Case Name: Joe Ritchey, et al. v. Stanford Hospitals and Clinics, et al.

Case No.: 1-14-CV-273895

This action arises from an elective spinal surgery at Stanford Hospital and Clinics (the “Hospital”). Plaintiff Joe Ritchey was in an automobile accident in 1989 and suffered cervical spine injuries. (Third Amended Complaint (“TAC”), ¶ 1.) As his condition became more painful over the years, he decided to have surgery to reduce the pain. (Id.) As an alumnus of Stanford University, Mr. Ritchey elected to have the surgery at the Hospital. (Id.) Mr. Ritchey was promised that Dr. Joong So Park, the Chief of Staff and Director of the Spine Neurosurgery program, would be the physician performing the surgery. (Id., ¶¶ 43, 44.) The surgery (cervical diskectomy and fusion procedure) took place on January 26, 2011. (Id., ¶ 2.) Despite the representation that Dr. Park would perform the operation, without Mr. Richey’s knowledge or consent, the surgery was performed by “a relatively untrained beginning physician,” Dr. Kevin Chao. (Id., ¶¶ 46, 101.)

Mr. Ritchey was discharged from the Hospital on January 27, 2011. (Id., ¶ 5.) According to the allegations of the TAC, at the time of discharge, Mr. Ritchey was dangerously over-medicated in light of his age and preexisting medical conditions—which were known to the doctors and the Hospital. (Id., ¶¶ 3, 8.) Less than two hours after returning home from the Hospital, Mr. Ritchey passed out from the medication and struck his head. (Id., ¶¶ 9, 10.) Mr. Ritchey returned to the Hospital the next day. (Id., ¶ 11.) Over the next few months, Mr. Ritchey learned that he needed additional surgery. (Id., ¶ 13.)

Mr. Ritchey elected to have his second surgery at the University of California at San Francisco. (Id.) The second surgery took place on June 8, 2011. (Id., ¶ 14.) During the surgery, the operating doctor discovered that the implant used in the first surgery could not be removed in the usual fashion and had to be ground off of Mr. Ritchey’s spine with a metal grinder. (Id.) The implant was made by defendant Stryker Corporation (“Stryker”). Prior to the initial surgery, Mr. Ritchey was not warned of the dangers of the device manufactured by Stryker or the fact that it had not been approved by the FDA. (Id., ¶¶ 112, 113.)

According to Mr. Ritchey, the Hospital and the Board of Trustees of the Leland Stanford Junior University (“Board of Trustees”) administered a “VIP” program, which was represented as being a “perk/benefit” that would entitle alumni to “VIP Medical Care” at the Hospital. (Id., ¶¶ 31, 39.) Mr. Ritchey was told that, as a VIP, he would receive care by a Board Certified well-experienced practitioner, and not by a student, intern, resident or doctor in training. (Id., ¶ 40.) Mr. Ritchey claims that these representations were false and that the VIP program was actually used to “procur[e] live human bodies” for medical students to gain experience. (Id., ¶ 178.)

On May 1, 2012, Mr. Ritchey and his wife Anne Ritchey (collectively “Plaintiffs”) initiated this action in Santa Cruz County against Dr. Park, Cynthia Moore (identified as an agent of Stanford University), the Hospital, and Does 1 to 100. The initial Complaint asserted three causes of action: (1) professional negligence; (2) breach of duty to warn patient of treatment; and (3) failure to obtain patient’s informed consent. In July 2014, the Santa Cruz County Superior Court ordered the case to be transferred to Santa Clara County. (Stanford Defendants’ Request for Judicial Notice, Ex. G.)

On April 25, 2014, Plaintiffs filed the operative TAC, adding as defendants the Board of Trustees, Leland Stanford Junior University School of Medicine, Dr. Chao, and Stryker. It is 80 pages in length, contains more than 400 paragraphs, and sets forth fifteen causes of action:

1. Failure to Warn of Dangerous Conditions Created by Defendants and Resulting Injury as Result of Non-Disclosure

2. Failure of Duty to Warn of Side Effects of Medications and Knowing Implantation of Dangerous Device with Resulting Injury of Plaintiffs

3. Common Law Fraud, Deceit, and Misrepresentation

4. Elder Abuse

5. Fraud by Fiduciary and Violation of Trust, Breach of Fiduciary Contract and Violation of Duty of Good Faith and Fair Dealing (“Ghost Surgery”)

6. Medical Negligence

7. Infliction of Emotional Distress on Intimate Party and Loss of Consortium

8. Lack of Informed Consent and Battery

9. Violation of AMA Code of Ethics Delineating a National Standard of Care re Duty of Disclosure with Resulting Injury

10. Constructive Fraud upon a Trusting Patient

11. Ordinary Negligence

12. Violations of the Unfair Competition Law B&P “17200, et. seq.”

13. Violations of State Unfair Competition Law – B&P §§ 17500, et. seq., Improper Physician Supervision of Surgical Residents, Statutory Fraud, Deceit and False Billing

14. Violations of California Civil Code § 1750 et. seq., Consumers Legal Remedies Act

15. Strict Liability (Fraud)

Presently before the Court are two demurrers and three other motions. The Hospital and the Board of Trustees (collectively the “Stanford Defendants”) demur to Plaintiffs’ first fourteen causes of action. Stryker also has filed a demurrer, asserting that the first fourteen causes of action are uncertain and that the fifteenth cause of action fails to state facts sufficient to state a claim. The remaining motions are (1) the Stanford Defendants’ motion to strike portions of the TAC, (2) Stryker’s motion to strike portions of the TAC, and (3) Stryker’s motion for an order requiring Plaintiffs to comply with the Code of Civil Procedure by serving Stryker’s counsel with all pleadings filed with the court. In addition, the Stanford Defendants join the latter Stryker motion.

I. Requests for Judicial Notice

The Stanford Defendants’ Requests

In connection with their demurrer and motion to strike, the Stanford Defendants request that the court take judicial notice of the following documents: (1) Plaintiffs’ initial complaint filed in Santa Cruz County on May 1, 2012 (Exhibit A to RJN filed Dec. 30, 2014); (2) Plaintiffs’ first amended complaint filed in Santa Cruz County on January 22, 2013 (Exhibit B); (3) Plaintiffs’ case management statement filed in Santa Cruz County on March 12, 2013 (Exhibit C); (4) Plaintiffs’ second amended complaint filed in Santa Cruz County on January 27, 2014 (Exhibit D); (5) Mr. Ritchey’s affidavit filed pursuant to Civil Code section 1780 in Santa Cruz County in support of alleged violations of the Consumer Legal Remedies Act (Exhibit E); (6) Plaintiffs’ request for dismissal of “Class Claims” filed in Santa Cruz County (Exhibit F); (7) Order of the Santa Cruz Superior Court granting the Stanford Defendants’ motion to transfer venue to Santa Clara County (Exhibit G); (8) the declaration of Dr. Chao filed as an exhibit in support of the Stanford Defendants’ motion to change venue, filed with the Santa Cruz County Superior Court on June 18, 2014 (Exhibit A to RJN filed with Stanford Defendants’ Reply Br. Feb. 26, 2015.)

As records of a court of this State, the records are subject to judicial pursuant to Evidence Code section 452, subdivision (d). The requests are therefore GRANTED.

Plaintiffs’ Request

In connection with their oppositions to the demurrers and motions to strike, Plaintiffs requests that the court take judicial notice of the following documents: (1) a case report from the action filed in Santa Cruz County (Exhibit A to Plaintiffs’ RJN); and (2) a copy of Plaintiffs’ motion to assert claim of punitive damages (and accompanying documents) filed in Santa Cruz County on April 30, 2014 (Exhibit B). As records of a court of this State, the records are subject to judicial pursuant to Evidence Code section 452, subdivision (d). The request is therefore GRANTED.

II. Demurrers by the Stanford Defendants and Stryker

The Stanford Defendants and Stryker both specially demur to the first fourteen causes of action in the TAC pursuant to Code of Civil Procedure section 430.10, subdivision (f) on the ground of uncertainty. They also generally demur to the first fourteen causes of action in the TAC pursuant to Code of Civil Procedure section 430.10, subdivision (e) on the ground that each of the causes of action fails to state facts sufficient to constitute a cause of action. Finally, Stryker generally and specially demurs to the fifteenth cause of action pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f).

A. Legal Standard

The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, “‘[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice’ [Citations.]” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732; see also Code Civ. Proc., § 430.30, subd. (a).) For the purpose of testing the sufficiency of a cause of action, a demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law). (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967.) “[F]acts appearing in exhibits attached to the complaint will also be accepted as true and, if contrary to the allegations in the pleading, will be given precedence. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.)

Because a demurrer tests only the legal sufficiency of the pleading and admits the truth of all material factual allegations, “the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Comm. on Children’s Television, Inc. v. Gen. Foods Corp. (1983) 35 Cal.3d 197, 213-14.) Moreover, in ruling on a demurrer, the complaint must be “liberally construed, with a view to substantial justice between the parties,” (Code Civ. Proc. [“CCP”], § 452), and where allegations are subject to different reasonable interpretations, the court must draw “inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) When sustaining a demurrer, the court further considers “whether there is a reasonable possibility that the defect can be cured by amendment.” (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 976.) Unless the demurring party demonstrates that the defect in the complaint is incurable on its face, it is an abuse of discretion not to allow leave to amend. (See McDonald v. Super. Ct. (1986) 180 Cal.App.3d 297, 303-304.)

B. Uncertainty

Stryker and the Stanford Defendants point out that, as to the first fourteen causes of action, the TAC fails to comply with rule 2.112 of the California Rules of Court. Rule 2.112 provides that “[e]ach separately stated cause of action . . . must specifically state: (1) Its number (e.g., ‘first cause of action’); (2) Its nature (e.g., ‘for fraud’); (3) The party asserting it if more than one party is represented on the pleading (e.g., ‘by plaintiff Jones’); and (4) The party or parties to whom it is directed (e.g., ‘against defendant Smith’).” (Cal. Rules of Court, rule 2.112.) Stryker and the Stanford Defendants are correct that Plaintiffs have failed to comply with the third and fourth requirements of rule 2.112. Each of the first fourteen causes of action simply identifies the nature of the claim and does not state which plaintiff is asserting the action or against whom it is being asserted. The defendants assert that this defect renders the first fourteen causes of action uncertain. This argument is well taken.

While uncertainty is a disfavored ground for a demurrer, (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616), a demurrer for uncertainty may lie where multiple claims are asserted against multiple defendants and the plaintiffs have failed to identify which claims are asserted against which defendants. (See Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 fn.2.) In such instances, if a defendant cannot reasonably ascertain which issues must be admitted or denied or what counts or claims are directed against it, the complaint will be deemed uncertain. (See id.)

In this case, there are multiple plaintiffs, seven defendants, and fifteen causes of action. As to the first fourteen causes of action, Plaintiffs fail to identify which causes of action apply to which defendants. If this were a straightforward medical malpractice case against the doctors and a product liability case against the manufacturer of the spinal implant device, the defect in the TAC might not be of such a concern as it is in this case. Under those circumstances, it would be clear that the professional negligence claims were being asserted against the doctors and the product liability claim against the manufacturer. (See Williams, supra, 185 Cal.App.3d at p. 139 fn.2 [stating that, if the complaint contains enough facts to apprise a defendant of the issues it is being asked to meet, the failure to label each cause of action is not ground for demurrer: “Although inconvenient, annoying and inconsiderate, the lack of labels does not substantially impair [the defendant’s] ability to understand the complaint”].)

Here, however, Plaintiffs have expressly and vigorously argued that this is not a simple medical malpractice case. Indeed, in their opposition, Plaintiffs state that “[t]his is primarily a fraud, elder abuse and battery case, with negligence adding additional injury to the insult.” (Pl.s’ Opp. To the Stanford Def.s’ Demurrer, at p. 2 [emphasis in original].) Four of the causes of action in Plaintiffs’ TAC (the first, second, sixth, and eleventh causes of action) sound in negligence. Four of the causes of action (the third, fifth, ninth, and tenth causes of action) raise allegations of fraud. The remaining causes of action are for elder abuse (fourth cause of action), infliction of emotional distress/loss of consortium (seventh cause of action), battery (eighth cause of action), violations of the Business and Professions Code (twelfth and thirteenth causes of action), and deceptive business practices under the Consumers Legal Remedies Act (fourteenth cause of action). Each of these causes of action refer to “Defendants” generally and does not specify to which defendant or defendants each of the causes of action is directed. For instance, the first cause of action entitled “Failure to Warn of Dangerous Conditions” alleges that “Defendants” failed to warn “plaintiffs “of the dangerous condition caused by their choice of and implantation of the cervical spine fusion system,” “[f]ailed to advise other medical facilities of the unique nature of the implant,” and failed to warn plaintiffs that the device manufactured by Stryker had not been approved by the FDA. (TAC, ¶ 126.) Given these allegations, it is impossible to discern whether the first cause of action is being asserted against the doctors alone, the doctors and the Hospital, or all of the defendants together. The second through fourteenth causes of action suffer from the same defect.

Based upon the above discussion, Plaintiffs’ failure to specify the party or parties to whom each cause of action is directed in accordance with rule 2.112 of the California Rules of Court renders each of the first fourteen causes of action uncertain. The demurrers of Stryker and the Stanford Defendants on the ground that the first fourteen causes of action are uncertain are therefore SUSTAINED WITH 10 DAYS LEAVE TO AMEND.

C. Failure to State a Claim

In addition to their special demurrers, Stryker and the Stanford Defendants also generally demur to the first fourteen causes of action on the ground that Plaintiffs have failed to state facts sufficient to state a claim under Code of Civil Procedure section 430.10, subdivision (e). Because Plaintiffs are being granted leave to amend their complaint and the defendants have identified additional defects in Plaintiffs’ complaint, the court will address the general demurrers.

1. The Negligence Causes of Action

Plaintiffs’ first, second, sixth, and eleventh causes of action each assert claims of negligence. The first cause of action for “Failure to Warn of Dangerous Conditions” alleges facts regarding Mr. Ritchey being “overmedicated,” (TAC, ¶ 116), that the defendants selected and implanted a “dangerous” device into Mr. Richey’s body (id., ¶ 112), and that, while Mr. Ritchey was unconscious, his care was turned over to another surgeon with “less skill” than Dr. Park (id., ¶ 119). The second cause of action for “Failure of Duty to Warn” repeats the facts concerning the improper use of medication (id., ¶¶ 140-143), the “unsafe” medical device (id., ¶¶ 151-154), and an “untrained and un-credentialed specialist” performing surgery “below the standard of care” (id., ¶¶ 154-160). The sixth cause of action is for “Medical Malpractice” and the eleventh cause of action is for “Ordinary Negligence.” Each of those causes of action is also based upon the same facts and allege that Mr. Ritchey’s treatment fell below the applicable standard of care. (Id., ¶¶ 262, 266 [sixth cause of action] and 352-355 [eleventh cause of action].)

The defendants assert that Plaintiffs’ pursuit of four causes of action under the same theory of liability based upon the same facts is improper. They are correct. In Holcomb v. Wells Fargo Bank, N.A. (2007) 155 Cal.App.4th 490, 501, the court held that duplicative causes of action are subject to a general demurrer for failure to state a claim. In Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1000, the California Supreme Court rejected the conclusion by the court of appeal that a single complaint could properly state a cause of action for ordinary negligence separate and distinct from a cause of action for professional negligence. The Court stated that “[t]his analysis necessarily implies that the same factual predicate can give rise to two independent obligations to exercise due care according to two different standards[;] But this is a legal impossibility: a defendant has only one duty, measured by one standard of care, under any given circumstances.” (Flowers, supra, 8 Cal.4th at p. 1000 [italics in original].)

Accordingly, the defendants are correct that Plaintiffs may only assert one cause of action for negligence arising from the same operative facts. The court is mindful that, in cases where claims have been found duplicative, one of the claims usually survives. (See Award Metals, Inc. v. Super. Ct. (1991) 228 Cal.App.3d 1128, 1135.) However, as Plaintiffs themselves point out, “the current version of their Complaint is not a model of concise pleading.” (Pl.s’ Opp. to the Stanford Def.s’ Demurrer, at p. 3.) The court will therefore allow Plaintiffs to amend to allege each of the elements of negligence in a single cause of action. The demurrers to the first, second, sixth, and eleventh causes of action are therefore SUSTAINED WITH 10 DAYS LEAVE TO AMEND.

2. The Fraud Causes of Action

Plaintiffs’ third, fifth, ninth, and tenth causes of action are for fraud. Each of the causes of action is premised upon the fact that representations were made to Mr. Ritchey that he would receive VIP medical care and that those representations turned out to be false. (TAC, ¶¶ 177-179 [third cause of action for “Common Law Fraud”]; ¶¶ 237-239 [fifth cause of action for “Fraud by Fiduciary”]; ¶ 329 [ninth cause of action]; ¶¶340-345 [tenth cause of action for “Constructive Fraud”].) The defendants demur to these causes of action on the ground that Plaintiffs have failed to meet the heightened pleading standard applicable to fraud claims.

The elements of fraud are: (1) a misrepresentation; (2) knowledge of falsity; (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 638.) Because claims of fraud involve a serious attack on a person’s character, such claims are subject to a heightened pleading standard and must be pled with particularity. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) To meet this heightened pleading standard, the plaintiff must set forth facts showing “how, when, where, to whom, and by what means the representations were tendered.” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.)

Each of the fraud claims is based upon the allegations that the defendants were administering a VIP program designed to entice patients with the promise of receiving superior medical care by an experienced physician and then being turned over to medical students and/or doctors-in-training. In support of these allegations, Plaintiffs allege that the representations concerning the VIP program were being made in 2010 and 2011, and that representations concerning the program were “made to Plaintiff by one or more of the Defendants.” (TAC, ¶¶ 39-41 [incorporated by reference into the third, fifth, ninth, and tenth causes of action].) Plaintiffs further allege that, “beginning in 2010, duly authorized agents and representatives of Defendants actively sought out Ritchey and came to his home in Santa Cruz multiple times to speak to solicit him . . . to assist the University as an alumni Class Representative” (TAC, ¶ 64) and that, as an alumni volunteer, he “would receive what was referred to as ‘VIP Medical Care’ at the Stanford Hospital” (id., ¶ 66).

These allegations do not set forth how, when, where, by whom, or by what means the alleged misrepresentations concerning the VIP program were tendered. Accordingly, they do not satisfy the heightened pleading standards applicable to fraud claims. Consequently, the demurrers of Stryker and the Stanford Defendants to the third, fifth, ninth, and tenth causes of action are SUSTAINED WITH 10 DAYS LEAVE TO AMEND.

3. Fourth Cause of Action for Elder Abuse

Plaintiffs’ fourth cause of action is for elder abuse under Welfare and Institutions Code section 15600 et seq. To allege neglect within the meaning of the Elder Abuse Act, a plaintiff must plead that a defendant “denied or withheld goods or services necessary to meet the elder or dependent adult’s basic needs, either with knowledge that the injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness).” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407; see Welf. & Inst. Code, § 15657, subd. (c) [remedies of Elder Abuse Act apply where “the defendant has been guilty of recklessness, oppression, fraud, or malice”].) To recover statutory remedies available under the Elder Abuse Act, a plaintiff must plead and prove that the defendant is guilty of something more than mere professional negligence. (Delaney v. Baker (1999) 20 Cal.4th 23, 31-32.) Moreover, since the cause of action for elder abuse is a creature of statute, the facts giving rise to the action must be pled with particularity. (Covenant Care, Inc. v. Super. Ct. (2004) 32 Cal.4th 771, 790.)

Here, in support of the contention that more than mere professional negligence occurred in this case, Plaintiffs rely upon the allegations that the defendants committed fraud with regard to the VIP program. (See TAC, ¶ 220.) However, as stated above, Plaintiffs have not pled their fraud claims with the requisite particularity. Because elder abuse claims are also subject to a heightened pleading standard, the failure to plead the fraud allegations concerning the VIP program with particularity is fatal to Plaintiffs’ elder abuse claim. The demurrers to the fourth cause of action are therefore SUSTAINED WITH 10 DAYS LEAVE TO AMEND.

4. Seventh Cause of Action

Plaintiffs’ seventh cause of action is entitled “Infliction of Emotional Distress on Intimate Party and Loss of Consortium.” (TAC, at p. 54.) In support of the cause of action, Plaintiffs allege that “Defendants’ actions caused serious bodily injury and emotional distress to Joe Ritchey and those consequences were observed and witnessed by his wife.” (Id., ¶ 275.)

In Thing v. La Chusa (1989) 48 Cal.3d 644 (“Thing”), the California Supreme Court held that a plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person, if he or she (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances. (Thing, 48 Cal.3d at p. 667-668.)

Here, as the Stanford Defendants point out, Plaintiffs have not pled that Mrs. Ritchey was present during the surgery, i.e., the injury-producing event. In the absence of such an allegation, Mrs. Ritchey cannot state a claim for infliction of emotional distress premised on bystander liability. The demurrers to the seventh cause of action are therefore SUSTAINED WITH 10 DAYS LEAVE TO AMEND.

5. Eighth Cause of Action

Plaintiffs’ eighth cause of action is entitled “Lack of Informed Consent and Battery.” The cause of action consists of over 45 paragraphs in which Plaintiffs reiterate that Mr. Ritchey was not informed that an inexperienced doctor would be conducting the surgery and that the VIP program constituted fraud.

As an initial matter, “battery and lack of informed consent are separate causes of action.” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324.) “A claim based on lack of informed consent—which sounds in negligence—rises when the doctor performs a procedure without first adequately disclosing risks and alternatives.” (Id.) “In contrast, a batter is an intentional tort that occurs when a doctor performs a procedure without obtaining any consent.” (Id.) Here, it is unclear whether Plaintiffs are attempting to assert a cause of action for negligence, battery or fraud. They do allege that “[t]he injuries sustained by plaintiff Joe Ritchey were not the kind that would normally occur in the absence of negligence.” (TAC, ¶ 324.) To the extent that this claim sounds in negligence, as stated above, it must be pled in a single cause of action. As for battery, to state a claim for medical battery, the plaintiff must plead either (1) a complete lack of consent to medical treatment, or (2) that a procedure was performed that was substantially different from the procedure to which the patient consented. (Cobbs v. Grant (1972) 8 Cal.3d 229, 239.) None of the allegations of the eighth cause of action assert that Mr. Ritchey did not consent to medical treatment or that the procedure was substantially different from the procedure to which he consented. Consequently, Plaintiffs have failed to set forth facts sufficient to state a claim and the demurrers to the eighth cause of action are SUSTAINED WITH 10 DAYS LEAVE TO AMEND.

6. Twelfth and Thirteenth Causes of Action

The twelfth and thirteenth causes of action are for unfair competition under Business and Professions Code section 17200 and 17500. The gravamen of both claims is that the defendants’ administration of the VIP program to induce patients to surgeries that are then performed by doctors-in-training constituted unlawful, unfair, and fraudulent business acts under the statutes.

To assert a claim for unfair business practices, the plaintiff must state the facts supporting the statutory elements of the violation with “reasonable particularity.” (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 619.) Where an unfair competition claim is based upon allegations of wrongdoing that are asserted in earlier causes of action, and those causes of action are deemed defective, the unfair competition claim necessarily fails. (See Krantz v. BT Visual Images, LLC (2001) 89 Cal.App.4th 164, 178 [the viability of an unfair competition claim stands or falls with the antecedent substantive causes of action]; see also Wolski v. Fremont Investment & Loan (2005) 127 Cal.App.4th 347, 357 [unfair business practices claim fails where it is based on a violation of law that also fails].)

Plaintiffs’ unfair competition claims are based upon the allegations that the VIP program constituted fraud and that the defendants violated the Welfare and Institutions Code. Because thecourt has sustained the defendants’ demurrers as to those causes of action, the unfair competition claims also fail. Accordingly, the demurrers to the twelfth and thirteenth causes of action are SUSTAINED WITH 10 DAYS LEAVE TO AMEND.

7. Fourteenth Cause of Action

In their fourteenth cause of action, Plaintiffs allege that the defendants violated the Consumers Legal Remedies Act (“CLRA”). The CLRA prohibits any person from engaging in unlawful or deceptive acts or practices intended to result in the sale or lease of good or services to any consumer. (Civ. Code, § 1770, subd. (a).) Under section 1770 of the CLRA, it is illegal to advertise goods or services with the intent not to sell them as advertised. (Id., § 1770, subd. (a)(9).) Fraudulent representations are among the prohibited acts set forth in the CLRA. (See Pierce v. Western Surety Co. (2012) 207 Cal.App.4th 83, 91.) However, statutory causes of action, such as claims under the CLRA, must be pled with particularity. (Lopez v. Southern Cal. Trans. Dist. (1985) 40 Cal.3d 780, 795.)

Here, the factual predicate for Plaintiffs’ claim under the CLRA is the alleged fraud relating to the VIP program. (TAC, ¶ 395.) Because Plaintiffs have failed to plead their fraud allegations with the requisite specificity, their claim under the CLRA must likewise fail. (See Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73 [every element of the cause of action for fraud must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made].) Accordingly, the demurrers to the thirteenth cause of action is SUSTAINED WITH 10 DAYS LEAVE TO AMEND.

8. Fifteenth Cause of Action

Plaintiffs’ fifteenth cause of action is the only claim directed towards a specific defendant. The claim is entitled “Strict Liability” and is asserted against Stryker. In support of the claim, Plaintiffs allege that “Defendant Stryker developed, manufactured and supplied the plate and fixtures used in the January 26, 2011, surgery on Plaintiff . . . and decided to not submit it to the FDA since it was needed in a hurry.” (TAC, ¶ 409.) Plaintiffs further allege that “Stryker and Stanford were working together to develop a relpacment [sic] product for a system that had been recalled and each knew it was dangerous to rush it but were willing to risk the health and welfare of patients for the sake of financial gain.” (Id., ¶ 410.)

Stryker demurs to the fifteenth cause of action on the ground that Plaintiffs have failed to identify the specific dangerous or defective product at issue. According to Stryker, it is entitled to know which of its products is involved in this action, which is impossible from the reference to “plates and screws” in the TAC. This argument is well taken. “A plaintiff is required to plead the facts of his case with reasonable precision and with sufficient clarity and particularity that the defendant may be apprised of the nature, source, and extent of his asserted cause of action.” (R.W. Agnew v. M.L. Schwartz (1958) 157 Cal.App.2d 10, 11.) Moreover, where a plaintiff is able to identify the specific product at issue in a product liability action, he or she must specifically identify the product in the pleadings. (See Bockrath v. Aldrich Chem. Co. (1991) 21 Cal.4th 71, 80-81.) Plaintiffs’ reference to “plates and screws” does not identify the product at issue with sufficient particularity. Stryker’s demurrer to the fifteenth cause of action for failing to state facts sufficient to constitute a cause of action is therefore SUSTAINED WITH 10 DAYS LEAVE TO AMEND.

III. Motions to Strike

Stryker and the Stanford Defendants both have filed motions to strike numerous allegations of the TAC. Given that the court has sustained the defendants’ demurrers as to every cause of action in the TAC, the motions to strike are MOOT.

IV. Stryker’s Motion to Compel Plaintiffs to Comply with the Code of Civil Procedure’s Service Requirements

In the final motion before the Court, Stryker asserts that Plaintiffs’ counsel has failed to serve Stryker’s counsel of record with any pleadings since Stryker appeared in this action in June 2014, and has failed to rectify this issue despite repeated requests for compliance. Plaintiffs have filed a non-opposition to the motion.

Pursuant to Code of Civil Procedure section 128, the court has the authority to enforce order in the proceedings before the court, to provide for the orderly conduct of proceedings, and to compel obedience to the court’s process. (Code Civ. Proc., § 128, subd. (a)(2) – (4).) Given Plaintiffs’ non-opposition to the motion, the motion is GRANTED.