Judge: Christopher K. Lui, Case: 24STCV08845, Date: 2024-06-26 Tentative Ruling

Case Number: 24STCV08845    Hearing Date: June 26, 2024    Dept: 76

            Plaintiff alleges that Defendants accused Plaintiff of being a drug addict and would not fill his opioid pain medication prescription.

Defendants Costco Wholesale Corporation and John Louis demur to the Complaint and moves to strike portions thereof.

TENTATIVE RULING

Defendants Costco Wholesale Corporation and John Louis demurrer to the Complaint is SUSTAINED with leave to amend as to the first, second, fifth seventh and eighth causes of action and OVERRULED as to the third, fourth and sixth causes of action.

            Defendants’ motion to strike is GRANTED without  leave to amend as to: prayer for judgment for an award of attorneys’ fees as to causes of action 1 -5. (Complaint p. 20 in prayer for judgment); ¶¶ 55 and 63 (attorney fees); Complaint, p. 13 (Penal Code); ¶¶ 52, 58 and 60 (Penal Code);

The motion to strike is GRANTED with leave to amend as to the prayer for judgment for punitive and exemplary damages as to all causes of action. (Complaint p. 20 in prayer for judgment); ¶ 32 (punitive damages); ¶ 78 (exemplary and punitive damages); ¶ 92 (punitive damages); ¶ 78 (injunctive relief).

            The motion to strike is DENIED as to ¶¶ 9, 10, 11, 23, 28 and 32.

            The motion to strike is MOOT as to ¶¶ 47, 67, 82, 83.

            Plaintiff is given 30 days’ leave to amend where indicated.

ANALYSIS

Demurrer

Meet and Confer

            The Declaration of Sweta H. Patel indicates that Plaintiff’s counsel did not respond to meet and confer efforts. This satisfies Civ. Proc. Code, § 430.41(a)(3)(B).

Discussion

Defendants Costco Wholesale Corporation and John Louis demur to the Complaint as follows:

1.         First Cause of Action (Defamation).

            Defendants argue that Plaintiff fails to identify the exact statements upon which he basis his defamation cause of action and who heard and understood the defamatory statements.

“The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. [Citation.] Civil Code section 45 provides, ‘Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.’” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369 [117 Cal. Rptr. 3d 747].)

“ ‘The sine qua non of recovery for defamation … is the existence of falsehood.’ [Citation.] Because the statement must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion for purposes of defamation liability. Although statements of fact may be actionable as libel, statements of opinion are constitutionally protected.” (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 112 [64 Cal. Rptr. 3d 467] (McGarry).)

“That does not mean that statements of opinion enjoy blanket protection. [Citation.] On the contrary, where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation. [Citation.] The critical question is not whether a statement is fact or opinion, but ‘ “whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.” ’ ” (Wong v. Jing, supra, 189 Cal.App.4th at p. 1370.)

“To determine whether a statement is actionable fact or nonactionable opinion, courts use a totality of the circumstances test of whether the statement in question communicates or implies a provably false statement of fact. [Citation.] Under the totality of the circumstances test, ‘[f]irst, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense. … [¶] Next, the context in which the statement was made must be considered.’” (McGarry, supra, 154 Cal.App.4th at p. 113.)

“The ‘crucial question of whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court. [Citation.]’ [Citation.] ‘Only once the court has determined that a statement is  [*863]  reasonably susceptible to such a defamatory interpretation does it become a question for the trier of fact whether or not it was so understood. [Citations.]’ [Citation.]  The question is ‘ “whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact. …” ’ ” (Summit Bank v. Rogers   (2012) 206 Cal.App.4th 669, 696 [142 Cal. Rptr. 3d 40] (Summit Bank).)

(Sanders v. Walsh (2013) 219 Cal.App.4th 855, 862-63.)

“The allocation of functions between court and jury with respect to factual content is analogous to the allocation with respect to defamatory meaning in general. On the latter issue, the court must first determine as a question of law whether the statement is reasonably susceptible of a defamatory interpretation; if the statement satisfies this requirement, it is for the jury to determine whether a defamatory meaning was in fact conveyed to the listener or reader. [Citations.] Similarly, it is a question of law for the court whether a challenged statement is reasonably susceptible of an interpretation which implies a provably false assertion of actual fact. If that question is answered in the affirmative, the jury may be called upon to determine whether such an interpretation was in  fact conveyed.” (Kahn v. Bower, supra, 232 Cal.App.3d at p. 1608.)

(Bently Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 428.)

            Here, Plaintiff alleges:

16. . . . So Jon proceeds to tell me in front of other people that I have a “big problem” because I filled my medication on 3/22/23 and was not due to fill my medication, that I had to wait until 4/22/23. I  told him that’s incorrect because I got my medication filled on 3/9/23 so there is no way that is possible. He then he started to yell at me. I was shocked and scared. He asked if I was calling him “a liar” and I told him no that’s not what I am saying I am just saying that we are not on the same page here so then he points at the sheets of paper yelling this is from the Department of Justice, they are not lying, so don’t call me a liar. I asked to see the paper, he showed it to me and I told him it clearly says filled on 3/9/23 and sold on 3/22/23 which is when my previous pharmacy billed my insurance but it was filled and picked up on 3/9/23. He had all my information where other people could see it and was yelling, he was all worked up and telling me that I was wrong and he was right but I told him it’s not right. So he went back into the pharmacy and talked to the pharmacist then he comes back and tells me “we called and confirmed that you filled and picked up your medicine on the 22nd”. . .

. . .

34. Defendants recklessly and intentionally caused unsolicited publication of false defamatory statements of and concerning Plaintiff, to third persons. Defendants’ false and defamatory statements included express and implied accusations that Plaintiff was abusing drugs, and had engaged in criminal misconduct.

            Here, Plaintiff has not alleged any defamatory statements which were published to third persons. The statements attributed to Jon are not reasonably susceptible to a defamatory meaning. Rather, those statements are to the effect that Plaintiff came to fill a prescription too early and that he wanted his medication just like everyone wants their medication. Jon’s use of the word “drugs” does not connote illegal drug use, because Jon liked Plaintiff to everyone else who wanted their “drugs,” which did not single Plaintiff out, and cannot be construed as accusing everyone else of illegal drug use or criminal misconduct.

            The demurrer to the first cause of action is SUSTAINED with leave to amend.

2.         Second Cause of Action (Negligence).

            Defendants argue that Plaintiff has not pled a duty owed which was breached, and the allegation that Defendants owed Plaintiff a duty of care not to treat him unreasonably is circular.

            The Complaint alleges:

43. Defendants owed Plaintiff a duty of care not to treat him unreasonably, violate his right to privacy, and to cause him injury and emotional distress.

44. When Defendants, and each of them, acted as herein alleged, it was foreseeable that their actions would cause serious damage and injuries inflicted upon Plaintiff. As a result of this foreseeability, and because they owed a duty to Plaintiff to act with reasonable care towards Plaintiff, Defendants breached said duty by defaming Plaintiff, threatening Plaintiff, assaulting Plaintiff, battering Plaintiff, and depriving him of his civil rights.

            The Court discerns that the only injury Plaintiff claims is emotional distress. However, Plaintiff does not allege threatened physical injury to himself. (See further discussion on this below.) While Defendants as pharmacists owed Plaintiff a duty to dispense the correct medication as prescribed, Defendants did not owe a duty to avoid hurting Plaintiff’s feelings.

[B]ecause the [*156]  only injury Wilson claimed in her lawsuit was emotional distress, she was required to show that Edison's breach threatened physical injury to her. (See Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984–985 [25 Cal. Rptr. 2d 550, 863 P.2d 795] (Potter) [“[T]here is no independent tort of negligent infliction of emotional distress. [Citation.] The tort is negligence, a cause of action in which a duty to the plaintiff is an essential element. [Citations.] That duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.”].)  “[U]nless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant's breach of some other legal duty and the emotional distress is proximately caused by that breach of duty. Even then, with rare exceptions, a breach of the duty must threaten physical injury, not simply damage to property or financial interests.” (Potter, supra, 6 Cal.4th at p. 985.) Thus, at the very least, there could not have been a breach of duty during the period when no shocks were felt on the property.

(Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 155-156.)

            The demurrer to the second cause of action is SUSTAINED with leave to amend.

3.         Third Cause of Action (Assault) and Fourth Cause of Action (Battery).

            Defendants argue that Plaintiff does not allege conduct which amounts to assault and battery.

A battery is an intentional and offensive touching of a person who has not consented to the touching. (Citations omitted.) Although typically a battery is a violation of a person's wishes to avoid bodily contact that is hostile, aggressive or harmful, the tort is committed if there is unwanted intentional touching of any kind. (1 Dobbs, The Law of Torts, supra, § 29, pp. 54-55.) For example, a person is entitled to refuse well-intentioned medical treatment. (Id., at p. 54 & fn. 2.) Thus, lack of consent is an essential element of battery. (Rains, at p. 938.) Generally, one who consents to a touching cannot recover in an action for battery. (Ashcraft v. King (1991) 228 Cal.App.3d 604 [278 Cal.Rptr. 900].)

(Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1266 [bold emphasis added].)

Historically, assault has been defined as an attempted battery. (Citations omitted.) The harm addressed is a battery. Williams rejects the view that assault requires an intent to commit a battery. It holds that “assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” Williams, supra, 26 Cal. 4th at p. 790. The test is objective. The actor “need not be subjectively aware of the risk that a battery might occur.” (Id. at p. 788, fn. omitted.) This defines the mental state as a species of negligent conduct, a negligent assault.

(People v. Wright (2002) 100 Cal. App. 4th 703, 706 [bold emphasis added].)

      Here, Plaintiff alleges at ¶ 16 in pertinent part as follows:

16.  . . . So Jon proceeds to tell me in front of other people that I have a “big problem” because I filled my medication on 3/22/23 and was not due to fill my medication, that I had to wait until 4/22/23. I told him that’s incorrect because I got my medication filled on 3/9/23 so there is no way that is possible. He then he started to yell at me. I was shocked and scared. He asked if I was calling him “a liar” and I told him no that’s not what wrong because it’s valid until 9/15/23 then he tells me “oh you just don’t give up do you” so I told him I am just simply trying to get my prescription filled that’s all, then that’s when he started to loudly yell in front of everyone in the pharmacy area, “I get it you just want your drugs just like everyone else wants their drugs” when he said that there were people around that were staring at me. I was humiliated and I started to cry because I couldn’t believe this was happening to me so he reaches over and comes at me, when he saw I was scared, he tried to make it look like he was trying to shake my hand, he then grabbed my hand, I was humiliated and scared he was going to hurt me, and that’s when I just decided to leave.”

     (Bold emphasis and underlining added.)

            The foregoing allegations are sufficient to plead assault and battery for purposes of demurrer.

            The demurrer to the third and fourth causes of action is OVERRULED.

4.         Fifth Cause of Action (Intentional Infliction of Emotional Distress).

            Defendant argues that Plaintiff ha snot pled conduct so extreme as to exceed all bounds of that usually tolerated in a civilized community.

“The elements of the tort of intentional infliction of emotional distress are: ‘ “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. …” Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.]” (Citation omitted.) “It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” (Ibid.)

(Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 874-75.)

Ordinarily mere insulting language, without more, does not constitute outrageous conduct. The Restatement view is that liability "does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities . . . . There is no occasion for the law to intervene . . . where some one's feelings are hurt." (Rest.2d Torts, § 46, com. d.) Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress. (Citations omitted.)

(Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 155 [bold emphasis added].)

            Here, Jon’s alleged yelling at Plaintiff and then grabbing his hand are insufficient to constitute extreme and outrageous conduct as a matter of law. Causing Plaintiff humiliation by yelling at him in the pharmacy amounts to indignity and hurt feelings which are insufficient for this tort.

            The demurrer to the fifth cause of action is SUSTAINED with leave to amend.

5.         Sixth Cause of Action (Violation of Civil Rights).

            Defendants argue that an Unruh claim cannot be brought against an individual, but only a business establishment. Defendants also argue that Plaintiff has not alleged that he was denied something provided to similarly situated customers and, in fact, Plaintiff alleges that he received his medication. Defendants argue that Plaintiff is actually alleging that he was treated differently because of the dosage of his opioid prescription which is not a protected category under Unruh.

            Defendants do not cite case law holding that an Unruh Act claim may not be asserted against an individual.

            Indeed, Civil Code, § 52 provides that “[w]hoever denies, aids or incites a denial or makes any discrimination or distinction contrary to Section 51 . . . is liable for each and every offense.” This includes an individual.

            Moreover, Plaintiff claims disability discrimination and, because he is in a wheelchair (Compliant, ¶ 12), that disability is visible. It is a question of fact as to whether he was discrimination based on this visible disability. 

            As for differential treatment, Plaintiff alleges:

21. Defendant COSTCO, JON and DOES1-100 discriminated against Plaintiff on the basis of disability. Defendant COSTCO’s Opioid Dispensing Policy discriminates on the basis of disability. The policy not only treats patients with non-opioid prescriptions differently from other patients, but also imposes arbitrary dosage thresholds of 50-90 MME (Morphine Milligram Equivalent), and duration thresholds of 3-7 days, or some similar threshold, on some or all opioid prescriptions, such hat patients with opioid prescriptions exceeding those thresholds are treated differently from patients with opioid prescriptions not exceeding those thresholds and from patients with non-opioid prescriptions.

Moreover, Defendants’ demurrer does not address the alleged violation of the Bane Civil Rights Act, Civil Code, § 51.7. (Complaint, ¶ 71.) A demurrer does not lie to only part of a cause of action or a particular type of damage or remedy. (See Kong v. City of Hawaiian Gardens Redevelopment Agency (2003) 108 Cal.App.4^th 1028, 1046; PH II, Inc. v. Superior Court (Ibershof) (1995) 33 Cal.App.4^th 1680, 1682.)  The proper procedure is to bring a motion to strike the substantively defective allegation.  (Id. at 1682-83.)

The demurrer to the sixth cause of action is OVERRULED.

6.         Seventh Cause of Action (Unfair Business Practices).

Defendants argue that this cause of action cannot be brought against an individual, as it prohibits unlawful business practices. Defendants do not cite any case law for this proposition. While Defendants could have demurred on the ground of standing as against Defendant John Louis, they did not raise this argument, so the Court does not address it.

Defendants argue that this cause of action is not plead with the specificity required for pleading a statutory claim.

The Complaint alleges at ¶ 80 as follows:

80. Defendants, and each of them, individually and in concert, committed the foregoing acts with the intent of causing Plaintiff harm. Plaintiff is informed and believed Defendant has a business pattern and practice of falsely targeting disabled individuals who fill opioid prescriptions as drug abusers.

As discussed above, Plaintiff has not pled that Defendants targeted him as a drug abuser. Plaintiff must specify how Defendants committed an unfair, unlawful or fraudulent business practice.

The demurrer to the seventh cause of action is SUSTAINED with leave to amend.

7.         Eighth Cause of Action (CLRA).

            Defendants argue that Plaintiff has not prove that he gave the required CLRA 30-day notice. (Civ. Code, § 1782.)  However, ¶ 87 alleges:

87. Plaintiff and/or his representatives notified the Defendants of actionable conduct under California Civil Code §1770(a), (5), (7),(9)(10)(14)(18), and demanded remedy. Plaintiff has brought this action, through this Complaint and did not serve same until more than 30 days after said notice was provided in the proper venue. Plaintiff has complied with all provisions of the Consumer Legal Remedies Act.

            Whether or not this notice was actually sent is an evidentiary matter outside the scope of this demurrer.

            Defendants also argue that Plaintiff does not plead any facts to support a violation of the cited subsections of Civil Code, § 1770(a).

Defendants also argue that Plaintiff does not allege the sale of goods, only services, but Costco only sold goods in connection with Plaintiff’s prescription, not services.  

Defendants also argue that Plaintiff did not allege damages.

The Complaint alleges at paragraphs 87 and 88 as follows:

87. Plaintiff and/or his representatives notified the Defendants of actionable conduct under California Civil Code §1770(a), (5), (7),(9)(10)(14)(18), and demanded remedy. Plaintiff has brought this action, through this Complaint and did not serve same until more than 30 days after said notice was provided in the proper venue. Plaintiff has complied with all provisions of the Consumer Legal Remedies Act.

88. Defendants undertake the sale of their services through unfair and deceptive practices. Defendants breached their duties owed to Plaintiff herein, by the acts and/or omissions stated above. Plaintiff is informed and believes and thereon alleges that the Defendants have breached their duties owed to consumers and Plaintiff by other acts and/or omissions of which Plaintiff is presently unaware. Plaintiff will seek leave of court to amend this complaint at such time as he discovers the other acts and/or omissions of Defendants which constituted such breach.

     (Bold emphasis added.)

            “[S]tatutory causes of action must be pleaded with particularity.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) Here, Plaintiff does not identify how Defendants allegedly violated Civil Code §1770(a), (5), (7),(9)(10)(14)(18), and indeed, does not set forth the language of these subsections.

            Further, as Defendants point out, Plaintiff alleges that Defendants undertake the sale of services. However, the facts pled by Plaintiff are not that Defendant Costco sold Plaintiff services—such as medical service—but rather, undertook to provide medication to Plaintiff, which is a good, not a service.

            The demurrer to the eighth cause of action is SUSTAINED with leave to amend.

Motion To Strike

Meet and Confer

            The Declaration of Sweta H. Patel indicates that Plaintiff’s counsel did not respond to meet and confer efforts. This satisfies Civ. Proc. Code, § 435.5(a)(3)(B).

Discussion

Defendants Costco Wholesale Corporation and John Louis move to strike the following portions of the Complaint:

1. Plaintiff’s prayer for judgment for an award of attorneys’ fees as to causes of action 1 -5. (Complaint p. 20 in prayer for judgment.)

GRANTED without leave to amend.

There is not contractual or statutory basis for recovery of attorney’s fees in connection with the first through fifth causes of action.

2. Phrase “attorneys fees.” (Complaint ¶¶ 32, 47, 55, 63, and 67.)

DENIED as to ¶ 32 – this is a general request for attorney’s fees, which is still viable given that the sixth cause of action for violation of civil rights codified in the Civil Code is still viable.

MOOT as to ¶¶ 47, 67 – the demurrer was sustained as to these causes   of action.

GRANTED without leave to amend as to ¶¶ 55 and 63 – there is no basis to recover attorney fees for assault and battery.

3. Plaintiff’s prayer for judgment for punitive and exemplary damages as to all causes of action. (Complaint p. 20 in prayer for judgment.)

            GRANTED with leave to amend.

Plaintiff does not allege facts which show that Defendant Jon acted with malice, oppression or fraud as those terms are defined in Civ. Proc. Code, § 3294(c). Nor does Plaintiff alleges facts whereby Defendant Costco can be held liable for punitive damages under the standard set forth at § 3294(b).

(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

(c) As used in this section, the following definitions shall apply:

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.

(3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

     (Civ. Code § 3294(b) & (c).)

4. “Accordingly, Plaintiff is entitled to punitive damages, according to proof, as to each of his causes of action stated below.” (Complaint ¶ 32.)

GRANTED with leave to amend.

See No. 3 above.

5. Phrase “exemplary and punitive damages.” (Complaint ¶ 78.)

GRANTED with leave to amend.

See No. 3 above.

6. “The Defendants' conduct as described herein was deceptive, fraudulent, and was undertaken with a conscious disregard of Plaintiff's rights so as to entitle Plaintiff to punitive damages, which are also allowed per statute. (Complaint ¶ 92.)

GRANTED with leave to amend.

See No. 3 above.

7. Phrase “injunctive”. (Complaint ¶ 78.)

`           GRANTED with leave to amend.   

            Plaintiff must allege facts justifying injunctive relief.

8. “On information and belief, absent entry of appropriate injunctive relief, Defendants, and each of them, individually and in concert, will engage in similar misconduct in the future, in connection with other consumers. (Complaint ¶ 82.)

MOOT given the ruling on the demurrer.

9. The foregoing acts of Defendants, and each of them, individually and in concert, were, are and/or will be unlawful, unfair and/or fraudulent business acts and practices in violation of Business &Professions Code §17200, et seq., as a result of which Plaintiff and aggrieved members of the general public are entitled to appropriate injunctive relief, and other equitable relief.” (Complaint ¶ 83.)

MOOT given the ruling on the demurrer.

10. “PENAL CODE §§422.55, 422.6.” (Complaint, p. 13 heading to assault cause of action.)

            GRANTED without leave to amend.

            There does not appear to be a private right of action under Penal Code, §§ 422.55 and 422.6 and that statute is unnecessary relative to a common law cause of action for assault.

11. Phrase “in violation of the Penal Code.” (Complaint ¶¶ 52, 58 and 60.)

GRANTED without leave to amend.

            There does not appear to be a private right of action under Penal Code, §§ 422.55 and 422.6 and that statute is unnecessary relative to a common law cause of actions for assault and battery.

12. “The United States government, through the Food & Drug Administration ("FDA"), has recognized that opioid medication has risks but also great benefits for patients suffering from pain, which is why the FDA designated opioids as Schedule II drugs available only through prescriptions issued by prescribers registered with the Drug Enforcement Administration ("DEA"). The FDA continues to approve these drugs for use where medically appropriate, and when the FDA was requested in 2013, at a time when the opioid crisis was already full blown, to impose dose or duration limits, the FDA declined to do so, leaving such decisions instead to the healthcare practitioner in consultation with his or her

patient.” (Complaint ¶ 9.)

DENIED.

These allegations will be permitted as relevant to Plaintiff’s discrimination theory.

13. “Similarly, the California Legislature has approved, and continues to approve, the availability of opioid medications and has passed a Patient's Bill of Rights related to opioid medication treatment. Cal. Health & Safety Code §124960.” (Complaint ¶ 10.)

DENIED.

These allegations will be permitted as relevant to Plaintiff’s discrimination theory.

14. “The California Patient's Bill of Rights provides: (a) A patient who suffers from severe chronic intractable pain has the option to request or reject the use of any or all modalities in order to relieve his or her pain. (b) A patient who suffers from severe chronic intractable pain has the option to choose opiate medications to relieve that pain without first having to submit to an invasive medical procedure, which is defined as surgery, destruction of a nerve or other body tissue by manipulation, or the implantation of a drug delivery system or device, as long as the prescribing physician acts in conformance with the California Intractable Pain Treatment Act, Section 2241.5 of the Business and  Professions Code.( c ) The patient's physician may refuse to prescribe opiate medication for the patient who requests a treatment for severe chronic intractable pain. However, that physician shall inform the patient that there are physicians who treat pain and whose methods include the use of opiates. (d) A physician who uses opiate therapy to relieve severe chronic intractable pain may prescribe a dosage deemed medically necessary to relieve the patient's pain, as long as that prescribing is in conformance with Section 2241.5 of the Business and Professions Code. (e) A

patient may voluntarily request that his or her physician provide an identifying notice of the prescription for purposes of emergency treatment or law enforcement identification. Cal. Health & Safety Code§ 124961.” (Complaint ¶ 11.)

DENIED.

These allegations will be permitted as relevant to Plaintiff’s discrimination theory.

15. “The initial, and primary, responsibility for issuing a valid prescription is with the treating physician. Before prescribing opioids for any patient, the treating physician must conduct and document a complete medical history and physical examination of the patient. The examination will include a review and analysis of the condition for which the treatment is sought and its cause, the nature and intensity of the patient's pain, current and past treatments for the condition and pain, underlying or coexisting diseases or conditions and a review of medical records and previous diagnostic studies. The physician then develops a treatment plan and treatment goals, including curing, if possible, the underlying medical condition, decreasing pain and increasing function, improving pain associated effects (e.g., sleeping issues, depression, anxiety, etc.), screen for treatment side effects, and avoiding unnecessary or excessive medication. The plan is evaluated and updated throughout the course of treatment so that it continues to be appropriate and realistic.” (Complaint ¶ 23.)

DENIED.

These allegations will be permitted as relevant to Plaintiff’s discrimination theory.

16. “Plaintiff already spends hours a week in doctors' offices and on the phone with insurers and billing departments, and is already hindered by pain and fatigue.”(Complaint ¶ 28.)

DENIED.

These allegations will be permitted as relevant to Plaintiff’s disability.

            Plaintiff is given 30 days’ leave to amend where indicated.