Case Number: BC633953 Hearing Date: June 11, 2019 Dept: 4A

Demurrer with Motion to Strike

Having considered the moving papers, the Court rules as follows. No opposition was filed.

BACKGROUND

On September 13, 2016, Plaintiff Aziza Ymeri filed a complaint against Defendant Aviva Iofel, M.D. alleging professional negligence for a wrongful prescription ordered on June 28, 2015.

On February 8, 2018, the Court granted Defendant Iofel, M.D.’s motion for summary judgment.

On March 2, 2018, Plaintiff amended the complaint to name CVS Pharmacy as Doe 1.

On April 9, 2019, Plaintiff filed a Second Amended Complaint alleging professional negligence and ordinary negligence against Defendant Aviva Iofel, M.D. and Defendant Garfield Beach CVS, L.L.C. for a wrongful prescription and distribution of Warfarin.

On May 9, 2019, Defendant Garfield Beach CVS, L.L.C. filed a demurrer and motion to strike to Plaintiff’s Second Amended Complaint due to a lapse of the relevant statute of limitations.

Trial is not set in this matter.

PARTY’S REQUESTS

Defendant Garfield Beach CVS, L.L.C. (“Demurring Defendant”) requests that the Court sustain its demurrer and grant its motion to strike Plaintiff’s Second Amended Complaint (“SAC”) as it fails to state facts sufficient to constitute a cause of action. Demurring Defendant argues that the statute of limitations for both of Plaintiff’s causes of action against Demurring Defendant have expired. Demurring Defendant also argues the two causes of action are duplicative of one another.

LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, 147 Cal.App.4th at p. 747.)

Before filing a demurrer, the demurring party is required to meet and confer in person or by telephone with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code of Civ. Proc. § 430.41, subd. (a).)

DISCUSSION

Meet and Confer

The Court finds that Demurring Defendant has fulfilled the meet and confer requirement prior to filing this demurrer. (See Warren Decl., ¶ 11.)¿

Duplicative

A demurrer can be sustained where one cause of action is duplicative of another cause of action. (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)

Demurring Defendant argues that the Plaintiff’s negligence cause of action is duplicative of Plaintiff’s professional negligence cause of action. The Court agrees.

In Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal. 4th 75, the California Supreme Court addressed the question of when “negligence in the use or maintenance of hospital equipment or premises qualifies as professional negligence” and when such negligence may be ordinary negligence that may support a premises liability claim. (Id. at 84). In answering this question, the Supreme Court distinguished between “the professional obligations of hospitals in the rendering of medical care to their patients and the obligations hospitals have, simply by virtue of operating facilities open to the public, to maintain their premises in a manner that preserves the well-being and safety of all users.” (Id. at 87).

The scope of professional negligence recognized in Flores is quite broad. The Court reaffirmed the notion that “’the professional duty of a hospital . . . is primarily to provide a safe environment within which diagnosis, treatment, and recovery can be carried out. Thus if an unsafe condition of the hospital’s premises causes injury to a patient, as a result of the hospital’s negligence, there is a breach of the hospital’s duty qua hospital.’” (Id. at 83 quoting Murillo v. Good Samaritan Hospital (1979) 99 Cal. App. 3d 50, 56-57). Thus, the Court explained that professional negligence does not require the exercise of medical skills and can occur, for example, when a janitor’s broom accidentally separates a patient from a ventilator, or where a hospital employee mistakenly delivers the wrong food to a patient on a restricted diet, or where hospital staff fail to secure a violently coughing patient who then falls off his gurney.

The Flores Court also clarified that “[a] hospital’s negligent failure to maintain equipment that is necessary or otherwise integrally related to the medical treatment and diagnosis of the patient implicates a duty that the hospital owes to the patient by virtue of being a health care provider. Thus, if the act or omission that led to the plaintiff’s injuries was negligence in the maintenance of equipment that, under the prevailing standard of care, was reasonably required to treat or accommodate a physical or mental condition of the patient, the plaintiff’s claim is one of professional negligence.” (Flores v. Presbyterian Intercommunity Hospital, 63 Cal 4th at 88). Where, on the other hand, the equipment or facilities are made available to members of the public and generally play no role in medical diagnosis or treatment, a hospital’s failure to exercise care in their maintenance or repair would give rise to a case of premises liability grounded on ordinary negligence standards. (Id.)

A pharmacist is considered a health care professional who can be sued for medical malpractice. (See Civ. Code § 1714.8, subd. (b); see also Cal. Bus. & Prof. Code § 4110, subd. (a).)

The ordinary negligence cause of action is based on Demurring Defendant’s failure to provide a prescription of Eliquis, which was requested by Plaintiff’s daughter, but instead providing Warfarin. (SAC, p. 3:13-3:19.) Given the broad scope of what is considered medical negligence opposed to ordinary negligence, the Court finds that Plaintiff’s ordinary negligence cause of action is actually a medical negligence cause of action. This is because it involves a health care professional, a pharmacist, allegedly providing the wrong medication.

Thus, Plaintiff’s second cause of action for general negligence against Demurring Defendant constitutes medical negligence and, thus, is duplicative of the first cause of action. As such, the demurrer is properly sustained on this ground.

Statute of Limitations

A two-year statute of limitations would apply to Plaintiff’s causes of action ordinary negligence against Demurring Defendant as they relate to an injury caused by neglect. (See Code Civ. Proc. § 335.1.) As the Court has ruled above, however, Plaintiff has failed to state any actionable claims for ordinary negligence against Demurring Defendant. Instead, both causes of action are – regardless of their denomination – for medical negligence.

The statute of limitations for Plaintiff’s causes of action for medical negligence is either three years from the date of the injury or one year after the plaintiff discovers or should have discovered the injury, whichever occurs first. (Code Civ. Proc. § 340.5.)

“The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed. A recognized exception to the general rule is the substitution under section 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint. If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed.” (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.)

“Among the requirements for application of the section 474 relation back doctrine is that the new defendant in an amended complaint be substituted for an existing fictitious Doe defendant named in the original complaint.” (Id.) “A further and nonprocedural requirement for application of the section 474 relation-back doctrine is that [Plaintiff] must have been genuinely ignorant of [Defendant Doe’s] identity at the time she filed her original complaint. The omission of the defendant’s identity in the original complaint must be real and not merely a subterfuge for avoiding the requirements of section 474. Furthermore, if the identity ignorance requirement of section 474 is not met, a new defendant may not be added after the statute of limitations has expired even if the new defendant cannot establish prejudice resulting from the delay. However, if the plaintiff is actually ignorant of the defendant’s identity, the section 474 relation-back doctrine applies even if that ignorance is the result of the plaintiff’s negligence.” (Id. at p. 177; see also Optical Surplus, Inc. v. Superior Court (1991) 228 Cal.App.3d 776, 779-782.)

“[W]here an amendment is sought after the statute of limitations has run, the amended complaint will be deemed filed as of the date of the original complaint provided recovery is sought in both pleadings on the same general set of facts.” (Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 Cal.2d 596, 600.) Recovery is not based on the same general set of facts when the amendment is “. . . more than a restatement, revision, amplification or correction of the allegations of the original complaint, or a change of legal theory.” (Weiner v. Superior Court (1976) 58 Cal.App.3d 525, 528-529.)

Demurring Defendant argues that neither of Plaintiff’s causes of action for professional negligence or ordinary negligence should relate back to the filing of the original complaint on September 13, 2016. Demurring Defendant states that the SAC alleges Plaintiff advised Demurring Defendant on or around June 28, 2015 that it filled the incorrect prescription. (Demurrer, p. 5:15-5:26.) Thus, Plaintiff knew of Demurring Defendant’s identity at that date, but failed to name Demurring Defendant in the original complaint.

Demurring Defendant also argues that Plaintiff knew of her injuries and the negligent cause on July 6, 2015 when Plaintiff ingested the allegedly wrongfully filled prescription. (Demurrer, pp. 5:23-6:4.)

The Court agrees with Demurring Defendant, to a degree. The SAC alleges that Plaintiff’s daughter appeared at Demurring Defendant’s pharmacy on Cahuenga in Los Angeles, California and requested a prescription for Eliquis. (SAC, p. 3:13-3:19.) Accordingly, Plaintiff knew of Demurring Defendant’s identity at that time. As such, the SAC cannot relate back to the filing of any prior complaint.

But the Court disagrees that Plaintiff knew of her injuries and the alleged negligence that caused them on July 6, 2015. Rather, the SAC alleges that Demurring Defendant gave Plaintiff’s daughter the wrong prescription on July 6, 2015, not that Demurring Defendant became aware of her injuries or the negligent cause on that date. (SAC, p. 3:13-3:19.)

Nevertheless, the statute of limitations for Plaintiff’s professional negligence, even when construed in the light most favorably to Plaintiff, indicates it is barred by the statute of limitations. Even if the limitations period is measured from the date of Plaintiff’s injury on July 6, 2015, Plaintiff had until July 6, 2018 to file a complaint against Demurring Defendant for professional negligence. She failed to do so.

Accordingly, the Court finds it proper to sustain the demurrer on the grounds that Plaintiff fails to plead sufficient facts to state causes of action for professional negligence because the relevant statutes of limitations lapsed before the complaint was filed and she has not shown an entitlement to relations back as to Demurring Defendant.

Motion to Strike

The Court finds it proper to deny the motion to strike as it is rendered moot by the sustaining of the concurrently filed demurrer.

CONCLUSION

The Court SUSTAINS the demurrer with 20 days’ leave to amend.

The Court DENIES the motion to strike as it is MOOT.

Demurring Defendant is ordered to give notice of this ruling.