequently, regardless of his attempt to attach different theories of liability to this invasion, all such causes of action are barred by res judicata.
6. Extrinsic fraud.
Although the Court has sustained the demurrers to each cause of action—including this one—based upon the applicable statute of limitation bars, it will note that it is unaware of any separate cause of action for extrinsic fraud, and is unclear exactly what plaintiff is seeking through this cause of action. Plaintiff’s opposition to the demurrer did not address Cottage Health’s demurrer to this “cause of action,” and there is no information before the Court that would begin to suggest that plaintiff had any cause of action that is not barred by either the applicable statute of limitations, or the doctrine of res judicata—fraud-based or otherwise.
7. Availability of leave to amend.
Under the circumstances, where all of the facts which are alleged show that all of plaintiff’s claims are barred both by the statute of limitations and by the doctrine of res judicata, the Court finds that the FAC shows on its face that it is incapable of amendment. Consequently, the Court will deny leave to amend.