Case Number: BC502484    Hearing Date: July 23, 2014    Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

CALVIN SILVERA,
Plaintiff(s),
vs.

CR BARD, INC., ET AL.,

Defendant(s).

CASE NO: BC502484

[TENTATIVE] ORDER SUSTAINING DEMURRER WITHOUT LEAVE TO AMEND; GRANTING MOTION TO STRIKE WITHOUT LEAVE TO AMEND

Dept. 92
1:30 p.m. — #23
July 23, 2014

Defendants, C.R. Bard, Inc. and Bard Peripheral Vascular, Inc.’s Demurrer is Sustained Without Leave to Amend. Defendants’ Motion to Strike is Granted Without Leave to Amend. Defendants are ordered to file an answer to the FAC, with the subject allegations and causes of action deemed stricken, within ten days.

1. Background Facts
Plaintiff, Calvin Silvera filed this action against Defendants, C.R. Bard, Bard Peripheral Vascular, Inc., Mason Weiss, MD, and Dat Quang Nguyen, MD for damages arising out of medical malpractice and related claims. The complaint arises out of the implementation of a G2 filter, which is a type of vena cava filter used to trap blood clots. Plaintiff filed his original complaint on 3/11/13. On 8/26/13, before any defendant had appeared, Plaintiff filed his operative First Amended Complaint.

2. Request for Judicial Notice
Defendant requests judicial notice of the instructions for use that accompanied the subject products, contending Plaintiff references the instructions in the complaint, and therefore judicial notice is proper. Defendants cite Branch v. Tunnell, 14 F.3d 449, 454 (9th Cr. 1994) to support their position. The Court therein held:
We have said that a document is not “outside” the complaint if the complaint specifically refers to the document and if its authenticity is not questioned. (citations). The leading commentators state that “when [the] plaintiff fails to introduce a pertinent document as part of his pleading, [the] defendant may introduce the exhibit as part of his motion attacking the pleading.” (citations) We have previously indicated approval of this rule, but have not explicitly adopted it. (citations). As it makes sense and comports with existing practice, we hold that documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss. Such consideration does “not convert the motion to dismiss into a motion for summary judgment.” (citations).

In light of the lack of opposition, the Court is inclined to grant the request for judicial notice.

3. Demurrer
At this time, Defendants, C.R. Bard and Bard Peripheral Vascular, Inc. demur to the third (strict liability design defect), fifth (breach of express warranty), sixth (breach of implied warranty) and seventh (negligent misrepresentation) causes of action.

Defendants establish that California law does not permit imposition of strict liability based on implementation of a medical device. See Brown v. Superior Court (1988) 44 Cal.3d 1049, 1061-64. The demurrer to the third cause of action is therefore sustained. Because Plaintiff failed to oppose the demurrer, leave to amend is denied.

Defendants establish that the claims for breach of warranty (express and implied) fail due to lack of privity. See Blanco v. Baxter Healthcare Corp. (2008) 158 Cal.App.4th 1039, 1058-59. The demurrer to the fifth and sixth causes of action is therefore also sustained. Again, because Plaintiff failed to oppose the demurrer, leave to amend is denied.

Plaintiff’s seventh cause of action is for negligent misrepresentation. The cause of action is premised on both negligent misrepresentations and also negligent omissions. Defendants correctly note that the allegations are insufficiently specific. See Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519. Plaintiff alleges only that Defendants made misrepresentations and concealed facts concerning certain topics, but fails to allege, specifically, what those misrepresentations were or any details about the making of the representations, or what facts were concealed. The demurrer is sustained. Again, because Plaintiff failed to oppose the demurrer, leave to amend is denied.

4. Motion to Strike
Plaintiff’s complaint includes a prayer for punitive damages. Defendants move to strike the prayer, correctly noting that none of the allegations in the complaint rise to the level of fraud, malice, or oppression. Notably, no cause of action for intentional misrepresentation appears in the complaint. The motion to strike is granted. Because Plaintiff failed to oppose the motion, leave to amend is denied.

Dated this 23rd day of July, 2014

Hon. Elia Weinbach
Judge of the Superior Court