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

Case Number

24CV01568

Case Type

Hearing Date / Time

Fri, 06/27/2025 - 10:00

Nature of Proceedings

CMC; Demurrers and Motions to Strike

Tentative Ruling

For all the reasons discussed herein:

1. The demurrers to the second amended complaint are sustained, with leave to amend, as to the first cause of action for constructive fraud, the second cause of action for fraudulent concealment, the third cause of action for violation of the elder abuse and dependent adult civil protection act, and the sixth cause of action for intentional interference with contract.

2. The demurrers are overruled as to the fourth cause of action for professional negligence, and the fifth cause of action for battery.

3. The motions to strike are denied without prejudice.

4. Plaintiffs shall file and serve their third amended complaint no later than July 18, 2025.

Background:

This action commenced on March 18, 2024. 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.

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.

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.

On February 7, 2025, the court sustained the hospital demurrer to the FAC and granted leave to amend. As plaintiffs were given leave to amend, the court deferred ruling on the Lash, Ahmad, Ashlock, and Elder demurrers as well as the hospital’s motion to strike plaintiffs’ claim for punitive damages.

On February 21, 2025, plaintiffs filed the operative second amend complaint (SAC) for: (1) constructive fraud; (2) fraudulent concealment; (3) violation of the elder abuse and dependent adult civil protection act; (4) medical negligence; (5) battery; and (6) intentional interference with contract. All causes of action are alleged as to all defendants.

As the SAC contains 240 paragraphs, along with several attachments, specific allegations will be discussed below where appropriate. Essentially, this is a survivor action filed by plaintiffs related to the death of Kenneth L. Carroll (decedent). The SAC alleges that decedent, who was 65 years old, was admitted to the Hospital on December 6, 2022, where he was diagnosed with Covid-19. Decedent was given Remdesivir while he was sedated, or otherwise incapable of giving informed consent, and died shortly thereafter.

The hospital defendants demur to each cause of action of the SAC, except for the fourth cause of action for medical negligence, on the grounds that plaintiffs have failed to allege facts sufficient to state a cause of action and that the causes of action are uncertain. The hospital defendants also move to strike the portions of the SAC pertaining to plaintiffs’ claim for punitive damages.

Suess demurs to every cause of action contained in the SAC, and also moves to strike the portions of the SAC pertaining to plaintiffs’ claim for punitive damages.

Plaintiffs oppose both demurrers as well as both motions to strike.

Analysis:

(1) The Demurrers

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

“(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.

“(b) The person who filed the pleading does not have the legal capacity to sue.

“(c) There is another action pending between the same parties on the same cause of action.

“(d) There is a defect or misjoinder of parties.

“(e) The pleading does not state facts sufficient to constitute a cause of action.

“(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

“(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.

“(h) No certificate was filed as required by Section 411.35.” (Code Civ. Proc., § 430.10.)

“[A] court must treat a demurrer as admitting all material facts properly pleaded, it does not, however, assume the truth of contentions, deductions or conclusions of law.” (Travelers Indem. Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 358, citing Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

1. Federal Public Readiness and Emergency Preparedness Act

Suess argues that plaintiffs’ entire action is barred by the Federal Public Readiness and Emergency Preparedness Act (PREP Act). The PREP Act is set forth in 42 U.S.C. §§ 247d-6d and 247d-6e and was enacted for times of national public emergency, including the COVID-19 pandemic. The demurrer to the entirety of the complaint on these grounds is a general demurrer.

Plaintiffs point out that willful misconduct is an exception to PREP Act immunity. (42 U.S.C. § 247d-6d(c)(1)(A).) The SAC contains numerous allegations of willful misconduct. Plaintiffs have also set forth sufficient persuasive authority regarding the survival of State law claims in this context and have provided authority that supports their argument that they are not limited to pursuing their action in Federal Court. Suess did not file a reply to the opposition and has provided no authority that Suess’ arguments are without merit.

“ ‘A general demurrer challenges the sufficiency of the pleading to state Any cause of action, and must not be sustained if the pleading states facts from which any liability results, although not for some or all of the relief sought to be obtained.’ ” [Citations.]” (Cooper v. National Railroad Passenger Corp. (1975) 45 Cal.App.3d 389, 392, disapproved of by Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389 on other grounds.)

Plaintiffs have provided sufficient authorities, for purposes of overcoming Suess’ demurrer, to show that this State action is not barred, in its entirety, by the PREP Act.

1. First Cause of Action for Constructive Fraud and Second Cause of Action for Fraudulent Concealment

“Civil Code section 1710 defines that tort [(fraud)]: “ ‘A deceit [fraud] . . . is either: 1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; 2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true; 3. The suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact.” (Committee On Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 215 (Children’s Television).)

“ ‘Fraud actions . . . are subject to strict requirements of particularity in pleading. The idea seems to be that allegations of fraud involve a serious attack on character, and fairness to the defendant demands that he should receive the fullest possible details of the charge in order to prepare his defense. Accordingly the rule is everywhere followed that fraud must be specifically pleaded. The effect of this rule is twofold: (a) General pleading of the legal conclusion of ‘ “fraud” ’ is insufficient; the facts constituting the fraud must be alleged. (b) Every element of the cause of action for fraud must be alleged in the proper manner (i.e., factually and specifically), and the policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect.’ ” [Citations.]” (Children’s Television, supra, 35 Cal.3d at page 216.)

“[F]raud must be pled specifically; general and conclusory allegations do not suffice. . . . This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

“We observe, however, certain exceptions which mitigate the rigor of the rule requiring specific pleading of fraud. Less specificity is required when “ ‘it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy,’ ” [Citation]; “ ‘[e]ven under the strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party. . . .’ ” [Citation.]” (Children’s Television, supra, 35 Cal.3d at page 217.)

Here, the court agrees with plaintiffs that the specific information regarding the “how, when, where, to whom, and by what means the representations were tendered,” are more likely to be facts that lie in the knowledge of some of the defendants and can be explored during the discovery process.

There are “four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts.” (Heliotis v. Schuman (1986) 181 Cal.App.3d 646, 651.)

By way of opposition to the demurrers, plaintiffs cite to portions of the SAC that they argue provide the requisite allegations to overcome demurrer to the fraud causes of action. Among those paragraphs are:

“Defendants, Plaintiffs, and the Decedent, Mr. Carroll, as well as his successor in interest, personal representative and/or his patient advocate were in a fiduciary relationship between patient and healthcare provider at all relevant times herein. Defendants intentionally failed to disclose certain facts, those stated herein and others, to Mr. Carroll or Plaintiffs, who were acting as his personal representative and patient advocate. The Defendants’ intentional failure to disclose pertinent information about the safety and care of the patient was deceptive. As outlined above, this deception related to the dismissal of the recommendation of other safer and more effective treatment modalities, the insistence of moving Mr. Carroll through a series of medical motions that would garner the hospital with lucrative payouts including stepping him unnecessarily into the ICU, increasing his oxygen dependency, and placing him on remdesivir; the refusal to receive informed consent; the refusal to outline any dangers associated with medications given to Mr. Carroll; the refusal to mention treatment alternatives; the refusal to mention financial incentives for administration of the protocol; and malicious threats and coercion made in efforts to bypass the decedent’s wishes.” (SAC, ¶ 134.)

“Defendants failed to inform Plaintiffs or Decedent of the risks of Remdesivir or of the safe alternatives to Remdesivir or of their financial incentives to give Remdesivir.” (SAC, ¶ 144.)

“Defendants owed a duty to disclose to Decedent and Plaintiffs all known facts and risk factors about Remdesivir and about safe alternative treatments.” (SAC, ¶ 167.)

“Defendants knowingly and intentionally concealed or suppressed the known severe and deadly risks of administering Remdesivir to COVID-19 patients.” (SAC, ¶ 168.)

“Defendants knowingly and intentionally concealed or suppressed the availability of safe alternative treatments to Remdesivir.” (SAC, ¶ 169.)

“Defendants knowingly and intentionally administered Remdesivir to Decedent without the knowledge or consent of the Plaintiffs or Decedent.” (SAC, ¶ 170.)

Besides arguing that the allegations lack the requisite specificity, the hospital argues that the allegations contradict other allegations of the complaint that indicate a lack of reliance and damages. Specifically, the hospital defendants refer to the following paragraphs of the SAC:

“Plaintiffs specifically directed Defendants not to administer Remdesivir to Mr.

Carroll on multiple occasions and to numerous members of medical staff.” (SAC, ¶ 140.)

“Defendants administered Remdesivir to Mr. Carroll for at least three days against Plaintiffs’ directive not to administer this lethal drug to him.” (SAC, ¶ 141.)

The court agrees with the hospital defendants’ argument. While plaintiffs would be allowed to plead in the alternative and make inconsistent allegations when they are uncertain about what actually occurred or what can be established by the evidence, that is not the case here. Plaintiffs are not pleading in the alternative. On one hand, plaintiffs are claiming that the defendants concealed Remdesivir’s risks and the availability of safer alternatives such as Ivermectin, leading decedent to accept treatment he would have rejected if informed. On the other hand, plaintiffs are also claiming that they took issue with Remdesivir and specifically directed the defendants to not administer it to the decedent. These inconsistencies can only lead to one reasonable inference: The SAC fails to allege facts that have any tendency to establish even a prima facie showing of reliance. Rather than showing reliance on the alleged false representations or concealment, the SAC shows that decedent and plaintiffs rejected the alleged representations and concealments.

The demurrer to the first and second causes of action will be sustained as to all defendants. While the court has doubts about whether plaintiffs will be capable of alleging sufficient facts to constitute causes of action for fraud, plaintiffs will be given leave to amend.

1. Third Cause of Action for Elder Abuse

“(a) “ ‘Abuse of an elder or a dependent adult’ ” means any of the following:

“(1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.

“(2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.

“(3) Financial abuse, as defined in Section 15610.30.” (Welf. & Inst. Code, § 15610.07, subd. (a).)

“The Elder Abuse Act’s heightened remedies are available only in limited circumstances. A plaintiff must prove, by clear and convincing evidence, that a defendant is liable for either physical abuse under section 15610.63 or neglect under section 15610.57, and that the defendant committed the abuse with “ ‘recklessness, oppression, fraud, or malice.’ ” (§ 15657.) Section 15610.57, in turn, provides two definitions of neglect. First, “ ‘[t]he negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.’ ” (§ 15610.57, subd. (a)(1).) Second, “ ‘[t]he negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise.’ ” (Id., subd. (a)(2).) Because plaintiffs allege neglect arising in the context of medical care and not self-care, we deal only with section 15610.57’s first definition of neglect.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 156.)

“ ‘The Elder Abuse Act defines abuse as ‘ “[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering” ’ [Citation]; or ‘ “[t]he deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering” ’ [Citation]. The Act defines neglect as ‘ “[t]he negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” ’ [Citation.] ‘ “Neglect includes, but is not limited to, all of the following: [¶] (1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter. [¶] (2) Failure to provide medical care for physical and mental health needs. . . . [¶] (3) Failure to protect from health and safety hazards. [¶] (4) Failure to prevent malnutrition or dehydration.” ’ [Citation.] In short, neglect as a form of abuse under the Elder Abuse Act refers ‘ “to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.” ’ [Citation.] Thus, when the medical care of an elder is at issue, “ ‘the statutory definition of “ ‘neglect’ ” speaks not of the undertaking of medical services, but of the failure to provide medical care.’ ” [Citations.]’ ” [Citation.]” (Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, 336.)

“The Elder Abuse Act does not apply to simple or gross negligence by health care providers. [Citations.] To obtain the enhanced remedies of section 15657, “ ‘ a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct.’ ” [Citation.] “ ‘ “Recklessness” ’ refers to a subjective state of culpability greater than simple negligence, which has been described as a ‘ “deliberate disregard” ’ of the ‘ “high degree of probability” ’ that an injury will occur [citations]. Recklessness, unlike negligence, involves more than ‘ “inadvertence, incompetence, unskillfulness, or a failure to take precautions” ’ but rather rises to the level of a ‘ “conscious choice of a course of action . . . with knowledge of the serious danger to others involved in it.” ’ [Citation.]” [Citation.]” (Worsham v. O’Connor Hospital, supra, 226 Cal.App.4th at pages 336–337.)

Both Suess and the hospital defendants include the argument, and supporting legal authorities, that plaintiffs do not allege sufficient facts that would support any allegations of a custodial relationship between defendants and decedent. In opposition, plaintiffs fail to persuasively address this argument. Rather, in opposition to the Suess demurrer, plaintiffs make a statement that Suess’ inpatient role as a critical care doctor establishes the requisite relationship. However, plaintiffs provide no authority that contradicts the authorities presented by the defendants that the transitory treatment did not result in a custodial relationship. Plaintiff then proceeds to argue the unrelated concept of “recklessness.” (Opp. to Suess Demurrer, p. 7, ll. 11-21.) The conclusory allegations, in the SAC, that defendants undertook a substantial caretaking obligation and custodial relationship with decedent (SAC, ¶ 185) is insufficient.

Further, plaintiffs’ opposition to the hospital defendants’ demurrer fails to provide any legal authority that contradicts or negates those defendants’ arguments that the cause of action failed to allege facts that would amount to more than mere medical negligence.

The demurrer to the third cause of action for elder abuse will be sustained. Again, the court has doubts that plaintiffs will be capable of amending the SAC to state facts sufficient to constitute a cause of action for elder abuse but will grant plaintiffs leave to amend.  

1. Fourth Cause of Action for Medical Negligence

As noted above, the hospital defendants do not demur to the fourth cause of action. Suess demurs only on the grounds, discussed above, that the entire action is barred by the PREP Act. That argument fails for the same reasons as discussed above.

Suess’ demurrer to the fourth cause of action is overruled.

1. Fifth Cause of Action for Battery

The hospital defendants argue that the battery cause of action is not appropriately set forth and does not outline battery claims against Stiene, Tarleton, or Glynn. The hospital defendants further argue that the SAC does not outline a claim of battery against the hospital.

Suess argues that plaintiffs’ claim of battery is vague, ambiguous, and uncertain as to him.

“ ‘As a general rule, one who consents to a touching cannot recover in an action for battery. [Citation.] Thus, one who gives informed consent to a surgery cannot recover for resulting harm under a theory of battery. [Citations.] However, it is well recognized a person may place conditions on the consent. If the actor exceeds the terms or conditions of the consent, the consent does not protect the actor from liability for the excessive act. [Citation.] [¶] The rule of conditional consent has been applied in battery actions against physicians and surgeons in California. . . . [Citations.] [¶] In the present case, [the plaintiff]’s claim of battery rested on the theory that although the operation was consented to, the consent was subject to a specific condition: only family-donated blood would be used. If [the plaintiff] could establish the existence of this condition and its breach by [the defendant physician], she would establish a battery.’ ” [Citation.]” (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1497.)

“ ‘There are three elements to a claim for medical battery under a violation of conditional consent: the patient must show his consent was conditional; the doctor intentionally violated the condition while providing treatment; and the patient suffered harm as a result of the doctor’s violation of the condition. [Citation.]’ ” [Citation.]” (Piedra v. Dugan, supra, 123 Cal.App.4th at pages 1497–1498.)

While it could have been more clearly pleaded, the SAC does contain elements of medical battery as to each of the defendants, as well as allegations of ratification by the hospital. While some of the allegations, such as the ordering of Remdesivir constituting battery, seem flimsy at best, for pleading purposes the allegations are sufficient. As many of the facts supporting the cause of action are within the knowledge of defendants and likely to be disclosed during discovery, the court finds that the cause of action is adequately pled.

The demurrer to the fifth cause of action will be overruled.

1. Sixth Cause of Action for Intentional Interference with Contract

“It has long been held that a stranger to a contract may be liable in tort for intentionally interfering with the performance of the contract. [Citations.] The elements which a plaintiff must plead to state the cause of action for intentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of this contract; (3) defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage. [Citations.]” (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.)

Here, plaintiffs allege that contracts existed between decedent and his physicians. (SAC, ¶ 234.) Decedent’s physicians are the defendants in this action. Thus, plaintiffs’ allegations fail to allege a valid contract with a third party.

Because the SAC does not allege the necessary elements that are required to be pled by plaintiffs, the demurrer to the sixth cause of action will be sustained. Although it appears highly improbable that intentional interference with contract would ever be a proper cause of action in this case, plaintiffs will be given leave to amend.

(2) The Motions 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).)

As plaintiffs are being given leave to amend the complaint, the motions to strike are rendered moot at this time. As such, they will be denied without prejudice.

The court does note however, without ruling on the issue at this time, that the facts alleged in the SAC would not support a claim for punitive damages.