Laurie Ann Humberd v. Sav-On Drugs, et al.
Case No: 18CV02449
Hearing Date: Tue Jun 11, 2019 9:30

Nature of Proceedings: Demurrer to First, Second and Third Causes of Action in Plaintiff’s First Amended Complaint; Motion to Strike Portions of Plaintiff’s First Amended Complaint

Demurrer and Motion to Strike

Attorneys:

Plaintiff: represents self

For Defendants Jackson & Engberg Med. Corp. and Warner:

Rulings:

1. The Court sustains, in part, and overrules, in part, the demurrer of defendants Jackson and Engberg Medical Corporation, dba Jackson Medical Group, Inc., and Nancy Warner, NP, to plaintiff Laurie Ann Humberd’s first amended complaint. As to these defendants only, the Court overrules the demurrer to the first cause of action for negligence; the Court sustains the demurrer to the second cause of action for strict liability without leave to amend, and the Court strikes the third cause of action without leave to amend but without prejudice to seeking leave to amend upon a properly noticed motion. Defendants shall file an answer to the first cause of action in the first amended complaint on or before June 21.

2. The Court grants, in part, the motion of defendants Jackson and Engberg Medical Corporation, dba Jackson Medical Group, Inc., and Nancy Warner, NP, to strike portions of plaintiff Laurie Ann Humberd’s first amended complaint. The Court strikes from the first amended complaint: ¶¶23 and 30; the prayers for punitive damages at page 8, lines 17 and 26; and the sentence beginning at line 23 and ending at line 25 of page 2. The Court denies the motion in all other respects.

Background

After the Court sustained the demurrer of defendants Jackson and Engberg Medical Corporation, dba Jackson Medical Group, Inc. (“Jackson”), and Nancy Warner, NP (“Warner”), to plaintiff’s complaint, plaintiff Laurie Ann Humberd filed her firstamended complaint (“FAC”) for negligence, strict liability, and battery.

As relevant here, plaintiff alleges: On May 17, 2016, Jackson and Warner prescribed and gave plaintiff the drug Ciprofloxacin (“Cipro”) and instructed her to take the medication on a regular basis. Warner and Jackson did not advise plaintiff that Cipro could cause her major debilitating, dangerous, and life-threatening injuries and symptoms. [FAC ¶12] After taking the Cipro, plaintiff suffered pain, massive headaches, nausea, potential or actual aortic aneurysms and nerve damage, neurological complications and issues, walking and standing difficulties, bladder control issues, insomnia, upper body sweating, left arm and hand tremors, hand shaking issues, and constant fatigue. [FAC ¶13]

Demurrer

Jackson and Warner demur to the FAC on the following grounds: 1) Plaintiff cannot state a claim for general negligence occurring during the rendering of professional services. 2) There is no cause of action for strict liability against health care providers. 3) Plaintiff did not have leave to amend to add a battery cause of action. Plaintiff has not filed an opposition to the demurrer.

The Court’s only task in ruling on a demurrer is to determine whether the complaint states a cause of action. Moore v. Regents of University of California, 51 Cal.3d 120, 125 (1990). The Court treats “the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law”; considers “matters which may be judicially noticed”; and gives “the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” Evans v. City of Berkeley, 38 Cal.4th 1, 6 (2006) [internal quotation marks and citations omitted].

1. First Cause of Action for Negligence: Jackson and Warner are health care providers within the meaning of the Medical Injury Compensation Reform Act (“MICRA”). Civil Code §§ 3333.1(c)(1), 3333.2(c)(1); Canister v. Emergency Ambulance Service, Inc., 160 Cal.App.4th 388, 395 n4 (2008) (MICRA applies to an employing entity held vicariously liable for the professional negligence of its agents, if such agents are health care providers).

Jackson and Warner rely on Flowers v. Torrance Memorial Hospital Medical Center, 8 Cal.4th 992 (1994) (“Flowers”) for the proposition that plaintiff must pursue a professional negligence claim and not the pleaded negligence claim. In addressing a motion for summary judgment, the court in Flowers said:

“At this stage of the proceedings, a claim of ‘professional’ negligence has significance only to the extent it serves to identify any specialized knowledge or skill that may be a relevant ‘circumstance’ in determining the standard of care by which the defendant’s act or omission should be measured. However, as we have explained, whether the cause of action is denominated ‘ordinary’ or ‘professional’ negligence, or both, ultimately only a single standard can obtain under any given set of facts and any distinction is immaterial to resolving a motion for summary judgment. If the evidence as to the requisite due care is uncontroverted, the trial court may properly address the question as a matter of law and proceed to a consideration of the defendant’s alleged negligence.” Id. at 1000.

So, the court did not say one has to use the word “professional” in the pleading of negligence. The court simply said there can only be one standard of care. As Jackson and Warner correctly state: “We start with the well-established principle that a court is not bound by the captions or labels of a cause of action in a pleading. The nature and character of a pleading is to be determined from the facts alleged, not the name given by the pleader to the cause of action.” Ananda Church of Self-Realization v. Massachusetts Bay Ins. Co., 95 Cal.App.4th 1273, 1281 (2002) [italics in original]. From the facts alleged, it is clear that plaintiff has alleged a cause of action for professional negligence. That will govern the standard of care that shall apply to these defendants in this case.

The Court overrules the demurrer to the first cause of action.

2. Second Cause of Action for Strict Liability: “[S]trict liability may not be imposed against health care providers for injuries suffered by their patients.” San Diego Hospital Assn v. Superior Court, 30 Cal.App.4th 8, 13 (1994). A health care provider who prescribes a prescription drug as a medicine cannot be strictly liable without fault. Carmichael v. Reitz, 17 Cal.App.3d 958, 979 (1971).

The Court sustains the demurrer to the second cause of action without leave to amend.

3. Third Cause of Action for Battery: When filing the FAC after the earlier demurrer was sustained with leave to amend, plaintiff added a cause of action for battery against Jackson and Warner. A court’s order sustaining a demurrer to a pleading with leave to amend, “must be construed as permission to the pleader to amend the cause of action which he pleaded in the pleading to which the demurrer has been sustained.” People ex rel. Department of Public Works v. Clausen, 248 Cal.App.2d 770, 785 (1967). “It gives the pleader an opportunity to cure the defects in the particular causes of action to which the demurrer was sustained, but that is all.” Community Water Coalition v. Santa Cruz County Local Agency Formation Com., 200 Cal.App.4th 1317, 1329 (2011).

Plaintiff did not have leave to amend to add a cause of action for battery. To assert this cause of action, plaintiff must seek leave to amend under CCP § 473(a)(1).

Jackson and Warner demur to this cause of action under CCP § 430.10(e)—“The pleading does not state facts sufficient to constitute the cause of action.” However, the ground stated is not insufficient facts. Nor is the ground recognizable as a ground for demurrer. The Court will treat this portion of the demurrer as a motion to strike because the cause of action is not drawn or filed in conformity with the laws of this state. CCP § 436(b).

The Court strikes the third cause of action without leave to amend but without prejudice to seeking leave to amend upon a properly noticed motion.

4. Order: The Court sustains, in part, and overrules, in part, the demurrer of defendants Jackson and Engberg Medical Corporation, dba Jackson Medical Group, Inc., and Nancy Warner, NP, to plaintiff Laurie Ann Humberd’s first amended complaint. As to these defendants only, the Court overrules the demurrer to the first cause of action for negligence; the Court sustains the demurrer to the second cause of action for strict liability without leave to amend, and the Court strikes the third cause of action without leave to amend but without prejudice to seeking leave to amend upon a properly noticed motion. Defendants shall file an answer to the first cause of action in the first amended complaint on or before June 21.

Motion to Strike

Jackson and Warner move to strike portions of the FAC. Plaintiff has not filed an opposition to the motion.

1. Punitive Damages: Jackson and Warner move to strike ¶¶ 23 and 30, which are allegations regarding punitive damages, and the prayers for punitive damages. These relate to the second cause of action, to which the Court has sustained a demurrer without leave to amend, and the third cause of action, which the Court has stricken. In that sense, the motion is moot.

However, the Court will address the punitive damage issue because plaintiff may attempt to add these allegations and prayers later. “In any action for damages arising out of the 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.” CCP § 425.13.

“[W]henever an injured party seeks punitive damages for an injury that is directly related to the professional services provided by a health care provider acting in its capacity as such, then the action is one ‘arising out of the professional negligence of a health care provider,’ and the party must comply with section 425.13(a).” Central Pathology Service Medical Clinic, Inc. v. Superior Court, 3 Cal.4th 181, 191-192 (1992). Battery claims are subject to CCP § 425.13 when injuries are directly related to the manner in which professional services were provided. United Western Medical Centers v. Superior Court, 42 Cal.App.4th 500, 503 (1996).

For the foregoing reasons, the Court strikes from the FAC ¶¶23 and 30 and prayers for punitive damages at page 8, lines 17 and 26.

2. “Doe” Allegations: In the FAC, plaintiff states with respect to Warner in ¶4: “By this First Amended Complaint, her name and identity are hereby amended in place and stead of DOE 1 for purposes of this amended pleading and the original Complaint.” With respect to Jackson, plaintiff states in ¶6: “In the original Complaint, Plaintiff erroneously sued, identified and named JACKSON MEDICAL GROUP as a Defendant instead of Defendant JACKSON. By this First Amended Complaint, the name and identity of Defendant JACKSON are hereby amended in place and stead of DOE 2 for the purposes of this amended pleading and the original Complaint.”

CCP § 474 provides, in part: “When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly….” A plaintiff may use this “Doe” amendment process when she has a “good faith ignorance of the true name of a fictitiously designated defendant.” McGee St. Prods. v. Workers’ Comp. Appeals Bd., 108 Cal.App.4th 717, 725 (2003).

Plaintiff was aware of Jackson and Warner. She got Warner’s name right the first time and is simply adding “NP” to the end of her name, which stands for “Nurse Practitioner.” That is not part of her name and the amendment is not necessary. Plaintiff served Warner with the original complaint and summons and she responded. There has been no doubt who plaintiff sued. The “Doe” language in the complaint is unnecessary but harmless. Nevertheless, the language is improper matter and the Court will strike it. CCP § 426(a).

The language regarding Jackson reflects plaintiff’s real and good faith ignorance of Jackson’s real name. Jackson corrected this when it appeared and demurred to the original complaint. The Court will not strike the language regarding Jackson.

3. Order: The Court grants, in part, the motion of defendants Jackson and Engberg Medical Corporation, dba Jackson Medical Group, Inc., and Nancy Warner, NP, to strike portions of plaintiff Laurie Ann Humberd’s first amended complaint. The Court strikes from the first amended complaint: ¶¶23 and 30; the prayers for punitive damages at page 8, lines 17 and 26; and the sentence beginning at line 23 and ending at line 25 of page 2. The Court denies the motion in all other respects.