Judge Deirdre Hill, Case 21STCV19872 2023-01-26 Tentative Ruling

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Moving Parties: (1) Defendant Lawrence D. Sher, M.D., a medical corporation da Palos Verdes Medical Group; (2) defendant Dr. Laurence Gorlick

The demurrers are SUSTAINED WITHOUT LEAVE TO AMEND as to the 2^nd cause of action for violations of the Drug Dealer Liability Act. Defendants are ordered to file answers within 20 days.

On May 26, 2021, plaintiffs Scott Wellen and Dean Wellen filed a complaint against Dr. Laurence Gorlick and Palos Verdes Medical Group for (1) to redress medical malpractice and (2) to redress violations of the Drug Dealer Liability Act.

On January 13, 2022, the court sustained defendants’ demurrer to the 2^nd cause of action with leave to amend and granted defendants’ motions to strike punitive damages.

On August 18, 2022, the court sustained defendants’ demurrers with leave to amend as to the 2^nd cause of action in the FAC.

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. “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 v. Mirda (2007) 147 Cal. App. 4th 740, 747.

Defendants demur to the 2^nd cause of action for Drug Dealer Liability Act, Health & Safety Code 11700, et seq. on the ground that it fails to state sufficient facts to constitute a cause of action.

The SAC alleges that plaintiff Scott Wellen is a world class athlete and expert downhill skier with gold medals in Judo and Jiu Jitsu. Due to various physical injuries, Scott Wellen has been a patient of Dr. Laurence Gorlick at the Palos Verdes Medical Group for more than a decade. Due to the habitual overprescribing of opiates and benzoids, and other controlled substances by defendants, Scott Wellen has been hospitalized and/or received care at medical facilities throughout Southern California and would have succumbed on May 27, 2020 were it not for life-saving intervention by his son, Dean Wellen, and countless health care professionals ever since. SAC, ¶1. Defendants were clearly aware that Scott Wellen suffered from the physical and psychological effects of addiction to controlled substances prescribed and dispensed by defendants. Id., ¶10. The controlled substances prescribed and dispensed to plaintiff by defendants have a high potential for abuse and may lead to severe psychological or physical dependence and addiction, and did lead to dependence and addiction in Scott Wellen. Id., ¶11.

Under the 2^nd cause of action, plaintiffs allege that defendants knew that the prescriptions that were being written for Scott Wellen did not fall within the legitimate practice of medicine nor did they serve a “legitimate medical purpose,” with only perfunctory exams. Scott Wellen procured a copy of the prescriptions which were submitted between September 2012 and December 2020 to Blue Shield for payment. From these records, it should readily appear that Dr. Gorlick started prescribing Oxycodone and OxyContin, dangerous Schedule II controlled substances, in the fall of 2012, along with benzoids, ranging from Klonopin to Xanax to Ativan. The prescription records further reveal that Dr. Lawrence Sher who purports to be PVMG rendered care to Scott Wellen at various times between at least 2013 and 2017, and knew but chose to ignore what Dr. Gorlick was doing. Id., ¶29.

The court notes that the court previously sustained with leave to amend demurrers to the 2^nd cause of action. In its ruling as to the FAC, the court stated that plaintiffs had “not proffered anything by way of case law or legislative history which demonstrates to the Court that Defendant’s conduct . . . falls within the intent and purpose of the DDLA.” Plaintiffs were granted leave to amend to state sufficient factual allegations of specified illegal controlled substances to state a cause of action under the DDLA.

The purpose of this division is to provide a civil remedy for damages to persons in a community injured as a result of the use of an illegal controlled substance. These persons include parents, employers, insurers, governmental entities, and others who pay for drug treatment or employee assistance programs, as well as infants injured as a result of exposure to controlled substances in utero (“drug babies”). This division will enable them to recover damages from those persons in the community who have joined the marketing of illegal controlled substances. A further purpose of this division is to shift, to the extent possible, the cost of the damage caused by the existence of the market for illegal controlled substances in a community to those who illegally profit from that market. The further purpose of this division is to establish the prospect of substantial monetary loss as a deterrent to those who have not yet entered into the distribution market for illegal controlled substances. The further purpose is to establish an incentive for users of illegal controlled substances to identify and seek payment for their own treatment from those dealers who have sold illegal controlled substances to the user in the past.

Under “Definitions,” at Health & Safety Code §11703, “’Specified illegal controlled substance’ means cocaine, phencyclidine, heroin, or methamphetamine and any other illegal controlled substance the manufacture, cultivation, importation into this state, transportation, possession for sale, sale, furnishing, administering, or giving away of which is violation of Section 11351, 11351.5, 11352, 11358, 11359, 11360, 11378.5, 11379.5, or 11383.”

Under Health & Safety Code §11704, “(a) A person who knowingly participates in the marketing of illegal controlled substances within this state is liable for civil damages as provided in this division. . . .” “’Marketing of illegal controlled substances’ means the possession for sale, sale, or distribution of a specified illegal controlled substance, and shall include all aspects of making such a controlled substance available, including, but not limited to, its manufacture.” Health & Safety Code §11703(a).

Under Health & Safety Code §11705, “(b)(1) A person entitled to bring an action under this section may seek damages from one or more of the of the following: (1) A person who sold, administered, or furnished an illegal controlled substance to the individual user of the illegal controlled substance.”

Under Health & Safety Code §11706, “(b) A person entitled to bring an action under this section may seek damages only from a person who manufactured, transported, imported into this state, sold, possessed with intent to sell, furnished, administered, or gave away the specified illegal controlled substance actually used by the individual user of an illegal controlled substance.”

The court rules as follows: The court finds that the substances alleged in the SAC do not fall under the definition of “specified illegal controlled substance.” See also Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4^th 771, 790 (“statutory causes of action must be pleaded with particularity”) (citation omitted). Also, neither the statute nor case law indicate that the Drug Dealer Liability Act applies to physicians overprescribing medications to patients. The “Legislative Intent” as stated under Health & Safety Code §11702 refers to “drug dealers.” See also Health & Safety Code §11352, which provides a criminal penalty for those who furnish various controlled substances “unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state.” Health & Safety Code §11352.1(a) states, “The Legislature hereby declares that the dispensing and furnishing of prescription drugs, controlled substances, and dangerous drugs or dangerous devices without a license poses a significant threat to the health, safety, and welfare of all persons residing in the state.” The SAC alleges that the medications were prescribed pursuant to a license. Moreover, the allegations do not support the “marketing of illegal controlled substances” under Health & Safety Code §11704(a). Plaintiffs have not shown that “prescribing” or “overprescribing” falls under the definition. Plaintiffs have also not alleged that defendants “sold, administered, or furnished and illegal controlled substance.” See Health & Safety Code §11705(b)(1). Accordingly, the allegations are insufficient to constitute a cause of action under the Drug Dealer Liability Act.

The demurrers are SUSTAINED WITHOUT LEAVE TO AMEND as to the 2^nd cause of action. Plaintiffs have had two opportunities to amend.