Judge: Anne Richardson, Case: BC507691, Date: 2023-10-04 Tentative Ruling

Case Number: BC507691    Hearing Date: October 19, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Pleadings

Plaintiffs Priscilla Lujan and Camilo Gallegos sue Defendants Healthcare Pharmacy (a dba for Tustin Community Pharmacy, Inc.), Allied Medical Group, Inc., Andrew Jarminski, MD, Joseph Gutierrez, PA, Industrial Pharmacy Management, Curt’s Compounding Pharmacy, Doe 1 Kareem Ahmed, Doe 2 Landmark Medical Management, Doe 3 and 31 Michael Rudolph, Doe 4 PharmaFinance, LLC, and Does 5-30, 32-100 pursuant to a February 21, 2014 Second Amended Complaint (SAC) alleging claims of (1) Strict Products Liability: Manufacturing Defect, (2) Strict Products Liability: Design Defect, (3) Strict Products Liability: Failure to Warn, (4) Products Liability: Negligence, (5) Products Liability: Negligent Failure to Warn, (6) Products Liability: Express Warranty, (7) Products Liability: Implied Warranty of Merchantability, (8) Products Liability: Implied Warranty of Fitness for a Particular Purpose, and (9) Medical Negligence.

The claims arise from allegations that Defendants designed, manufactured, compounded, assembled, tested, engineered, marketed, inspected, distributed, supplied, and/or sold a certain lotion, cream, topical ointment, or transdermal (Subject Product) that was specifically designed for the use of Plaintiff Priscilla Lujan, which was purchased by and/or supplied to Lujan on or about February 2, 2012. Plaintiffs allege that the Subject Product was defective at the time of its sale and was otherwise not of merchantable quality and unsafe for its intended purposes and uses and that such defective product caused the death of Plaintiffs’ son, Andrew Gallegos, who died after coming into contact with the ointment. Plaintiffs seek general and special damages, medical expenses, loss of earning and earning capacity, costs of suit, and other relief as the court deems just and proper.

In turn, Defendant Curt’s Compounding Pharmacy sues Defendants Healthcare Pharmacy, Allied Medical Group, Inc., Andrew Jarminski, MD, Joseph Gutierrez, PA, Industrial Pharmacy Management, and Roes 1-25 pursuant to a July 22, 2013 Cross-Complaint alleging claims of (1) Total Equitable Indemnity, (2) Comparative Indemnity, (3) Equitable Apportionment of Fault, (4) Contribution, and (5) Declaratory Relief.

Motion Before Court

On August 15, 2023, Defendant Rudolph demurred to the SAC’s nine causes of action on various grounds.

On October 4, 2023, Plaintiffs opposed Defendant Rudolph’s demurrer.

On October 12, 2023, Defendant Rudolph replied to the opposition.

Defendant Rudolph’s demurrer is now before the Court.

Request for Judicial Notice

The Court takes judicial notice of the State of California filings by Defendant Rudolph. (See Demurer, RJN; see Evid. Code, § 452, subds. (c), (g), (h).)

Demurrer

Demurrer Sufficiency Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; see Code Civ. Proc., § 430.10, subd. (e).) This device can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a [general] demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) In testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.) A demurrer, however, “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) 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, disapproved on other grounds, Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162.) The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence. (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447, superseded by statute on other grounds as stated in White v. Cridlebaugh (2009) 178 Cal.App.4th 506, 521.)

Uncertainty Legal Standard 

A demurrer to a pleading lies where the pleading is uncertain, ambiguous, or unintelligible. (Code Civ. Proc. § 430.10, subd. (f).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616, disapproved on other grounds in Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 46 [holding claims for unfair business practices need not be pled specifically, impliedly disapproving Khoury].) As a result, a special demurrer for uncertainty is not intended to reach failure to incorporate sufficient facts in the pleading but is directed only at uncertainty existing in the allegations already made. (People v. Taliaferro (1957) 149 Cal.App.2d 822, 825, disapproved on other grounds in Jefferson v. J.E. French Co. (1960) 54 Cal.2d 717, 719-720 [statute of limitations question].) Where complaint is sufficient to state a cause of action and to apprise defendant of issues he is to meet, it is not properly subject to a special demurrer for uncertainty. (See ibid.; see also Gressley v. Williams (1961) 193 Cal.App.2d 636, 643 [“A special demurrer [for uncertainty] should be overruled where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet”].)

I.

SAC, All Causes of Action, Principal Liability for Acts of Corporate Entities: OVERRULED.

Defendant Rudolph argues the SAC’s claims should fail against him because he is being held liable for the conduct of Defendant Healthcare Pharmacy. Defendant Rudolph explains that liability can only attach to him based on wrongs committed by Healthcare Pharmacy if he personally participated in those wrongs. (Demurrer, pp. 7-8.)

In opposition, Plaintiffs argue that the SAC alleges that he participated in the harm at issue. (Opp’n, p. 7.)

In reply, Defendant Rudolph argues that nothing in the SAC supports an inference or conclusion that he participated in the wrongful acts alleged in the SAC because, among other things, the SAC is unclear as to what conduct he engaged in. (Reply, pp. 5-6.)

The Court finds in favor of Plaintiffs.

Defendant Rudolph is Doe 3 and 31, which is included as a direct participant in the wrongs described in the SAC. (See SAC, ¶¶ 19, 22, 25, 31, 39-40, 44, 51, 59, 65, 78-79.)

Defendant Rudolph’s demurrer on this ground is thus OVERRULED.

II.

SAC, Ninth Cause of Action, Doe Amendment: OVERRULED.

California courts have held that a newly identified “Doe” defendant will relate back to the filing of the original complaint if the following conditions are met: (1) the same set of general facts; (2) the same incident; (3) the original complaint stated a valid cause of action against the newly identified “Doe”; and (4) plaintiff was “genuinely ignorant” of the defendant’s identity or facts rendering the defendant liable when the original complaint was filed. (Barrington v. A.H. Robins Co. (1985) 39 Cal.3d 146, 150; Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 Cal.2d 595, 600-601.)

Defendant Rudolph argues that Plaintiffs cannot allege a medical negligence claim against him because the claim ran its statute of limitations by April, 25, 2014, i.e., before Rudolph was named as a Doe Defendant on July 8, 2014. Defendant Rudolph argues that Plaintiff Lujan must have been aware of her claims against Defendant Rudolph as of January 25, 2013 because on that date, Plaintiff Lujan noticed her intent to file a legal action against Defendant Healthcare Pharmacy by addressing that notice to the care of Michael Rudolph. The January 25, 2013 notice also stated “that Ms. Lujan sustained injuries due to the negligence of ‘your staff, your facility… as well as the dispensing of prescription medication.’” As a result, argues Defendant Rudolph, Plaintiff Lujan must have been aware of Rudolph’s identity and liability against him as of January 25, 2013. Defendant Rudolph also argues that the July 8, 2014 Doe amendment naming Rudolph as Doe 3 and 31 should not relate back to the date of the original Complaint in this action because Plaintiff Lujan was not “genuinely ignorant” of Rudolph’s identity when the Doe amendment was made. Rudolph cites the January 25, 2013 notice in support. (Demurrer, pp. 6-7 & 7, fn. 1; see also Demurrer, Chen Decl., Ex. C.)

In opposition, Plaintiffs argue that it was not until the commencement of written discovery after the filing of the initial complaint that the true identity and facts establishing liability against Defendant Rudolph were discovered by Plaintiffs. (Opp’n, pp. 6-7.)

In reply, Defendant Rudolph argues that this demurrer argument was meant to be directed equally against both Plaintiffs and that Plaintiffs were not genuinely ignorant of Defendant Rudolph’s identity or liability against him when this action was filed. (Reply, pp. 4-5.)

The Court finds in favor of Plaintiffs.

Here, Defendant Rudolph is sued based on his own conduct as Doe 3 and 31. (See, e.g., SAC, ¶¶ 19, 22, 25, 31, 39-40, 44, 51, 59, 65, 78-79.) Thus, the fact that he was the principal of Healthcare Pharmacy and the fact that the January 25, 2013 letter was addressed to his care does not show that by January 25, 2013, Plaintiffs were aware that he was one of the defendants “selling, manufacturing, compounding, designing, testing, engineering, marketing, modifying, assembling, inspecting, distributing, supplying, and/or controlling the Subject Product and other similar products.” (SAC, ¶ 78.) Though the SAC could be clearer as to what specific conduct Defendant Rudolph took in the alleged chain of events on which the SAC is based, at the demurrer stage, the SAC is sufficiently pleaded, and further information regarding liability can be obtained through discovery.

Moreover, the January 25, 2013 letter is beyond the face of the SAC (as well as the Complaint and FAC), and no request for judicial notice related to it was requested by Defendant Rudolph, making this argument improper absent countervailing authority. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318; see SAC; see also Demurrer, RJN & Chen Decl., Ex. C.)

Defendant Rudolph’s demurrer on this ground is thus OVERRULED.

III.

SAC, Ninth Cause of Action, Medical Negligence, Code Civ. Proc., § 364: OVERRULED.

Defendant Rudolph’s demurrer argues that Plaintiff Gallegos failed to serve a notice of intent to sue Defendant Rudolph pursuant to Code of Civil Procedure section 364, which required that the notice is served 90 days prior to the commencement of the action. Defendant Rudolph also argues that the January 25, 2013 section 364 notice that was served prior to this action only stated that “Ms. Priscilla Lujan intends to and will commence legal action against Healthcare Pharmacy,” thus failing to give Defendant proper notice through that document. (Demurrer, p. 7.)

In opposition, Plaintiffs argue that the January 25, 2013 correspondence satisfied the section 364 notice requirement because the notice did not need to follow a specific form of notice and because the correspondence also adequately notified Defendants of Plaintiffs’ legal bases for their claim, the type of loss sustained, and the nature of the injuries suffered (the death of Plaintiffs’ son). (Opp’n, p. 7.)

In reply, Defendant Rudolph cites Hanooka v. Pivko (1994) 22 Cal.App.4th 1553 in response to the opposition arguments.

The Court finds in favor of Plaintiffs.

As noted above, the January 25, 2013 letter is beyond the face of the SAC (as well as the Complaint and FAC), and no request for judicial notice related to it was requested by Defendant Rudolph, making this argument improper absent countervailing authority. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318; see SAC; see also Demurrer, RJN & Chen Decl., Ex. C.) On a demurrer, the Court is bound by the pleadings, and it is noteworthy that the Hanooka case cited by Defendant was decided on a motion for summary judgment.

Even if the Court were to consider this argument on the merits, Rudolph’s argument is without merit. Code of Civil Procedure section 364 subdivision (e) provides that this section “shall not be applicable with respect to any defendant whose name is unknown to the plaintiff at the time of filing the complaint and who is identified therein by a fictitious name.” (See also Hazel v. Hewlett (1988) 201 Cal.App.3d 1458, 1464 have held that “the 90-day notice [in section 364] need not be given to Doe defendants before amending the complaint to name them.”) As noted above, Plaintiffs argue that it was not until the commencement of written discovery after the filing of the initial complaint that the true identity and facts establishing liability against Defendant Rudolph were discovered by Plaintiffs. (Opp’n, pp. 6-7.)

Defendant Rudolph’s demurrer on this ground is thus OVERRULED.

IV.

SAC, First through Third Causes of Action [Strict Products Liability: (1) Manufacturing Defect; (2) Design Defect; (3) Failure to Warn]: OVERRULED, as to the first and second causes of action; SUSTAINED, with leave to amend, as to the third cause of action.

A. No Strict Liability for Service Providers

After review, the Court finds that the demurrer cannot be sustained based on the argument that Defendant Rudolph’s liability arises from the conduct of a service provider, which cannot be held liable for strict products liability. (See Demurrer, pp. 8-11.)

This is because—as explained in the Court October 16, 2023 ruling—even if the Court takes judicial notice of the State of California filings made by Defendant Rudolph, the only legal effect that can be drawn from those documents is that Healthcare Pharmacy (rather than Rudolph) was licensed to operate as a pharmacy in California. (See Julian Volunteer Fire Co. Assn. v. Julian-Cuyamaca Fire Protection Dist. (2021) 62 Cal.App.5th 583, 600 [judicial notice may be taken as to existence of document and legal effects deriving therefrom].) Such legal effect does not undercut the FAC’s allegations that Does 3 and 31 (Defendant Rudolph) participated in conduct that went beyond the mere providing of services. (See, e.g., SAC, ¶¶ 19, 22, 25, 31, 39-40, 44, 51, 59, 65, 78-79.)

Defendant Rudolph’s demurrer thus cannot be sustained on this ground.

B. No Manufacturing Defect

After review, the Court finds that the demurrer cannot be sustained based on the argument that the SAC does not allege a manufacturing defect. (See Demurrer, pp. 11-12.)

As determined by the Court on October 16, 2023, the SAC sufficiently alleges that the product differed from the collective manufacturers’—i.e., all Defendants’—intended result. The Court recognizes that the SAC could be clearer as to what the exact purpose of the ointment prescribed to Plaintiff Lujan was. (See, e.g., SAC, ¶¶ 8-13.) Yet, at the very least, the ointment appears to have been created to address a workplace injury. (SAC, ¶ 8.) Such intended purpose cannot have been achieved by creating a product that resulted in the death of a child who came into contact with the ointment. (SAC, ¶¶ 12-13, 23.)

Defendant Rudolph’s demurrer thus cannot be sustained on this ground.

C. Intermediary Doctrine

After review, the Court SUSTAINS the demurrer based on the argument that even if Defendant Rudolph is held to be a manufacturer or other entity liable under a strict liability theory, the intermediary doctrine protects Defendant Rudolph from strict products liability for failure to warn. (See Demurrer, p. 12.)

Known as the intermediary doctrine, “[i]t is the general rule that the duty of adequate warning by the manufacturer of an ethical drug is discharged by its warning of hazards to doctors who may in the exercise of their medical judgments decide to use the drug as a part of their” treatment. (Carmichael v. Reitz (1971) 17 Cal.App.3d 958, 989.)

Here, the SAC appears to allege that Defendant Jarminski was the doctor that instructed Plaintiff Lujan on the use of the Subject Product. (SAC, ¶¶ 11-12.) To the extent that the SAC alleges that Defendant Rudolph warned Defendant Jarminski of the dangers attending the Subject Product, the intermediary doctrine is applicable.

Moreover, though the SAC is unclear as to whether Defendant Rudolph ever warned Defendant Jarminski of the dangers of the Subject Product, this omission does not undercut the Court’s conclusion in favor of Defendant Rudolph. Defendant Jarminski is alleged to have been one of the creators of the Subject Product and the prescribing physician of the Subject Product. (SAC, ¶¶ 10-12.) Defendant Jarminski is also alleged to have been aware of the dangers of the Subject Product to others and is alleged to have failed to warn Plaintiff Lujan as to those dangers. (SAC, ¶¶ 10-11.) It is thus unclear to the Court whether one defendant manufacturer (here, Defendant Rudolph) has a duty to inform another manufacturer (here, Defendant Jarminski) of dangers of a product where the second manufacturer (Defendant Jarminski) is alleged by the pleadings to have been the attending physician and aware of the dangers of the product and yet failed to warn the plaintiff.

Defendant Rudolph’s demurrer is thus SUSTAINED as to the SAC’s third cause of action, only as pleaded against Defendant Rudolph himself, with leave to amend.

V.

SAC, Fourth and Fifth Causes of Action [Products Liability: (4) Negligence; (5) Negligent Failure to Warn]: OVERRULED.

After review, the Court finds that the demurrer cannot be sustained based on the argument that the SAC does not allege the elements of negligence and that the SAC pleads that Plaintiffs’ conduct in exposing Andrew Gallegos (Plaintiffs’ child) to the Subject Product was an intervening cause resulting in Andrew’s death. (See Demurrer, pp. 12-13.)

As explained by the Court on October 16, 2023, this jurisdiction functions on notice pleading, which permits a greater scope than federal pleading. (See Marina Pacific Hotel and Suites, LLC v. Fieman’s Fund Insurance Co. (2022) 81 Cal.App.5th 96, 109-110, disagreement recognized on other grounds in Endeavor Operating Company, LLC v. HDI Global Insurance Company (Sep. 21, 2023) __ Cal.Rptr.3d __ [2023 WL 6155983 *1, *11-12].) California pleadings need only provide “[a] statement of the facts constituting the cause of action, in ordinary and concise language.” (Code Civ. Proc., § 425.10, subd. (a)(1).) To sufficiently allege a cause of action, a complaint must allege all the ultimate facts—that is, the facts needed to establish each element of the cause of action pleaded. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212, superseded by statute as stated in Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.) Each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged. (C.A. v. William S. Hart Union High School Dist., supra, 53 Cal.4th at p. 872.)

Here, the SAC sufficiently states that some kind of duty arises from Defendants having “designed, manufactured, compounded, assembled, tested, engineered, marketed, inspected, distributed, supplied, and/or sold a certain lotion, cream, topical ointment or transdermal” Subject Product “that was purchased by and/or supplied to Plaintiff Lujan.” (SAC, ¶ 16.) The SAC alleges that exposure of the Subject Product harmed Plaintiffs by causing the death of their child, Andrew Gallegos. (SAC, ¶¶ 11-13, 42, 46-49.) The SAC also alleges a failure to warn Plaintiff Lujan of the dangers of the Subject Product to others. (SAC, ¶¶ 36, 47.) Such allegations can support negligence based on, for example, a duty to Plaintiff Lujan based on Defendants creating and issuing a prescription of the Subject Product to Plaintiff Lujan, without warning that the product could injure children or others generally, which caused Andrew’s death when he was exposed to the Subject Product.

Regarding intervening cause, a failure to warn of foreseeable dangers posed by a certain product may undercut a finding that the plaintiff’s volitional use of that product is an intervening cause in the plaintiff’s chain of causation. (Cf. Powell v. Standard Brands Paint Co. (1985) 166 Cal.App.3d 357, 366-367 [summary adjudication properly granted as to claim for failure to warn where manufacturer could not foreseeably anticipate that the product of a different entity would explode, such that the explosion was a superseding, intervening cause in the chain of causation].) As applied to this case, a failure to warn may support liability for negligence against Defendant Rudolph because Plaintiffs’ unknowing exposure of the Subject Product to Andrew Gallegos cannot have been a superseding, intervening cause where the dangers of exposure were not known to Plaintiff Lujan, as alleged in the SAC.

Defendant Rudolph’s demurrer on this ground is thus OVERRULED.

VI.

SAC, Sixth Cause of Action [Products Liability: Express Warranty]: OVERRULED.

After review, the Court finds that the demurrer cannot be sustained based on the argument that the SAC does not sufficiently allege who made an express warranty to Plaintiffs or how that warranty was made. (See Demurrer, p. 13.)

As explained by the Court on October 16, 2023, the SAC pleads Defendants as agents of one another. (SAC, ¶ 6.) Liability extends between them based on the actions of the others. Though the SAC could be clearer as to who made representations to Plaintiffs generally or to Plaintiff Lujan specifically, discovery is the proper method of discovering those facts. For demurrer purposes, the Court is satisfied with the SAC’s allegations relating to express warranties tied to the Subject Product and the breach of those warranties when Andrew Gallegos died as a result of exposure to the product. (SAC, ¶¶ 6-13, 50-56.)

Defendant Rudolph’s demurrer on this ground is thus OVERRULED.

VII.

SAC, Seventh Cause of Action [Products Liability: Implied Warranty of Merchantability]: OVERRULED.

After review, the Court finds that the demurrer cannot be sustained based on the argument that the SAC does not allege the elements for this claim, that Plaintiffs fail to allege that Defendants Healthcare Pharmacy or Rudolph were in the business of selling the Subject Product, that Healthcare Pharmacy or Rudolph merely provided services, and that Rudolph cannot be liable for the pharmacy’s conduct unless he himself participated in the wrongful conduct. (See Demurrer, p. 14.)

As explained by the Court on October 16, 2023, the implied warranty of merchantability means that the consumer goods pass without objection in the trade under the contract description, are fit for the ordinary purposes for which such goods are used, are adequately contained, packaged, and labeled, and conform to the promises or affirmations of fact made on the container or label. (Cf. Civ. Code, § 1791.1, subds. (a)(1)-(4); Com. Code, § 2314, subds. (2)(a), (2)(c), (2)(e), (2)(f).) The Court adopts its discussion in Sections IV to VI above to find that, at the very least, the Subject Product was not appropriately labeled to warn Plaintiffs of the dangers of the Subject Product to third parties or to children specifically. (See also SAC, ¶ 10 [Defendants created the label warnings for the Subject Product].)

The SAC does not allege that Defendant Rudolph never sold the Subject Product to Plaintiff or that some other specific Defendant sold the Subject Product instead. The SAC alleges that Defendants generally “designed, manufactured, compounded, assembled, tested, engineered, marketed, inspected, distributed, supplied, and/or sold a certain lotion, cream, topical ointment or transdermal” Subject Product “that was purchased by and/or supplied to Plaintiff Lujan.” (SAC, ¶ 16.) The SAC also alleges that Defendants acted as one another’s agents for the purposes of the conduct alleged in the SAC. (SAC, ¶ 6.) The SAC otherwise implies a sale of the Subject Product by all Defendants. (See SAC, ¶ 59.) Under these circumstances, the argument that Plaintiffs admit that Defendant Healthcare Pharmacy or Defendant Rudolph never sold the Subject Product or were not in the business of selling that product is without merit.

The Court last notes that it has discussed and found the third of Defendant Rudolph’s arguments—provider of services and principal liability for acts of the corporation—unavailing. (See Section I and IV.A. discussions supra.)

Defendant Rudolph’s demurrer on this ground is thus OVERRULED.

VIII.

SAC, Eighth Cause of Action [Products Liability: Implied Warranty of Fitness for a Particular Purpose]: OVERRULED.

After review, the Court finds that the demurrer cannot be sustained based on the argument that the SAC fails to allege the elements for this claim (including lack of sale by Defendants Healthcare Pharmacy or Rudolph).

As explained by the Court on October 16, 2023, “the implied warranty of fitness for a particular purpose is a warranty implied by law when a seller has reason to know that a buyer wishes goods for a particular purpose and is relying on the seller’s skill and judgment to furnish those goods. The warranty is breached if the goods are not reasonably fit for the intended purpose and result in injury. A claim for breach of the implied warranty of fitness is based on the nature and impacts of the product, not on injuries attributable to the marketing efforts by the seller.” (Martinez v. Metabolife International, Inc. (2003) 113 Cal.App.4th 181, 189, citations omitted.)

Here, the SAC is not clear as to the purpose of the Subject Product other than to treat Plaintiff Lujan, presumably for a workplace injury. (SAC, ¶¶ 8-13.) Nevertheless, the fact that contact with the Subject Product resulted in the death of a child is clearly sufficient to show that it resulted in an injury. Moreover, the allegations that the ointment that was used by Plaintiff Lujan resulted in the death of her son are sufficient to show that, at the demurrer phase, the Subject Product was not reasonably fit for its intended purpose.

The Court also finds no merit to the argument that Defendants Healthcare Pharmacy and Rudolph are not alleged to have sold the Subject Product. (See Section VII discussion supra.)

Defendant Rudolph’s demurrer on this ground is thus OVERRULED. 

Conclusion

Defendant Doe 3 and 31 Michael Rudolph’s Demurrer to Plaintiffs Priscilla Lujan and Camilo Gallegos’ Second Amended Complaint is SUSTAINED, in Part, and OVERRULED, in Part, as follows:

(1) SUSTAINED, with leave to amend, as to the Second Amended Complaint’s third cause of action, only as pleaded against Defendant Rudolph; and

(2) OVERRULED as to the Second Amended Complaint’s first to second and fourth to ninth causes of action, only as pleaded against Defendant Rudolph.

            Plaintiffs are directed to file any Third Amended Complaint taking into account the ruling on this demurrer, as well as the demurrer heard on October 16, 2023, by November 1, 2023.