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PLAINTIFF WAYNE RUDEN’S OPPOSITION TO CPMC’S MOTION TO DISMISS AND 

JOINDER IN REQUEST FOR REMAND

David R. Ongaro (State Bar No. 154698) 

dongaro@ongaropc.com 

Glen Turner (State Bar No. 212417) 

gturner@ongaropc.com 

ONGARO PC 

50 California Street, Suite 3325 

San Francisco, CA 94111 

Telephone: (415) 433-3900 

Facsimile: (415) 433-3950 

Attorneys for Plaintiff WAYNE RUDEN 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

IN RE: BARD IVC FILTERS 

PRODUCT LIABILITY LITIGATION, 

THIS DOCUMENT RELATES TO: 

WAYNE RUDEN, 

C. A. No.: CV-16-00344-PHX-DGC 

MDL Docket No. 15-02641 

WAYNE RUDEN, 

Plaintiff, 

vs. 

C.R. BARD, INC., a New Jersey 

corporation, BARD PERIPHERAL 

VASCULAR, INC., (a subsidiary and/or 

division of defendant C.R. BARD, INC.) 

an Arizona corporation, CALIFORNIA 

PACIFIC MEDICAL CENTER, and 

DOES 1-100 INCLUSIVE, 

Defendants. 

PLAINTIFF WAYNE RUDEN’S 

OPPOSITION TO CALIFORNIA 

PACIFIC MEDICAL CENTER’S 

MOTION TO DISMISS FIRST 

AMENDED COMPLAINT AND 

JOINDER IN REQUEST FOR 

REMAND

Complaint Filed: October 7, 2015 

*ORAL ARGUMENT REQUESTED*

 

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PLAINTIFF WAYNE RUDEN’S OPPOSITION TO CPMC’S MOTION TO DISMISS AND 

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TABLE OF CONTENTS 

I. INTRODUCTION .............................................................................................................. 1

II. FACTS ALLEGED IN FIRST AMENDED COMPLAINT .............................................. 1

A. CPMC-Related Facts. ............................................................................................. 1

1. Allegations Regarding CPMC’s Breach of Duty of Care/Protection 

and Fiduciary Duty. .................................................................................... 2

2. Allegations Regarding CPMC’s Misrepresentation. ................................... 3

3. Causes of Action Against CPMC. .............................................................. 3

III. LEGAL STANDARD ......................................................................................................... 3

IV. DISCUSSION ..................................................................................................................... 4

A. Mr. Ruden Has Alleged Facts Sufficient To State A Claim For Negligence. ........ 4

1. CPMC Owes Mr. Ruden A Duty of Care and Protection. .......................... 4

2. Mr. Ruden Alleged the Violation of CMPC’s Duties of Care and 

Protection. ................................................................................................... 5

B. Mr. Ruden Has Alleged Facts Sufficient To State A Claim For Negligent 

Misrepresentation. ................................................................................................... 6

C. Mr. Ruden Has Alleged Facts Sufficient To State A Claim For Breach of 

Fiduciary Duty. ....................................................................................................... 8

1. CPMC Owes Mr. Ruden A Fiduciary Duty. ............................................... 8

2. Derrick Does Not Hold That Hospitals Owe No Fiduciary Duty 

to Patients and Is Distinguishable. .............................................................. 8

3. Moore Does Not Hold That Hospitals Owe No Fiduciary Duty 

to Patients And Is Distinguishable. ............................................................. 8

D. Mr. Ruden Has Alleged Facts Sufficient To State A Claim For Punitive 

Damages. ................................................................................................................. 9

1. Facts Alleged Regarding Punitive Damages. .............................................. 9

2. Mr. Ruden Has Met His Burden Under Fed. R. Civ. Pro. 8. ...................... 9

3. The Cases Cited by CPMC Are Inapposite................................................. 9

4. California Code of Civil Procedure Section 425.13 Does Not 

Apply to Complaints Governed by Fed R. Civ. Pro. 8. ............................ 10

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PLAINTIFF WAYNE RUDEN’S OPPOSITION TO CPMC’S MOTION TO DISMISS AND 

JOINDER IN REQUEST FOR REMAND

5. Further, Plaintiff’s Causes of Action Against CPMC Do Not 

Implicate California Code of Civil Procedure Section 425.13. ................ 11

E. Mr. Ruden Is Entitled to Plead Alternative Facts And Theories. ......................... 13

F. CPMC, An Indispensable Party, Is Not A Sham Defendant................................. 14

G. The Gravamen of Mr. Ruden’s Complaint Is Not Products Liability 

As To CPMC; Even If It Were, Mr. Ruden Does Not Allege Strict 

Products Liability Against CPMC. ....................................................................... 15

1. The “Gravamen” Of Mr. Ruden’s FAC Has No Bearing on 

This Court’s Analysis Of CPMC’s Motion. ............................................. 15

2. The “Gravamen” of Mr. Ruden’s Complaint Is Not Products 

Liability. .................................................................................................... 15

3. Mr. Ruden Does Not Allege Strict Products Liability Against 

CPMC, So CPMC’s Cited Cases Are Irrelevant. ...................................... 16

H. CPMC Is Not Entitled To A More Definite Statement. ........................................ 16

I. Mr. Ruden Concurs In CPMC’s Remand Request. .............................................. 17

V. CONCLUSION ................................................................................................................. 17

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TABLE OF AUTHORITIES 

Cases

Ashcroft v. Iqbal 

129 S.Ct. 1937, 1949050 (2009) ............................................................................................... 3 

Bell Atl. Corp. v. Twombly 

550 U.S. 544 (2007) ................................................................................................................. 4 

Bommareddy v. Sup. Ct., et al. 

222 Cal.App.3d 1017 (1990) ................................................................................................. 11 

Boxall v. Sequoia Union High School Dist. 464 F. Supp. 1104 (N.D. Cal. 1979) ....................................................................................... 17 

Brousseau v. Jarrett 

73 Cal.App.3d 864 (1977) ....................................................................................................... 9 

Burrows v. Redbud Cmty. Hosp. Dist. 

188 F.R.D. 356 (N.D. Cal. 1997) ........................................................................................... 11 

Carson v. Mercury Ins. Co. 

210 Cal.App.4th 409 (2012) .................................................................................................. 12 

Central Pathology Service Medical Clinic, Inc. v. Sup. Ct. 

3 Cal.4th 181(1992) ................................................................................................................ 12 

Cobbs v. Grant 

8 Cal.3d 229 (1972) ................................................................................................................. 8 

Coleman v. Standard Life Co. 

288 F. Supp. 2d 1116 (E.D. Cal. 2004) ................................................................................. 13 

Derrick v. Ontario Comty. Hosp. 47 Cal.App.3d 145 (1975) ....................................................................................................... 8 

Elam v. Coll. Park Hosp. 

132 Cal. App.3d 332 (1982) .................................................................................................... 4 

Engelking v. Carlson 

13 Cal.2d 216 (1939) ............................................................................................................. 12 

Estate of Prasad v. County of Sutter 

958 F. Supp.2d 1101 (E.D. Cal. 2013) ............................................................................ 10, 11 

Fansler Foundation v. American Realty Investors, Inc. 

2007 WL 2695360 *3 (E.D. Cal. 2007) ................................................................................. 15 

Flowers v. Torrance Mem. Hosp. Med. Ctr. 

8 Cal.4th 992 (1994) .............................................................................................................. 12 

Franklin v. Allstate Corp. 

2007 WL 1991518, at *3-4 (N.D. Cal. 2007) ........................................................................ 11 

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AND JOINDER IN REQUEST FOR REMAND

Gilligan v. Jamco Dev. Corp. 

108 F.3d 246 (9th Cir. 1997) .................................................................................................... 4 

Glenn K. Jackson Inc. v. Roe 

273 F.3d 1192 (9th Cir. 2001) ................................................................................................. 6 

Hanna v. Plumer 

380 U.S. 460 (1965) ............................................................................................................... 10 

Jackson v. East Bay Hosp. 

980 F.Supp. 1341 (N.D. Cal. 1997) ....................................................................................... 10 

Johnson v. Chiu 

199 Cal.App.4th 775 (2011) .................................................................................................. 12 

McCalden v. California Library Ass’n 

955 F.2d 1214 (9th Cir. 1990) ............................................................................................... 13 

Meyer v. McNutt Hospital 

173 Cal. 156 (1916) ................................................................................................................. 4 

Molsbergen v. United States 

757 F.2d 1016 (9th Cir. 1985) ............................................................................................... 13 

Moore v. Regents of Univ. of Cal. 

51 Cal.3d 120 (1990) ............................................................................................................... 8 

Moyo v. Gomez 

32 F.3d 1382 (9th Cir. 1994) .................................................................................................... 3 

Oki America v. Microtech Intern. Inc. 872 F.2d 312 (9th Cir. 1989) ................................................................................................. 13 

Ortegoza v. Kho 

2013 WL 2147799, at *7 (S.D. Cal. 2013) ............................................................................ 11 

Paz v. California 

22 Cal.4th 550 (2000) .............................................................................................................. 4 

Raddatz v. U.S. 

750 F.2d 791 (9th Cir. 1984) .................................................................................................... 7 

Rhodes v. Placer County 

2011 WL 1302240 *21 (E.D. Cal. 2011) ............................................................................... 12 

Rice v. California Lutheran Hospital 

27 Cal.23 296 (1945) ............................................................................................................... 4 

Romar v. Fresno Community Hospital and Medical Center 

583 F.Supp.2d 1179 (E.D. Cal. 2008) ................................................................................... 13 

Scheuer v. Rhodes 

41 U.S. 232 (1974) ................................................................................................................... 4 

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AND JOINDER IN REQUEST FOR REMAND

Shady Grove Orthopedic Assocs. v. Allstate Ins. Co. 

559 U.S. 393 (2010) ............................................................................................................... 10 

Shinde v. Nithyananda Found. 

2013 WL 1953707, at *16 & n. 6 (C.D. Cal. 2013) .............................................................. 11 

Silverhart v. Mount Zion Hospital 

20 Cal. App. 3d 1022 (1971) .................................................................................................. 16 

Siverson v. Weber 

57 Cal.2d 834 (1962) ............................................................................................................. 12 

Stafford v. Shultz 

42 Cal.2d 767 (1954) ............................................................................................................... 6 

Steel v. City of San Diego 

726 F.Supp.2d 1172 (S.D. Cal. 2010) .................................................................................... 11 

Tapscott v. MS Dealer Service Corp. 

77 F.3d 1353 (11th Cir. 1996) ................................................................................................ 14 

Taylor v. Sup. Ct. 

24 Cal.3d 890 (1979) ............................................................................................................... 9 

Thomas v. Seaside Memorial Hosp. of Long Beach 

80 Cal.App.2d 841 (1947) ....................................................................................................... 4 

United States ex rel. Atkins v. Reiten 

313 F.2d 673 (9th Cir.1963) .................................................................................................. 14 

Unruh-Haxton v. Regents of Univ. of Cal. 

162 Cal.App.4th 343 (2008) .................................................................................................. 13 

Valentin v. La Societe Francaise 

76 Cal.App.2d 1 (1946) ........................................................................................................... 4 

Wohlgemuth v. Meyer 

139 Cal.App.2d 326 (1956) ..................................................................................................... 8 

Xerox Corp. v. Far Western Graphics, Inc. 

2004 WL 2271587 (N.D. Cal. 2004) ..................................................................................... 10 

Statutes

U.S.C. § 1447(c) ............................................................................................................................ 17 

Other Authorities

Bus. and Prof. Code § 2282 ............................................................................................................ 5 

Cal. Admin. Code § 70703 ............................................................................................................. 5 

Cal. Admin. Code §§ 70701 ........................................................................................................... 5 

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Cal. Civ. Code § 1710 ..................................................................................................................... 6 

Cal. Code Civ. § 3294(a) ................................................................................................................ 9 

Cal. Code. Proc. Civ. § 425.13 ......................................................................................... 10, 11, 12 

Health and Safety Code § 32125 .................................................................................................... 5 

Health and Safety Code § 32128 .................................................................................................... 5 

Wright and Miller, Federal Practice and Procedure, Civil, § 1376 ................................................. 17 

Wright and Miller, Federal Practice and Procedure, Civil, § 1377 ................................................. 17 

Rules

Fed. R. Civ. Pro. 12(b)(1) .............................................................................................................. 17 

Fed. R. Civ. Pro. 12(b)(6) ............................................................................................................ 1, 3 

Fed. R. Civ. Pro. 12(e) ................................................................................................................... 16 

Fed. R. Civ. Pro. 19(a)(1)(B) ........................................................................................................ 14 

Fed. R. Civ. Pro. 20....................................................................................................................... 15 

Fed. R. Civ. Pro. 8..................................................................................................................... 9, 10 

Fed. R. Civ. Pro. 8(a)(2) .................................................................................................................. 3 

Fed. R. Civ. Pro. 8(a)(3) ............................................................................................................... 11 

Fed. R. Civ. Pro. 8(e)(2) ............................................................................................................... 13 

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1 

PLAINTIFF WAYNE RUDEN’S OPPOSITION TO CPMC’S MOTION TO DISMISS 

AND JOINDER IN REQUEST FOR REMAND

I. INTRODUCTION 

Mr. Ruden brings this case for serious injuries suffered as a result of California 

Pacific Medical Center (“CPMC”)’s recommendation for the surgical implantation of a 

medical device, the Bard Recovery Filter (“BRF”), into his inferior vena cava. As CPMC 

knew it might, the device fractured, resulting in the embolization of two arm fragments into 

Mr. Ruden’s proximal right pulmonary arteries and the embolization of one fractured arm 

fragment into the right atrium of his heart, where it remains as a ticking time bomb. 

CPMC seeks to avoid responsibility for its wrongdoing by requesting dismissal 

pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. Pro.”) 12(b)(6), arguing that 

Mr. Ruden failed to state a claim upon which relief can be granted. CPMC’s motion must 

be denied. Mr. Ruden has pled facts sufficient to support his causes of action and his 

punitive damage claim against CPMC.1

 CPMC is an indispensable party, not a “sham 

defendant.” 

As an alternative to dismissal under Fed. R. Civ. Pro. 12(b)(6), CPMC requests that 

this matter be remanded to state court. Mr. Ruden concurs in this request, as the case 

should not have been removed to federal court in the first place.2

 

II. FACTS ALLEGED IN FIRST AMENDED COMPLAINT 

On October 7, 2015, Mr. Ruden filed a Complaint in the San Francisco County 

Superior Court. On December 3, 2015, after the case’s improper removal to federal court, 

Mr. Ruden filed a First Amended Complaint (“FAC”). Declaration of Glen Turner 

(“Turner Decl.”), Exh. 1, FAC. The FAC is the operative pleading. 

A. CPMC-Related Facts. 

CPMC is a general medical and surgical hospital and academic medical center 

operating at multiple locations and with a principal place of business in San Francisco, 

 1

 Mr. Ruden withdraws his Ninth Cause of Action for Negligent Recall/Retrofit, alleged 

in the FAC, as to CPMC only. 

2 This is the subject of Mr. Ruden’s Motion for Remand, Docket #603. Mr. Ruden 

incorporates the arguments made therein by reference. 

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PLAINTIFF WAYNE RUDEN’S OPPOSITION TO CPMC’S MOTION TO DISMISS 

AND JOINDER IN REQUEST FOR REMAND

California. FAC, ¶ 10. Mr. Ruden was a CPMC patient when the decision was made to 

implant a BRF, and was an ongoing CPMC patient thereafter. Id. He was hospitalized 

and/or seen in consultation at CPMC multiple times between 2004, when the BRF was 

implanted, and 2015, when removal was attempted, leaving irretrievable fragments. Id. 

1. Allegations Regarding CPMC’s Breach of Duty of Care/Protection 

and Fiduciary Duty. 

As alleged in the FAC, CPMC breached its duty of care/protection, as well as his 

fiduciary duty, to Mr. Ruden. For example: 

 CPMC’s medical staff failed to take necessary steps to apprise themselves of 

the dangerous propensities of the BRF prior to surgically implanting it in Mr. 

Ruden’s body. Id. ¶¶ 11-12, 105-06, 110-11. 

 CPMC failed to monitor plaintiff’s condition after implantation of the BRF 

and it did not competently screen its medical staff and agents related to the 

treatment and monitoring of patients that had been implanted with the BRF at 

its facilities. Id., ¶¶ 14, 47-48, 105-06, 110-11. 

 Despite knowledge acquired as early as 2004 that the BRF demonstrated a 

pattern of failure, doctors, treaters, nurses and agents were not adequately 

informed, trained or given relevant information regarding the potential for 

failure of the BRF. Id., ¶¶ 14, 38, 40-41, 47, 110. No information regarding 

the BRF’s failures was conveyed to Mr. Ruden post operation. Id., ¶¶ 10, 14, 

105-06, 110-11, 119-21. 

 CPMC had an ongoing duty to reasonably warn Plaintiff of newly-discovered 

risks. FAC, supra, ¶ 57. However, CPMC did not communicate dangers of 

IVC filters, especially when left in situ over a long period. Id. ¶¶ 57, 60. 

 On August 9, 2010, the FDA issued a warning letter regarding BRF filters and 

adverse effects related to implementation which CPMC received and failed to 

communicate to plaintiff; CPMC was subsequently informed of all remedial 

procedures and did not convey this information to plaintiff, including the 

adverse effects of a BRF remaining in the body for a long period of time. Id. 

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¶¶ 10, 14, 105-06, 110-11, 119-21. CPMC did not contact Mr. Ruden in order 

to obtain information regarding his condition or advise testing to gather all 

possible information on the severe dangers to which they knew the plaintiff 

was exposed. Id. ¶¶ 14, 41, 120-23. 

2. Allegations Regarding CPMC’s Misrepresentation. 

CPMC knew the BRF was defective and unreasonably dangerous and was causing 

injury and death to patients who received it. Id. ¶11, 18, 38, 40, 56, 64-66, 111. Yet, 

intending that Mr. Ruden rely on their misrepresentation, CPMC did not disclose risks and 

other known information, including that the BRF had hidden dangers, such as a high rate of 

fracture, migration, and excessive tilting and perforation of the wall of the inferior vena 

cava. Id. ¶12-14, 48, 105-106, 112-113, 119-123, 137-138. Further, CPMC failed to 

insure that its agent and employee care providers were adequately trained to perform their 

relevant duties, including their duty to reasonably inform themselves of the risks of 

utilizing the BRF as part of Mr. Ruden’s treatment, and failed to adequately inform Mr. 

Ruden. Id. ¶13, 14, 18, 47-48, 61, 67-68, 106-108, 10, 118-123, 127-130, 137-138. 

3. Causes of Action Against CPMC. 

Via his FAC, Mr. Ruden asserts the following causes of action against CPMC: (1) 

Count Two- negligence; (2) Count Seven - Negligent Misrepresentation; (3) Count Eight - 

Breach of Fiduciary Duty; and (4) Count Nine - Negligent Recall/Retrofit. Mr. Ruden 

withdraws his claim for Negligent Recall/Retrofit as to CPMC only. Mr. Ruden seeks 

punitive damages against all defendants. 

III. LEGAL STANDARD 

A motion to dismiss under Fed. R. Civ. Pro. 12(b)(6) tests the legal sufficiency of 

the claims asserted in the complaint. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 

(2009). Fed. R. Civ. Pro. 8(a) requires only a short and plain statement of the claim 

showing the pleader is entitled to relief. Fed. R. Civ. Pro. 8(a)(2). When evaluating a Rule 

12(b)(6) motion, the district accepts all material allegations as true and construes them 

favorably to the non-moving party. Moyo v. Gomez, 32 F.3d 1382, 1384 (9th Cir. 1994). 

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To survive a motion to dismiss under the Rule, a plaintiff must allege only “enough 

facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 570 (2007). “To be clear, the issue on a motion to dismiss for failure to state a 

claim “is not whether the [claimant] will ultimately prevail, but whether the claimant is 

entitled to offer evidence to support the claims” asserted. Gilligan v. Jamco Dev. Corp., 

108 F.3d 246, 249 (9th Cir. 1997) (quoting Scheuer v. Rhodes, 41 U.S. 232, 236 (1974)). 

IV. DISCUSSION 

CPMC’s Motion must be denied for several reasons. Mr. Ruden has pled ample 

facts in support of his claims for negligence, negligent misrepresentation, breach of 

fiduciary duty, and punitive damages. CPMC is not a “sham defendant,” nor is the 

“gravamen” of his claims against CPMC products liability. His claims stand.

A. Mr. Ruden Has Alleged Facts Sufficient To State A Claim For Negligence. 

The elements of a negligence cause of action are: (1) the existence of a duty to 

exercise due care; (2) breach of that duty; (3) causation; and (4) damages. Paz v. 

California, 22 Cal.4th 550, 559 (2000). Hospitals owe their patients a duty of care and 

protection, and Mr. Ruden has alleged facts sufficient to state this claim. 

1. CPMC Owes Mr. Ruden A Duty of Care and Protection. 

It has long been held that a private hospital owes its patients the duty of protection. 

Meyer v. McNutt Hospital, 173 Cal. 156, 159 (1916). It is the duty of the hospital to use 

reasonable care and diligence in safeguarding a patient committed to its charge. Valentin 

v. La Societe Francaise, 76 Cal.App.2d 1, 4 (1946); Thomas v. Seaside Memorial Hosp. 

of Long Beach, 80 Cal.App.2d 841, 847 (1947); Rice v. California Lutheran Hospital, 27 

Cal.23 296, 299 (1945) (“The measure of duty of a hospital is to exercise that degree of 

care, skill and diligence used by hospitals generally in that community, and required by 

the express or implied contract of the undertaking.”). Case law has recognized that a 

hospital’s business is caring for ill persons, and it is under a duty to observe and know 

their conditions. Elam v. Coll. Park Hosp., 132 Cal. App.3d 332, 340 (1982), citing Rice 

v. California Lutheran Hosp., 27 Cal.2d 296, 299 (1945). 

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PLAINTIFF WAYNE RUDEN’S OPPOSITION TO CPMC’S MOTION TO DISMISS 

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This duty of due care encompasses the duty to insure the competence of its 

medical staff through careful selection and review. Id. at 341. The statutory authority 

recognizing hospital accountability for the quality of medical care and the competence of 

medical staff furnishes additional support for this conclusion. Id. at 341-44 (citing Health 

and Safety Code § 32125 [hospital boards must operate hospitals in best interests of 

public health and insure minimum statutory standards are followed], Health and Safety 

Code § 32128 and Bus. and Prof. Code § 2282 [hospital must initially screen medical 

staff for competency and periodically review competency at least every two years, and 

must periodically review patients’ medical records, and must place such limitations on 

the practice of medicine and surgery as are in the best interests of health and welfare], 

Cal. Admin. Code §§ 70701 [hospital must assure high standards of professional practice 

including monitoring ability of physicians to competently perform their duties], Cal. 

Admin. Code § 70703 [medical staff is responsible to governing body of hospital for 

fitness, adequacy and quality of care rendered to patients].) 

As alleged, CPMC clearly owed Mr. Ruden various duties of care and protection. 

2. Mr. Ruden Alleged the Violation of CMPC’s Duties of Care and 

Protection. 

Contrary to CPMC’s assertions, Mr. Ruden’s negligence claim does not rely solely 

on fiduciary duty allegations. For example, Mr. Ruden alleged: 

 CPMC had a duty to exercise reasonable care as to Mr. Ruden, which it 

breached. FAC ¶ 47; 

 CMPC breached various other duties, including its duty to monitor Mr. 

Ruden’s condition after implantation of the BRF, its duty to screen its 

medical staff, physicians, and agents for competency to administer and 

monitor patients who were treated with the BRF, to learn pertinent facts 

about the BRF and then determine whether the BRF was safe for clinical 

use. Id. ¶¶ 12-14, 47-48, 61-63, 77-79, 110-16; 

 CPMC had a duty to disclose material information to Mr. Ruden regarding 

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AND JOINDER IN REQUEST FOR REMAND

the potential for the BRF’s migration, but did not do so. Id. ¶¶ 10, 12-14, 

47-48, 61-63, 77-79, 105-106, 110-16; 119-21. 

Because of these breaches, Mr. Ruden’s claim for negligence stands. 

B. Mr. Ruden Has Alleged Facts Sufficient To State A Claim For Negligent 

Misrepresentation. 

The elements of negligent misrepresentation include: “(1) misrepresentation of a 

past or existing material fact, (2) without reasonable ground for believing it to be true, (3) 

with intent to induce another's reliance on the misrepresentation, (4) ignorance of the 

truth and justifiable reliance on the misrepresentation by the party to whom it was 

directed, and (5) resulting damage.” Glenn K. Jackson Inc. v. Roe, 273 F.3d 1192, 1201 

(9th Cir. 2001). Further, to the extent CPMC withheld information it had a duty to 

disclose, such wrongful withholding amounts to misrepresentation. Stafford v. Shultz, 42 

Cal.2d 767, 777 (1954) (“Where there is a duty to disclose, the disclosure must be full 

and complete, and any material concealment or misrepresentation will amount to fraud 

sufficient to entitle the party injured thereby to an action.”) (citation omitted); see also 

Cal. Civ. Code § 1710. Mr. Ruden has alleged facts sufficient to meet these elements. 

In Paragraph 105 of the FAC, Mr. Ruden alleges that CPMC negligently provided 

him with false or incorrect information, or omitted or failed to disclose material 

information concerning the safety, efficacy, failure rate, and approved uses of the BRF. 

Mr. Ruden also alleges that CPMC had a duty to communicate to him accurate 

information regarding the BRF, and that he reasonably relied on such communications. 

Id. ¶¶ 48, 72-73, 106-07, 113. 

Mr. Ruden further alleges that CPMC negligently failed to screen false 

representations made by Bard and passed these misrepresentations along to Mr. Ruden 

through CPMC’s agents, staff, nurses, officers, directors, attendants and other employees, 

or alternatively failed to disclose information received from Bard it had a duty to provide. 

Id., ¶¶ 48, 74, 106. CPMC knew when the BRF was implanted of the device’s hidden 

dangers. Id., ¶ 12. Over the years following the insertion of the device, CPMC learned 

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of the numerous adverse incidents cited in the FDA’s 2010 warning letter and failed to 

accurately communicate the newly-discovered danger to Mr. Ruden. Id. ¶¶ 14, 18, 26-27, 

40. Mr. Ruden’s reliance on such communications caused his injuries. Id. ¶¶ 34-36, 114. 

Mr. Ruden’s allegations include facts sufficient to support each of the required 

elements: 

(1) Misrepresentation of fact: CPMC misrepresented past or existing material 

facts, or failed to disclose facts they had a duty to disclose, when they represented to Mr. 

Ruden that the BRF was safe to be implanted in his body, and when they failed to 

disclose to him subsequently-learned dangers of the BRF that they had a duty to disclose;

Id. ¶¶ 10-14, 47-48, 61-67, 72, 105-06, 110-11, 118, 122-23, 137, 139. 

(2) Lacking reasonable ground to believe its truth: CPMC, through its agents 

and staff, had a duty to ascertain the true facts, and was thus unreasonable in accepting 

Bard’s misrepresentations and omissions. Id. ¶¶ 12-14, 38, 40, 106, 110-11, 137-38. 

(3) Intent that patient rely on misrepresentations: As Mr. Ruden’s caretakers, 

CPMC intended that its instructions and advice to him to be relied on. Id. ¶¶ 61-63. 

(4) Reasonable reliance: Mr. Ruden’s reliance on his medical caretakers’ 

assurances was pled, and was appropriate as a matter of law. See, e.g., Raddatz v. U.S., 

750 F.2d 791, 796 (9th Cir. 1984) (doctor’s assurance of patient’s condition “may be 

reasonably relied on by a patient”). FAC ¶ 106. 

(5) Resulting damage: because Mr. Ruden consented to implantation of the BRF 

after CPMC’s misrepresentations, and because he allowed it to remain in his body over a 

decade because CPMC misrepresented or concealed its danger, the device fractured in his 

body and grave injuries resulted. Id. ¶¶ 16, 34-36, 59, 89, 92, 103, 140. 

Clearly, Mr. Ruden has stated a claim for negligent misrepresentation, and this 

cause of action should not be dismissed. 

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C. Mr. Ruden Has Alleged Facts Sufficient To State A Claim For Breach of 

Fiduciary Duty.

1. CPMC Owes Mr. Ruden A Fiduciary Duty. 

CPMC owes Mr. Ruden a fiduciary duty. “The doctor-patient relationship is 

a fiduciary one and it is incumbent on the doctor to reveal all pertinent information to 

his patient. The same is true of the hospital-patient relationship.” Wohlgemuth v. Meyer, 

139 Cal.App.2d 326, 331 (1956). CPMC’s authorities do not refute this. 

2. Derrick Does Not Hold That Hospitals Owe No Fiduciary Duty to 

Patients and Is Distinguishable. 

Derrick v. Ontario Comty. Hosp., 47 Cal.App.3d 145, 152-53 (1975), cited by 

CPMC, merely held that a hospital does not owe a fiduciary duty to the general public at 

large, persons with whom the hospital had no relationship. See Derrick, supra. In 

Derrick, plaintiff sued hospital after contracting disease from former hospital patient, 

alleging the hospital owed her a duty to report the potential for disease. The court held 

the hospital owed no statutory duty to report the possibility of disease to the general 

public, including the plaintiff). The facts of Derrick are not analogous to the case at bar. 

3. Moore Does Not Hold That Hospitals Owe No Fiduciary Duty to 

Patients And Is Distinguishable. 

The only other case cited by CPMC for the proposition that there is no fiduciary 

duty owed by a hospital to a patient is similarly inapplicable here, as the facts relate only 

to lack of informed consent for a surgical procedure. Moore v. Regents of Univ. of Cal., 

51 Cal.3d 120, 133 (1990). It was well-established prior to Moore that the duty to obtain 

informed consent for a surgical procedure runs to the surgeon. See, e.g., Cobbs v. Grant, 

8 Cal.3d 229, 242-43 (1972). Moore did not deal with a hospital’s fiduciary duty to 

reveal material information to a patient, and did not in any way disapprove Wohlgemuth, 

which established that duty. Wohlgemuth at 331. Nor did Moore make sweeping claims 

that no hospital owes any sort of fiduciary duty to a patient. Moore merely stated that the 

defendants in that case had no fiduciary duty to obtain informed consent to a medical 

procedure, a cause of action against those defendants based on failure to obtain informed 

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consent, it could only be by a theory of secondary liability. Moore at 133. Moore did not 

erase a hospital’s fiduciary duty to provide all material information under Wohlgemuth.

D. Mr. Ruden Has Alleged Facts Sufficient To State A Claim For Punitive 

Damages. 

1. Facts Alleged Regarding Punitive Damages. 

The FAC alleges that, prior to the BRF surgery, CPMC failed to learn and/or 

disclose the dangerous then-known or –knowable propensities of the BRF; further, postBRF surgery, and even with additional information available to it regarding the defective 

nature of the BRF, CPMC again failed to inform Mr. Ruden of known or knowable risks. 

FAC, pp. 10:2-13:7; 26:7-27:20. Despite receiving an FDA warning and additional 

knowledge regarding BRF defects subsequent to the surgery, CPMC remained silent. 

Mr. Ruden has identified CPMC’s officers, directors and managing agents, 

including explicitly identifying physicians, who acted in a malicious, willful and 

oppressive manner as alleged in the FAC. FAC, p. 10:2-13:7; 26:24-28. 

2. Mr. Ruden Has Met His Burden Under Fed. R. Civ. Pro. 8. 

CPMC’s reliance on California Civil Code section 3294(a) for the proposition that 

“oppression, fraud or malice” must be pled by clear and convincing evidence is incorrect. 

Section 3294(a) states that malice, fraud or oppression must be “proved” by clear and 

convincing evidence, not “pled” by such evidence. Cal. Code Civ. Sec. 3294(a). 

Accordingly, Mr. Ruden satisfied his burden under Rule 8. 

3. The Cases Cited by CPMC Are Inapposite. 

The cases cited by CPMC in support of dismissal of punitive damages are 

inapposite. First, Brousseau v. Jarrett, 73 Cal.App.3d 864 (1977) is distinguishable. In 

Brousseau, plaintiff’s punitive damages claim did not allege specific facts in support. 

Brousseau, 73 Cal.App.3d at 869. Here, Mr. Ruden has alleged specific facts as to 

CPMC and its control persons. FAC, pp. 10:2-13:7; 26:7-27:20. CPMC’s reliance on 

Taylor v. Sup. Ct., 24 Cal.3d 890, 893-94 (1979) also fails to support dismissal. Distinct 

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from Taylor, Mr. Ruden alleged facts including CPMC’s monetary incentive to hide 

known dangers of the BRF and its conscious disregard for safety in its failure to 

communicate known or knowable dangers of the BRF. FAC, pp. 10:2-13:7; 26:7-27:20. 

Finally, CPMC’s citation to Xerox Corp. v. Far Western Graphics, Inc., 2004 WL 

2271587 (N.D. Cal. 2004) is misplaced. In Xerox, the plaintiff failed to allege any 

conduct by an officer, director or managing agent to support punitive damages. Xerox 

Corp., 2004 WL 2271587, at *2. Here, plaintiff’s FAC plainly alleges acts of CPMC’s 

control persons, including physicians/managing agents. FAC, pp. 10:2-13:7; 26:7-27:20. 

Mr. Ruden has sufficiently pled a claim for punitive damages under Rule 8. 

4. California Code of Civil Procedure Section 425.13 Does Not 

Apply to Complaints Governed by Fed R. Civ. Pro. 8. 

California Code of Civil Procedure section 425.13’s places a subject-matter 

procedural restriction on punitive damages that is already adequately addressed via Rule. 

8. Plaintiff’s punitive damages claim cannot be dismissed via CPMC’s motion. 

To determine whether a state law applies in Federal Court, the Court must first 

find whether a relevant Federal Rule answers the question in dispute. See generally 

Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010). Here, 

Rule 8 is on point and explicitly permits the FAC’s punitive damages claim. As such, the 

Court need not make a challenging and “relatively unguided Erie choice.” Hanna v. 

Plumer, 380 U.S. 460, 471 (1965). Section 425.13) directly conflicts with the plain 

meaning of Rule 8(a)(3); therefore, Section 425.13 is inapplicable to plaintiff’s FAC. 

Estate of Prasad v. County of Sutter, 958 F. Supp.2d 1101, 1121 (E.D. Cal. 2013). 

Decisions from each District Court in California hold that Section 425.13 does not 

apply in Federal cases. In Jackson v. East Bay Hosp., 980 F.Supp. 1341 (N.D. Cal. 

1997), the Court deemed Section 425.13 inapplicable in Federal Court because it is 

“essentially a method of managing or directing a plaintiff’s pleadings, rather than a 

determination of substantive rights.” Jackson, 980 F.Supp. at 1352 (finding that the 

statute is a “procedural matter rather than a substantive one”); Burrows v. Redbud Cmty. 

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Hosp. Dist., 188 F.R.D. 356, 361 (N.D. Cal. 1997) (“[S]ection 425.13 is a procedural rule 

for managing and directing pleadings; it does not create substantive limits on the 

damages a plaintiff may seek”); see also Franklin v. Allstate Corp., 2007 WL 1991518, at 

*3-4 (N.D. Cal. 2007). Also, multiple decisions from the Southern and Central Districts 

find Section 425.13 to be procedural and null and void in Federal Court. Ortegoza v. 

Kho, 2013 WL 2147799, at *7 (S.D. Cal. 2013) (“agree[ing] with the Jackson court’s 

determination that section 425.13 is procedural” and inapplicable in Federal Court); see 

also, e.g., Steel v. City of San Diego, 726 F.Supp.2d 1172, 1182 (S.D. Cal. 2010); Shinde 

v. Nithyananda Found., 2013 WL 1953707, at *16 & n. 6 (C.D. Cal. 2013). 

Accordingly, Section 425.13 directly conflicts with the plain meaning of Fed. R. 

Civ. Pro. 8(a)(3) and should not be considered by this Court; thus, the California statute 

cannot support CPMC’s motion to dismiss. See generally Jackson, 980 F.Supp. 1341; 

see also Estate of Prasad, 958 F. Supp.2d at 1121 (citations omitted). CPMC’s motion to 

dismiss must be denied as to plaintiff’s claim for punitive damages. 

5. Further, Plaintiff’s Causes of Action Against CPMC Do Not 

Implicate California Code of Civil Procedure Section 425.13. 

Even assuming, arguendo, that the section applies, this is not a medical 

malpractice case that falls within the ambit of Section 425.13. Cal. Code Civ. Proc. § 

425.13 (“[I]n any action for damages arising out of professional negligence of a health 

care provider, no claim for punitive damages shall be included in a complaint or other 

pleading unless the court enters an order allowing an amended pleading that includes a 

claim for punitive damages to be filed.”) (emphasis added). The Supreme Court has held 

that Section 425.13 is applicable to an action for damages if the injury is based upon 

professional negligence directly related to the professional medical services provided. 

Central Pathology Service Med. Clinic, Inc. v. Sup. Ct., 3 Cal.4th 1818, 191 (1992). In 

addition, the term “professional negligence” is a term of art that must be interpreted 

accordingly on a case by case basis. See Bommareddy v. Sup. Ct., et al., 222 Cal.App.3d 

1017, 1024 (1990), overruled on other grounds by Central Pathology Service Medical 

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Clinic, Inc. v. Sup. Ct., 3 Cal.4th 181, 191-92 (1992). 

Here, Mr. Ruden’s claims are not “directly related” to the professional medical 

services provided. Plaintiff’s claims are based on CPMC’s communication or lack 

thereof before and after his surgery, not on provision of professional medical services. In 

Mr. Ruden’s case, no claims are based upon the actual surgery. Mr. Ruden’s injury stems 

from CPMC’s failure to adequately screen and train staff regarding investigation of 

medical devices or to communicate the dangers known or knowable with respect to the 

BRF. As demonstrated herein, Mr. Ruden’s causes of action against CPMC are not 

professional negligence claims, and further, are not “intimately bound up” with any 

claims regarding professional medical services supplied to plaintiff that would justify the 

application of Cal. Code Civ. Proc. section 425.13. Cf. Rhodes v. Placer County, 2011 

WL 1302240, *21 (E.D. Cal. 2011) (plaintiff’s claim for punitive damages was directly 

related to the professional medical services rendered and Section 425.13 was applicable). 

In Flowers v. Torrance Mem. Hosp. Med. Ctr., 8 Cal.4th 992 (1994), the 

California Supreme Court found the provider’s negligence of the medical provider fell 

within the scope of Section 425.13 because the claims were based on a single malfeasant 

act by defendant. Flowers, 8 Cal.4th at 996-97 (defendant failed to raise a guardrail on a 

gurney). Notwithstanding the fact that plaintiff’s FAC does not allege a claim for 

professional negligence, Mr. Ruden’s causes of action against CPMC involves multiple 

negligent acts regarding training of staff and agents, and crucially, communication of 

dangers associated with the BRF that were known or knowable by CPMC. Allegations of 

multiple negligent acts fall outside the scope of claims intended to be addressed by 

Section 425.13. Johnson v. Chiu, 199 Cal.App.4th 775, 781-82 (2011). 

Importantly, CPMC’s failure to communicate known or knowable dangers is a 

duty within the common knowledge of a layperson and does not require testimony solely 

within the purview of expert witnesses. Engelking v. Carlson, 13, Cal.2d 216, 221 

(1939), disapproved on other grounds by Siverson v. Weber, 57 Cal.2d 834, 836-37 

(1962); see generally Carson v. Mercury Ins. Co., 210 Cal.App.4th 409, 422-23 (2012). 

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The facts here mirror the oft-quoted example of the scalpel left in the patient’s body postsurgery; anyone could perceive the negligence plaintiff alleges. Id.

Further, even generously considering the FAC’s allegations as a claim for medical 

malpractice, “[I]t is settled that additional causes of action may arise out of the same facts 

as a medical malpractice action.” See Romar v. Fresno Community Hospital and Medical 

Center, 583 F.Supp.2d 1179, 1184 (E.D. Cal. 2008) (quoting Unruh-Haxton v. Regents of 

Univ. of Cal., 162 Cal.App.4th 343, 352 (2008)). Here, Mr. Ruden alleges causes of 

action against CPMC for negligence, negligent misrepresentation and punitive damages. 

Like the plaintiff in Romar who alleged disparate claims, Mr. Ruden makes factual 

allegations separate and distinct from the actual BRF implantation and akin to plaintiff’s 

claims in Romar where the same facts could support both professional and general 

negligence negligence claims. See Romar, 583 F.Supp.2d at 1189. Thus, Section 425.13 

cannot be applied serve to dismiss plaintiff’s punitive damages claim. 

E. Mr. Ruden Is Entitled to Plead Alternative Facts And Theories. 

CPMC asserts that Mr. Ruden’s recitation of alternative facts in his FAC warrants 

dismissal . Motion to Dismiss p. 6. CPMC is incorrect: 

A party may set forth two or more statements of a claim or 

defense alternately or hypothetically, either in one count or 

defense or in in separate counts or defenses. When two or 

more statements are made in the alternative and one of them 

if made independently would be sufficient, the pleading is not 

made insufficient by the insufficiency of one or more of the 

alternative statements. A party may also state as many 

separate claims or defenses as the party has regardless of 

consistency and whether based on legal, equitable, or 

maritime grounds. 

Fed. R. Civ. Pro. 8(e)(2); Coleman v. Standard Life Co., 288 F. Supp. 2d 1116 

(E.D. Cal. 2004). “[A] pleading should not be construed as an admission against another 

alternative or inconsistent pleading in the same case.” McCalden v. California Library 

Ass’n, 955 F.2d 1214, 1219 (9th Cir. 1990) (quoting Molsbergen v. United States, 757 

F.2d 1016, 1019 (9th Cir. 1985)); see also Oki America v. Microtech Intern. Inc., 872 

F.2d 312, 314 (9th Cir. 1989). These readings are consistent with both the language of 

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Rule 8 and “the general purpose of the Federal Rules,” which is “to minimize technical 

obstacles to a determination of the controversy on its merits.” United States ex rel. Atkins 

v. Reiten, 313 F.2d 673, 675 (9th Cir.1963). Alternative pleading is no cause for 

dismissal. 

F. CPMC, An Indispensable Party, Is Not A Sham Defendant. 

Mr. Ruden’s FAC alleges negligent misrepresentation against both Bard and 

CPMC. Plaintiff pled in the alternative that (1) Bard negligently provided false 

information and (2) that CPMC had the ability to determine the true facts but did not 

because its agents and employees were not properly trained to investigate medical 

devices, and that as a result of this failure by one or both parties, plaintiff was injured. 

It is clear that a relationship exists between defendants CPMC and Bard and 

between Mr. Ruden’s claims against the two entities. Bard manufactured a product and 

released it into the stream of commerce, from whence it was acquired by CPMC and used 

as it was intended to be used, by implanting it into Mr. Ruden’s body, where it fractured, 

with a fragment entering Mr. Ruden’s heart. FAC, ¶¶ 12-14, 17-19, 25, 34, 51, 57-58, 

70-71, 77-79, 83-84, 91, 101. Both Bard and CPMC shared a joint duty to ensure the 

BRF was safe for use by the end user. Id., ¶¶ 12-14, 47-48, 61-63, 73-74, 110-11, 118, 

139. Bard had a duty to make the product’s dangerous propensities known to users and 

the general public and CPMC had a duty to insure that its medical provider staff learned 

of those same dangerous propensities. At least to some extent, Bard’s and CPMC’s 

liabilities here are measured by each other’s acts. Id., ¶¶ 38, 43-46, 48, 52, 54-57, 73-74. 

This is not a case that merely alleges that two defendants conduct a similar 

business practice, as in the lead fraudulent misjoinder case Tapscott v. MS Dealer Service 

Corp., 77 F.3d 1353, 1359-60 (11th Cir. 1996). Indeed, CPMC is an indispensable party, 

as it would incur a substantial risk of being saddled with a double obligation should 

Plaintiff prevail against CPMC in a state court suit while Bard cross-claims against 

CPMC in a federal suit. See Fed. R. Civ. Pro. 19(a)(1)(B). If Mr. Ruden is forced to 

pursue claims against these defendants in two separate forums, judicial economy will 

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suffer and there is a grave risk that Mr. Ruden will not receive justice in either forum. 

The question of what Bard told CPMC (and the public), and when it told it to 

them, closely knits together the liabilities of Bard and CPMC, such that severing Bard 

and CPMC into separate actions would raise a serious risk of inconsistent judgments. See

Fed. R. Civ. Pro. 20 (permitting joinder when “any right to relief is asserted against them 

. . . arising out of the same . . . series of transactions or occurrences” and “any question of 

law or fact common to all defendants will arise in the action”). CPMC is far from a sham 

defendant; it is a necessary and indispensable defendant. 

G. The Gravamen of Mr. Ruden’s Complaint Is Not Products Liability As To 

CPMC; Even If It Were, Mr. Ruden Does Not Allege Strict Products 

Liability Against CPMC. 

1. The “Gravamen” Of Mr. Ruden’s FAC Has No Bearing on This 

Court’s Analysis Of CPMC’s Motion. 

As an initial matter, CPMC cites to no authority stating that determining the 

“gravamen” of a complaint is an issue of law. See Fansler Foundation v. American 

Realty Investors, Inc., 2007 WL 2695360, *3-*4 (E.D. Cal. 2007) [“The parties did not 

cite, and the Court did not find, authority that determining the `gravamen’ of a complaint 

is an issue of law.”]. Even if products liability were the “gravamen” of Mr. Ruden’s FAC, 

CPMC did not indicate why this analysis is relevant to its Motion to Dismiss. 

2. The “Gravamen” of Mr. Ruden’s Complaint Is Not Products 

Liability. 

The Fansler court, supra, defined “gravamen” as the “principle thrust” or 

“operative facts” of the complaint. Id. To the unlikely extent that the “gravamen” of Mr. 

Ruden’s FAC may be factored into the Court’s analysis, Mr. Ruden makes multiple 

allegations against CPMC and submits that his FAC contains more than one “thrust.” 

Mr. Ruden’s FAC alleges negligent misrepresentation, negligence, and product 

liability. Mr. Ruden alleges that Bard “negligently provided Plaintiff, Plaintiff’s health 

care providers, and the general medical community with false or incorrect information” 

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involving certain specified subject areas. FAC, ¶¶ 105-06, 110. Thus, the “gravamen” of 

Mr. Ruden’s FAC is not simply product liability. 

3. Mr. Ruden Does Not Allege Strict Products Liability Against 

CPMC, So CPMC’s Cited Cases Are Irrelevant. 

CPMC misstates the holdings of several cases when it claims that “under California 

law, a hospital may not be liable under a product liability theory for a defective device such 

as the BRF.” Motion to Dismiss, p. 13. The cases cited by CPMC hold, at most, that a 

hospital in the circumstances of specific cases may not be held liable for strict products 

liability. Mr. Ruden does not allege strict product liability—or product liability—against 

CPMC, so this argument is irrelevant. 

Silverhart v. Mount Zion Hospital, 20 Cal. App. 3d 1022 (1971) holds that “the rule 

of strict liability adopted by the courts of this state precludes the application of that 

doctrine to a hospital under the circumstances of this case.” Silverhart at 1028 (emphasis 

added). The court in Silverhart reasoned that consumed needles rather than placing them 

in the stream of commerce.3

 Here, CPMC was part of the stream of commerce which 

placed the BRF in the end consumer’s body, and received remuneration for the device. 

H. CPMC Is Not Entitled To A More Definite Statement. 

Fed. R. Civ. Pro. 12(e) allows this Court to require Mr. Ruden to make a more 

definite statement of his FAC only if—as is not the case here—the FAC were “so vague 

and ambiguous that a party cannot reasonably prepare a response.” Fed. R. Civ. Pro. 12(e). 

Not only is the FAC sufficient to put CPMC on notice of the claims against it, CPMC has 

not properly requested relief under Rule 12(e). This request must be denied. 

A motion under this rule “must point out the defects complained of and the details 

desired.” Id. CPMC’s moving papers neither analyze nor discuss this request. Simply put, 

CPMC has not put Mr. Ruden or this Court on notice of the specific defects claimed. 

 3 Similarly, Hector v. Cedars-Sinai Medical Center, 180 Cal. App. 3d 493 (1986) and 

Pierson v. Sharp Memorial Hospital Inc., 216 Cal.App.3d 340 (1989), cited by CPMC, solely 

address strict liability. 

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PLAINTIFF WAYNE RUDEN’S OPPOSITION TO CPMC’S MOTION TO DISMISS 

AND JOINDER IN REQUEST FOR REMAND

Further, a motion for a more definite statement should not be granted unless, unlike 

here, the defendant cannot frame a responsive pleading. Boxall v. Sequoia Union High 

School Dist., 464 F. Supp. 1104, 1114 (N.D. Cal. 1979); Wright and Miller, Federal 

Practice and Procedure, Civil, § 1377, p. 750 (1969). Due to liberal pleading standards and 

extensive discovery, this procedural avenue has been substantially restricted. Wright and 

Miller, Federal Practice and Procedure, Civil, § 1376, pp. 737-740. In particular, where the 

information sought by the moving party is available through discovery, the motion should 

be denied. Id., § 1377, p. 750. 

Mr. Ruden’s FAC puts CPMC on clear notice of the claims levied against it. 

CPMC is able to adequately frame its response, and this request should be denied. 

I. Mr. Ruden Concurs In CPMC’s Remand Request. 

As an alternative to its motion to dismiss, CPMC seeks remand of this case under 

Fed. R. Civ. Pro. 12(b)(1) because this Court “lacks subject-matter jurisdiction.” 

Mr. Ruden concurs, as this Court is not the proper forum to litigate claims between nondiverse defendants. Mr. Ruden has filed a Motion for Remand in this Court, Docket #603, 

in which he likewise argues that federal court is not the proper forum for this action. 

CPMC is an indispensable, non-diverse, California defendant who has not consented to 

removal. Because there is no diversity, this matter should not be litigated in a federal 

forum. See, Fed. R. Civ. Pro. 12(b)(1); U.S.C. § 1447(c). 

V. CONCLUSION 

Mr. Ruden respectfully requests that this Court deny CPMC’s Motion to Dismiss or 

in the alternative, allow Mr. Ruden leave to amend his First Amended Complaint. Further, 

Mr. Ruden concurs with CPMC’s request to remand this action to the San Francisco 

Superior Court, where it was properly brought. 

Dated: March 4, 2016 ONGARO PC 

By: /s/ Glen Turner 

 Glen Turner 

 Attorneys for Plaintiff 

 WAYNE RUDEN 

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1 

PLAINTIFF WAYNE RUDEN’S OPPOSITION TO CPMC’S MOTION TO DISMISS 

AND JOINDER IN REQUEST FOR REMAND

CERTIFICATE OF SERVICE 

I hereby certify that on this 4th day of March, 2016, a copy of the foregoing was 

served electronically and notice of the service of this document will be sent to all parties 

by operation of the Court’s electronic filing system to CM/ECF participants registered to 

receive service in this matter. Parties may access this filing through the Court’s system. 

/s/Glen Turner 

 Glen Turner 

 

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