2017-00216275-CU-MM

Robert Darosa vs. The Regents of the University of Ca.

Nature of Proceeding: Hearing on Demurrer to the 2nd Amended Complaint

Filed By: Garberson, Thomas M.

Defendants The Regents of the University of California (“Regents”), Rolando Roberto, M.D. (“Dr. Roberto”), Jeremy Demartini, M.D., Clayton Hodges, M.D., Nannette Cunningham Joyce, D.O., Malathi Srinivasan, M.D., Ryan J. Nathe, M.D., Arash Calafi, M.D., Kyle M. Natsuhara, M.D., Lia Africa, M.D., Mark Henderson, M.D., and Adam M. Wegner, M.D.’s (collectively, “Defendants”) demurrer to Plaintiff Robert DaRosa, Kathleen DaRosa, Lindsay DaRosa, and Jacob DaRosa’s (collectively, “Plaintiffs”) Second Amended Complaint (“SAC”) is sustained, without leave to amend, as to the Second and Sixth Causes of Action, and sustained with leave to amend as to the Fifth Cause of Action.

Plaintiffs allege claims for elder abuse, intentional infliction of emotional distress (“IIED”), negligent infliction of emotional distress (“NIED”), among other causes of action, arising out of the care and treatment received by decedent Robert DaRosa arising from his back decompression and fusion surgery that he underwent on April 28, 2016 and subsequent surgeries at the University of California Medical Center (“UCDMC”) in Sacramento, California.

Plaintiffs allege that Robert DaRosa was not provided proper support, nutrition, therapy, pain management, and braces, among other things, following any of his surgeries during his 48-day hospitalization. His family alleges injuries and damages as a result of witnessing the alleged negligent and abusive treatment of their father. Mr. DaRosa died on December 24, 2017, approximately one year and eight months after the surgery.

This is the second challenge to Plaintiffs’ pleading. This Court sustained Defendants’ prior demurrer, with leave to amend, with respect to the Second Cause of Action for Elder Abuse against Dr. Roberto, the Fourth Cause of Action for NIED, and the Fifth Cause of Action for IIED.

Plaintiffs filed their SAC on June 7, 2018.

In the instant demurrer, Defendants again challenge the pleading on the following grounds:

(1) The SAC fails to state a cause of action against Dr. Roberto for Elder Abuse.

(2) The SAC fails to state a cause of action for NIED.
(3) The SAC fails to state a cause of action for IIED.

Second Cause of Action against Dr. Roberto only (Elder Abuse)

Sustained without leave to amend for failure to state facts sufficient to constitute a cause of action. As previously explained in the Court’s Order of April 27, 2018:

To state a cause of action for elder abuse plaintiffs must allege that Dr. Roberto had “a substantial caretaking or custodial relationship with” the plaintiff, involving “ongoing responsibility” for his “basic needs, which an able-bodied and fully competent adult would ordinarily be capable of managing without assistance,” that plaintiff was 65 years old at the relevant time; that each defendant failed to use a reasonable degree of care in providing for the plaintiffs basic needs; and that the failures were a substantial factor in causing harm to the plaintiff (CACI 3103.) This jury instruction–particularly the first element–was recently updated in January 2017 to specifically incorporate the language of Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148. Winn rejected application of elder abuse provisions to a treating physician because “the Act does not apply unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient. It is the nature of the elder or dependent adult’s relationship with the defendant — not the defendant’s professional standing — that makes the defendant potentially liable for neglect.” (Id. at 152.)

In Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, the California Supreme Court made it clear that: “claims under the Elder Abuse Act are not brought against health care providers in their capacity as providers but, rather, against custodians and care-givers that abuse elders and that may or may not, incidentally, also be health care providers. Statutorily, as well as in common parlance, the function of a health care provider is distinct from that of an elder custodian, and ‘the fact that some health care institutions, such as nursing homes, perform custodial functions and provide professional medical care’ [citation] does not mean that the two functions are the same.” (Id. at 786, italics in original.)

While a health care provider may also be a care custodian, if his alleged misconduct relates to his medical care rather than his custodial care, no claim under the Act may lie: “Neglectful elder abuse…is ‘the failure of those responsible for attended to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.’ [Citation].)” (Covenant Care, supra, 32 Cal 4th at 785, italics in original)

In interpreting the Elder Abuse Act, the court in Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, held that “[t]o recover the enhanced remedies available under the Elder Abuse Act from a health care provider, a plaintiff must prove more than simple or even gross negligence in the provider’s care or custody of the elder. [Citations.] The plaintiff must prove ‘by clear and convincing evidence’ that ‘the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of the neglect. [Citations.]” Furthermore, “neglect requires more than negligence…. It requires intentional misconduct or recklessness.” (

Id. at fn 7.) The Carter court also held that the plaintiffs allegations of a “failure to treat [the patient’s] pressure ulcers, administer prescribed antibiotics or stock the crash cart; false documentation; purposefully inadequate testing for medications” did not “rise to the level of neglect” under the Elder Abuse act.” (Id. at 410.)

Finally, “[S]tatutory causes of action must be pleaded with particularity.” (Worsham v O’Conner Hospital (2014) 226 Cal.App.4th 331, 335.) Conclusory allegations for the basis of a statutory cause of action cannot sustain such a claim. Rather, a plaintiff must “sufficiently support[] the allegations with particular facts.” (Ibid.) Unlike with most common law causes of action, simply pleading ultimate facts cannot state a valid claim.

(Order dated April 27, 2018 (sustaining demurrer to First Amended Complaint with leave to amend).)

Also in that Order, the Court concluded that the allegations in the FAC were “insufficient to support a claim of elder abuse.” (Id.) This Court determined that “allegations mentioning Dr. Roberto by name concern his acts as a physician, not a care custodian,” and that the allegations do not “rise to the level of neglect in its scope and severity (Carter, supra), and include specific facts showing a causal nexus between alleged neglectful acts and specific harm.” (Id.) Indeed, the Court reasoned:

To the extent that it is alleged Dr. Roberto failed to provide pain medication to Mr. DaRosa after surgery, this does not rise to the level of elder abuse because it is an isolated incident, not “a significant pattern of withholding portions or types of care. A significant pattern is one that involves repeated withholding of care.” (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90.) Further, Sababin allows that the elder abuse act does not apply to simple or gross negligence by a health care provider. Id. at p. 88.

The court finds that the allegations plaintiff relies on to meet the custodial care standard are insufficient to constitute custodial care, including failure to order a brace for post-surgical recovery and stabilization (withhold necessary rehabilitation care); his failure to provide a bed to fit his patient (withheld equipment necessary for his patient’s recovery); his failure to use the proper hardware; the failure to recognize signs of hematoma and to treat it, and discharging Mr. DaRosa despite uncontrolled pain.

(Order dated April 27, 2018.)

After issuance of the above-quoted Order, Plaintiffs revised their pleading and filed the SAC. However, having reviewed the new allegations in the SAC, the Court agrees with moving Defendants. The revisions to the pleading do not cure the defects stated in the Order of April 27, 2018.

Indeed, the SAC’s new factual allegations specific to Dr. Roberto allege that he

improperly completed the surgery for various reasons (i.e., by using improper hardware and by leaving a surgical sponge in the patient’s back), improperly cared for and treated Mr. DaRosa after surgery (i.e., by depriving him of a back brace, pain medications, staffing to lift him back into bed after being seated in the cardiac chair; among other things), improperly ordered chemical and physical restraints for Mr. DaRosa after the surgery and improperly diagnosed the reason for his delirium, and discharged him to a lower-care facility too soon, among other things. (SAC ¶¶ 21, 27, 30, 32-37, 73, 76, 78, 81, 84, 97, 136.)

However, the Court finds that these allegations are substantially the same as those in Plaintiffs’ prior pleading, and are deficient for the same reasons described in the Court’s Order of April 27, 2018.

As moving Defendants argue, the allegations of Dr. Roberto performing multiple back surgeries on Mr. DaRosa — albeit performing them improperly and/or negligently — are nevertheless allegations of Dr. Roberto providing medical care — albeit improperly and/or negligently — not withholding it. Similarly, the allegations of Dr. Roberto providing improper or too-low dosages of pain medications, and his placing Mr. DaRosa in one unit post-surgery as opposed to the ICU or a different unit, fall in the realm of medical judgment and medical malpractice, not — at least on the particular facts in the SAC — the “neglect” or “withholding of care” that would sound in elder abuse.

As to the new allegation that Dr. Roberto ordered chemical and physical restraints as “punishment for exhibiting signs of delirium” (SAC at p. 31, 63), the allegation is conclusory with respect to framing the restraints as “punishment” for anything. Conclusory allegations cannot be considered on demurrer. Also, as Defendants argue, the SAC alleges that Mr. DaRosa was at risk for hurting himself from writhing, kicking his bed, and that he believed the nurses were trying to kill him (SAC at pp. 11, 31, 35, 63), such that the SAC’s allegations indicate the restraints were used to treat the delirium and not as “punishment” for something.

In the Opposition (Opp’n at 2), Plaintiffs correctly argue that Winn does not hold that, as a matter of law, treating physicians can never be liable for elder abuse. However, Winn does require factual allegations of a “robust” caretaking relationship where an able-bodied and fully competent adult would ordinarily be capable of managing without assistance (Winn, 63 Cal.4th at 158), and here the SAC fails to allege facts meeting this requirement. Indeed, even if Plaintiff’s factual allegations are taken as true, they fail to constitute conduct that rises to the level of a violation of the Elder Abuse Act. The stated purpose of the Act is “to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect.” ( Delaney v. Baker (1999) Cal.4th 23, 33.) In reviewing the prior case law and the Elder Abuse Act, the Court of Appeal in Carter, supra, concluded the 1) alleged failure to administer antibiotics, and 2) the alleged failure to properly stock a crash cart, was not “sufficiently egregious to constitute neglect (or any other form of abuse) within the meaning of the Elder Abuse Act.” (Carter v. Prime Healthcare, supra at p. 407.) So, the Court in Delany clarified that the statutory definition of “neglect” (Welfare & Institutions Code § 15610.57) “. . . .is not negligence in the undertaking of medical services but the more fundamental ‘failure to provide medical care for physical and mental

health needs.” (Id. at 34.)

Winn looked to the statutory definition of “neglect” in Welfare & Institutions Code

section 15610.57 to assist in defining the relationship required under the Act, and found that the various forms of neglect described “each seem to contemplate” “the existence of a robust caretaking or custodial relationship — that is, a relationship where a certain party has assumed a significant measure of responsibility for attending to one or more of an elder’s basic needs that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.” (Winn v. Pioneer Medical Group, Inc., 63 Cal. 4th 148, 157-58, emphasis added.) In this context, it again bears noting that in Covenant Care, Inc. v. Superior Court (2007) 32 Cal. 4th 771, the California Supreme Court concluded that the “statutory definition of neglect speaks not of the undertaking of medical services, but of the failure to provide medical care.” (citing Delaney v. Baker, (1999) 20 Cal. 4th 23; see also Winn v. Pioneer Medical Group, Inc., supra) acknowledging Covenant Care and Delaney as defining “neglect” as the failure to attend to the basic needs of elders under a defendant’s care). The Covenant Care court arrived at this conclusion after explaining that neglect, within the meaning of § 15610.57, “covers an area of misconduct distinct from ‘professional negligence'” and, therefore, does not refer to “substandard performance of medical services,” but 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.” (Id. at p. 783.) For purposes of the Elder Abuse Act, reckless neglect is not negligence in the undertaking of medical services, but rather concerns the fundamental failure to provide medical care. (Delaney, surpa, at p. 34.) Reckless neglect includes only “acts of egregious abuse.” (Id. at 35.) The Court understands that the term “egregious” is a shorthand description of misconduct covered by the Act, as opposed to ordinary professional negligence. Delaney, supra, 20 Cal.4th at p. 32. “Egregious” is not a statutory element. Recklessness under the Elder Abuse Act, is more than “inadvertence, incompetence, unskillfullness, or a failure to take precautions’ but rather rise to a level of a ‘conscious choice of a course of action…with knowledge of the serious danger to others involved in it.'” (Id. at 31-32.) 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.

In analyzing the complaint in Winn, the Court observed that “[b]eyond the assertion that defendants treated Mrs. Cox at outpatient “clinics” operated by defendants, plaintiffs offer no other explanation for why defendants’ intermittent, outpatient medical treatment forged a caretaking or custodial relationship between Mrs. Cox and defendants. No allegations in the complaint support an inference that Mrs. Cox relied on defendants in any way distinct from an able-bodied and fully competent adult’s reliance on the advice and care of his or her medical providers. Accordingly, we hold that defendants lacked the needed caretaking or custodial relationship with the decedent.” (Winn, 63 Cal.4th at 165 (emphasis added).)

Here, although Mr. DaRosa’s 48-day hospital stay involving multiple complex back surgeries performed by Dr. Roberto is unlike the “intermittent, outpatient medical treatment” alleged in in Winn — nevertheless the Court agrees with Defendants that Dr. Roberto’s surgical work on Mr. DaRosa (and his diagnoses and treatment of Mr. DaRosa thereafter) does not give rise to the sort of relationship necessary for an elder abuse cause of action against Dr. Roberto. Both Winn and the SAC allege medical treatment, and neither include allegations showing that the patient relied on their medical provider in any way distinct from an able-bodied and fully competent adult’s reliance on the advice and care of his or her medical provider.

The Court agrees with moving Defendants that the SAC fails to state an elder abuse cause of action given the lack of factual allegations supporting a “robust caretaking or custodial relationship — that is, a relationship where a certain party has assumed a significant measure of responsibility for attending to one or more of an elder’s basic needs that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.” (See Winn, 63 Cal.4th 148, 157-58 (emphasis added).) Winn requires factual allegations of the Defendants’ intentional assumption of a significant measure of an “ongoing” responsibility for attending to one or more of Plaintiff’s basic needs that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance. (See Winn, 63 Cal.4th at 157-58.) Here, Plaintiff alleges that during his surgery and subsequent hospitalization (and additional surgeries to remedy the original defective surgery), Dr. Roberto and other Defendants attended to Plaintiff for over 48 days, but that he did not receive the treatment, care equipment, medication, tests, or surgery that he truly needed. (SAC ¶¶ 21, 27, 30, 32-37, 73, 76, 78, 81, 84, 97, 136.)

The Court notes that the SAC’s repeated allegations as to “care and custody,” “pattern and practice,” and other similar phrases, are conclusory and must be disregarded for purposes of analysis on demurrer.

The SAC fails to allege facts that would show any distinction between Plaintiff as an elder or dependent adult needing surgical and post-surgical medical care and treatment, and an “able-bodied and fully competent adult” needing such surgical and post-surgical care. (See Winn, 63 Cal.4th at 157-58.) To the contrary, during and after surgeries, able-bodied and competent adults while in a hospital often rely upon their healthcare providers to protect them from health and safety hazards, assist them with movement, provide them with clothing and shelter, and provide them with nutrition, fluids, and oxygen. On the pleaded facts, then, Plaintiff was in no different “custodial” posture than any other patient requiring surgical and post-surgical care, even given his age and medical conditions. The SAC’s factual allegations — including allegations of deficient care and treatment of various kinds during Mr. DaRosa’s 48-day hospital stay — describes the same relationship that a healthcare provider has with any other patient during and after surgery, i.e., the provision of health-related, medical treatment services.

In light of Winn, the Court does not find that a surgeon providing the care and treatment alleged in the SAC would form a care or custodial relationship with a dependent adult under the circumstances alleged in the SAC.

Plaintiffs also argue that “Dr. Roberto was the captain of the ship in terms of Mr. DaRosa’s care” during and after the surgery and while he remained in the hospital, especially given that Dr. Roberto is allegedly the Chief of Spine Surgery at the time. (Opp’n at 6.) However, Plaintiffs offer no authorities for this “captain of the ship” argument, and the Court is not persuaded that Dr. Roberto’s seniority necessarily gives rise to his individual respondeat superior or vicarious liability for an elder abuse claim.

Plaintiffs also argue that Dr. Roberto can be liable for the alleged failure to provide proper nutrition to Mr. DaRosa post-surgery because he never ordered a feeding tube, and because “malnutrition” is a form of elder abuse under Welf. & Inst. Code §

15610.57(b). (Opp’n at 10.) But Plaintiffs have not shown that a surgeon’s failure to order a feeding tube for his patient post-surgery can properly be deemed a “failure to

prevent malnutrition” for purposes of this statute under the pleaded facts.

This Court is bound by Winn, which warned that “[t]o elide the distinction between neglect under the Act and objectionable conduct triggering conventional tort remedies –

– even in the absence of a care or custody relationship — risks undermining the Act’s central premise.” (Winn, 63 Cal.4th at 165.)

Parenthetically, the Court notes that while it is not persuaded that Dr. Roberto can be individually liable for elder abuse based on the facts alleged in the SAC, Plaintiffs have also attempted to allege an elder abuse claim against the Regents and Defendants have not demurred to that cause of action as against that institutional defendant. In short, Plaintiffs are not without a remedy here.

The Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND for the reasons stated in the moving papers and described above. Further attempts to amend this cause of action as against Dr. Roberto would be futile; Plaintiffs have already had the opportunity to amend their pleading.

Fifth Cause of Action against All Defendants (NIED)

Sustained with leave to amend for failure to state facts sufficient to constitute a cause of action. As previously explained in the Court’s Order of April 27, 2018:

Bystander negligent infliction of emotional distress claims “all arise in the context of physical injury or emotional distress caused by the negligent conduct of a defendant with whom the plaintiff had no preexisting relationship, and to whom the defendant had not previously assumed a duty of care beyond that owed to the public in general.” ( Christensen v. Superior Court (1991) 54 Cal.3d 868, 884.) To state a bystander NIED cause of action, facts supporting three elements must be alleged: It may be that they are attempting to allege a bystander claim. Three elements must be alleged: (1) plaintiff was “closely related” to the injured victim; (2) plaintiff was present at the scene of the injury-producing event when it occurred and was then aware the event caused the victim injury; and (3) as a result, plaintiff suffered “serious” emotional distress. (Thing v. LaChusa (1989) 48 Cal.3d 644, 667-668.) Thus, under Thing, to recover for emotional distress, a bystander must be present at the scene of the injury-producing event when it occurs and be contemporaneously aware it was causing injury. Thing v La Chusa, supra, at pp. 660-662.

In the case of Morton v. Thousand Oaks Surgical Hosp. (2010) 187 Cal.App.4th 926, the second element is further explained as requiring that the plaintiff “be aware of the connection between the injury-producing event and the injury.” (Id. at 934 (citation omitted.)) Second, the plaintiff must be able to understand, under the law, the negligence involved. In the context of medical care, Morton emphasizes that standard of care for the acts of medical

providers “is a matter peculiarly within the knowledge of experts” with limited exceptions “within the common knowledge of the layman.” (Id. at 935 (citation omitted.)) Thus, even though a plaintiff “knows when his or her [family member] is in need of medical attention,” he or she” does not, in the eyes of the law, know of the injury-causing effects of that treatment. (Id. at 934.) Nor can the plaintiff determine that any distress being experienced by their loved one is caused by medical negligence.

In Bird v. Saenz (2002) 28 Cal.4th 910, the adult daughters brought an NIED claim after their mother’s death. (Id. at 912.) Their mother presented to the defendants to have a catheter inserted for chemotherapy. (Id.) During the procedure, the defendants nicked an artery. (Id. at 913.) In an effort to circumvent the contemporaneous awareness requirement for an NIED claim, the daughters alleged that the “injury-producing event” was not the surgery itself, but rather the postoperative failure to diagnose and treat the damaged artery. (Id. at 914.) The Court found summary judgment appropriate because the “plaintiffs could not meaningfully have perceived any such failure [in medical care].” (Id.) Specifically, the Court found that “[e]ven if plaintiffs believed, as they stated in their declarations, that their mother was bleeding to death, they had no reason to know that the care she was receiving to diagnose and correct the cause of the problem was inadequate.” (Id.)

And in Golstein v. Superior Court (1990) 223 Cal.App.3d 1415, the parents of a child with curable cancer watched as he underwent radiation therapy. That the child had been lethally overexposed was not discovered until later, when he developed symptoms of radiation poisoning. While the plaintiffs had observed the procedure that was later determined to have been an injury-producing event, they were not then aware the treatment was causing injury. Addressing the second requirement of Thing, supra, 48 Cal. 3d 644, 668, the plaintiffs argued “that since radiation is invisible its fatal dosage cannot be seen, and it is unjust to deny them recovery based on rules having their origins in fact patterns involving visible events such as accidents. Were it not for Thing,” the Golstein court reasoned, the plaintiffs “would have a compelling case. However, courts have interpreted Thing’s policy statement as a requirement that NIED plaintiffs experience a contemporaneous sensory awareness of the causal connection between the negligent conduct and the resulting injury. As the Supreme Court stated the rule in Thing, the plaintiff must be ‘present at the scene of the injury-producing event at the time it occurs and . . . then aware that it is causing injury to the victim . . .

.’ ” (Golstein, supra, at pp. 1427-1428, fns. omitted, quoting Thing, supra, at p. 668.)

In a footnote, the court in Golstein, supra, 223 Cal. App. 3d 1415, observed that it had “repeatedly asked [plaintiffs’] counsel at oral argument to present some analytical distinction between [the] case [of radiation overexposure] and the standard medical malpractice case, where the injury is typically witnessed by the plaintiff but the plaintiff does not see, or meaningfully comprehend, the actual injury-causing event. Counsel was unable to do so. We are reasonably certain the Supreme Court would not accept a conclusion which could apply [NIED] recovery almost automatically to a medical malpractice plaintiff who observes only the suffering of the victim and not the actual event that causes that suffering.” (Id. at p. 1427, fn. 3.)

(Order dated 4/27/18.)

The SAC, much like the FAC, alleges that Mrs. DaRosa and Lindsay DaRosa personally witnessed Mr. DaRosa’s treatment, pain, suffering, delirium, and chemical and physical restraints, among other things, during his 48-day hospital stay after the initial surgery. (SAC ¶¶ 132-148.)

However, this time the pleading also alleges that Mrs. DaRosa was “previously a nurse assistant” with a “general understanding of medicine, basic nursing skills, and infections” and that she specifically recognized the signs of her husband’s infection and witnessed her husband’s suffering after her requests for treatment of the infection went ignored. (SAC ¶ 134, 144.) And while Lindsay DaRosa is not alleged to have any extra medical knowledge, she is alleged to have sufficient knowledge as a layperson for purposes of an NIED claim given that she witnessed the allegedly-negligent deprivation of nutrition and pain medication, which allegedly caused visible suffering to her father. (SAC ¶ 144.)

While the alleged facts may be sufficiently analogous to Ochoa and Keys so as to state an NIED claim for purposes of this pleadings motion (see Ochoa v. Superior Court (1985) 39 Cal.3d 159, 165 (holding that parent of deceased child adequately pleaded a cause of action for NIED where parent observed her child suffer severe fever, hallucinations, complaints of excruciating pain, coughing up blood and other apparent symptoms while the real parties in interest doctors for the county failed to respond to parent’s pleas for medical intervention); see also Keys v. Alta Bates Summit Medical Center (2015) 235 Cal.App.4th 484, 490), Plaintiffs still have not complied with this Court’s previous Order: they have still have not “alleged that they witnessed a particular negligent act by these other individual defendants [ten others aside from Dr. Roberto are alleged Defendants] and contemporaneously understood its negligence and its injury-producing effect.” (Order of April 27, 2018 at 5.)

In other words, the Fifth Cause of Action for NIED is alleged against “All Defendants,” yet as pointed out in the moving papers and the Reply (P&As at 12-13; Reply at 6), the SAC does not include allegations pertaining to the vast majority of the individual defendants (except perhaps for Dr. Roberto).

Accordingly, the demurrer is once again SUSTAINED, WITH LEAVE TO AMEND, so

that Plaintiffs can specify which defendants should appropriately be named in connection with this cause of action.

Sixth Cause of Action against All Defendants (IIED)

Sustained without leave to amend for failure to state facts sufficient to constitute a cause of action. As previously explained in the Court’s Order of April 27, 2018:

A claim for IIED has three elements: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiffs injuries were actually and proximately caused by the defendant’s outrageous conduct.” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 533 (citation omitted.)) “In order to meet the first requirement of the tort, the alleged conduct must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Id. (citation, quotation marks and ellipsis omitted.)) “Whether a defendant’s conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court; if reasonable persons may differ, it is for the jury to determine whether the conduct was, in fact, outrageous.” ( Id. at 534.) In the medical context, “[ordinarily, a medical diagnosis and treatment advice will not be considered outrageous unless they are false and given in bad faith.” ( Id. (emphasis added; citation omitted.))

Plaintiffs fail to allege conduct by any defendant that rises to the level of outrageous conduct so extreme as to exceed all bounds of that usually tolerated in a civilized community. The type of conduct alleged may arise to neglect or malpractice but the current facts do not show fraudulent or bad faith conduct. “In order to avoid a demurrer, the plaintiff must allege with great specificity the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 825.)

(Order dated 4/27/18 at 5 (emphasis added).)

Defendants’ moving papers argue that the SAC does not include new factual allegations that would change the Court’s previous analysis. Plaintiffs’ Opposition fails to identify any new allegations that would change the Court’s previous legal analysis. Accordingly, the demurrer to this cause of action is sustained without leave to amend.

Conclusion

The demurrer is sustained without leave to amend as to the cause of action against

Dr. Roberto for Elder Abuse.

The demurrer is sustained with leave to amend as to the cause of action for NIED.

The demurrer is sustained without leave to amend as to the cause of action for IIED.

Where leave to amend was granted, Plaintiffs may file and serve a Third Amended Complaint on or before October 11, 2018. Response to be filed within 30 days of service of the TAC, 35 days if served by mail.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.

Item 6 2017-00216275-CU-MM

Robert Darosa vs. The Regents of the University of Ca.

Nature of Proceeding: Motion to Strike the 2nd Amended Complaint

Filed By: Garberson, Thomas M.

Defendants The Regents of the University of California (“Regents”), Rolando Roberto, M.D. (“Dr. Roberto”), Jeremy Demartini, M.D., Clayton Hodges, M.D., Nannette Cunningham Joyce, D.O., Malathi Srinivasan, M.D., Ryan J. Nathe, M.D., Arash Calafi, M.D., Kyle M. Natsuhara, M.D., Lia Africa, M.D., Mark Henderson, M.D., and Adam M. Wegner, M.D.’s (collectively, “Defendants”) Motion to Strike page 68, lines 12-22 of Plaintiff Robert DaRosa, Kathleen DaRosa, Lindsay DaRosa, and Jacob DaRosa’s (collectively, “Plaintiffs”) Second Amended Complaint (“SAC”) is GRANTED and page 68, lines 12-22 of the SAC are hereby STRICKEN.

Plaintiffs’ Request for Judicial Notice, which attaches prior filings and orders in this action, is unopposed and is GRANTED.

Defendants seek to strike the following language from the SAC alleging medical malpractice, elder abuse, and related claims on grounds that it constitutes “an improper claim for special damages related to a loss of consortium cause of action,” specifically:

At page 68, lines 19-22 of the Second Amended Complaint: “Medical and incidental damages and expenses, including for care, treatment, medication, surgeries, rehabilitation, and all other special damages suffered by Mrs. DAROSA for and/or to cope with the loss of her husband’s consortium, in an amount in excess of the jurisdictional maximum and according to proof.

Code of Civil Procedure section 436 provides that the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.

Objections to a complaint’s prayer for damages typically lie with a motion to strike. ( Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 384-385 [“The appropriate procedural device for challenging a portion of a cause of action seeking an

improper remedy is a motion to strike.”]) As such, it is appropriate to bring a motion to strike when a complaint improperly seeks punitive damages. (Id.; see also Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1561-62; Grieves v. Sup.Ct. (Fox) (1984) 157 Cal.App.3d 159, 164.)

In the instant motion to strike, Defendants argue that Loss of Consortium permits only the recovery of general damages, not special damages. (CACI 3920.) (P&AS at 1 (quoting 4/27/2018 Minute Order Granting Motion to Strike).) Moving Defendants previously moved to strike this claim, and the Court previously granted the pertinent part of that motion. Indeed, in the Court’s previous ruling of April 27, 2018, the Court ruled in part that:

The motion to strike special damages from the loss of consortium claim is granted without leave to amend as those damages are not available on this claim. See CACI 3920. The Court has sustained the demurrer to this cause of action without leave to amend.

(Order dated 4/27/18.)

The last sentence quoted immediately above – stating that the Court has sustained demurrer to the loss of consortium cause of action – became inaccurate when, after the hearing, the Court vacated the portion of its demurrer Order regarding the loss of consortium cause of action. The Court’s final Order overruled the demurrer to the loss of consortium cause of action.

However, that the loss of consortium cause of action will proceed through the pleading stage does not vitiate the Court’s analysis regarding the damages arising from that cause of action. CACI 3920 provides that special damages are not available on a loss of consortium cause of action.

In the SAC and their Opposition to the instant motion, Plaintiffs continue to assert entitlement to “special damages” (arising from the loss of consortium) that Mrs. DaRosa suffered “as a result of having lost the comfort and society of her husband while he was still alive.” (Opp’n at at 2.) Plaintiffs argue that she should be compensated for having had to incur “medical expenses, therapy, etc. in order to deal with her husband’s disabilities post-surgery” and “ were caused by the loss of companionship of Mr. DaRosa while he was alive.” (Opp’n at 2.) Plaintiffs argue that although CACI 3920 states that the plaintiff is entitled to whatever money will compensate for the loss of love, companionship, comfort, care assistance, protection, affection, society, moral support, and sexual relations, “nothing about this instruction limits the damages to emotional distress only . . . nothing precludes special damages if they were actually incurred.” (Opp’n at 2.)

On Reply, Defendants cite to authorities squarely holding that “[b]eyond question, that claim [loss of consortium] consists entirely of noneconomic damages.” (Honsickle v. Superior Court (1999) 69 Cal.App.4th 756, 766-67 (citation omitted) (holding that because loss of consortium can only consist of noneconomic damages, the entire cause of action was barred by Civil Code § 3333.4(a)(2), which precludes recovery of noneconomic damages by an uninsured motorist in certain circumstances); see also Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 408 (spouse could not recover for the loss of her own earnings incurred when she quit her job to care for spouse, and could not recover the reasonable value of the nursing services she

provided to her spouse as part of her damages arising from the loss of consortium).)

The Court notes that “economic damages” are generally defined as objectively verifiable monetary losses including medical expenses, loss of earnings, burial costs, loss of use of property, costs of repair or replacement, costs of obtaining substitute domestic services, loss of employment and loss of business or employment opportunities, whereas “non-economic damages” are sometimes defined as subjective, non-monetary losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation. (See e.g., Civ. Code § 1431.2(b).)

Plaintiffs have not cited any authorities holding that economic or so-called special damages are recoverable in connection with a loss of consortium cause of action. In the absence of any such authority, the Court finds that it would be more consistent with the directives of CACI 3920, Honsickle, and Rodriguez to find that the loss of consortium cause of action gives rise to noneconomic damages only. (See e.g., Wilson v. John Crane (2000) 81 Cal.App.4th 847, 862 (“in contrast to loss-of-consortium claims, wrongful death claims may well include items of economic damage.”); Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990, 1007 (“Loss of consortium is simply a label for one type of noneconomic damages.”).)

The Motion to Strike is GRANTED, and the subject language is hereby STRICKEN.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.