Judge Mark A. Young, Case Number: 24SMCV00837, Date: 2025-01-22 Tentative Ruling

Judge: Mark A. Young, Case: 24SMCV00837, Date: 2025-01-22 Tentative Ruling

Case Number: 24SMCV00837 Hearing Date: January 22, 2025 Dept: M

CASE NAME: Shahnaz Asghar Vahedi v. CVS Health, et al.

CASE NO.: 24SMCV00837

MOTION: Defendants Mehrdad Pakdaman, M.D. and Beverly Hills Robertson Clinic’s Demurrer to Plaintiff’s Second Amended Complaint

HEARING DATE: 1/22/2025

Background

On June 5, 2024, Plaintiff Shahnaz Asghar Vahedi (“Plaintiff”) filed the operative Second Amended Complaint (“SAC”) against Defendants Garfield Beach CVS, LLC, Mehrad Pakdaman, M.D. (“Dr. Pakdaman”), Beverly Hills Robertson Clinic (“Beverly Hills Clinic”), Judith Puyat and Does 2 through 100, inclusive, asserting the following causes of action:

1. Medical Negligence;

2. Negligent Misrepresentation;

3. Negligent Infliction of Emotional Distress; and

4. Fraud.

The SAC alleges the following. “Plaintiff had been seeking treatment from Dr. Pakdaman for approximately five years, who was made aware of Plaintiff’s severe allergy to sulfa on several occasions.” (SAC ¶ 13.) “On or about February 13, 2023, Plaintiff sought medical treatment with Dr. Pakdaman. Dr. Pakdaman prescribed Plaintiff a sulfonylurea drug class noted as glimepiride (hereinafter ‘Product’) to treat her high blood sugar.” (SAC ¶ 14.) “Plaintiff was not made aware nor had reason to believe that the Product contained sulfa ingredients to which she was allergic to.” (SAC ¶ 18.) Plaintiff took the Product as directed. (SAC ¶ 20.) However, on or about February 20, 2023, she began experiencing reoccurring fever, soreness, headaches, and skin rashes. (SAC ¶ 21.) On or about February 28, 2023, she sought evaluation and treatment for her symptoms at Beverly Hills Clinic where Dr. Pakdaman was working. (SAC ¶ 22.) “Dr. Pakdaman was recklessly dismissive of her complaints and refused her proper medical examination and care in spite of her deteriorating condition, including but not limited to: visible blisters, facial discoloration, swelling of tongue, and deep distress.” (SAC ¶ 22.) “On or about February 28, 2023, Plaintiff sought emergency care and treatment at Cedars-Sinai Medical Center, located at 8700 Beverly Boulevard, West Hollywood, California, 90048, whereat she was diagnosed with an allergic reaction to the Product and was told to immediately discontinue use.” (SAC ¶ 23.)

On July 24, 2024, Beverly Hills Clinic and Dr. Pakdaman (collectively, “Defendants”) filed the instant demurrer. On January 7, 2025, Plaintiff filed her opposition. On January 14, 2025, Defendants filed their reply.

Legal Standard

“Before filing a demurrer . . . the demurring party shall meet and confer in person or by telephone with the party who filed the pleading . . . for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41 [emphasis added].)

A demurrer for sufficiency tests whether the complaint alleges facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10; Young v. Gannon (2002) 97 Cal.App.4th 209, 220. The court “may consider all material facts pleaded in the complaint and those arising by reasonable implication therefrom; it may not consider contentions, deductions or conclusions of fact or law. (Young v. Gannon (2002) 97 Cal.App.4th 209, 220 (citing Moore v. Conliffe (1994) 7 Cal.4th 634, 638; Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790).) The court treats all facts alleged in the complaint to be true. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 732.)

“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.)

When considering demurrers, courts “are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733 (citing Rogoff v. Grabowski (1988) 200 Cal.App.3d 624, 628.)) “The burden is on the plaintiff to demonstrate the manner in which the complaint can be amended.” (Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 748.)

Analysis

Defendants demur the SAC’s second cause of action for negligent misrepresentation, third cause of action for negligent infliction of emotional distress (NIED), and fourth cause of action for fraud, arguing that they are uncertain and fail to state facts sufficient to constitute a cause of action.

Meet and Confer

The Court finds the Defendants complied with the meet and confer requirement of Code of Civil Procedure section 430.41. (Declaration of Stephen A. Diamond, ¶¶ 5-7.)

COA 2: Negligent Misrepresentation

Defendants argue that Plaintiff’s negligent misrepresentation claim is uncertain and fails to state sufficient facts because she fails to plead with specificity (1) the representations the Defendants made to her, (2) which statements were false, and (3) that the Defendants knew or had reason to know that those statements were false.

“Negligent misrepresentation requires an assertion of fact, falsity of that assertion, and the tortfeasor’s lack of reasonable grounds for believing the assertion to be true. It also requires the tortfeasor’s intent to induce reliance, justifiable reliance by the person to whom the false assertion of fact was made, and damages to that person. [Citation.] An implied assertion of fact is ‘not enough’ to support liability.” (SI 59 LLC v. Variel Warner Ventures, LLC (2018) 29 Cal.App.5th 146, 154.)

Here, Plaintiff has failed to plead any of those elements. Plaintiff argues in her opposition that the SAC alleges that the Defendants misrepresented the sulfa-containing Product as a treatment for Plaintiff’s high blood sugar. However, the SAC does not make that allegation. In addition, she neither argues nor alleges that statement was false (i.e., the Product could not treat high blood sugar); she only alleges that she was allergic to the medication. Plaintiff also argues that the SAC alleges the Defendants misrepresented her allergic reaction and her desperation for help as “drug-seeking behavior.” (SAC ¶ 41.) However, Plaintiff fails to allege that the Defendants made that statement with the intent to induce her reliance, and Plaintiff’s justifiable reliance on that statement.

For those reasons, the demurrer is sustained as to the second cause of action for negligent misrepresentation, with leave to amend.

COA 3: Negligent Infliction of Emotional Distress

Defendants argue that the NIED claim is uncertain and fails to state facts sufficient to constitute a cause of action because the NIED claim is essentially the same as the first cause of action for medical negligence. They argue that the only difference is that in the NIED claim, Plaintiff alleges (in the SAC Paragraph 41) that the Defendants yelled at her and accused her of lying, causing her to “suffer[] severe physical, mental and emotional distress,” while in the first cause of action she alleges that Defendants’ negligence caused her “harm.” (Demurrer, p. 8:19-27.)

“‘“[T]he negligent causing of emotional distress is not an independent tort, but the tort of negligence. [Citation.] The traditional elements of duty, breach of duty, causation, and damages apply.”’ [Citation.]” (Arista v. County of Riverside (2018) 29 Cal.App.5th 1051, 1063.) In “direct victim” cases such as this one, “the plaintiff’s claim of emotional distress is not based upon witnessing an injury to someone else, but rather is based upon the violation of a duty owed directly to the plaintiff.” (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 205; McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509 [noting that the law in California imposes a duty to avoid causing emotional distress in two general instances: direct victim situations, and bystander situations, “ ‘in which a plaintiff seeks to recover damages as a percipient witness to the injury of another.’ [Citation]”].) In NIED cases, “serious mental distress may be found where a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.” (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 928 (“Molien”).)

Here, the Court agrees with Defendants that Plaintiff’s NIED claim is uncertain and fails to state facts sufficient to constitute a cause of action for NIED for the following reasons. First, it is unclear which duty the NIED claim is based upon. The SAC alleges that “[b]ased on the special relationship between Defendants and Plaintiff, as described [in preceding paragraphs], at the time Plaintiff, visited the Defendants, and each of their agents and/or employees, owed a duty of care to Plaintiff to refrain from causing her any emotional injury in connection to the care and treatment of her.” (SAC ¶ 40.) However, Plaintiff’s conclusory allegation that Defendants owed her duty of care to refrain from causing her emotional injury is insufficient. In California, “unless 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.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 985; see also Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1264 [“‘there is no duty to avoid negligently causing emotional distress to another, and ... damages for emotional distress are recoverable only if the defendant has breached some other duty to the plaintiff.’ [Citation]”].) Here, Plaintiff has not alleged facts showing that Defendants assumed a duty in which Plaintiff’s emotional condition was an object. Second, to the extent Plaintiff is alleging the Defendants breached their duty to use prudence in their treatment of her, causing her to suffer emotional harm, then (as Defendants argue) Plaintiff’s NIED claim is unnecessary because it is the same as her first cause of action for medical negligence in which she alleges their medical negligence caused her “harm.” (SAC ¶¶ 28, 29, 31.)

For those reasons, the demurrer is sustained as to the third cause of action for negligent infliction of emotional distress, with leave to amend.

COA 4: Fraud

Defendants demur the fraud claim, arguing that it is uncertain and insufficient because the SAC fails to plead that claim with specificity (e.g., what the alleged misrepresentations were, and how, when, and where those misrepresentations were made, or to the extent Plaintiff is alleging Defendants concealed or suppressed material facts, which facts were concealed or suppressed). (Demurrer, p. 12:11-21.) Defendants also argue that Plaintiff’s allegation (in Paragraph 48) that Defendants knew or should have known that she would sustain an injury as a result of consuming the Product, states a claim for negligence, not fraud. (Demurrer, p. 12:19-23.)

The elements of intentional misrepresentation are (1) misrepresentation; (2) knowledge of falsity (or “scienter”); (3) intent to defraud (induce reliance); (4) justifiable reliance; and (5) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Plaintiffs are required to allege the factual basis for each of the elements of a fraud claim with specificity despite the general policy favoring liberal construction of pleadings on demurrer. (See Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782-783.) Fraud must be pleaded with specificity rather than with general and conclusory allegations.

The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645; West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.)

“Reliance is ‘justifiable’ only when ‘circumstances were such to make it reasonable for plaintiff to accept defendant's statements without an independent inquiry or investigation.’ [Citation.]” (Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 363.)

Here, the Court agrees the fraud claim is uncertain. Plaintiff alleges that the Defendants breached their duty of care in rendering medical services. (SAC ¶ 46.) However, that allegation is relevant to her medical negligence claim not fraud. Plaintiff also alleges that Defendants (1) breached their duty by failing to warn her of her known allergies in prescribing the medication. (SAC ¶ 48.) However, failure to warn sounds in negligence or strict liability, not fraud. (See Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1112 [“‘Negligence law in a failure-to-warn case requires a plaintiff to prove that a manufacturer or distributor did not warn of a particular risk for reasons which fell below the acceptable standard of care, i.e., what a reasonably prudent manufacturer would have known and warned about. Strict liability is not concerned with the standard of due care or the reasonableness of a manufacturer’s conduct. The rules of strict liability require a plaintiff to prove only that the defendant did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution”].)

Furthermore, Plaintiff alleges that Defendants deliberately concealed information by refusing to record sulfa allergies on Plaintiff’s medical records. (SAC ¶ 47.) “‘The required elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact. [Citation.]’ [Citation.]” (Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162.)

Here, Plaintiff fails to allege (a) that the Defendants intended to defraud her by refusing to record that allergy, (b) how she could have acted differently if she knew the Defendants concealed their refusal to record her sulfa allergies, and (c) the damages she sustained as a result of the Defendants concealment of their refusal to record her allergies. Therefore, the Court finds Plaintiff has failed to allege facts constituting fraudulent concealment.

Finally, the SAC alleges that “Defendants … knew … of the potential risks and substantial danger of the sulfa ingredient contained in the Product which caused grave harm, injury, and immense suffering to Plaintiff.” (SAC ¶ 33.) “Defendants misrepresented the Product, as being safe and to the benefit of treating the Plaintiff’s medical condition when, in fact, the Product was known or should have been known to cause Plaintiff grave harm in a direct relation to her allergies to sulfa, an ingredient used in the manufacture of the Product. In reliance of the fraudulent misrepresentation, Plaintiff had [the] prescription filled, to the benefit of Defendants, whilst to the detriment and harm of Plaintiff.” (SAC ¶ 48.)

However, Plaintiff fails to allege facts showing how, when, where, to whom, and by what means Defendants told her that the Product was safe and beneficial to her.

For those reasons, the demurrer is sustained as to the fourth cause of action for fraud, with leave to amend.

Defendants Mehrdad Pakdaman, M.D., and Beverly Hills Robertson Clinic’s Demurrer to Plaintiff Shahnaz Asghar Vahedi’s Second Amended Complaint is SUSTAINED in its entirety, with leave to amend. Plaintiff is ordered to file and serve her third amended complaint within 30 days of this ruling.