Cathy Diane Warren et al vs Santa Barbara Cottage Hospital et al
Cathy Diane Warren et al vs Santa Barbara Cottage Hospital et al
Case Number
24CV01568
Case Type
Hearing Date / Time
Fri, 12/05/2025 - 10:00
Nature of Proceedings
Demurrer and Motion to Strike
Tentative Ruling
(1) For all reasons discussed herein, the demurrer of defendant Santa Barbara Cottage Hospital to plaintiffs’ third amended complaint is overruled.
(2) For all reasons discussed herein, 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’ third amended complaint is granted, in part with leave to amend. The following matters are stricken from plaintiffs’ third amended complaint: paragraph 75 in its entirety; paragraph 208 in its entirety; and “Prayer” paragraph 3 as to defendant Santa Barbara Cottage Hospital, only. Except as herein granted, the motion to strike is otherwise denied.
(3) Plaintiffs shall, on or before December 15, 2025, file and serve their fourth amended complaint, if any.
Background:
On March 18, 2024, plaintiffs Cathy Diane Warren (Warren) and Kevin Carroll (Carroll) (collectively, plaintiffs) filed a complaint for survivor action and wrongful death (the complaint) 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 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 (against the Hospital only); (5) survival action and wrongful death – medical negligence (against the Hospital only); (6) survival action and wrongful death – battery; and (7) survival action and wrongful death – intentional interference with contract.
On June 17, Shabnam filed an answer to the complaint, generally denying its allegations and asserting affirmative defenses, and the Hospital, Glynn, Tarleton, and Stiene (collectively, the Hospital Defendants) separately filed a demurrer and motion to strike portions of the complaint.
On July 3, Lash, Ahmad, Elder, and Ashlock separately filed demurrers to the complaint.
On August 14, plaintiffs dismissed the complaint as to Trambert, only, without prejudice.
On August 19, plaintiffs filed a first amended complaint (the FAC) alleging the same seven causes of action described above, and adding all defendants to the fifth cause of action.
On August 30, the court ordered the demurrers of the Hospital Defendants, Lash, Ahmad, Elder, and Ashlock to the complaint, and the motion to strike portions of the complaint of the Hospital Defendants, off-calendar as moot due to the filing of the FAC.
On September 13, the Hospital Defendants filed a demurrer to the FAC, and separately filed a motion to strike the claim for punitive damages alleged in the FAC, each of which were opposed by plaintiffs.
On September 20, Shabnam answered the FAC by generally denying its allegations and asserting affirmative defenses.
On October 3, Lash, Ahmad, Ashlock, and Elder separately filed demurrers to the FAC, each of which were opposed by plaintiffs.
On October 9, plaintiffs dismissed the FAC as to Trambert, without prejudice.
On January 22, 2025, plaintiffs dismissed the FAC as to Shabnam, without prejudice.
On February 7, the court entered an order (the February 7 Order) adopting its tentative ruling sustaining the demurrer of the Hospital Defendants to the FAC, with leave to amend, and ordering the motion to strike portions of the FAC of the Hospital Defendants, and the demurrers of Lash, Ahmad, Ashlock, and Elder to the FAC, off-calendar. Further, the court ordered plaintiffs to, on or before February 21, file and serve any second amended complaint.
On February 21, plaintiffs filed a second amended complaint (the SAC) against the same defendants described above. The SAC alleges the same first, second, and third causes of action described above, deletes the cause of action for negligence per se, and asserts the causes of action for medical negligence, battery, and intentional interference with contract as, respectively, the fourth, fifth, and sixth causes of action.
On February 25, plaintiffs dismissed the action as to Trambert, with prejudice.
On March 4, plaintiffs dismissed the action as to Shabnam, with prejudice.
On March 25, the Hospital Defendants filed a demurrer to the first, second, third, fifth, and sixth causes of action alleged in the SAC, and separately filed a motion to strike the claim for punitive or exemplary damages set forth in the SAC, which were opposed by plaintiffs.
On May 28, Suess filed a demurrer to each cause of action alleged in the SAC, and separately filed a motion to strike the claims for punitive or exemplary damages asserted in the SAC, which were also opposed by plaintiffs.
On June 27, the court entered an order (the June 27 Order) adopting its tentative ruling sustaining the demurrers to the SAC of the Hospital Defendants and Suess as to the first, second, third, and sixth causes of action; overruling those demurrers as to the fourth and fifth causes of action; and denying, without prejudice, the motions to strike claims for punitive or exemplary damages alleged in the SAC. The court ordered plaintiffs to, on or before July 18, file and serve any third amended complaint.
On July 21, plaintiffs filed a third amended complaint (the TAC) against the same defendants described above. The TAC asserts that plaintiffs “concede their [s]ixth [c]auses [sic] of [a]ction (for [i]ntentional [i]nterference with [c]ontract) as set forth in the [SAC] as without merit and move to dismiss same with prejudice...”, “concede their [f]irst and [s]econd [c]auses of [a]ction (for [c]onstructive [f]raud and [f]raudulent [c]oncealment) as set forth in the [SAC] due to insufficient evidence at this time and move to dismiss them without prejudice, reserving the right to reassert these claims should additional evidence be discovered...”, and that the remaining causes of action alleged in the TAC “have been renumbered for clarity.” (TAC, ¶¶ 169-171.)
The allegations of the TAC are set forth in 223 paragraphs which are lengthy and at times repetitive, and which contain conclusions of fact and law and at times hyperbole, legal argument, and a high level of evidentiary factual detail. Briefly, as alleged in the operative TAC:
Plaintiffs are successors in interest to their father and decedent Kenneth L. Carroll (decedent), who was 65 years of age at all times relevant to this action. (TAC, ¶¶ 1-2.) Carroll is also the executor to decedent. (TAC, ¶ 2.)
On December 6, 2022, decedent presented to the Hospital where decedent was diagnosed with Covid-19. (TAC, ¶¶ 23, 26 & 61.) Defendants moved decedent into ICU, prevented plaintiffs from acting as decedent’s personal representative and patient advocate, and attempted to deny entry to decedent’s family under the threat of calling authorities. (TAC, ¶ 50.) Decedent was isolated and sedated, and dependent on defendants for all of his basic needs. (TAC, ¶¶ 48-51.)
Though decedent faced a 99.97 percent chance of survival, and decedent’s past medical history of chronic kidney disease made decedent ineligible and unable to meet the criteria to receive an experimental drug known as Remdesivir, Ahmad, Lash, and Suess ordered Remdesivir for decedent while decedent was sedated and incapable of giving consent, without decedent or plaintiffs’ knowledge informed consent, against decedent and plaintiffs’ expressed will, and without disclosing treatment risks associated with Remdesivir such as organ failure and death, the availability of safer alternative treatments such as Ivermectin, and financial incentives provided to the Hospital for administering Remdesivir. (TAC, ¶¶ 21, 23-26, 29, 31-33, 42-44, 48-49, 86, 89-93, 98-104, & 120.)
In addition, Lash ordered and administered additional drugs to decedent which are not approved for treatment of Covid-19, which are indicated to carry a risk of drug interactions when combined, and which may impair liver or kidney function in some patients. (TAC, ¶¶ 110-119 & 128.)
As a result of the unwanted protocol initiated and administered to decedent by defendants described above and in the TAC, including the administration of Remdesivir and additional drugs, decedent died on December 19, 2022. (TAC, ¶¶ 23, 45, 48, 71, 95, 143 & Exh. 1 [death certificate].)
The TAC alleges three causes of action: (1) violation of the Elder Abuse and Dependent Adult Civil Protection Act (against the Hospital only); (2) medical negligence; and (3) battery.
On August 22, the Hospital filed a demurrer to the TAC, which is made on the grounds that the first cause of action fails to state facts sufficient to constitute a cause of action and is uncertain. (Demurrer, ¶¶ 1-2.) On the same date, the Hospital Defendants separately filed a motion to strike claims for punitive or exemplary damages set forth in the TAC. Plaintiffs oppose the demurrer of the Hospital and the motion to strike of the Hospital Defendants.
On August 27, Suess filed a document titled as an answer to the complaint, generally denying its allegations and asserting affirmative defenses.
Analysis:
(1) The 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.) “In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
In the demurrer, the Hospital asserts that, to extent the TAC alleges any specific conduct by the Hospital, this conduct relates only to the medical care provided to decedent, and does not show the existence of a custodial relationship between decedent and the Hospital. The Hospital also asserts that, to the extent the TAC includes allegations which suggest that custodial care was provided by the Hospital to decedent, these allegations are vague, conclusory, and fail to allege necessary facts with the required specificity. The Hospital further contends that a claim under Welfare and Institutions Code section 15600 et seq. (the Elder Abuse and Dependent Adult Civil Protection Act or Elder Abuse Act) is not available in an action for wrongful death. For these reasons, the Hospital argues, the allegations of the TAC fail to state facts sufficient to constitute a cause of action for abuse or neglect under the Elder Abuse Act.
In their opposition to the demurrer, plaintiffs assert that the court previously determined in the June 27 Order, that the allegations of the SAC, which were not altered in the TAC, were sufficient to state a cause of action for battery, which plaintiffs contend constitutes abuse under the Elder Abuse Act.
Plaintiffs also contend that the allegations of the TAC show a systemic understaffing and failure to provide care, of a financially-motivated Remdesivir protocol, and that the Hospital left decedent in soiled linens for extended periods, denied decedent adequate oxygenation, hydration and nutrition, failed to reposition decedent despite his immobility, failed to protect decedent from foreseeable hazards, ignored decedent’s deteriorating condition, and isolated decedent from family, and sufficient to constitute neglect under the Elder Abuse Act. In addition, plaintiffs assert that they have properly alleged a survivor claim, and that the TAC is not uncertain including as to those facts which are within the Hospital’s knowledge.
Noted above, the Hospital demurs to the first cause of action for violation of the Elder Abuse Act on the grounds of uncertainty. (See Code Civ. Proc., § 430.10, subd. (f).) “ ‘[U]ncertain’ includes ambiguous and unintelligible.” (Smith v. Kern County Land Co. (1958) 51 Cal.2d 205, 209.) “A special demurrer on the ground that [a pleading] is (a) ambiguous, (b) unintelligible, or (c) uncertain is insufficient unless the demurrer points out specifically wherein the pleading is ambiguous, uncertain or unintelligible.” (Coons v. Thompson (1946) 75 Cal.App.2d 687, 690.)
Though the Hospital contends that allegations of purported custodial neglect are conclusory and lack specificity, the Hospital fails to point out specifically why these allegations, or the TAC, are uncertain. Furthermore, a review of the TAC shows that its allegations are not so incomprehensible that the Hospital cannot reasonably respond. (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292.)
In addition, the Hospital includes in its demurrer a description of the allegations of the TAC, including those which give rise to the cause of action at issue in the demurrer. (See, e.g., Memorandum at pp. 9-11.) The recitation of these allegations by the Hospital indicates that the TAC is not so unintelligible or ambiguous that the Hospital is unable understand the issues or the nature of the claims alleged by plaintiffs. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245 [“a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action”].) For these and all reasons discussed above, the court will overrule the special demurrer of the Hospital to the first cause of action alleged in the TAC.
“The Elder Abuse Act, a remedial scheme designed to protect a vulnerable class of citizens, is generally construed broadly in favor of plaintiffs seeking relief on behalf of elders....” (Royals v. Lu (2022) 81 Cal.App.5th 328, 344.) “To this end, civil actions may be brought under the Act for ‘physical abuse’ [citations], ‘neglect’ [citations], or ‘financial abuse’ [citations].” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 858.)
Though not a model of clarity, the first cause of action for violation of the Elder Abuse Act alleges that defendants both “abused and neglected” decedent by engaging in the conduct alleged in the TAC and described above. (TAC, ¶ 173; see also ¶¶ 183-186.) The TAC also alleges that defendants physically abused decedent by writing an order for Remdesivir and directing that it be administered to decedent without decedent’s consent. (TAC, ¶¶ 187 & 194-199.)
The Elder Abuse Act defines “ ‘[a]buse of an elder or a dependent adult’ ” to mean “[p]hysical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.” (Welf. & Inst. Code, § 15610.07, subd. (a)(1). Relevant here, “’[p]hysical abuse’” includes “[b]attery, as defined in Section 242 of the Penal Code[,]” and “’[n]eglect’” includes a “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.” (Welf. & Inst. Code, § 15610.63, subd. (b), & § 15610.57, subd. (a)(1).)
The express language of the Elder Abuse Act set forth above shows that, to establish neglect, the TAC must allege facts sufficient to show a negligent failure by a person having care or custody of decedent, sufficient to constitute a “substantial caretaking or custodial relationship....” (Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382, 405.) Though the Elder Abuse Act includes the phrase “care or custody of an elder” within the statutory definition of neglect, this phrase does not appear in the definition of “physical abuse”. (See Welf. & Inst. Code, § 15610.63; Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 161-162 (Winn) [general discussion of statutory interpretation].) The Hospital also fails to cite any legal authority showing why the TAC must allege facts sufficient to show the existence of a caretaking or custodial relationship with decedent to establish a claim of physical abuse under the Elder Abuse Act. Furthermore, the legal authority cited by the Hospital is distinguishable as further discussed below.
To support its contention that the TAC must show that the Hospital was the custodian of decedent to adequately allege a claim under the Elder Abuse Act, the Hospital cites the decision in Winn, supra, 63 Cal.4th 148. (Memorandum at p. 7.) In Winn, the Supreme Court of California “granted review to consider whether a claim of neglect under the Elder Abuse Act requires a caretaking or custodial relationship....” (Winn, supra, 63 Cal.4th at p. 155.)
The court in Winn noted that the examples of “neglect” provided in the statute “seem to contemplate ... the existence of a robust caretaking or custodial relationship” (Winn, supra, 63 Cal.4th at p. 158), and concluded that a claim of “neglect requires a caretaking or custodial relationship that arises where an elder or dependent adult depends on another for the provision of some or all of his or her fundamental needs...” (id. at p. 160). The court further noted that the text of section 15610.57 of the Elder Abuse Act, which defines the term “neglect”, “supports tethering the concept of neglect to caretaking or custodial situations.” (Id. at p. 162.) The court held that plaintiffs in that case “cannot bring a claim of neglect under the Elder Abuse Act unless the defendant health care provider has a caretaking or custodial relationship with the elder or dependent adult.” (Id. at p. 165.)
Though the court in Winn stated that a claim of neglect under the Elder Abuse Act requires the existence of a caretaking or custodial relationship, the court did not consider whether a claim of physical abuse under the Elder Abuse Act also depends on the existence of a caretaking or custodial relationship. “Cases do not stand for propositions not considered.” (State Water Resources Control Board v. Superior Court of Kings County (2025) 115 Cal.App.5th 734.)
The Hospital also cites the decision in Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206 (Alexander). The operative fourth amended complaint filed by the plaintiff in Alexander alleged “violations of the Probate Code, elder abuse, professional negligence, wrongful death, negligent misrepresentation, and negligent infliction of emotional distress.” (Alexander, supra, 23 Cal.App.5th at p. 219.) The court determined that plaintiffs in that case “did not allege Defendants did anything sufficiently egregious to constitute neglect or physical abuse within the meaning of the Elder Abuse Act.” (Id. at p. 223.)
Noted above, physical abuse under the Elder Abuse Act includes battery as defined in Penal Code section 242. Apart from the allegations described above, the TAC also alleges a separate cause of action for battery under Penal Code section 242, based on, among other things, the administration of Remdesivir and other contraindicated drugs to decedent. (See TAC, ¶¶ 196-197 & 218-219.) The demurrer of the Hospital fails to show, with reasoned argument, why the TAC does not sufficiently allege a battery under Penal Code section 242. Furthermore, pursuant to the June 27 Order, the court overruled the Hospital Defendants’ demurrer to the fifth cause of action for battery alleged in the SAC. The Hospital also fails to explain why any claim of battery alleged in the TAC differs from that cause of action.
“If the [TAC] 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.) For all reasons discussed above, even if the court were to assume without deciding that the TAC fails to show the existence of a custodial relationship between the Hospital and decedent (and the court presently makes no findings as to this issue) sufficient to support a cause of action for neglect under the Elder Abuse Act, the demurrer fails to show why the TAC does not allege facts sufficient to show a battery giving rise to a cause of action physical abuse under the Elder Abuse Act.
In addition, to the extent the demurrer is directed to only part of the first cause of action that arises from any purported neglect of decedent aside from any purported physical abuse, “a demurrer cannot rightfully be sustained to part of a cause of action....” (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047 (Kong).)
As to the Hospital’s contention that the Elder Abuse Act does not apply to actions for wrongful death, “a survivor cause of action ... is ... 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 v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1264 (Quiroz).) Though “the damages recoverable by a personal representative or successor in interest on a decedent’s cause of action are limited by statute ... [¶] there is at least one exception to the rule that damages for the decedent’s predeath pain and suffering are not recoverable in a survivor action. Such damages are expressly recoverable in a survivor action under the Elder Abuse Act if certain conditions are met.” (Id. at pp. 1264-1265.)
The Hospital advances no reasoned argument showing why the TAC fails to allege a survivor cause of action. Further, to the extent the first cause of action includes both a wrongful death claim and a survivor cause of action (and the court makes no findings in this regard), a demurrer to only part of that cause of action cannot be sustained. (Kong, supra, 108 Cal.App.4th at p. 1047.) For these and all reasons further discussed above, the court will overrule the demurrer to the first cause of action alleged in the TAC.
(3) The Hospital Defendants’ 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 motion to strike, the Hospital Defendants contend that plaintiffs have failed to plead, with particularity, facts showing that an officer, director, or managing agent of the Hospital authorized, ratified, or personally engaged in any oppressive, fraudulent, or malicious conduct; facts showing that an officer, director, or managing agent of the Hospital had advance knowledge of the unfitness of a person employed by it and nevertheless employed that person with a conscious disregard of the safety of others including decedent; facts showing actual knowledge of any neglect or wrongdoing by a managing agent of the Hospital; or any facts showing that any individual defendant’s conduct warrants an award of punitive damages.
The Hospital Defendants also contend that plaintiffs cannot maintain a punitive damages claim based solely upon negligent conduct, and that plaintiffs must comply with the provisions of Code of Civil Procedure section 425.13 with respect to all causes of action apart from the first cause of action for violation of the Elder Abuse Act.
Plaintiffs contend in their opposition, that the Elder Abuse Act creates a separate statutory cause of action premised on recklessness, oppression, fraud, or malice, which is not subject to the requirements of Code of Civil Procedure section 425.13. Plaintiffs further contend that, at the pleading stage, they are not required to identify any managing agent by name, and that the TAC sufficiently alleges ultimate facts showing that an officer, director, or managing agent engaged in, authorized, or ratified the conduct alleged in the TAC.
The punitive damages claims or allegations which are the subject of the Hospital’s motion to strike appear in paragraphs 75, 208, and “Prayer” paragraph 3 of the TAC. (Notice at p. 2, ll. 4-6.)
As to the punitive damages alleged in paragraph 208 of the TAC, which appears in the first cause of action further discussed above, the Elder Abuse Act provides for heightened remedies “[w]here it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, neglect as defined in Section 15610.57, or abandonment as defined in Section 15610.05, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse....” (Welf. & Inst. Code, § 15657.) “In order to obtain the [Elder Abuse] Act’s heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages. [Citations.] Accordingly, that plaintiffs in an Elder Abuse Act action may, on appropriate proof [citation] recover punitive damages entails no danger directly analogous to the danger that exists when ‘ “punitive damages may be awarded on what is traditionally considered a negligence cause of action” ’ [Citation.]” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 789 (Covenant Care).)
“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by [plaintiffs].” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)
Under Civil Code section 3294, subdivision (b), “[a]n employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code, § 3294, subd. (b).) Civil Code section 3294, subdivision (b), “does not purport to exclude any particular type of employer, such as health care providers, from its coverage.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)
The allegations which plaintiffs contend are sufficient to support an award of punitive damages appear in paragraphs 133 through 136, 177 through 186, and 187 through 199 of the TAC. (Opp. at p. 6, ll. 13-19.) These paragraphs include allegations that the Hospital established a protocol that mandated, instructed, or coerced physicians to administer Remdesivir to decedent without consent, and to refrain from disclosing the risks of Remdesivir to decedent, the financial incentives for administering Remdesivir, and alternative treatments. (TAC, ¶¶ 133-136.) These paragraphs also allege that the Hospital failed to provide for decedent’s basic needs, or to protect decedent from health and safety hazards, and that the Hospital isolated decedent from his family. (TAC, ¶¶ 177 through 186.) Further, these paragraphs allege that defendants acted under the supervision and guidance of the Hospital, and that the Hospital and its administrators, officers, directors, or managing agents authorized, directed, approved, or ratified the administration of Remdesivir or other contraindicated drugs. (TAC, ¶¶ 187-188, 194 & 196-199.)
“Punitive damages may not be pleaded generally.” (Today’s IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1193.) The general, speculative, and conclusory allegations of the TAC, including those described above, are insufficient to show the Hospital’s advance knowledge of any unfitness of any defendants, that the Hospital employed any individual with a conscious disregard of decedent’s rights or safety, or that an officer, director, or managing agent of the Hospital perpetrated, authorized, or knowingly ratified any wrongful conduct. For these and all reasons discussed above, the allegations of the TAC are insufficient to support an award of punitive damages against the Hospital even if plaintiffs were to prove their allegations at trial. Therefore, the court will grant the motion to strike the punitive damages claim asserted in paragraph 208 of the TAC.
As to the punitive damages alleged in paragraph 75 of the TAC, that paragraph asserts that the Hospital “acted with malice, oppression or fraud and the conduct was base, vile, and contemptible making [the] Hospital liable for punitive damages under Code of Civil Procedure § 3294, subject to Plaintiffs first complying with the provisions of Code of Civil Procedure § 425.13(a).” (TAC, ¶ 75.) Though Code of Civil Procedure section 425.13 does not apply to an action under the Elder Abuse Act (Covenant Care, supra, 32 Cal.4th at p. 790), the allegation set forth in paragraph 75 appears in the “Facts Common To All Causes Of Action”, and is not tethered to the first cause of action or any claim for elder abuse.
Code of Civil Procedure section 425.13 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 TAC 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].) Further, it can be inferred from the reference to section 425.13 appearing in paragraph 75, that the claim alleged in that paragraph arises from an injury which is directly related to the professional services provided by the Hospital Defendants. For these reasons, the claim is procedurally improper. Therefore, the court will grant the motion to strike the punitive damages claimed in paragraph 75 of the TAC.
As to the punitive damages claimed in “Prayer” paragraph 3, to the extent this claim is alleged against the Hospital, the same reasoning and analysis apply. For all reasons further discussed above, the court will grant the motion to strike “Prayer” paragraph 3 as to the Hospital, only.
As to the remaining punitive damages claim asserted in “Prayer” paragraph 3, these appear to be essential to third cause of action for battery alleged in the TAC against defendants other than the Hospital. In addition, to the extent plaintiffs can prove a “willful and unlawful use of force or violence” upon decedent by any defendant other than the Hospital, the demurrer fails to explain why the allegations of the TAC cannot support an award of punitive damages. (Pen. Code, § 242; Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894 [an act which is willful and “conceived in a spirit of mischief or with criminal indifference towards the obligations owed to others...” is sufficient to support an award of punitive damages].) The demurrer also fails to show why the allegations of the TAC can only state a claim for professional negligence and not a battery. (See Cobbs v. Grant (1972) 8 Cal.3d 229, 239-241 [general discussion].)
For all reasons discussed above, the court will deny the motion to the extent it requests an order striking the remaining claim for punitive damages alleged in “Prayer” paragraph 3 as to defendants other than the Hospital. (Quiroz, supra, 140 Cal.App.4th at p. 1281.)
Leave to amend:
In their opposition, plaintiffs request leave to amend the TAC, stating that “additional detail not explicitly stated in the [opposition] to include, but not limited to, specific times, dates, personnel, flowsheets, logs, etc. can be included to bolster existing allegations.” (Opp. at p. 8, ll. 12-15.)
The standards for granting leave to amend when a motion to strike is granted are “analogous to an order sustaining a demurrer.” (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.) Leave to amend should be granted “if there is any reasonable possibility that the defect can be cured by amendment.” (Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636 (Cooper).) However, the plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Ibid.)
Apart from the assertion described above, plaintiffs fail to “advance[] ... any effective allegation which [they] could now make if further amendment to the [TAC] were to be permitted.” (Cooper, supra, 70 Cal.2d at p. 636.) The court also notes that, in the February 7 Order, the court observed that the FAC also did not include “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...”, or any “facts demonstrating that plaintiffs have complied with the provisions of Code of Civil Procedure section 425.13, subdivision (a).” (Feb. 7 Order.) The June 17 Order also notes, without ruling on the issue, that “the facts alleged in the SAC would not support a claim for punitive damages.” (June 27 Order.)
Though it does not appear, for all reasons discussed above, that there exists any reasonable possibility that the defects discussed herein can be cured by further amendment, also considering that the court has twice granted plaintiffs leave to amend their pleading, the court will, in the interests of justice, grant plaintiffs leave to amend to state their best case. (Eghtesad v. State Farm General Ins. Co. (2020) 51 Cal.App.5th 406, 414 [general discussion].) To the extent an appropriate motion to strike punitive damages claimed in any amended pleading is filed in the future, the court expects plaintiffs to state any proposed allegations that could be made and to show, with reasoned argument, in what manner any proposed further amendments will change the legal effect of that pleading.