This case was last updated from Los Angeles County Superior Courts on 12/08/2019 at 16:16:36 (UTC).

GEORGE T KELLY ET AL VS CHILDRENS HOSPITAL LOS ANGELES

Case Summary

On 10/27/2017 GEORGE T KELLY filed a Personal Injury - Medical Malpractice lawsuit against CHILDRENS HOSPITAL LOS ANGELES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are DENNIS J. LANDIN, CHRISTOPHER K. LUI, ROBERT B. BROADBELT, BRENDA M. PENNY and BRENDA J. PENNY. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1477

  • Filing Date:

    10/27/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DENNIS J. LANDIN

CHRISTOPHER K. LUI

ROBERT B. BROADBELT

BRENDA M. PENNY

BRENDA J. PENNY

 

Party Details

Plaintiffs and Petitioners

KELLY CHARLENE M.

KELLY GEORGE T.

Defendants and Respondents

ABDEL-AZIM HISHAM M.D.

HSU MELODY M.D.

ZAW RE M.D.

PULSIPHER MICHAEL M.D.

CHILDREN'S HOSPITAL LOS ANGELES

DOES 1 TO 100

KAPOR NEENA M.D.

KATO ROBERTA M.D.

MCFARRIN ALICIA M.D.

DR. DEITZ M.D.

HOFFMAN JILL M.D.

PERUMBETI AJAY M.D.

CHURCH JOSEPH M.D.

DOAN ANDREW M.D.

DOES 1-100

GARCIA MICHELLE M.D.

KAPOR M.D. NEENA

HOFFMAN M.D. JILL

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

KELLY GEORGE T. ESQ.

FISHER LISA ESQ.

FISHER LISA

KELLY GEORGE T.

Defendant and Respondent Attorneys

WEISS DAVID J. ESQ.

MCKENNA ROBERT L. III. ESQ.

REBACK MCANDREWS & BLESSE LLP

MOSELY KATHRYN S.M. ESQ.

MOSELY KATHRYN S. M.

WEISS DAVID J.

REBACK ROBERT C.

KISESKEY KELLY

LEVITT ERICA A.

MCKENNA III ROBERT L.

KJAR HEIDI

CARROLL RICHARD DOUGLAS

BLAKE CARLYN BRITTANY

BRANDMEYER KENT T.

KISESKEY KELLY L.

BRANDMEYER KENT THOMAS

 

Court Documents

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NUNC PRO TUNC ORDER;) OF 11/21/2019

11/21/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NUNC PRO TUNC ORDER;) OF 11/21/2019

Demurrer - with Motion to Strike (CCP 430.10)

8/9/2019: Demurrer - with Motion to Strike (CCP 430.10)

Case Management Statement

8/12/2019: Case Management Statement

Motion to Strike (not initial pleading) - MOTION TO STRIKE (NOT INITIAL PLEADING) PUNITIVE DAMAGES FROM THIRD AMENDED COMPLAINT

8/2/2019: Motion to Strike (not initial pleading) - MOTION TO STRIKE (NOT INITIAL PLEADING) PUNITIVE DAMAGES FROM THIRD AMENDED COMPLAINT

Notice of Posting of Jury Fees

8/1/2019: Notice of Posting of Jury Fees

Motion to Strike (not initial pleading)

6/12/2019: Motion to Strike (not initial pleading)

Demurrer - with Motion to Strike (CCP 430.10)

6/13/2019: Demurrer - with Motion to Strike (CCP 430.10)

Notice of Change of Firm Name

5/31/2019: Notice of Change of Firm Name

Notice of Ruling

4/19/2019: Notice of Ruling

Opposition - OPPOSITION CHURCH DEMURRER

4/15/2019: Opposition - OPPOSITION CHURCH DEMURRER

Reply - REPLY TO PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFFS FIRST AMENDED COMPLAINT

4/9/2019: Reply - REPLY TO PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFFS FIRST AMENDED COMPLAINT

Notice - NOTICE DEFENDANT ALICIA MCFARRIN, M.D.'S NOTICE OF ERRATA RE MOTION TO STRIKE PORTIONS OF PLAINTIFFS' FIRST AMENDED COMPLAINT

3/19/2019: Notice - NOTICE DEFENDANT ALICIA MCFARRIN, M.D.'S NOTICE OF ERRATA RE MOTION TO STRIKE PORTIONS OF PLAINTIFFS' FIRST AMENDED COMPLAINT

Demurrer - with Motion to Strike (CCP 430.10)

12/17/2018: Demurrer - with Motion to Strike (CCP 430.10)

DECLARATION OF CHARLENE KELLY PURSUANT TO SECTION 377.32 OF THE CODE OF CIVIL PROCEDURE

6/1/2018: DECLARATION OF CHARLENE KELLY PURSUANT TO SECTION 377.32 OF THE CODE OF CIVIL PROCEDURE

PROOF OF SERVICE OF SUMMONS

7/11/2018: PROOF OF SERVICE OF SUMMONS

DEFENDANTS RE ZAW, M.D., ROBERT KATO, M.D., AJAY PERUMBETI, M.D., HISHAM ABDEL-AZIM, M.D., AND ANDREW DOAN, M.D.'S DEMURRER TO PLAINTIFFS' FIRST AMENDED COMPLAINT; ETC

7/18/2018: DEFENDANTS RE ZAW, M.D., ROBERT KATO, M.D., AJAY PERUMBETI, M.D., HISHAM ABDEL-AZIM, M.D., AND ANDREW DOAN, M.D.'S DEMURRER TO PLAINTIFFS' FIRST AMENDED COMPLAINT; ETC

NOTICE OF POSTING JURY FEES

7/20/2018: NOTICE OF POSTING JURY FEES

Proof of Service by 1st Class Mail -

8/14/2018: Proof of Service by 1st Class Mail -

208 More Documents Available

 

Docket Entries

  • 02/28/2020
  • Hearing02/28/2020 at 08:30 AM in Department 53 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Demurrer - with Motion to Strike (CCP 430.10)

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  • 02/28/2020
  • Hearing02/28/2020 at 08:30 AM in Department 53 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Demurrer - with Motion to Strike (CCP 430.10)

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  • 02/28/2020
  • Hearing02/28/2020 at 08:30 AM in Department 53 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Demurrer - with Motion to Strike (CCP 430.10)

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  • 02/28/2020
  • Hearing02/28/2020 at 08:30 AM in Department 53 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Demurrer - with Motion to Strike (CCP 430.10)

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  • 02/28/2020
  • Hearing02/28/2020 at 08:30 AM in Department 53 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Demurrer - with Motion to Strike (CCP 430.10)

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  • 02/28/2020
  • Hearing02/28/2020 at 08:30 AM in Department 53 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Demurrer - with Motion to Strike (CCP 430.10)

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  • 02/28/2020
  • Hearing02/28/2020 at 08:30 AM in Department 53 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Demurrer - with Motion to Strike (CCP 430.10)

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  • 02/28/2020
  • Hearing02/28/2020 at 08:30 AM in Department 53 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Demurrer - with Motion to Strike (CCP 430.10)

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  • 02/28/2020
  • Hearing02/28/2020 at 08:30 AM in Department 53 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Demurrer - with Motion to Strike (CCP 430.10)

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  • 02/28/2020
  • Hearing02/28/2020 at 08:30 AM in Department 53 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Demurrer - with Motion to Strike (CCP 430.10)

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342 More Docket Entries
  • 06/01/2018
  • DocketDeclaration; Filed by Charlene M. Kelly, an Individual and Successor in Interest for Decedent George M. Kelly (Plaintiff); George T. Kelly, an Individual and Successor in Interest for Decedent George M. Kelly (Plaintiff)

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  • 06/01/2018
  • DocketSubstitution of Attorney; Filed by George T. Kelly, an Individual and Successor in Interest for Decedent George M. Kelly (Plaintiff)

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  • 06/01/2018
  • DocketSUBSTITUTION OF ATTORNEY

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  • 06/01/2018
  • DocketDECLARATION OF CHARLENE KELLY PURSUANT TO SECTION 377.32 OF THE CODE OF CIVIL PROCEDURE

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  • 06/01/2018
  • DocketDECLARATION OF GEORGE T. KELLY PURSUANT TO SECTION 377.32 OF THE CODE OF CIVIL PROCEDURE

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  • 05/04/2018
  • DocketSummons; Filed by Charlene M. Kelly, an Individual and Successor in Interest for Decedent George M. Kelly (Plaintiff); George T. Kelly, an Individual and Successor in Interest for Decedent George M. Kelly (Plaintiff)

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  • 05/04/2018
  • DocketFirst Amended Complaint; Filed by Charlene M. Kelly, an Individual and Successor in Interest for Decedent George M. Kelly (Plaintiff); George T. Kelly, an Individual and Successor in Interest for Decedent George M. Kelly (Plaintiff)

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  • 10/27/2017
  • DocketSUMMONS

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  • 10/27/2017
  • DocketComplaint; Filed by Charlene M. Kelly, an Individual and Successor in Interest for Decedent George M. Kelly (Plaintiff); George T. Kelly, an Individual and Successor in Interest for Decedent George M. Kelly (Plaintiff)

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  • 10/27/2017
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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Tentative Rulings

Case Number: BC681477    Hearing Date: August 05, 2020    Dept: 53

Superior Court of California

County of Los Angeles – CENTRAL District

Department 53

george t. kelly , et al.;

Plaintiffs,

vs.

childrens hospital los angeles , et al.;

Defendants.

Case No.:

BC681477

Hearing Date:

August 5, 2020

Time:

10:00 a.m.

[Tentative] Order RE:

(1) Defendants alicia mcfarren, m.d. and melody hsu, m.d.’s demurrer

(2) defendants alicia mcfarren, m.d.’s and melody hsu, m.d.’s motion to strike

(3) defendant hisham abdel-azim, m.d.’s demurrer

(4) defendant hisham abdel-azim, m.d.’s motion to strike

(5) defendants re zaw, m.d., roberta kato, m.d., ajay perumbEti, m.d., and andrew doan, m.d.’s demurrer

(6) defendants re zaw, m.d., roberta kato, m.d., ajay perumbEti, m.d., and andrew doan, m.d.’s motion to strike

(7) defendant joseph church, m.d.’s demurrer

(8) defendant joseph church, m.d.’s motion to strike

(9) defendant michael pulsipher, m.d.’s demurrer

(10) defendant michael pulsipher, m.d.’s motion to strike

(11) defendant neena kapoor, m.d.’s demurrer

(12) defendant neena kapoor, m.d.’s motion to strike

(13) defendant andrew dietz, m.d.’s demurrer

(14) defendant andrew dietz, m.d.’s motion to strike

(15) Defendant michelle garcia, n.p.’s demurrer

(16) defendant michelle garcia, n.p.’s motion to strike

(17) defendant children’s hosiptal los angeles’s demurrer

(18) defendant children’s hospital los angeles’s motion to strike

(19) defendant university of southern california’s demurrer

(20) defendant university of southern california’s motion to strike

(21) Defendant Bellicum pharmaceuticals, inc.’s demurrer

(22) defendant bellicum pharmaceuticals, inc.’s motion to strike

MOVING PARTIES: Defendants Alicia McFarren, M.D. and Melody Hsu, M.D.

Defendant Hisham Abdel-Azim, M.D.

Defendants Re Zaw, M.D., Roberta Kato, M.D., Ajay Perumbeti, M.D., and Andrew Doan, M.D.

Defendant Joseph Church, M.D.

Defendant Michael Pulsipher, M.D.

Defendant Neena Kapoor, M.D.

Defendant Andrew Dietz, M.D.

Defendant Michelle Garcia, N.P.

Defendant Children’s Hospital Los Angeles

Defendant University of Southern California

Defendant Bellicum Pharmaceuticals, Inc.

RESPONDING PARTIES: Plaintiffs George T. Kelly and Charlene Kelly

  1. Defendants Alicia McFarren, M.D., and Melody Hsu, M.D.’s Demurrer; (2) Defendants Alicia McFarren, M.D., and Melody Hsu, M.D.’s Motion to Strike;

  1. Defendant Hisham Abdel-Azim, M.D.’s Demurrer; (4) Defendant Hisham Abdel-Azim, M.D.’s Motion to Strike;

  1. Defendants Re Zaw, M.D., Roberta Kato, M.D., Ajay Perumbeti, M.D., and Andrew Doan, M.D.’s Demurrer; (6) Defendants Re Zaw, M.D., Roberta Kato, M.D., Ajay Perumbeti, M.D., and Andrew Doan, M.D.’s Motion to Strike;

  1. Defendant Joseph Church, M.D.’s Demurrer; (8) Defendant Joseph Church, M.D.’s Motion to Strike;

  1. Defendant Michael Pulsipher, M.D.’s Demurrer; (10) Defendant Michael Pulsipher, M.D.’s Motion to Strike;

  1. Defendant Neena Kapoor, M.D.’s Demurrer; (12) Defendant Neena Kapoor, M.D.’s Motion to Strike;

  1. Defendant Andrew Dietz, M.D.’s Demurrer; (14) Defendant Andrew Dietz, M.D.’s Motion to Strike;

  1. Defendant Michelle Garcia, N.P.’s Demurrer; (16) Defendant Michelle Garcia, N.P.’s Motion to Strike;

  1. Defendant Children’s Hospital Los Angeles’s Demurrer; (18) Defendant Children’s Hospital Los Angeles’s Motion to Strike;

  1. Defendant University of Southern California’s Demurrer; (20) Defendant University of Southern California’s Motion to Strike;

  1. Defendant Bellicum Pharmaceutical Inc.’s Demurrer; (22) Defendant Bellicum Pharmaceutical Inc.’s Motion to Strike.

On November 21, 2019, the court issued an order advancing and continuing the hearings for each of the above-referenced demurrers and motions to strike to February 28, 2020. [1] In the order, the court exercised its discretion to deem the plaintiffs’ Third Amended Complaint, filed July 10, 2019, as operative. The court noted that several of the above-referenced demurrers and motions to strike as to the Third Amended Complaint overlap in their respective arguments. The court therefore encouraged the parties, to the extent reasonably possible, to file consolidated opposition and reply papers in connection with the demurrers and motions to strike as to the Third Amended Complaint.

In connection with the above-referenced demurrers and motions to strike, the plaintiffs filed four oppositions: (1) an opposition, filed October 31, 2019, to defendant Hisham Abdel-Azim, M.D.’s demurrer and motion to strike; (2) an opposition, filed November 7, 2019, to defendants Re Zaw, M.D., Roberta Kato, M.D., Ajay Perumbeti, M.D., and Andrew Doan, M.D.’s demurrer and motion to strike; (3) an opposition, filed November 14, 2019, to defendant Bellicum Pharmaceuticals, Inc.’s demurrer and motion to strike; and (4) a consolidated opposition, filed February 14, 2020, to all other demurrers and motions to strike as to the Third Amended Complaint (the “Consolidated Oppositions”).

The court considered the moving, opposition, reply, and Consolidated Oppositions papers filed in connection with each demurrer and motion to strike.

The court notes that defendant Bellicum Pharmaceuticals, Inc.’s Memorandum of Points and Authorities in support of its demurrer, filed November 9, 2019, exceeds the 15-page limit set forth in California Rules of Court, rule 3.1113(d). The court therefore exercises its discretion to disregard pages 16 through 18 of defendant Bellicum Pharmaceuticals, Inc.’s Memorandum of Points and Authorities filed in support of its demurrer.

Background

On October 27, 2017, plaintiffs George T. Kelly and Charlene M. Kelly, individually, and George T. Kelly and Charlene M. Kelly, as successors in interest to decedent George M. Kelly (collectively, “Plaintiffs”), filed this action against defendants Children’s Hospital Los Angeles (“CHLA”), Keck School of Medicine of the University of Southern California (“USC”), Neena Kapoor, M.D. (“Kapoor”), Michael Pulsipher, M.D. (“Pulsipher”), Hisham Abdel-Azim, M.D. (“Abdel-Azim”), Melody Hsu, M.D. (“Hsu”), Re Zaw, M.D. (“Zaw”), Alicia McFarren M.D. (“McFarren”)[2], Andrew C. Dietz, M.D. (“Dietz”), Jill Hoffman, M.D. (“Hoffman”)[3], Andrew Doan, M.D. (“Doan”), Roberta Kato, M.D. (“Kato”), Ajay Perumbeti, M.D. (“Perumbeti”), Michelle Garcia (“Garcia”), Joseph Church (“Church”), and Bellicum Pharmaceuticals, Inc. (“Bellicum”) (collectively, “Defendants”).

The operative Third Amended Complaint (“TAC”) was filed on July 10, 2019, asserting causes of action for: (1) wrongful death; (2) negligence and negligence per se; (3) breach of fiduciary duty; (4) fraud; (5) medical battery on decedent; (6) medical battery on individual plaintiffs; (7) products liability – failure to warn; (8) breach of express warranty; and (9) products liability – design or manufacturing defect. This action arises from the death of minor George M. Kelly (“George”), who died on October 30, 2016. (Because the father (plaintiff) and the son have nearly identical names, the court refers to the son by his first name for clarity and convenience without intending any disrespect.) Plaintiffs (George’s parents) allege that Defendants negligently and/or intentionally caused George’s death.

In the TAC, Plaintiffs allege the following.

Plaintiffs George T. Kelly and Charlene Kelly are George’s parents. (TAC, ¶ 39.) George suffered from Chronic Granulomatous Disease (“CGD”) since birth. (TAC, ¶ 2.) CGD causes those afflicted to become profoundly immunocompromised. (TAC, ¶ 20.) Although George’s condition was not life threatening, George repeatedly suffered from CGD-related infections and was frequently hospitalized. (TAC, ¶¶ 3, 22.) Defendants held themselves out as experts in the treatment of CGD and acted together as a team to treat George. (TAC, ¶ 23.) Defendants represented to Plaintiffs that George’s disease may be “cured” by bone marrow transplant. (TAC, ¶ 21.) Bellicum, a clinical stage biopharmaceutical company which focuses on discovering and developing novel cellular immunotherapies, developed an experimental product and procedure designed to improve the outcomes of bone marrow transplants (the “Bellicum Protocol”). (TAC, ¶¶ 83-84.)

On April 22, 2016, Defendants admitted George to a research study called “MAGIC,” for Mount Sinai Acute Graft versus Host Disease International Consortium. (TAC, ¶ 72.) Defendants proposed the Bellicum Protocol to Plaintiffs, even though George was not a viable candidate for the Bellicum Protocol and did not meet the criteria for inclusion in any experimental procedure. (TAC, ¶ 8.) Consents were not signed at the time of enrollment. (TAC, ¶ 72.) George was also enrolled in other research studies, but inadequate consent was provided. (TAC, ¶¶ 72-73.) Defendants avoided describing the true nature of the research studies and refused to explore alternatives to treatment prior to enrollment in these studies. (TAC, ¶ 70.) Plaintiffs did not know that the Bellicum Protocol was different from a traditional bone marrow transplant. (TAC, ¶¶ 10, 28, 30.)

In 2016, George underwent three separate Bellicum Protocol transplants. (TAC, ¶¶ 68-70.) Defendant Kapoor chose to use plaintiff Charlene Kelly as the donor for the first and second procedures. (TAC, ¶ 69.) However, plaintiff Charlene Kelly was the host/carrier of CGD and the first two procedures were not successful. (TAC, ¶ 69.) Defendants used plaintiff George T. Kelly as the donor for the third procedure, but George was too compromised at this point, and the third procedure was not successful. (TAC, ¶ 69.) George died on October 30, 2016. (TAC, ¶ 19.)

Defendants Kapoor, Pulsipher, Abdel-Azim, Hsu, Zaw, McFarren, Dietz, Doan, Kato, Perumbeti, and Church (collectively, the “Doctor Defendants”) are physicians, employed by defendant CHLA, who were part of the medical team that treated George and performed the Bellicum Protocol. (TAC, ¶¶ 45-60.) The Doctor Defendants are trained and hold faculty appointments at defendant USC. (TAC, ¶ 44.) Defendant Garcia is a nurse practitioner and was also part of the medical team that treated George. (TAC, ¶ 59.) In 2014, Church, who had been George’s physician, proposed to Plaintiffs a bone marrow transplant and referred Plaintiffs to Kapoor. (TAC, ¶¶ 26-28.) Kapoor initially rejected George as a candidate for a bone marrow transplant at CHLA but, in 2016, Kapoor was willing to go forward with George’s bone marrow transplant. (TAC, ¶ 27.) During this time, Kapoor was recruited by Bellicum. (TAC, ¶ 27.) Neither Kapoor nor Church disclosed to Plaintiffs that the bone marrow transplant would be an experimental procedure, the Bellicum Protocol. (TAC, ¶ 28.) Bellicum, CHLA, and the Doctor Defendants engaged in a scheme to support research for Bellicum by actively recruiting patients for the Bellicum Protocol. (TAC, ¶ 6.) Defendants are engaged in the manufacture, production, packaging, labeling, marketing, sale and/or distribution of the Bellicum Protocol. (TAC, ¶ 184.) All of the Doctor Defendants knew or should have known that George was not a good candidate for the Bellicum Protocol, and none of the Defendant Doctors disclosed this fact to Plaintiffs. (TAC, ¶¶ 30-34.) The Doctor Defendants were acting on behalf of CHLA and Bellicum. (TAC, ¶ 71.) The Doctor Defendants each failed to disclose that he or she economically benefitted from the Bellicum Protocol, and the Doctor Defendants’ interests in Bellicum constituted a conflict of interest. (TAC, ¶¶ 89-90.)

EVIDENCE

Plaintiffs filed a request for judicial notice in support of their opposition to defendant Abdel-Azim’s demurrer and motion to strike. (Request for Judicial Notice, filed October 31, 2019.) Plaintiffs subsequently filed an identical request for judicial notice on November 7, 2019. Although it is not clear, Plaintiffs’ second request for judicial notice appears to be made in support of their opposition to each defendant’s demurrer and motion to strike. On November 14, 2019, defendants Zaw, Kato, Perumbeti, and Doan filed an objection to Plaintiffs’ request for judicial notice.

The court grants Plaintiffs’ request for judicial notice as to Exhibit A. The court denies Plaintiffs’ request for judicial notice as to Exhibit B.

DEMURRERS

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

As an initial matter, the court notes that all Defendants demur to Plaintiffs’ TAC on the ground of uncertainty. The court overrules each defendant’s special demurrer based on uncertainty. The court finds that the TAC is neither ambiguous nor unintelligible, and that the parties and claims are adequately labeled. (Code Civ. Proc., § 430.10, subd. (f).)

  1. FIRST CAUSE OF ACTION FOR WRONGFUL DEATH

Plaintiffs assert the first cause of action for wrongful death against all Defendants. USC and Bellicum each demur to the first cause of action for wrongful death.

“Wrongful death is a statutorily created cause of action for pecuniary loss brought by heirs against a person who causes the death of another by a wrongful act or neglect.” (Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 105.) “In any action for wrongful death resulting from negligence, the complaint must contain allegations as to all the elements of actionable negligence.” (Ibid.) The elements of negligence are duty, breach, causation, and damages. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

In support of the first cause of action for wrongful death, Plaintiffs allege that Defendants owed a duty to Plaintiffs, and Defendants breached their duty by failing to provide proper medical care, failing to properly advise Plaintiffs, misrepresenting the Bellicum Protocol, failing to disclose conflicts of interest, and failing to comply with mandatory protocols and regulations. (TAC, ¶¶ 107-108.)

  1. USC

Plaintiffs allege the following against USC. “[A]ll physician leaders for Defendant CHLA are trained and hold faculty appointments at USC.” (TAC, ¶ 44.) The Doctor Defendants promote USC. (TAC, ¶ 113.) Bellicum used several defendants, including USC, as agents to promote the Bellicum Protocol. (TAC, ¶ 137(h).)

USC contends that the TAC fails to allege that any of the other defendants were employed by or in any way acting on behalf of USC. USC contends that an entity defendant cannot be held liable for the actions of an individual unless the individual was acting in the course and scope of his or her agency and/or employment of the entity. The court agrees. With regard to each cause of action asserted against USC, the court is unable to find any allegation in the TAC that any individual defendant was an agent or employee of USC acting within the course and scope of the agency or employment, or that USC is otherwise vicariously liable for the alleged acts of any individual defendant, or that USC ever communicated with Plaintiffs or had any relationship with Plaintiffs.

Plaintiffs do not address any of USC’s arguments in their Consolidated Oppositions. In fact, the only time Plaintiffs address USC’s demurrer in their Consolidated Oppositions is in relation to the fourth cause of action for fraud: “Additional facts have been obtained against Defendant USC/Keck that if the court finds insufficient allegations can be added. For instance, plaintiffs learned that defendant USC provided financial support to the doctors who are paid directly by USC. USC knew that these doctors were obtaining monies and reputational prominence by their involvement.” (Consolidated Oppositions, pp. 14:10-13.) In reply, USC states that Plaintiffs have made specific allegations, as well as arguments in their Consolidated Oppositions and separate oppositions to other demurrers, that the Doctor Defendants and Garcia were agents of the other entity defendants, CHLA and Bellicum, but that Plaintiffs have not made any of the same agency allegations or arguments as to USC. The court therefore sustains USC’s demurrer to the first cause of action for wrongful death because it does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430, subd. (e).) The court grants Plaintiffs leave to amend the first cause of action for wrongful death against USC.

  1. Bellicum

Plaintiffs allege the following against Bellicum. “At all relevant times, Bellicum was engaged in the manufacture, production, packaging, marketing, sale and/or distribution of pharmaceutical protocols . . . .” (TAC, ¶ 61.) Bellicum and CHLA agreed to locate patients who would participate in the study of the Bellicum Protocol. (TAC, ¶ 85.) Bellicum supervised the application of the Bellicum Protocol through CHLA and “had a duty to ensure compliance with the law by CHLA and defendant doctor [sic].” (TAC, ¶ 124.) Bellicum was the sponsor of the relevant Bellicum studies (TAC, ¶ 45), and Kapoor was the lead investigator (TAC, ¶ 48). Bellicum, CHLA, and the Doctor Defendants did not adequately advise Plaintiffs of the potential harm and risk associated with the Bellicum Protocol. (TAC, ¶ 87.) Even though Bellicum and other defendants knew the Bellicum Protocol was not in decedent George’s best interest, Bellicum and the other defendants had George complete the Bellicum Protocol in order to pursue their own financial and reputational gain. (TAC, ¶ 137.) “[A]s a condition for proceeding with the protocol, Bellicum is required to ensure that they had properly set forth the information necessary to the patients and that they obtain informed consent as to the parties, and here as to the minor child. (21 CFR [sic] 50.20 and 50.50)” (TAC, ¶ 137(h).)

Bellicum contends that the first cause of action for wrongful death fails because Plaintiffs have failed to allege the element of duty. Bellicum argues that Plaintiffs allege Bellicum was the sponsor of the Bellicum studies, but that Plaintiffs’ allegations of duty owed by Bellicum are based on allegations that Bellicum was the investigator of the Bellicum studies.

Plaintiffs allege that Bellicum owed a duty to obtain informed consent from Plaintiffs based on 21 Code of Federal Regulations sections 50.20 and 50.50. Section 50.20 provides the general requirements for informed consent as to an “investigator” for purposes of 21 Code of Federal Regulations section 50, et seq. (21 C.F.R. § 50.20.) Section 50.50 provides the duties of an “IRB” or “Institutional Review Board,” which means “any board, committee, or other group formally designated by an institution to review biomedical research . . . .” (21 C.F.R. §§ 50.50, 50.3, subd. (i).) Section 50.3 defines a “sponsor” as “a person [or corporation or agency] who initiates a clinical investigation, but who does not actually conduct the investigation . . . .” (21 C.F.R. § 50.3, subd. (e).) Plaintiffs allege that Bellicum was the sponsor of the Bellicum studies. (TAC, ¶ 45.) Plaintiffs have not alleged that Bellicum was the investigator or the Institutional Review Board for purposes of the Bellicum studies. Therefore, to the extent that Plaintiffs allege that Bellicum owed a duty to obtain informed consent from Plaintiffs as an investigator pursuant to 21 Code of Federal Regulation sections 50.20 and 50.50, the court finds that the TAC fails to allege the element of duty as to Bellicum. The court notes that Plaintiffs, in their opposition, do not dispute Bellicum’s argument, but instead contend that Bellicum owed a duty to Plaintiffs based on its agency relationship with the other defendants.

Second, Bellicum contends that Plaintiffs fail to allege the element of duty as to Bellicum because, as a matter of law, Bellicum is not charged with ensuring trial participants’ wellbeing during a clinical study. Bellicum cites Abney v. Amgen, Inc. (2006) 443 F.3d 540, 551, for the proposition that, under the FDA’s regulatory scheme, it is the Institutional Review Board, not the pharmaceutical company, “that is meant to ‘protect the rights and welfare’ of trial participants during a clinical trial. [Citing 21 C.F.R. §§ 56.101 and 56.103.]” Bellicum notes that, although Plaintiffs have generally alleged that all defendants directly treated Plaintiffs and had physician-patient relationships with Plaintiffs (TAC, ¶¶ 118, 142), Plaintiffs allege Bellicum was the manufacturer, packager, marketer, seller and/or distributor of the Bellicum Protocol, and the sponsor of the Bellicum studies on decedent George. (TAC, ¶¶ 45, 61.) The court agrees.

In opposition, Plaintiffs also rely on Abney and argue that the court in Abney “correctly concluded that the principal investigators were independent contractors rather than the pharmaceutical company defendant’s agents.” (Opp’n to Bellicum’s Demurrer, filed November 14, 2019, p. 5:14-17.) From this, Plaintiffs contend that the conduct of the Doctor Defendants in this case in promoting Bellicum would be sufficient to allege the element of duty as to Bellicum. However, as discussed above, Plaintiffs allege Bellicum was the sponsor of the Bellicum studies and Kapoor was the relevant investigator. As Plaintiffs point out, the court in Abney held that the pharmaceutical company was a sponsor of the study, and “the district court did not abuse its discretion in concluding that it was unlikely that any direct agency relationship existed between Amgen [the pharmaceutical company defendant] and the University of Kentucky or its physicians [the study’s investigators].” (Abney, supra, at p. 549.) Therefore, to the extent Plaintiffs allege that Bellicum owed a duty to Plaintiffs either as Plaintiffs’ healthcare provider or because the other defendants were agents of Bellicum, the court finds that the TAC fails to allege the element of duty as to Bellicum.

Third, to the extent that the first cause of action for wrongful death is based on Bellicum’s failure to adequately warn Plaintiffs of the risks associated with the Bellicum Protocol (TAC, ¶¶ 108(b)-(f), 119), Bellicum contends that the cause of action is barred by the “learned-intermediary” doctrine.

“Negligence law in a failure-to-warn case requires a plaintiff to prove that a manufacturer or distributor did not warn of a particular risk for reasons which fell below the acceptable standard of care, i.e., what a reasonably prudent manufacturer would have known and warned about.” (Conte v. Wyeth, Inc. (2008) 168 Cal.App.4th 89, 101.) A pharmaceutical drug manufacturer fulfills its duty to warn if it provides adequate warnings to the physician of the patient or user. (Brown v. Superior Court (1988) 44 Cal.3d 1049, 1061-1062 [“While the ‘ordinary consumer’ may have a reasonable expectation that a product such as a machine he purchases will operate safely when used as intended, a patient’s expectations regarding the effects of such a drug are those related to him by his physician, to whom the manufacturer directs the warnings regarding the drug’s properties. The manufacturer cannot be held liable if it has provided appropriate warnings and the doctor fails in his duty to transmit these warnings to the patient or if the patient relies on inaccurate information from others regarding side effects of the drug.”].)

In opposition, Plaintiffs argue that the learned-intermediary doctrine applies only if the manufacturer provided adequate warnings regarding the risks associated with its prescription drug or device to health care professionals. However, as Bellicum points out in reply, Plaintiffs have not alleged in the TAC that Bellicum provided inadequate warnings regarding the Bellicum Protocol to Kapoor or the other defendants. The court notes that Plaintiffs further allege that Bellicum “failed to warn the FDA and the community of the risks and benefits of the procedure to [sic] with sufficient information to give to patients.” (TAC, ¶ 137(h).) However, this alleged fact is not sufficient to support an allegation that Bellicum failed to provide adequate warnings to George’s physicians. Therefore, to the extent that the first cause of action for wrongful death is based on Bellicum’s failure to “advise the minor child and the Plaintiffs of all risks associated with the treatment and/or study[,]” the court finds that the first cause of action for wrongful death asserted against Bellicum is barred by the learned-intermediary doctrine.

Finally, the court notes that Plaintiffs, in their opposition, argue Bellicum owed a duty based on Plaintiffs’ allegations that Bellicum and the other defendants conspired to commit the alleged wrongful acts. However, Plaintiffs have not cited any authority imposing liability for conspiring to commit negligence.

For the reasons set forth above, the court sustains Bellicum’s demurrer to the first cause of action for wrongful death because it does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430, subd. (e).) The court grants Plaintiffs leave to amend the first cause of action for wrongful death against Bellicum.

  1. SECOND CAUSE OF ACTION FOR NEGLIGENCE AND NEGLIGENCE PER SE

Plaintiffs assert the second cause of action for negligence against all Defendants. USC, Bellicum, and all Doctor Defendants except for Dietz, Pulsipher, and Kapoor demur to the second cause of action for negligence.

  1. Negligence Per Se

The court notes that several defendants contend that the cause of action for negligence per se fails because negligence per se does not constitute an independent cause of action, and also because the negligence per se cause of action does not allege a specific statute or regulation Defendants allegedly failed to follow. The doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence. (Turner v. Seterus, Inc. (2018) 27 Cal.App.5th 516, 543.) Accordingly, the court treats Plaintiffs’ second cause of action as alleging a single cause of action for negligence. The court also agrees with Defendants’ contentions that the second cause of action for negligence fails to allege a specific statute or regulation to support application of negligence per se.

The court also notes that Bellicum, in its demurrer, contends that the negligence causes of action asserted against it are preempted by federal law. However, the TAC does not allege any cause of action pursuant to any federal statute or regulation. Although it is not clear, Plaintiffs, in their opposition, appear to state that the causes of action are asserted under California state tort law. Contrary to Bellicum’s contention that Plaintiffs seek to prosecute claims under the Federal Food, Drug, and Cosmetic Act, Plaintiffs instead allege that Bellicum violated federal laws in order to assert a theory of liability under the doctrine of negligence per se. Therefore, the court finds that Plaintiffs’ negligence claims against Bellicum are not preempted.

Even assuming for the sake of argument that Bellicum were correct that Plaintiffs’ negligence claims based on alleged violations of federal regulations are preempted by federal law, a general demurrer does not lie to only part of a cause of action. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1167 [“Ordinarily, a general demurrer may not be sustained, nor a motion for judgment on the pleadings granted, as to a portion of a cause of action.”].)

  1. The Doctor Defendants (Except Dietz, Pulsipher, and Kapoor)

Each of the Doctor Defendants who demurs to the second cause of action for negligence[4] contends that the cause of action fails to allege the element of duty to the extent that the cause of action is brought by Plaintiffs in their individual capacity. Defendants McFarren, Hsu, and Church also contend that the second cause of action for negligence is duplicative of the first cause of action for wrongful death to the extent it is brought by Plaintiffs in their capacity as successors in interest to George.

A demurrer can be sustained where one cause of action is duplicative of another cause of action. (See Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 [recognizing duplication of facts and legal theories as basis for sustaining demurrer].)

Here, the court finds that the second cause of action for negligence, as asserted by Plaintiffs in their capacity as successors in interest to George, adds nothing to the first cause of action for wrongful death by way of facts or theory of recovery. The court notes that Plaintiffs, in their Consolidated Opposition, do not address McFarren, Hsu, or Church’s arguments that the second cause of action for negligence is duplicative of the first cause of action for wrongful death to the extent the causes of action are brought by Plaintiffs in their capacity as successors in interest to George. Therefore, to the extent that the second cause of action is brought by Plaintiffs in their capacity as successors in interest to George, the court sustains McFarren, Hsu, and Church’s demurrer to the second cause of action for negligence because it does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430, subd. (e).)

The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.” (Palm Springs Villas II Homeowners Assn., Inc., supra, at p. 290.) To satisfy that burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Here, Plaintiffs have failed to show how they could amend the TAC to state a cause of action for negligence (as asserted by Plaintiffs in their capacity as successors in interest to decedent George) that is not duplicative of the first cause of action for wrongful death. Therefore, to the extent that the second cause of action is brought by Plaintiffs in their capacity as successors in interest to George, the court sustains McFarren, Hsu, and Church’s demurrer to the second cause of action for negligence without leave to amend.

With regard to the Plaintiffs in their individual capacity, Plaintiffs argue that the TAC alleges facts sufficient to support a duty of care owed by the Doctor Defendants to parents George and Charlene Kelly because the Defendant Doctors subjected George and Charlene Kelly to unnecessary medical procedures. In support of the second cause of action for negligence, Plaintiffs allege, in relevant part: “Plaintiff parents were subjected to unnecessary treatment, because this was not a procedure that was helpful to the minor child. They were subjected to unnecessary medical procedures, and Defendants knew that the procedures would not be successful. Defendants, and each of them, had a duty to tell the plaintiff parents that this procedure was unnecessary and would cause them physical harm.” (TAC, ¶ 127.)

McFarren, Hsu, Abdel-Azim, Zaw, Kato, Perumbeti, Doan, and Church contend that the TAC fails to allege any duty owed by them to parents George and Charlene Kelly because the TAC does not plead facts to establish a physician-patient relationship. “It has long been held that an essential element of a cause of action for medical malpractice is a physician-patient relationship giving rise to a duty of care.” (Mero v. Sadoff (1995) 31 Cal.App.4th 1466, 1471.) In Keene v. Wiggins (1997) 69 Cal.App.3d 308, 313, the Court of Appeal observed that, where a physician-patient relationship does not exist, “[t]he duty [a physician] owes to each [person] varies with the relationship of the parties, the foreseeability of injury or harm that may be expected to flow from his conduct and the reliance which the person may reasonably be expected to place on the opinion received.” The Court of Appeal in Keene held that a doctor conducting an examination of an injured employee solely for the purpose of rating the injury for the employer’s insurance carrier “neither offers or intends to treat, care for or otherwise benefit the person examined, and has no reason to believe the person examined will rely on this report, [and] the doctor is not liable to the person being examined for negligence in making that report. His duty to observe a professional standard of care in the preparation of that report runs only to the carrier and to the employer requesting it.” (Id. at p. 314.)

Although McFarren, Hsu, Abdel-Azim, Zaw, Kato, Perumbeti, Doan, and Church correctly assert that Plaintiffs have not alleged the existence of a physician-patient relationship between them and George’s parents in the paragraphs which comprise the second cause of action for negligence (TAC, ¶¶ 1-133), Plaintiffs have alleged that each defendant had a physician-patient relationship with Plaintiffs in the paragraphs which comprise their third cause of action for breach of fiduciary duty. (See TAC, ¶ 142 [“Defendants and each of them had a physician client [sic] relationship with the minor child, and with the Plaintiffs.”].) Code of Civil Procedure section 452 provides: “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238; see also Gressley v. Williams (1961) 193 Cal.App.2d 636, 639 [“Pleadings must be reasonably interpreted; they must be read as a whole and each part must be given the meaning that it derives from the context wherein it appears. All that is necessary as against a general demurrer is to plead facts entitling the plaintiff to some relief.”].) Therefore, the court exercises its discretion to interpret the TAC to allege that Plaintiffs had a physician-patient relationship with the Doctor Defendants in support of the second cause of action for negligence.

In support of the second cause of action for negligence, Plaintiffs allege that they were subjected to unnecessary medical procedures that would cause physical harm. (TAC, ¶ 127.) Plaintiffs also allege that each Doctor Defendant was directly involved with the care and treatment of all Plaintiffs. (TAC, ¶ 114.) Therefore, Plaintiffs have adequately alleged that McFarren, Hsu, Abdel-Azim, Zaw, Kato, Perumbeti, Doan, and Church owed parents George and Charlene Kelly a duty of care arising from a physician-patient relationship, and that McFarren, Hsu, Abdel-Azim, Zaw, Kato, Perumbeti, Doan, and Church breached that duty of care.

To the extent the second cause of action for negligence is brought by Plaintiffs in their individual capacity, the court overrules McFarren, Hsu, Abdel-Azim, Zaw, Kato, Perumbeti, Doan, and Church’s demurrer to the second cause of action for negligence because it states facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430, subd. (e).)

  1. Garcia

Garcia similarly contends that the second cause of action for negligence, as asserted by Plaintiffs in their individual capacity, fails to allege any duty owed by her to George and Charlene Kelly. As discussed above, Plaintiffs have alleged that each defendant had a physician-patient relationship with Plaintiffs in the paragraphs which comprise their third cause of action for breach of fiduciary duty (TAC, ¶ 142), and the court exercises its discretion to interpret the TAC to allege that Plaintiffs had a physician-patient relationship with each defendant, including Garcia, in support of the second cause of action for negligence.

Garcia also contends that Plaintiffs failed to allege any facts establishing the element of damages, and that Plaintiffs fail to allege how parents George and Charlene Kelly were injured during their donation of stem cells to their son George. Plaintiffs allege: “Plaintiff parents were subjected to unnecessary treatment, because this was not a procedure that was helpful to the minor child. They were subjected to unnecessary medical procedures, and Defendants knew that the procedures would not be successful. Defendants, and each of them, had a duty to tell the plaintiff parents that this procedure was unnecessary and would cause them physical harm.” (TAC, ¶ 127.) In opposition, Plaintiffs cite Tortorella v. Castro (2006) 140 Cal.App.4th 1, 13, in which the Court of Appeal held that “any unnecessary surgery is inherently injurious in that the patient needlessly has gone under the knife and has been subjected to pain and suffering.” Therefore, Plaintiffs have adequately alleged the element of damages.

To the extent the second cause of action for negligence is brought by Plaintiffs in their individual capacity, the court overrules Garcia’s demurrer to the second cause of action for negligence because it states facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430, subd. (e).)

  1. CHLA

CHLA presents arguments identical to those of Garcia in support of its demurrer to the second cause of action for negligence. As discussed above, the court finds Plaintiffs adequately allege the elements of duty and damages in support of their second cause of action for negligence as asserted by Plaintiffs in their individual capacity. Each defendant in this action, including Children’s Hospital, is alleged to have had a physician-patient relationship with parents George and Charlene Kelly, and Plaintiffs allege that the medical procedures they were subjected to were unnecessary and caused them physical harm. Plaintiffs allege that each Doctor Defendant and Garcia were agents or employees acting within the course and scope of their employment with CHLA. (TAC, ¶¶ 48-60.) Therefore, to the extent the second cause of action for negligence is brought by Plaintiffs in their individual capacity, the court overrules CHLA’s demurrer to the second cause of action for negligence because it states facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430, subd. (e).)

  1. Bellicum

As discussed above under the first cause of action for wrongful death as to Bellicum, Plaintiffs fail to allege the element of duty as to Bellicum. The court therefore sustains Bellicum’s demurrer to the second cause of action for negligence because it does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430, subd. (e).) The court grants Plaintiffs leave to amend the second cause of action for negligence against Bellicum.

  1. USC

As discussed above under the first cause of action for wrongful death as to USC, Plaintiffs fail to allege any facts to support a finding of liability against USC in the TAC. The court therefore sustains USC’s demurrer to the second cause of action for negligence because it does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430, subd. (e).) The court grants Plaintiffs leave to amend the second cause of action for negligence against USC.

  1. THIRD CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY

Plaintiffs assert the third cause of action for breach of fiduciary duty against all Defendants. All Defendants demur to the third cause of action for breach of fiduciary duty.

“The elements of a cause of action for breach of fiduciary duty are: (1) the existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused bv the breach. [Citation.] ‘[A] physician has a fiduciary duty to disclose all information material to the patient’s decision,’ when soliciting a patient’s consent to a medical procedure. [Citations.] A cause of action premised on a physician’s breach of this fiduciary duty may alternatively be referred to as a claim for lack of informed consent. [Citation.]” (Jameson v. Desta (2013) 215 Cal.App.4th 1144, 1164.)

In support of the third cause of action for breach of fiduciary duty, Plaintiffs allege the following: “Defendants and each of them had a physician client [sic] relationship with the minor child, and with the Plaintiffs. Based on their representations and statements, plaintiff parents provided transfusions, and provided their material for the transplant. Defendants, and each of them, had a duty to inform plaintiffs that their relationship prohibited them from acting in the plaintiffs’ best interests.” (TAC, ¶ 142.) “The defendants had a duty to disclose their conflicted financial, professional and community interest to plaintiffs, both individually and as successors in interest. . . . .” (TAC, ¶ 143.) Defendants breached their fiduciary duty when they failed to advise Plaintiffs of the true nature of the Bellicum Protocol, and when Defendants “concealed an economic and reputational interest in the scheme . . . .” (TAC, ¶¶ 136-137(i).)

  1. The Doctor Defendants, Garcia, and CHLA

To the extent that the first cause of action for wrongful death and the third cause of action for breach of fiduciary duty are brought by Plaintiffs in their capacity as successors in interest to George, all Doctor Defendants, Garcia, and CHLA contend that the third cause of action is duplicative of the first cause of action. The court agrees. The third cause of action for breach of fiduciary duty, as asserted by Plaintiffs in their capacity as successors in interest to George, adds nothing to the first cause of action for wrongful death by way of facts or theory of recovery. (See TAC ¶¶ 108, 137 [alleging that the Doctor Defendants failed to properly advise Plaintiffs of the nature of the procedure and that the Doctor Defendants concealed their own financial interests in promoting Bellicum].)

The court also finds that, to the extent the third cause of action for breach of fiduciary duty is brought by Plaintiffs in their individual capacity, the third cause of action is also duplicative of the second cause of action for negligence as asserted by Plaintiffs in their individual capacity. The third cause of action for breach of fiduciary duty, as asserted by Plaintiffs in their individual capacity, adds nothing to the second cause of action for negligence by way of facts or theory of recovery. (See TAC ¶¶ 115, 119, 127, 137 [alleging that the Doctor Defendants failed to properly advise Plaintiffs of the nature of the procedure and that the Doctor Defendants concealed their own financial interests in promoting Bellicum].) “As a general rule, courts finding no fiduciary duty have done so ‘where other legal relationships clearly existed between the parties which “covered” the transaction in suit and which were inconsistent with the existence of fiduciary duty.’” (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 634 (citing Chodos, The Law of Fiduciary Duties (2000), p. 61).) Therefore, the court sustains the Doctor Defendants, Garcia, and CHLA’s demurrer to the third cause of action for breach of fiduciary duty because it does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430, subd. (e).)

A plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Goodman, supra, at p. 349.) Plaintiffs, both in their capacity as successors in interest to decedent George and in their individual capacity, have failed to show how they could amend the TAC to state a cause of action for breach of fiduciary duty that is not duplicative of the first cause of action for wrongful death (as asserted by Plaintiffs in their capacity as successors in interest to George) and the second cause of action for negligence (as asserted by Plaintiffs in their individual capacity). The court therefore sustains the Doctor Defendants, Garcia, and CHLA’s demurrer to the third cause of action for breach of fiduciary duty without leave to amend.

  1. USC

As discussed above under the first cause of action for wrongful death as to USC, Plaintiffs fail to allege any facts to support a finding of liability against USC in the TAC. The court therefore sustains USC’s demurrer to the third cause of action for breach of fiduciary duty because it does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430, subd. (e).)

A plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Goodman, supra, at p. 349.) Even if Plaintiffs were able to amend the TAC to allege a duty owed by USC to Plaintiffs because the Doctor Defendants, Garcia, or CHLA were agents or employees of USC, the third cause of action for breach of fiduciary duty, as asserted either by Plaintiffs in their capacity as successors in interest to George or by Plaintiffs in their individual capacity, would add nothing to the second cause of action for negligence by way of facts or theory of recovery. The court therefore sustains USC’s demurrer to the third cause of action for breach of fiduciary duty without leave to amend.

  1. Bellicum

Bellicum contends that Plaintiffs fail to allege a fiduciary relationship between Bellicum and Plaintiffs. As discussed above, although Plaintiffs have generally alleged that all defendants directly treated Plaintiffs and had physician-patient relationships with Plaintiffs (TAC, ¶¶ 118, 142), Plaintiffs allege Bellicum was the manufacturer, producer, packager, marketer, seller and/or distributor of the Bellicum Protocol, and the sponsor of the Bellicum studies on decedent George. (TAC, ¶¶ 45, 61.)

In opposition, Plaintiffs argue that Bellicum had a fiduciary relationship with Plaintiffs because Bellicum directed the Doctor Defendants and CHLA, and thus had an agency relationship with the Doctor Defendants and CHLA. However, as discussed above, Plaintiffs allege Bellicum was the sponsor of the Bellicum studies and Kapoor was the relevant investigator. As Plaintiffs pointed out, the investigator, as a matter of law, is an independent contractor rather than an agent of the sponsor. (Abney, supra, at p. 549.)

Plaintiffs also argue that Bellicum had a fiduciary relationship with Plaintiffs because Bellicum conspired with the Doctor Defendants to breach their fiduciary duty owed to Plaintiffs. In reply, Bellicum contends that it cannot be liable for conspiracy to breach the Doctor Defendants’ fiduciary duty because Bellicum itself is not alleged to owe a fiduciary duty to Plaintiffs. The court agrees. “[A] nonfiduciary cannot conspire to breach a duty owed only by a fiduciary.” (American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1474.) The court therefore sustains Bellicum’s demurrer to the third cause of action for breach of fiduciary duty because it does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430, subd. (e).)

As discussed above, the court also finds that, to the extent the third cause of action for breach of fiduciary duty is brought by Plaintiffs in their individual capacity, the third cause of action is also duplicative of the second cause of action for negligence as asserted by Plaintiffs in their individual capacity. Even if Plaintiffs were able to amend the TAC to allege a duty owed by Bellicum to Plaintiffs, the third cause of action for breach of fiduciary duty, as asserted by Plaintiffs in their individual capacity, would add nothing to the second cause of action for negligence by way of facts or theory of recovery.

A plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Goodman, supra, at p. 349.) Plaintiffs, both in their capacity as successors in interest to decedent George and in their individual capacity, have failed to show how they could amend the TAC to state a cause of action for breach of fiduciary duty that is not duplicative of the first cause of action for wrongful death (as asserted by Plaintiffs in their capacity as successors in interest to George) and the second cause of action for negligence (as asserted by Plaintiffs in their individual capacity). The court therefore sustains Bellicum’s demurrer to the third cause of action for breach of fiduciary duty without leave to amend.

  1. FOURTH CAUSE OF ACTION FOR FRAUD

Plaintiffs assert the fourth cause of action for fraud against all Defendants. All Defendants demur to the fourth cause of action for fraud.

The elements of a cause of action for fraud based on concealment are: “(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Marketing West, Inc. v. Sanyo Fisher Corp. (1992) 6 Cal.App.4th 603, 612-613.) Concealment may also constitute actionable fraud when “the defendant had exclusive knowledge of material facts not known to the plaintiff,” “when the defendant actively conceals a material fact from the plaintiff,” and “when the defendant makes partial representations but also suppresses some material facts.” (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.) Heightened pleading standards apply to fraud claims and require particularity in the facts alleged in support of such claims. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) The elements of a fraud cause of action “may not be pleaded in a general or conclusory fashion. [Citation.] Fraud must be pled specifically -- that is, a plaintiff must plead facts that show with particularity the elements of the cause of action. [Citation.]” (Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, 1090 (emphasis in original).)

  1. The Doctor Defendants, Garcia, and CHLA

    All Doctor Defendants, Garcia, and CHLA contend that the fourth cause of action for fraud fails because the facts are not pleaded with the requisite specificity. In Lazar, the Supreme Court of California addressed the requirement that “fraud must be pled specifically; general and conclusory allegations do not suffice.” (Id. at p. 645.) The Lazar Court explained that “[t]his particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ [Citation omitted.]” (Ibid.) In opposition, Plaintiffs cite Pashley v. Pacific Electric Railway (1944) 25 Cal.2d 226, 235, for the proposition that a defendant’s false representation designed to conceal facts known to it and intended to prevent plaintiff’s consulting other physicians amounts to fraud upon the plaintiff.

    Here, the court finds that the allegations in support of the fourth cause of action for fraud against the Doctor Defendants, Garcia, and CHLA are not plead with specificity and fail to state a cause of action for fraud. The court notes that several of the defendants are not named anywhere in support of the fourth cause of action for fraud. Therefore, the court sustains the Doctor Defendants, Garcia, and CHLA’s demurrer to the fourth cause of action for fraud because it does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430, subd. (e).) The court grants Plaintiffs leave to amend the fourth cause of action for fraud.

  2. Bellicum

    Bellicum demurs to the fourth cause of action for fraud on the ground that Plaintiffs fail to allege that Bellicum owed a duty to disclose the concealed material facts to Plaintiffs. Bellicum cites Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 311, for the proposition that the relationship between a manufacturer of a medical device and the patient generally does not give rise to a duty to disclose. In Bigler-Engler, the Court of Appeal held that a duty to disclose did not exist between the manufacturer and the patient-plaintiff because they did not have a fiduciary relationship and a relationship that gives rise to the duty, such as “seller and buyer, employer and prospective employee, doctor and patient, or parties entering into any kind of contractual agreement” did not exist between the manufacturer and patient-plaintiff. (Ibid.)

    In opposition, Plaintiffs do not address Bellicum’s argument that Plaintiffs failed to allege that Bellicum owed a duty to disclose the concealed material facts, but instead contend that Bellicum’s alleged liability for fraudulent concealment is based on allegations of Bellicum’s conspiracy with the other defendants to commit fraud. However, as Bellicum points out in reply, the TAC fails to allege facts sufficient to support a finding of conspiracy between Bellicum and the other defendants to commit fraud. “[I]n order to state a cause of action based upon a conspiracy theory the plaintiff must allege the formation and operation of the conspiracy, the wrongful act or acts done pursuant to it, and the damage resulting from such acts. [Citation.] In making such allegations bare legal conclusions, inferences, generalities, presumptions, and conclusions are insufficient. [Citation.]” (State of California ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 419 (quoting Nicholson v. McClatchy Newspapers (1986) 117 Cal.App.3d 509, 521).) Therefore, the court sustains Bellicum’s demurrer to the fourth cause of action for fraud because it does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430, subd. (e).) The court grants Plaintiffs leave to amend the fourth cause of action for fraud against Bellicum.

  3. USC

As discussed above under the first cause of action for wrongful death as to USC, Plaintiffs fail to allege any facts to support a finding of liability against USC in the TAC. The court therefore sustains USC’s demurrer to the fourth cause of action for fraud because it does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430, subd. (e).) The court grants Plaintiffs leave to amend the fourth cause of action for fraud against USC.

  1. FIFTH CAUSE OF ACTION FOR MEDICAL BATTERY ON DECEDENT

Plaintiffs assert the fifth cause of action for medical battery on decedent against all Defendants. All Defendants demur to the fifth cause of action for medical battery on decedent.

The elements of a claim for medical battery are: (1) that the defendant performed a medical procedure without the plaintiff’s consent or that the plaintiff consented to one medical procedure, but defendant performed a substantially different medical procedure, (2) that plaintiff was harmed; and (3) that the defendant’s conduct was a substantial factor in causing the harm. (CACI 530A; Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1497-1498.)

In support of the fifth cause of action for medical battery of decedent George, Plaintiffs allege the following: “Defendants and each of them promoted a traditional bone marrow transplant, however plaintiffs are informed and believe that the Bellicum protocol substantially changed the transplant, thus any purported consent (which is denied) was a substantially different treatment. Additionally, the failure to inform plaintiffs of the need for a waiver to be on the Bellicom [sic] protocol means that the doctors manipulated the plaintiffs to force them into the program.” (TAC, ¶ 162.) “Plaintiffs consented to a certain type of bone marrow procedure as presented orally by Defendant Dr. Kapoor, however Defendant Kapoor performed a substantially different medical procedure.” (TAC, ¶ 164.)

  1. The Doctor Defendants, Garcia, and CHLA

    All Doctor Defendants, Garcia, and CHLA argue that the cause of action for medical battery of George fails because George’s parents consented to the bone marrow transplant procedure.[5] Although Plaintiffs allege that a “substantially different medical procedure” was performed, and that a waiver was required for the Bellicum Protocol, there are no facts alleged identifying the medical procedure to which George’s parents consented, or how the Bellicum Protocol was substantially different from the medical procedure to which George’s parents consented. To the extent that the cause of action is based on lack of informed consent, it has been held that “[a] claim based on lack of informed consent – which sounds in negligence – arises when the doctor performs a procedure without first adequately disclosing the risks and alternatives. In contrast, a battery is an intentional tort that occurs when a doctor performs a procedure without obtaining any consent.” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324.) The court therefore sustains the Doctor Defendants, Garcia, and CHLA’s demurrer to the fifth cause of action for medical battery of decedent because it does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430, subd. (e).) The court grants Plaintiffs leave to amend the fifth cause of action for medical battery of decedent.

  2. Bellicum

    Bellicum contends that the fifth cause of action for medical battery of George fails because Bellicum is not a healthcare provider and had no direct role in care for George or his parents. As discussed above, although Plaintiffs have generally alleged that all defendants directly treated Plaintiffs (TAC, ¶ 118), Plaintiffs allege Bellicum was the manufacturer, producer, packager, marketer, seller, and/or distributor of the Bellicum Protocol, and the sponsor of the Bellicum studies on George. (TAC, ¶¶ 45, 61.)

    In opposition, Plaintiffs contend that Bellicum is liable for medical battery because Bellicum is alleged to have conspired with the other defendants to perform medical procedures substantially different from that to which Plaintiffs consented. However, Plaintiffs have not alleged such a conspiracy in support of their fifth cause of action for medical battery of George. Therefore, the court sustains Bellicum’s demurrer to the fifth cause of action for medical battery of decedent because it does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430, subd. (e).) The court grants Plaintiffs leave to amend the fifth cause of action for medical battery of decedent against Bellicum.

  3. USC

As discussed above under the first cause of action for wrongful death as to USC, Plaintiffs fail to allege any facts to support a finding of liability against USC in the TAC. The court therefore sustains USC’s demurrer to the fifth cause of action for medical battery of decedent because it does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430, subd. (e).) The court grants Plaintiffs leave to amend the fifth cause of action for medical battery of decedent against USC.

  1. SIXTH CAUSE OF ACTION FOR MEDICAL BATTERY ON INDIVIDUAL PLAINTIFFS

Plaintiffs assert the sixth cause of action for medical battery on individual plaintiffs against all Defendants. All Defendants demur to the sixth cause of action for medical battery on individual plaintiffs on the ground that it does not state facts sufficient to state a cause of action.

Plaintiffs allege that Defendants committed medical battery on the individual Plaintiffs by obtaining bone marrow from the individual Plaintiffs. (TAC, ¶ 173.) Plaintiffs allege that George’s parents underwent the procedure based on the representations that the bone marrow transplant would benefit George and that they would not have undergone the procedure had they known the “truth.” (TAC, ¶¶ 174-175.) Plaintiffs further allege that George’s parents “only consented to the removal of their bone marrow to assist and benefit their son and consented to the procedure for this limited purpose,” but that “Defendant Kapoor performed a substantially different medical procedure on their son . . . [and] the procedure was an illegal battery on [George’s parents].” (TAC, ¶ 177.)

Here, Plaintiffs allege that parents George and Charlene Kelly consented to the removal of their bone marrow. Although Plaintiffs allege that a medical procedure substantially different to the one consented to was performed on their son George, Plaintiffs have not alleged facts showing that any medical procedure different from the removal of bone marrow was performed on George’s parents. The court therefore sustains each defendant’s demurrer to the sixth cause of action for medical battery of individual plaintiffs because it does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430, subd. (e).)

The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.” (Palm Springs Villas II Homeowners Assn., Inc., supra, at p. 290.) To satisfy that burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Here, Plaintiffs have failed to show how they could amend the TAC to state a cause of action for medical battery on Plaintiffs as individuals. The court therefore sustains each defendant’s demurrer to the sixth cause of action for medical battery of individual plaintiffs without leave to amend.

  1. SEVENTH CAUSE OF ACTION FOR PRODUCT LIABILITY -- FAILURE TO WARN

Plaintiffs assert the seventh cause of action for product liability -- failure to warn, against defendants Bellicum, CHLA, Kapoor, Pulsipher, McFarren, Abdel-Azim, and Dietz. Defendants Bellicum, CHLA, Kapoor, Pulsipher, McFarren, Abdel-Azim, and Dietz demur to the seventh cause of action for product liability -- failure to warn.

  1. McFarren, Abdel-Azim, and Church

McFarren, Abdel-Azim, and Church contend that the seventh cause of action for product liability fails because Plaintiffs fail to allege that McFarren, Abdel-Azim, and Church manufactured, owned, or distributed the Bellicum Protocol. Abdel-Azim also contends that Plaintiffs failed to plead facts sufficient to identify the Bellicum Protocol as a “product.”

However, in the TAC, Plaintiffs allege that “Defendants, and each of them, are engaged in the manufacture, production, packaging, labeling, marketing, sale and/or distribution of the Bellicum procedure for cellular immunotherapies which incorporates . . . through its protocol and product Bellicum BPX-501.” (TAC, ¶ 184.) Plaintiffs also allege: “The defendants knew or should have known that their design and distribution of this product, BPX-501, was harmful to minor children, and had insufficient scientific study, application and favorable results.” (TAC, ¶ 12.) The court finds that the TAC adequately identifies the Bellicum Protocol as a “product,” and that it alleges that McFarren, Abdel-Azim, and Church manufactured, owned, or distributed the Bellicum Protocol. Therefore, the court overrules McFarren, Abdel-Azim, and Church’s demurrer to the seventh cause of action for product liability -- failure to warn, because it states facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430, subd. (e).)

  1. CHLA, Dietz, Pulsipher, and Kapoor

CHLA, Dietz, Pulsipher, and Kapoor contend that the seventh cause of action for product liability fails because it is duplicative of the first cause of action for wrongful death and the second cause of action for negligence. The court disagrees. Plaintiffs allege the first cause of action for wrongful death and the second cause of action for negligence against CHLA, Dietz, Pulsipher, and Kapoor are based on CHLA, Dietz, Pulsipher, and Kapoor’s roles as health care providers and the defendants’ physician-patient relationships with Plaintiffs. However, Plaintiffs allege the seventh cause of action for product liability -- failure to warn, based on CHLA, Dietz, Pulsipher, and Kapoor’s alleged role as manufacturers, producers, packagers, marketers, sellers, and/or distributors of the Bellicum Protocol. The court finds that the seventh cause of action for product liability -- failure to warn, as to CHLA, Dietz, Pulsipher, and Kapoor is not duplicative of either the first cause of action for wrongful death or the second cause of action for negligence because it alleges a different theory of recovery. Therefore, the court overrules CHLA, Dietz, Pulsipher, and Kapoor’s demurrers to the seventh cause of action for product liability -- failure to warn, because it states facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430, subd. (e).)

  1. Bellicum

Bellicum contends that the seventh cause of action for product liability fails because it is barred by the learned-intermediary doctrine.

“The rules of strict liability require a plaintiff to prove only that the [defendant manufacturer] did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture or distribution.” (Conte, supra, at p. 101.) A pharmaceutical drug manufacturer fulfills its duty to warn if it provides adequate warnings to the physician of the patient or user. (Brown, supra, at pp. 1061-1062.)

In support of the seventh cause of action for product liability -- failure to warn, Plaintiffs allege that “Bellicum and its agents had a continuing duty to warn the public, physicians and the FDA as long as the product was in use.” (TAC, ¶ 187.) “Said Defendants, and each of them, failed to adequately warn or instruct Plaintiffs, their minor child, his parents, or appropriate federal and state officials of the potential risks, side effects, or adverse interactions.” (TAC, ¶ 190.) As discussed above, even though Plaintiffs allege that Bellicum failed to adequately warn or instruct federal and state officials, Plaintiffs have not alleged that Bellicum failed to provide adequate warnings to Plaintiffs’ physicians.

In opposition, Plaintiffs contend that the cause of action is not barred by the learned-intermediary doctrine because the cause of action is also based on allegations of conspiracy. However, Plaintiffs have not alleged liability based on conspiracy in support of the seventh cause of action for product liability. Therefore, the court sustains Bellicum’s demurrer to the seventh cause of action for product liability -- failure to warn, because it does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430, subd. (e).) The court grants Plaintiffs leave to amend the seventh cause of action against Bellicum.

  1. EIGHTH CAUSE OF ACTION FOR BREACH OF EXPRESS WARRANTY

Plaintiffs assert the eighth cause of action for breach of express warranty against defendants Bellicum, CHLA, Kapoor, Pulsipher, McFarren, Abdel-Azim, and Dietz. Each of those defendants demurs to this cause of action.

“In order to plead a cause of action for breach of express warranty, one must allege the exact terms of the warranty, plaintiff’s reasonable reliance thereon, and a breach of that warranty which proximately causes plaintiff injury.” (Williams v. beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 142.)

Plaintiffs allege that “Defendants, and each of them, through statements, description, press releases, promotional materials, affirmation of fact, promises or action . . . to the FDA, prescribing physicians, and the general public, including plaintiffs, expressly warranted that the Bellicum Protocol was both efficacious and safe for its intended use.” (TAC, ¶ 196.) “The Bellicum Protocol does not conform to the representations of said Defendants, or any of them, in that the Bellicum Protocol is neither safe nor effective and its use produces serious adverse side effects.” (TAC, ¶ 198.) Plaintiffs allege that Defendants breached their express warranties to plaintiffs because (1) they manufactured, produced, marketed, and distributed the Bellicum Protocol in such a way as to misstate the risks of injury, (2) the Bellicum Protocol “failed to allow the Bone Marrow Transplant to engraft and instead had side effects which included encephalopathy and was not able to be used in a safe manner and without injury[,]” and (3) Defendants sold or distributed the Bellicum Protocol to decedent George and caused him serious physical injury and death. (TAC, ¶ 200.)

  1. Bellicum

Bellicum contends that the eighth cause of action for breach of express warranty fails because Plaintiffs fail to allege either the exact terms of any express warranty by Bellicum or Plaintiffs’ reasonable reliance thereon. In opposition, Plaintiffs state that they do not have details of the Bellicum Protocol to be able to state the exact terms of the express warranty, but state that Defendants made representations about the effectiveness of the product and that the product would be used as part of decedent George’s treatment. The court also notes that Plaintiffs generally allege in the TAC that Defendants represented that George’s CGD might be cured by bone marrow transplant (TAC, ¶ 21), recommended the Bellicum Protocol as a safe and effective treatment (TAC, ¶¶ 23-38), and “expressly warranted that the Bellicum Protocol was both efficacious and safe for its intended use” (TAC, ¶ 196). The court finds that the TAC adequately alleges the terms of the express warranty, Plaintiffs’ reliance on the representations as to the Bellicum Protocol, and the breach of that express warranty. The court therefore overrules Bellicum’s demurrer to the eighth cause of action for breach of express warranty because it states facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430, subd. (e).)

  1. CHLA, Kapoor, Pulsipher, Abdel-Azim, and Dietz

CHLA, Kapoor, Pulsipher, Abdel-Azim, and Dietz contend that the eighth cause of action for breach of express warranty fails against them because strict products liability is not appropriately alleged against a physician based on defective medication or treatment which the physician prescribes. The defendants cite Carmichael v. Reitz (1971) 17 Cal.App.3d 958, 978, for the proposition that strict products liability does not apply to physicians because physicians are providers of professional medical services, not manufacturers and suppliers of products. In opposition, Plaintiffs argue that the TAC does not allege liability against CHLA, Kapoor, Pulsipher, Abdel-Azim, and Dietz for breach of express warranty based on services provided by them, but instead as agents of Bellicum. The TAC also alleges that CHLA, Kapoor, Pulsipher, Abdel-Azim, and Dietz breached their express warranties (“that the Bellicum Protocol was both efficacious and safe for its intended use”) by “manufacturing, producing, marketing, packaging, labeling, selling or distributing the Bellicum Protocol to the Decedent Minor Child, George M. Kelly, which failed to allow the Bone Marrow Transplant to engraft and instead had side effects which included encephalopathy and was not able to be used in a safe manner and without injury . . .” (TAC, ¶¶ 196, 200.) The court therefore overrules CHLA, Kapoor, Pulsipher, Abdel-Azim, and Dietz’s demurrer to the eighth cause of action for breach of express warranty because it states facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430, subd. (e).)

  1. McFarren

McFarren contends that there are no allegations that McFarren was responsible for any of these alleged warranties, and that the allegations are unclear as to whether Plaintiffs are intending the warranty to be one for services provided by McFarren or for the Bellicum Protocol. However, as discussed above, Plaintiffs allege that McFarren, among others, is liable under the eighth cause of action for breach of express warranty as a manufacturer and seller of the Bellicum Protocol, and that McFarren and the other defendants made express representations as to the safety of the Bellicum Protocol’s intended use. The court therefore overrules McFarren’s demurrer to the eighth cause of action for breach of express warranty because it states facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430, subd. (e).)

  1. NINTH CAUSE OF ACTION FOR PRODUCT LIABILITY -- DESIGN OR MANUFACTURING DEFECT

Plaintiffs assert the ninth cause of action for product liability -- design or manufacturing defect against defendants Bellicum, CHLA, Kapoor, Pulsipher, McFarren, Abdel-Azim, and Dietz. Each of those defendants demurs to this cause of action. The court notes that Church also demurs to the ninth cause of action for product liability. However, Plaintiffs do not assert the ninth cause of action for product liability against Church.

  1. Bellicum

Bellicum contends that the ninth cause of action for product liability -- design or manufacturing defect, fails because Plaintiffs have not clearly alleged a “product.” However, as discussed above, Plaintiffs allege that “Defendants, and each of them, are engaged in the manufacture, production, packaging, labeling, marketing, sale and/or distribution of the Bellicum procedure for cellular immunotherapies which incorporates . . . through its protocol and product Bellicum BPX-501.” (TAC, ¶ 184.) Plaintiffs also allege: “The defendants knew or should have known that their design and distribution of this product, BPX-501, was harmful to minor children, and had insufficient scientific study, application and favorable results.” (TAC, ¶ 12.) The court finds that the TAC adequately identifies the Bellicum Protocol as a “product.” The court therefore overrules Bellicum’s demurrer to the ninth cause of action for product liability -- design or manufacturing defect because it states facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430, subd. (e).)

  1. CHLA, McFarren, Abdel-Azim, Dietz, Pulsipher, and Kapoor

CHLA, McFarren, Abdel-Azim, Dietz, Pulsipher, and Kapoor similarly contend that the ninth cause of action for product liability fails because strict products liability does not apply to physicians who provided medical services rather than manufactured or supplied a product. As discussed above, Plaintiffs allege that “Defendants, and each of them, are engaged in the manufacture, production, packaging, labeling, marketing, sale and/or distribution of the Bellicum procedure for cellular immunotherapies which incorporates . . . through its protocol and product Bellicum BPX-501.” (TAC, ¶ 184.) Plaintiffs also allege: “The defendants knew or should have known that their design and distribution of this product, BPX-501, was harmful to minor children, and had insufficient scientific study, application and favorable results.” (TAC, ¶ 12.) The court finds that the TAC adequately alleges that CHLA, McFarren, Abdel-Azim, Dietz, Pulsipher and Kapoor manufactured, owned, or distributed the Bellicum Protocol. Therefore, the court overrules CHLA, McFarren, Abdel-Azim, Dietz, Pulsipher, and Kapoor’s demurrer to the ninth cause of action for product liability -- design or manufacturing defect, because it states facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430, subd. (e).)

MOTIONS TO STRIKE

A court may strike any “irrelevant, false or improper matter inserted in any pleading” or any part of a pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.) “[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

Bellicum, McFarren, and Hsu

Bellicum, McFarren, and Hsu move to strike the following portions from the TAC: (1) the second cause of action for negligence in its entirety; (2) the third cause of action for breach of fiduciary duty in its entirety; (3) the fourth cause of action for fraud in its entirety; (4) the fifth cause of action for medical battery of decedent in its entirety; (5) the sixth cause of action for medical battery on individual plaintiffs in its entirety; (6) the seventh cause of action for products liability – failure to warn, in its entirety; (7) the eighth cause of action for breach of express warranty in its entirety; (8) the ninth cause of action for products liability – design or manufacturing defect, in its entirety; (9) Paragraph 148, page 37:13-14; (10) Paragraph 160, page. 40:16-19; (11) Paragraph 171, page 42:7-10; (12) Paragraph 182, page 44:1-5; (13) Paragraph 194, pages 45:24-46:1; (14) Paragraph 217, page 50:3-6; and (15) Prayer for Punitive Damages, page 50:14-15.

Bellicum further moves to strike the first cause of action for wrongful death in its entirety, and the following paragraphs from the TAC: Paragraph 8, 11, 14, 34, 38, 90, 115, 116, 124, 137(f), 137(h), 186, 187, 192, 209, and 213.

The court denies Bellicum’s motion to strike the first cause of action for wrongful death in its entirety, the second cause of action for negligence in its entirety, the third cause of action for breach of fiduciary duty in its entirety, the fourth cause of action for fraud in its entirety, the fifth cause of action for medical battery of decedent in its entirety, the sixth cause of action for medical battery on individual plaintiffs in its entirety, and the seventh cause of action for product liability -- failure to warn, in its entirety, as moot because the court sustains Bellicum’s demurrer to these causes of action.

The court denies McFarren and Hsu’s motion to strike the second cause of action for negligence in its entirety (to the extent that it is brought by Plaintiffs in their capacity as successors in interest to George), the third cause of action for breach of fiduciary duty in its entirety, the fourth cause of action for fraud in its entirety, the fifth cause of action for medical battery of decedent in its entirety, and the sixth cause of action for medical battery on individual plaintiffs in its entirety as moot because the court sustains McFarren and Hsu’s demurrers to these causes of action.

The court denies Bellicum’s motion to strike the eighth cause of action for breach of express warranty in its entirety and the ninth cause of action for product liability -- design or manufacturing defect, in its entirety, because Bellicum has not established that these causes of action are irrelevant, false, or improper, or not drawn or filed in conformity with law of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subds. (a), (b).)

The court denies McFarren and Hsu’s motion to strike the second cause of action for negligence in its entirety (to the extent that it is brought by Plaintiffs in their individual capacity), the seventh cause of action for products liability -- failure to warn, in its entirety, the eighth cause of action for breach of express warranty in its entirety, and the ninth cause of action for products liability -- design or manufacturing defect, in its entirety, because McFarren and Hsu have not established that these causes of action are irrelevant, false, or improper, or not drawn or filed in conformity with law of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subds. (a), (b).)

Punitive Damages

All defendants move to strike all punitive damages allegations of the TAC.

A motion to strike may lie where the facts alleged do not rise to the level of oppression, fraud, or malice required to support a punitive damages award. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63-64.) “In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. [Citation.] These statutory elements include allegations that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) ‘“Malice”’ is defined in the statute as conduct ‘intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others.’ (Civ. Code, § 3294, subd. (c)(1); [citation].) ‘“Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.’ (Civ. Code, § 3294[,] subd. (c)(2).) ‘“Fraud” is ‘an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.’ (Civ. Code, § 3294, subd. (c)(3).)” (Id. at p. 63.) It is not sufficient to allege merely that a defendant “acted with oppression, fraud or malice,” and the plaintiff must allege specific facts showing that the defendant’s conduct was oppressive, fraudulent, or malicious. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041.

Here, Plaintiffs have not alleged specific facts showing that Defendants have been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) The court therefore finds that Plaintiffs’ punitive damages allegations are improper matters that are appropriately stricken from the TAC. The court thus grants each defendant’s motion to strike the punitive damages allegations of the TAC (Paragraph 148, page 37:13-14 Paragraph 160, page. 40:16-19; Paragraph 171, page 42:7-10; Paragraph 182, page 44:1-5; Paragraph 194, pages 45:24-46:1; Paragraph 217, page 50:3-6; and Prayer for Punitive Damages, page 50:14-15), with leave to amend.

ORDER

For the reasons set forth above, the court rules on each defendants’ demurrer and motion to strike as follows.

The court sustains Bellicum and USC’s demurrers to the first cause of action for wrongful death with leave to amend.

The court sustains Bellicum and USC’s demurrers to the second cause of action for negligence with leave to amend.

To the extent that the second cause of action for negligence is brought by Plaintiffs in their capacity as successors in interest for decedent George, the court sustains McFarren, Hsu, and Church’s demurrers without leave to amend.

To the extent that the second cause of action for negligence is brought by Plaintiffs in their individual capacity, the court overrules McFarren, Hsu, Church, Abdel-Azim, Zaw, Kato, Perumbeti, Doan, Garcia, and CHLA’s demurrers.

The court sustains Bellicum, USC, CHLA, Kapoor, Pulsipher, Abdel-Azim, Hsu, Zaw, McFarren, Dietz, Doan, Kato, Perumbeti, Church, and Garcia’s demurrer to the third cause of action for breach of fiduciary duty without leave to amend.

The court sustains Bellicum, USC, CHLA, Kapoor, Pulsipher, Abdel-Azim, Hsu, Zaw, McFarren, Dietz, Doan, Kato, Perumbeti, Church, and Garcia’s demurrer to the fourth cause of action for fraud and the fifth cause of action for medical battery of decedent with leave to amend.

The court sustains Bellicum, USC, CHLA, Kapoor, Pulsipher, Abdel-Azim, Hsu, Zaw, McFarren, Dietz, Doan, Kato, Perumbeti, Church, and Garcia’s demurrer to the sixth cause of action for medical battery of individual plaintiffs without leave to amend.

The court sustains Bellicum’s demurrer to the seventh cause of action for product liability -- failure to warn, with leave to amend.

The court overrules McFarren, Abdel-Azim, Church, CHLA, Dietz, Pulsipher, and Kapoor’s demurrers to the seventh cause of action for product liability -- failure to warn.

The court overrules Bellicum, CHLA, Kapoor, Pulsipher, Abdel-Azim, Dietz, and McFarren’s demurrers to the eighth cause of action for breach of express warranty.

The court overrules Bellicum, CHLA, McFarren, Abdel-Azim, Dietz, Pulsipher, and Kapoor’s demurrers to the ninth cause of action for product liability -- design or manufacturing defect.

The court denies Bellicum’s motion to strike the first cause of action for wrongful death. The court denies Bellicum, McFarren, and Hsu’s motions to strike the second cause of action for negligence, the third cause of action for breach of fiduciary duty, the fourth cause of action for fraud, the fifth cause of action for medical battery of decedent, the sixth cause of action for medical battery on individual plaintiffs, the seventh cause of action for products liability -- failure to warn, the eighth cause of action for breach of express warranty, and the ninth cause of action for products liability -- design or manufacturing defect.

The court grants each defendant’s motion to strike the punitive damages allegations of the TAC (Paragraph 148, page 37:13-14 Paragraph 160, page. 40:16-19; Paragraph 171, page 42:7-10; Paragraph 182, page 44:1-5; Paragraph 194, pages 45:24-46:1; Paragraph 217, page 50:3-6; and Prayer for Punitive Damages, page 50:14-15), with leave to amend.

The court grants plaintiffs George T. Kelly and Charlene Kelly leave to file and serve a Fourth Amended Complaint within 20 days of the date of service of this order. If no Fourth Amended Complaint is filed within 20 days, defendants are ordered to file and serve their respective answers within 30 days of the date of service of this order.

The court orders defendant Neena Kapoor, M.D. to give notice of this order.

IT IS SO ORDERED.

DATED: August 5, 2020

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court


[1] The hearings for each of the above-referenced demurrers and motions to strike were subsequently continued to August 5, 2020.

[2] Although Plaintiffs have sued this defendant as “Alicia McFarrin, M.D.,” she has appeared in this action as “Alicia McFarren, M.D.” (Defendants Alicia McFarren, M.D. and Melody Hsu, M.D.’s Demurrer to Plaintiffs’ Third Amended Complaint, filed August 8, 2019.)

[3] On August 5, 2019, Plaintiffs dismissed Hoffman from this action.

[4] Defendants McFarren, Hsu, Abdel-Azim, Zaw, Kato, Perumbeti, Doan, and Church.

[5] Plaintiffs allege that, as George’s parents, they had authority to make decisions on his behalf. (TAC, ¶ 19.)