Tentative Ruling

Judge Thomas Anderle
Department 3 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Laurie Ann Humberd v. Sav-On Drugs, et al.
Case No: 18CV02449
Hearing Date: Tue Nov 12, 2019 9:30

Nature of Proceedings: Motion Extension of Time; Deem Admitted; Compel; Dismiss.

Motion by defendant Nancy Warner NP to compel responses to special interrogatories and for sanctions

Motion by defendant Nancy Warner NP to compel responses to form interrogatories and for sanctions

Motion by defendant Nancy Warner NP to compel production of documents and for sanctions

Motion by defendant Nancy Warner NP for deemed admissions and for sanctions

Motion by defendant Jackson and Engberg Medical to compel responses to form interrogatories and for sanctions

Motion by defendant Jackson and Engberg Medical to compel responses to special interrogatories and for sanctions

Motion by defendant Jackson and Engberg Medical for deemed admissions and for sanctions

Motion by defendant Dr. Reddy’s Laboratories to dismiss FAC and for entry of judgment

Motion and supplemental motions by plaintiff for extension of time to respond to the Court’s tentative decision on the demurrer by Dr. Reddy’s Laboratories

ATTORNEYS:

Plaintiff is in pro per

Kevin W. Alexander / Thomas R. Watson of Gordon Rees Scully Mansukhani, LLP for defendant Dr. Reddy’s Laboratories, Inc.

Bradley C. Clark / Julia E. Murray of Schmid & Voiles for defendants Nancy Warner and Jackson and Engberg Medical Corporation, dba Jackson Medical Group, Inc.

RULINGS: For reasons which will be explained below, plaintiff’s motions for extension of time to respond to the Court’s “tentative ruling” on the former demurrer are denied. Defendant Dr. Reddy’s motion to dismiss the action against it is granted.

For reasons which will be explained below, the motions by defendants Warner and Jackson to compel responses to special interrogatories, form interrogatories, and the document production request are granted. Plaintiff shall serve on defendants separate, verified, written discovery responses to each of the discovery requests, without asserting any objections, on or before December 10, 2019. Unless proper, verified responses to the requests for admissions are provided to defendants’ counsel prior to the hearing, the motions by defendants Warner and Jackson for deemed admissions will be granted. If such proper responses are provided prior to the hearing, the motions for deemed admissions will be denied.

The Court imposes sanctions totaling $500 on plaintiff, payable by November 15, 2019, based upon her failure to comply with her discovery obligations.

Background

Plaintiff’s First Amended Complaint (FAC) alleges that she suffered injury from the sustained use of Ciprofloxacin (Cipro), manufactured and distributed by defendant Dr. Reddy’s Laboratories, Inc. (Dr. Reddy’s), and prescribed to her by defendants Nancy Warner, NP (Warner) and Jackson and Engberg Medical Corporation, dba Jackson Medical Group, Inc. (Jackson). The FAC alleges causes of action for negligence and strict liability against the defendants, and contends that defendants failed to warn plaintiff of the complications, dangers, injuries, and symptoms which could or would arise from use of Cipro.

On September 24, 2019, the Court sustained the demurrer by Dr. Reddy’s, without leave to amend. In doing so, the Court took judicial notice that Dr. Reddy’s is a manufacturer of generic ciprofloxacin, in the manner described in the ruling thereon. The demurrer was sustained because plaintiff’s claim is preempted by federal law, given that Federal Drug Administration regulations require generic drug manufacturers to use the same labeling as the approved brand-name drug. While plaintiff argued that Dr. Reddy’s had a record of deception with the FDA, her argument relied upon information downloaded from the internet, of which no judicial notice was requested, and for which judicial notice would not have been permissible. While plaintiff sought leave to amend to add an additional defendant (the “Brand Manufacturer” of Cipro) and to include fraud and other unspecified claims regarding Dr. Reddy’s conspiracy with respect to that manufacturer, the Court found that she had not met her burden of establishing a legal basis for amendment, in that any change in labeling of the drug is a matter exclusively between the FDA and the brand-name manufacturer. The Court further found that any leave to amend to add another defendant beyond the scope of the leave permissible upon the sustaining of a demurrer, and doing so would require a separate motion by plaintiff.

More than two weeks after the Court’s ruling on the demurrer, plaintiff on October 9, 2019, filed a motion for an extension of time within which to respond to the Court’s tentative ruling on the demurrer. Her motion acknowledged that she had received the Notice of Ruling on the demurrer and CMC on October 2, 2019. The motion asserts that the issue raised by the tentative requires skilled technical understanding of the inner workings of pharmaceutical law, and she may need to engage specialist co-counsel to address the issues. Plaintiff contends that she “intends to respond” after some further clarification “of the critical matters at hand.”

On the same day that plaintiff’s motion for extension was filed, Dr. Reddy’s filed a motion to dismiss the FAC against it pursuant to Code of Civil Procedure section 581(f)(1), based upon the Court’s ruling sustaining its demurrer without leave to amend.

Plaintiff subsequently filed a supplemental motion for extension of time on October 11, 2019, and a second supplemental motion for extension of time on October 15, 2019. The first supplemental motion seeks a 120 day extension of time to respond to the tentative ruling before the order becomes final, arguing that as a propria persona litigant, the United States Supreme Court states that she should be held to less stringent standards than an attorney, and that this federal law preempts the conflicting California law holding pro per parties to the same standard as attorneys. Her second supplemental motion purports to clarify that she is asking for the extension of time in order to locate competent counsel.

Dr. Reddy’s opposed plaintiff’s motion(s) for extension of time to respond to the tentative ruling on the demurrer, on the ground that the order on the demurrer made at the September 24, 2019, hearing is final, and there is no “tentative ruling” to respond to. Dr. Reddy’s further asserts that plaintiff provides no basis for the Court to believe that any extension would have any impact on this case.

Plaintiff opposed Dr. Reddy’s motion to dismiss, contending that her motion seeking time to obtain competent counsel familiar with pharmaceutical law was a reasonable request, and emphasizing that federal law requires that she be given special consideration, as a self-represented litigant. She states it is not clear to her that the Court intended to let Dr. Reddy’s out of the case, in light of her intention to file a motion to be allowed to amend the complaint to include additional claims against Dr. Reddy’s. She essentially argues that it was unfair for Dr. Reddy’s to be able to conduct discovery, if they were intending to dismiss the case, and its doing so violated due process. She asserts that she is entitled to her own discovery against Dr. Reddy’s. She argues that Dr. Reddy’s did not meet the requirements of a “demur” since it did not deal with plaintiff’s allegations outside of the negligence and strict liability causes of action. She argues further that Dr. Reddy’s judicial notice of the two Supreme Court cases “clearly open the door for the brand manufacturers involvement,” and denial of discovery against Dr. Reddy’s violated her fundamental rights. She concludes by stating that she is asking the Court to put Dr. Reddy’s on a “time out” so she can continue her discovery “and either motion or correct protocol.” She seeks a denial of the motion to dismiss, to be allowed to move forward with discovery, and for “consideration of the outcome of Plaintiff’s first in line, first in time filings of a Motion requesting an extension of time.”

There is no proof of service attached to the opposition, and in fact it appears that the opposition was not served by plaintiff. Dr. Reddy’s filed a “reply,” in which it stated that while it has noted that an opposition appears in the Court’s electronic register of actions, it has never received any opposition to its motion to dismiss, and is uncertain whether the “opposition” reflected in the register relates to its motion to dismiss, or to the pending discovery motions filed by co-defendants.

Meanwhile, defendants Warner and Jackson in March 2019 served form interrogatories, special interrogatories, a demand for production, and requests for admissions upon plaintiff. When plaintiff failed to respond, defendants filed motions to compel responses to the interrogatories and production demand, and motions for deemed admissions. In all, there are seven such motions pending (four filed by defendant Warner, and three filed by defendant Jackson), each seeking sanctions of $610.

Plaintiff filed an untimely “objection/response” to the motions on November 1, and once again does not appear to have served the document on any party to the action, since there is no proof of service accompanying it. The contents of the document are difficult to discern. Plaintiff discusses making herself available for deposition on September 24, the date of the CMC, and noting in her CMC statement that she would be bringing discovery to the deposition. She states that she brought “her discovery ‘things’” to the deposition for defense counsel Murray to go through and see what she wanted, but Ms. Murray announced that she was in a hurry and had to get back to Los Angeles. She states that Ms. Murray did not pick up the interrogatories, and no one contacted plaintiff “about rescheduling to review things,” or to complain or request anything. Plaintiff asserts that defendants have her medical records, and the personal information she gave in the deposition, and therefore could not be prejudiced. She contends that she has cooperated, and sanctions are inappropriate. She concludes that there is nothing to compel, and no merit to the sanction requests, simply because defendant failed to pick up the interrogatories at the deposition and did not have time to go through the things she had brought.

On November 5, plaintiff filed a declaration in support of the late-filed “objection/ response” to the discovery motions pending against her. She declares that, at the CMC, it was her understanding that discovery and things were to be brought to the deposition on September 24. She states that she did so, and cited that understanding in her CMC statement that was served on the firm. She did not receive any objection, and she believed she was acting in good faith. She contends the defendants’ motions could have been avoided with communication.

Also on November 5, plaintiff filed a document purporting to be a reply related to her motions for an extension of time. However, the body of the document contains only a Notice of Deposition, purporting to schedule the deposition of someone named Marc Kikuchi on January 22, 2020, in Santa Barbara. Once again, there is no proof of service attached to the document, and it does not appear to relate in any way to plaintiff’s motions for an extension of time, notwithstanding the caption on the document stating that it is a “reply” with respect to those motions.

ANALYSIS

As a prefatory matter, the Court strongly urges plaintiff to again attempt to obtain counsel to represent her in this action, as soon as possible. It has become apparent that plaintiff is unfamiliar with basic concepts of civil procedure, and her inability to comply with basic discovery requests and pleading challenges is threatening to compromise her case. While the Court is sympathetic to plaintiff’s attempts to navigate these challenges on her own, it cannot permit the integrity of the case as a whole to be impaired by repeated requests for extended periods of time to comprehend and perform basic litigation tasks.

The Court’s analysis of the ten matters now before it has also been stymied by the fact that many of the documents filed by plaintiff were apparently not served by her upon any party. Few of her documents contain proofs of service, and the reply filed by defendant Dr. Reddy’s makes clear that it never received the opposition she filed to its motion to dismiss. No document should be filed with the court unless it has been served on every party to the action, and the document must be accompanied by a proof of such service. Consideration of such documents would violate the due process rights of the opposing parties who have not been allowed any ability to see or respond to them, and the Court is therefore justified in disregarding them.

1. Plaintiff’s motions for extension of time to respond to Court’s tentative ruling on the demurrer, and defendant Dr. Reddy’s motion for dismissal.

In sustaining Dr. Reddy’s demurrer to plaintiff’s causes of action against it, the Court found that Dr. Reddy’s has no legal liability for its alleged failure to warn plaintiff of the complications, dangers, injuries, and symptoms which could or would arise from use of Cipro. Dr. Reddy’s would have no ability to know to whom the generic drug it manufactured was prescribed, and its ability to provide any warnings at all would be limited to the warnings provided by the drug’s labeling. However, with respect to generic drugs, such as the one which was prescribed to and taken by plaintiff, FDA regulations require generic drug manufacturers to use the same labeling as the approved brand-name drug, and the generic drug manufacturer has no liability based upon that labeling. While plaintiff sought leave to amend to include the brand manufacturer, and to assert fraud or other claims based upon Dr. Reddy’s purported conspiracy with the brand manufacturer, her vague assertions failed to articulate any way in which she could sufficiently allege any such claims, or how her contentions would in any way impact Dr. Reddy’s liability, since any change in labeling of the drug is exclusively a matter between the FDA and the brand-name drug manufacturer. The Court found that plaintiff had not shown that she could allege a valid claim which overcame these serious legal obstacles, and declined to allow her leave to amend.

While the tentative ruling explaining the Court’s reasoning was posted on the court website prior to the hearing, the ruling became final when the Court sustained the demurrer, without leave to amend, at the hearing on the demurrer. There is, therefore, currently no “tentative ruling”—only a final ruling on the demurrer—and there is nothing further for plaintiff to comment upon. Plaintiff’s opportunity to comment on the issues of a generic pharmaceutical manufacturer’s liability for failure to warn was in opposing the demurrer. Had plaintiff needed further time to assess these issues, and obtain the advice of learned counsel on them, she should have sought a continuance of the hearing. If defendant was unwilling to continue the hearing to allow her to do so, she should have sought the continuance directly from the Court. She did not do so, instead opposing the demurrer—at considerable length—on its merits. The Court fully considered her opposition papers in ruling on the demurrer. That decision was final on the date of the hearing. Because there is no pending “tentative ruling,” and because the decision is already final, plaintiffs multiple motions for an extension of time to respond to the tentative ruling must be denied.

Because the Court sustained its demurrer without leave to amend, Dr. Reddy’s has moved, pursuant to Code of Civil Procedure section 581(f)(1), for an order dismissing the complaint against it.

Section 581(f) provides in relevant part, that the court may dismiss the complaint as to a defendant when (1) except where Section 597 applies, after a demurrer to the complaint is sustained without leave to amend and either party moves for dismissal. Section 597 relates to resolution of special defenses not involving the merits of a case which are raised by an answer, and has no application to this case. The demurrer was sustained, without leave to amend. There are no pending causes of action against Dr. Reddy’s, and the Court has essentially determined, in declining to allow leave to amend, that no viable causes of action can be stated against it. Consequently, the Court will grant the motion, and will enter a judgment of dismissal of defendant Dr. Reddy’s.

Plaintiff is not without recourse. She is, of course, free to appeal from the judgment of dismissal of defendant Dr. Reddy’s, which will be entered.

2. Discovery motions.

Defendants served numerous written discovery requests upon plaintiff. There is no evidence before the Court that plaintiff ever served proper, written, verified responses to any of the discovery upon defendants. Indeed, from the rather garbled and perplexing comments made by plaintiff in her opposition to the motions, it appears to the Court that plaintiff has a deep misunderstanding of what the law requires her to do, in order to legally and properly respond to discovery propounded against her in this litigation.

For each set of discovery requests served upon plaintiff, plaintiff must provide a separate set of responses. Plaintiff must respond to each and every question in writing, sign and date the responses, and provide a verification under penalty of perjury under the laws of the State of California that the answers are true and correct. The responses must be served upon the propounding party. This means the complete, written, verified responses must be handed to the propounding party’s attorney (personal service) or mailed to the attorney. It is not sufficient to put them on a table, as plaintiff appears to have done, in a room where the opposing counsel is located, and expect opposing counsel to go through them on the spot. They must be physically presented to opposing counsel (either personally or by mail), and left in counsel’s custody. Certainly, responding to interrogatories includes an option to allow the propounding party to inspect files and records, if answering the interrogatory would necessitate making a compilation or summary of information contained in such records, but that option, when appropriate, must be specifically and timely articulated in formal, verified responses provided to the propounding counsel. (See Code Civ. Proc., §§ 2030.230, 2030.290, subd. (a).)

If plaintiff has any question about the nature of the responses she is required to provide, the Court will direct her to Code of Civil Procedure sections 2030.210, et seq., with respect to proper responses to interrogatories; to Code of Civil Procedure sections 2031.210, et seq., with respect to proper response to a demand for production; and to Code of Civil Procedure section 2033.210, et seq., with respect to proper responses to requests for admissions.

Plaintiff complains that the motions could have been avoided through communication. However, when no responses to the written discovery have ever been served, there is no legal requirement that the propounding party contact or meet and confer with the responding party before the filing of a motion to compel such responses. The same is true with respect to a motion for deemed admissions, filed after no responses to requests for admissions is timely served.

Plaintiff failed to serve any written responses to the discovery propounded on her. Defendants appropriately filed motions to compel her to do so, and to have the admissions deemed admitted. Even after the motions to compel and motions for deemed admissions were filed, plaintiff has apparently made no attempt to serve her written discovery responses upon defendants.

As a result, the Court will grant the motions to compel plaintiff to provide written, verified responses, without objection, to the form interrogatories, special interrogatories, and demand for production of documents which were served upon her. Given that she is in pro per, given her apparent lack of understanding of what is required in order to properly respond to the discovery, and given her statements that she is attempting to obtain an attorney to assist her in this action, the Court will allow her until December 10, 2019, to comply, whether she has obtained an attorney or not. The failure to obtain an attorney by that date will not be used as an excuse to not comply with the order of the Court or to seek any additional time extensions. Forewarned is forearmed.

With respect to the requests for admissions, the law is clear on what the Court may do. If plaintiff provides written, verified responses to the requests for admissions to defendants prior to or at the hearing on the motions for deemed admissions, the motion to deem the matters admitted will be denied. If that does not happen, the motion for deemed admissions will be granted, and the Court will enter an order deeming each and every matter set forth in the requests for admissions to have been admitted by plaintiff. Either way, imposition of sanctions is required.

Given plaintiff’s pro per status and her apparent lack of familiarity with her discovery obligations (in spite of a duty, in representing herself, to make sure she is adequately informed of her obligations), the Court will—this one time—limit the sanction order to $500. (The Court notes that sanctions totaling more than $4,000 were sought by defendants to compensate them for the fees and costs incurred in filing the seven discovery motions.) Plaintiff shall pay to defendants the sum of $500 in sanctions, based upon her failure to comply with her discovery obligations.