Cathy Diane Warren et al vs Santa Barbara Cottage Hospital et al

Case Number

24CV01568

Case Type

Hearing Date / Time

Fri, 02/07/2025 - 10:00

Nature of Proceedings

5 Demurrers and 1 Motion to Strike

Tentative Ruling

(1) For all reasons discussed herein, the demurrer of defendants Santa Barbara Cottage Hospital, Patrick T. Glynn, M.D., Guy W. Tarleton, M.D., and Katherine A. Stiene, M.D., to plaintiffs’ first amended complaint is sustained with leave to amend. On or before February 21, 2025, plaintiffs shall file and serve their second amended complaint.

(2) As the standing issues discussed herein are or may be relevant to or intertwined with the objections to the first amended complaint raised in the demurrers of defendants Jeremy Lash, M.D., Sam Ahmad, M.D., Benton T. Ashlock, M.D., and John Elder, M.D., and as the Court grants plaintiffs leave to amend their pleading, in the interests of judicial efficiency and to avoid piecemeal rulings, the Court defers ruling on the objections raised in these demurrers, and takes these demurrers off-calendar. Defendants Jeremy Lash, M.D., Sam Ahmad, M.D., Benton T. Ashlock, M.D., and John Elder, M.D., may, if appropriate, raise the same objections in any future demurrer to the second amended complaint to be filed by plaintiffs.

(3) For all reasons discussed herein, the Court also, in the interests of judicial efficiency and to avoid piecemeal rulings, defers ruling on the grounds asserted in the motion of defendants Santa Barbara Cottage Hospital, Patrick T. Glynn, M.D., Guy W. Tarleton, M.D., and Katherine A. Stiene, M.D., to strike portions of plaintiffs’ first amended complaint, and takes that motion off-calendar. Defendants may, if appropriate, raise the same grounds in any future motion to strike plaintiffs’ second amended complaint.

Background:

On August 19, 2024, plaintiffs Cathy Diane Warren (Warren) and Kevin Carroll (Carroll) (collectively, plaintiffs) filed in this action a first amended complaint (the FAC) against defendants Santa Barbara Cottage Hospital (the Hospital), Jeremy Lash, M.D. (Lash), Eric M. Suess, M.D. (Suess), Sam Ahmad, M.D. (Ahmad), Katherine A. Stiene, M.D. (Stiene), Guy W. Tarleton, M.D. (Tarleton), Patrick T. Glynn, M.D. (Glynn), John G. Elder, M.D. (Elder), Michael A. Trambert, M.D. (Trambert), Shiva Shabnam, M.D. (Shabnam), and Benton T. Ashlock, M.D. (Ashlock) (collectively, defendants), alleging seven causes of action: (1) survival action and wrongful death - constructive fraud; (2) survival action and wrongful death – fraudulent concealment; (3) survival action and wrongful death based on violation of the Elder Abuse and Dependent Adult Civil Protection Act; (4) survival action and wrongful death – negligence per se; (5) survival action and wrongful death – medical negligence; (6) survival action and wrongful death – battery; and (7) survival action and wrongful death – intentional interference with contract.

As alleged or effectively alleged in the FAC, which is for present purposes the operative pleading:

Plaintiffs are successors in interest to decedent Kenneth L. Carroll (decedent), who was 65 years of age at the time events and conduct alleged in the FAC occurred. (FAC, ¶¶ 1-2.) On December 6, 2022, decedent was admitted to the Hospital where he tested positive for Covid-19. (FAC, ¶¶ 24 & 61.) Defendants sedated and isolated decedent, and threatened to arrest plaintiffs when they attempted to oversee or monitor decedent and his care, or remove decedent from the Hospital. (FAC, ¶¶ 124-125 & 134.)

Defendants, including Lash, Ahmad, and Suess, ordered and administered Remdesivir to decedent while he was sedated or otherwise incapable of giving informed consent, and against the express will of decedent and plaintiffs who had specifically directed defendants not to administer Remdesivir to decedent. (FAC, ¶ 24, 95, 126-129.) Decedent died shortly after being administered Remdesivir. (FAC, ¶ 24.)

Decedent had a known past medical history of chronic kidney disease, which was indicated in decedent’s medical chart on the first day of his admittance, making him ineligible to receive Remdesivir. (FAC, ¶¶ 61 & 94-95.) Shabnam noted on decedent’s medical records that he did not meet criteria for Remdesivir due to “RF”. (FAC, ¶¶ 61.)

In addition, Lash ordered and administered medications to decedent which are not approved for treatment of Covid-19, which are indicated to carry a risk of moderate drug interactions when combined, and which may cause reduced kidney function in some patients. (See FAC, ¶¶ 80-91.)

Remdesivir received Emergency Use Authorization in May of 2020. (FAC, ¶ 55.) Remdesivir has a high death rate and its known side effects include fluid in the lungs and kidney or other organ damage or failure. (FAC, ¶¶ 52-53, 116.) Published studies also show a causal connection between Remdesivir and the death of heart cells, heart attacks, and bradycardia. (FAC, ¶ 54.) Remdesivir was pulled from an Ebola study because more than 53 percent of its recipients died. (FAC, ¶¶  25, 52, 109.)

Defendants use a protocol under which patients who are told they have Covid-19 are, upon admission to the Hospital, declared to be in intensive care, immediately separated from their loved ones, and told that Remdesivir is the only available and safe treatment. (FAC, ¶ 69.) These patients are then sedated, placed on a “BiPAP” machine making it difficult to breathe, given contraindicated drugs in continually increasing doses, and placed on Remdesivir to the exclusion of Ivermectin. (Ibid.) Patients who are placed on defendants’ protocol die within nine days. (Ibid.) Defendants’ protocol also brings financial rewards and bonuses for each Covid-19 death. (FAC, ¶ 71 & 73-79.) Defendants implemented this protocol which resulted in the death of decedent. (FAC, ¶ 70.)

Neither decedent nor plaintiffs were provided with information regarding the harm Remdesivir causes or its side effects, nor were plaintiffs told that decedent had a 99.97 percent chance of surviving Covid-19 without the use of Remdesivir. (FAC, ¶¶ 55-59.) Decedent and plaintiffs also were not told that there exist numerous other treatments that are almost 100 percent effective against Covid-19. (Ibid.)

Shabnam answered the FAC on September 20, 2024, generally denying its allegations and asserting thirty-eight affirmative defenses.

On October 9, 2024, plaintiffs filed a request for dismissal of the FAC, without prejudice, as to Trambert.

On January 22, 2025, plaintiffs filed a request for dismissal of the FAC, with prejudice, as to Shabnam.

The demurrers and motion to strike:

On September 13, 2024, the Hospital, Glynn, Tarleton, and Stiene (collectively, the Hospital defendants) filed a demurrer (the Hospital demurrer) to each cause of action alleged in the FAC on the grounds that they are uncertain, and that plaintiffs have failed to allege facts sufficient to state a cause of action. On the same date, the Hospital also filed a motion (the Hospital motion to strike) to strike plaintiffs’ claim for punitive damages

On October 3, 2024, Lash, Ahmad, Ashlock, and Elder separately filed demurrers to the FAC, including the first, second, third, sixth, and seventh causes of action alleged in the FAC, on the grounds that the FAC is uncertain, and that plaintiffs have failed to state facts sufficient to state a cause of action against each of these defendants. The Court will refer to the separately filed demurrers of Lash, Ahmad, Ashlock, and Elder, respectively, as the Lash Demurrer, the Ahmad Demurrer, the Ashlock Demurrer, and the Elder Demurrer.

Plaintiffs oppose each of the demurrers described above, and the Hospital motion to strike.

Analysis:

(1) The Hospital demurrer

In ruling on a demurrer, the court determines whether the complaint states a cause of action. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The pleading subject to demurrer is given a reasonable interpretation and read as a whole, with all its parts in their context. (Ibid.) A demurrer assumes the truth of properly pleaded material allegations including facts which may be inferred from those expressly alleged, but not of contentions, deductions, or conclusions of fact or law. (Ibid.; McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (Quelimane).)

In its demurrer, the Hospital defendants contend that plaintiffs have failed to allege facts showing that either of them suffered a direct injury resulting from any alleged fraud or negligence by the Hospital defendants. As to the cause of action arising from the alleged abuse of decedent who is an elder, the Hospital defendants contend that there is no cause of action available to plaintiffs. For these reasons, the Hospital defendants effectively argue that plaintiffs do not have standing to assert a claim based on the alleged wrongful death of decedent. (See also Exh. A [Aug. 30, 2024, meet and confer letter re demurrer] at p. 2 [addressing plaintiffs’ purported lack of standing].)

The Hospital defendants further argue that under the “one action” rule, plaintiffs may not maintain seven separate causes of action and are limited to one cause of action for wrongful death which must be resolved on behalf of all of decedent’s heirs. For these and all reasons further discussed above, the Hospital defendants contend that the FAC is uncertain, and improperly and unlawfully alleged.

In their opposition to the demurrer, plaintiffs do not effectively address these contentions.

A survival action and an action for wrongful death are separate and distinct statutory claims governed by, respectively, Code of Civil Procedure sections 377.20 et seq. and 377.60 et seq. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263 (Quiroz) [general discussion].) Though separately authorized, wrongful death and survival actions may be joined to the extent they arise out of the same purported wrongful act or neglect, and may be consolidated for trial under Code of Civil Procedure section 1048. (Code Civ. Proc., § 377.62, subds. (a)-(b).)

Relevant here based on the nature of the claims and causes of action alleged in the FAC, “[w]here a party relies for recovery upon a purely statutory liability it is indispensable that he plead facts demonstrating his right to recover under the statute. The complaint must plead every fact which is essential to the cause of action under the statute.” (Green v. Grimes-Stassforth Stationery Co. (1940) 39 Cal.App.2d 52, 56.)

“ ‘The elements of the cause of action for wrongful death are the tort (negligence or other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs. [Citations.]’ [Citation.]” (Quiroz, supra, 140 Cal.App.4th at p. 1263, original italics.) Code of Civil Procedure section 377.60 describes persons who may assert a cause of action for wrongful death, which include, among other things, a decedent’s surviving children or issue of deceased children and, to the extent there are no surviving issue, “persons … who would be entitled to the property of the decedent by intestate succession.” (Code Civ. Proc., § 377.60, subd. (a).) The statute “limits the right of recovery to a class of persons who, because of their relation to the deceased, are presumed to be injured by his death [citation], and bars claims by persons who are not in the chain of intestate succession.” (Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783, 789, fn. 6.) Accordingly, “a wrongful death plaintiff must plead and prove standing …” (Id. at p. 789.)

“Unlike a cause of action for wrongful death, a survivor cause of action is not a new cause of action that vests in the heirs on the death of the decedent. It is instead a separate and distinct cause of action which belonged to the decedent before death but, by statute, survives that event. [Citation.] The survival statutes do not create a cause of action. Rather, ‘[t]hey merely prevent the abatement of the cause of action of the injured person, and provide for its enforcement by or against the personal representative of the deceased.’ [Citation.]” (Quiroz, supra, 140 Cal.App.4th at p. 1264.)

“A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest, subject to Chapter 1 (commencing with Section 7000) of Part 1 of Division 7 of the Probate Code, and an action may be commenced by the decedent’s personal representative or, if none, by the decedent’s successor in interest.” (Code Civ. Proc., § 377.30.)

As further detailed above, the ostensible wrongful death claim asserted by plaintiffs is asserted as seven separate causes of action. The Hospital defendants fail to sufficiently explain why plaintiffs are necessarily precluded from pleading each alleged instance of wrongful conduct and associated tort as a separate cause of action, considering that each separately pleaded tort claim is, under the “one-action” rule, effectively one cause of action subject to one judgment for damages which is binding against all parties who are or would be entitled to recover. (See, King v. Pacific Gas & Electric Co. (2022) 82 Cal.App.5th 440, 453.) For example, to the extent the FAC alleges facts sufficient to state a cause of action for wrongful death regardless of the title under which each factual basis for relief is stated, the Hospital defendants fail to explain why the FAC is subject to demurrer. (Quelimane, supra, 19 Cal.4th at p. 38.)

Notwithstanding whether or not plaintiffs may, under the “one-action” rule, plead their ostensible wrongful death claim as separate causes of action corresponding to each alleged wrongful act or tort, wholly absent from the FAC are any facts demonstrating that Warren and Carroll are persons who may assert a wrongful death cause of action as described in Code of Civil Procedure section 377.60, subdivisions (a), (b), or (c). Plaintiffs also fail to explain why they are not required to plead facts sufficient to show they are authorized under Code of Civil Procedure section 377.60 to assert a cause of action for the purported wrongful death of decedent.

In addition, though plaintiffs allege in the FAC that they are successors in interest to decedent, the Court is not required to accept this conclusory contention as true. For example, there are no facts alleged in the FAC sufficient to show that either Warren or Carroll are “the beneficiary of the decedent’s estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action.” (Code Civ. Proc., § 377.11 [defining “decedent’s successor in interest”].)

Furthermore, the statutory term “successor in interest”, or its definition, is not expressly incorporated into the description of persons who may assert an action for the death of a person caused by the wrongful act or neglect of another set forth in Code of Civil Procedure section 377.60. Therefore, even if the Court were to find that plaintiffs have alleged that they are decedent’s successors in interest, these allegations, without more, would not necessarily also show that plaintiffs are also persons authorized to assert a cause of action for the wrongful death of decedent under Code of Civil Procedure section 377.60, as further discussed above.

In addition, assuming without deciding that each of the causes of action alleged in the FAC survive the death of decedent (see Code Civ. Proc., § 377.20, subd. (a)), there exists some question as to whether plaintiffs may assert these causes of action under Code of Civil Procedure section 377.30, which expressly provides that a survival action may be brought by a decedent’s successor in interest to the extent there is no personal representative of the decedent. Absent from the FAC are any facts showing that decedent does not have a personal representative. Further, plaintiffs fail to explain why they are not required to allege these facts. As further discussed above, plaintiffs’ failure to plead every fact essential to demonstrate their right to recover under the applicable statute is sufficient grounds to sustain the Hospital demurrer.

The standing issue effectively raised in the demurrer of the Hospital defendants as to the wrongful death claim is also relevant to the question of whether or not plaintiffs have alleged facts sufficient to state each of the causes of action alleged in the FAC. By way of further example, though Welfare and Institutions Code section 15600 et seq. (the Elder Abuse Act) authorizes the recovery of remedies available to a victim of elder abuse in a survival action, plaintiffs fail to explain why these remedies may also be recovered in a wrongful death action. (See, e.g., Quiroz, supra, 140 Cal.App.4th at pp. 1283-1284 [remedies under the Elder Abuse Act were not available in a wrongful death action].) For this reason, there exist sufficient additional grounds to sustain the Hospital demurrer as to the cause of action for wrongful death, to the extent that cause of action seeks claims and remedies available under the Elder Abuse Act.

For all reasons discussed above, the Hospital defendants have met their burden to show that plaintiffs have failed to plead facts sufficient to demonstrate that they may assert the cause of action for wrongful death and a survival action under Code of Civil Procedure section 377.10 et seq. Therefore, the Court will sustain the Hospital demurrer.

Though plaintiffs request leave to amend the FAC, plaintiffs fail to show which, if any, additional facts could be pleaded, or the manner in which the FAC may be amended, to cure the defects discussed herein. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Notwithstanding that plaintiffs have failed to meet their burden to show the manner in which the FAC may be amended to change its legal effect, the FAC does not show on its face that there is no reasonable possibility that its defects can be cured by an amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Therefore, the Court will grant plaintiffs leave to amend the FAC.

As the remaining objections raised by the Hospital defendants are or may be relevant to or intertwined with the standing issues further discussed above, the Court will, in the interests of judicial efficiency and to avoid piecemeal rulings which may cause confusion, defer ruling on these remaining objections. However, the Court notes that additional deficiencies in the FAC appear to exist.

For example, the fourth cause of action is titled negligence per se, and arises from a purported violation of Business and Professions Code section 2052 which prohibits the unlicensed practice of medicine. Though a corporation may be subject to sanctions for the unlawful or unlicensed practice of medicine (see Steinsmith v. Medical Board (2000) 85 Cal.App.4th 458, 466), “negligence per se” is an evidentiary doctrine which “creates a presumption of negligence if four elements are established ….” (Quiroz, supra, 140 Cal.App.4th at p. 1285.) The doctrine does not, however, provide an independent cause of action or establish tort liability. (Id. at pp. 1285-1286.)

The examples provided above are intended to be illustrative but not exhaustive. Though the Court will, at this stage of the proceedings, defer ruling on the additional objections raised by the Hospital defendants, the Court expects that, in amending their FAC, plaintiffs will be mindful of these objections. The Court further expects that, if necessary or appropriate, plaintiffs will include in a second amended complaint any further allegations which are or may be necessary to address any remaining deficiencies asserted in the Hospital demurrer.

(2) The Lash Demurrer, Ahmad Demurrer, Ashlock Demurrer, and Elder Demurrer

The issues further discussed above are relevant to and, to some extent, intertwined with objections raised in the Lash Demurrer, the Ahmad Demurrer, the Ashlock Demurrer, and the Elder Demurrer. Considering that the Court will grant plaintiffs leave to amend to cure the deficiencies further discussed above, in the interests of judicial efficiency and to avoid piecemeal rulings, the Court will, at this stage of the proceedings, also defer ruling on the objections raised in these demurrers, and take these demurrers off-calendar. If appropriate, Lash, Ahmad, Ashlock, or Elder may raise the same objections in any future demurrer to plaintiffs’ second amended complaint.

(3) The Hospital Motion To Strike

“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).) Upon a motion to strike made under Code of Civil Procedure section 435, the court may “strike out any irrelevant, false, or improper matter inserted in any pleading” or “strike  all or part of any pleading not filed in conformity with applicable law, court rules, or an order of the court.” (Code Civ. Proc., § 436(a) & (b).) The grounds for a motion to strike must appear on the face of the pleading or from matters which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).)

In the Hospital motion to strike, the Hospital defendants contend that plaintiffs have failed to plead, with particularity, facts identifying any officer, director, or managing agent of the Hospital who engaged in or ratified the conduct alleged in the FAC, sufficient to support an award of punitive damages.

A reasonable interpretation of the FAC shows that, as to any punitive damage claim alleged by plaintiffs against the Hospital, absent from the FAC are any facts showing that any oppression, fraud, or malice was “perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent” of the Hospital. (Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 164.) Plaintiffs also fail to offer any explanation as to why or where these facts are alleged in the FAC, either expressly or by reasonable inference.

The Hospital defendants also contend that plaintiffs have failed to allege compliance with Code of Civil Procedure section 425.13, which provides that “[i]n any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.” (Code Civ. Proc., § 425.13, subd. (a).)

Wholly absent from the FAC are any facts demonstrating that plaintiffs have complied with the provisions of Code of Civil Procedure section 425.13, subdivision (a). (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 191-193 [general discussion].) Therefore, to the extent the claim for punitive damages appearing in paragraph 3 of the prayer for relief arises from an injury which is “directly related to the professional services provided by a health care provider acting in its capacity as such”, the claim is procedurally improper.

Plaintiffs contend in their opposition to the Hospital motion to strike that the causes of action alleged in the FAC do not arise from the professional negligence of the Hospital defendants, but are instead based on intentional misconduct and conduct which constitutes elder abuse. For these reasons, plaintiffs argue, they are not required to allege compliance with Code of Civil Procedure section 435.13, subdivision (a).

In light of the standing issues more fully discussed above, which are or may be relevant to the arguments raised in the Hospital motion to strike and in plaintiffs’ opposition to that motion, and in the interests of avoiding any confusion which may be caused by piecemeal rulings, the Court will also, at this stage of the proceedings, defer ruling on the Hospital motion to strike, and take that motion off-calendar. Nothing herein shall preclude the Hospital defendants from raising, if appropriate, the same grounds in any future motion to strike directed to any second amended complaint that may be filed by plaintiffs.