Judge: Mark H. Epstein, Case: 21STCV29033, Date: 2023-01-30 Tentative Ruling

Case Number: 21STCV29033    Hearing Date: January 30, 2023    Dept: R

Plaintiffs Matthew Anthony Morelli, Karolyn Ann Morelli, Gianna Rose Morelli, a minor, by and through her Guardian Ad Litem, Matthew Anthony Morelli (collectively “plaintiffs”) filed this action against defendants Mark Honzel, MRH Medical Group, Phillers dba Taft Pharmacy, and United Pharmacy, Inc. dba United Pharmacy (collectively “defendants”) alleging the over-prescription of opioids to decedent Kathy Ann Morelli (“decedent”).  According to the operative Second Amended Complaint (“SAC”), decedent passed away on August 22, 2020 and was Honzel’s patient for a 14-year period prior to that.  (SAC, ¶¶1, 12.)  Plaintiffs claim that the decedent relied on Honzel and MRH for matters concerning her health, care, and comfort, but defendants’ actions and omissions caused her to develop an opioid addiction due to over-prescription of opioids and the failure to evaluate her condition properly.  (Id. at ¶¶14-15.)  Decedent purportedly overdosed twice during this time, became withdrawn from family, disappeared for significant amounts of time without contacting family, and developed mood swings, among othe things.  (Id. at ¶¶19-21.)  Plaintiffs contend that in or around 2009, they searched plaintiffs’ room and found 42 prescriptions for opioids by Honzel dating from January to December 2009.  The prescriptions were filled at various pharmacies, including but not limited to United Pharmacy and Taft Pharmacy.  (Id. at ¶22.)  In 2013, decedent was found passed out in her car while waiting to pick up plaintiff Gianna from school and paramedics were called.  (Id. at ¶23.)  In 2014, decedent was found passed out in her car in the driveway. (Ibid.)

Plaintiffs claim that decedent would pick up her grand-daughter Gianna from school and drive home while high.  (SAC, ¶24.)  Decedent purportedly swiped cars while driving and this put a great strain on her relationship with Gianna.  (Ibid.)  Plaintiffs assert that the decedent’s condition also caused plaintiffs extreme pain and that decedent got high on medications at Karolyn’s wedding in 2019, and decedent’s state was apparent to everyone present.  (Id. at ¶27.)  Karolyn also got into a fight with the decedent about the medication she was on and later was with decedent during her various admissions to the hospital.  (Id. at ¶¶30-33.)  This included a point in April 2020 when the decedent sobbed with happiness upon seeing her sister and told Karolyn she knew she was going to die.  (Id. at ¶33.)  Plaintiffs state that decedent later passed away when in hospice care.  (Id. at ¶¶34-35.)

As for Taft and other pharmacy defendants, plaintiffs allege that the pharmacies distributed opioid drugs to the decedent.  (SAC, ¶96.)  These defendants purportedly failed to keep accurate records of opioid distribution and failed to identify and report suspicious opioid activity to the relevant authorities.  (Id. at ¶97.)  Plaintiffs claim that these pharmacy defendants dispensed opioids prescribed to decedent in violation of federal, state, and common law, and did not report or monitor suspicious patterns of opioid prescriptions that had no medical legitimacy.  (Id. at ¶¶105-110.)

Plaintiffs allege the following causes of action: (1) intentional infliction of emotional distress (“IIED”) against Honzel and MRH; (2) constructive fraud against Honzel and MRH; (3) false advertising against the manufacturer defendants; (4) unfair competition against the pharmacy defendants; and (5) public nuisance against the manufacturer and pharmacy defendants.  Currently before the court is a demurrer filed by defendant Phillers dba Taft Pharmacy (“Taft”).  Plaintiffs oppose.  The court previously sustained Taft’s demurrer to the First Amended Complaint’s in part.  (10/14/22 MO.)

Preliminarily, in the notice of opposition, plaintiffs claim that the moving papers’ memorandum violates California Rules of Court, Rule 3.1113(f), which states that “[a] memorandum that exceeds 10 pages must include a table of contents and a table of authorities.” (Opp., p. 2:8-11.)  Even if Taft violated this rule, the court would still consider the demurrer on the merits.

Taft demurs to the fourth and fifth causes of action (only) on the grounds of failure to state sufficient facts and uncertainty.  (See Code Civ. Proc., § 430.10, subds. (e)-(f).)  As an initial matter, the court previously overruled Taft’s demurrers on the basis of uncertainty on October 14, 2022 and Taft re-raises the same argument, without any additional analysis about why the SAC is subject to this demurrer. The court therefore adopts its prior analysis on this demurrer.  The demurrers for uncertainty are unsubstantiated and OVERRULED.

Taft’s demurrer to the eighth cause of action for violation of the UCL is SUSTAINED.  Taft argues that the individual plaintiffs (not the action on decedent’s behalf) lack standing and the court agrees.  To satisfy the standing requirements under the UCL, a party must “(1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that that economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim.”  (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322, emphasis in original.)  “There are innumerable ways in which economic injury from unfair competition may be shown. A plaintiff may (1) surrender in a transaction more, or acquire in a transaction less, than he or she otherwise would have; (2) have a present or future property interest diminished; (3) be deprived of money or property to which he or she has a cognizable claim; or (4) be required to enter into a transaction, costing money or property, that would otherwise have been unnecessary.  (See, e.g., Hall v. Time Inc., supra, 158 Cal.App.4th at pp. 854–855 [cataloguing some of the various forms of economic injury].)”  (Id. at p. 323, parallel citations omitted.)

While there are many ways to establish economic injury, the requirement is a real one.  Yet plaintiffs do not actually allege any economic injury with sufficient facts (even ultimate ones) that could suffice. Instead, they only parrot the forms of economic injury: “Plaintiffs individually suffered a loss or deprivation of money or property sufficient to qualify as injury in fact or economic injury, and the economic injury was the result of or caused by the unfair business practice or false advertising that is the gravamen of this claim. The following forms of economic injury were suffered by Plaintiffs individually herein: (1) surrender in a transaction more, or acquire in a transaction less, than he or she otherwise would have; (2) be deprived of money or property to which he or she has a cognizable claim; or (3) be required to enter into a transaction, costing money or property, that would otherwise have been unnecessary.”  (SAC, ¶118.)  This is a legal conclusion.  There are no facts indicating how any of the individual plaintiffs have done anything that fits into any of the listed categories.  “To establish that a cause of action has been adequately pled, a plaintiff must demonstrate he or she has alleged ‘facts sufficient to establish every element of that cause of action.’  (Cantu v. Resolution Trust Corp., supra, 4 Cal.App.4th at p. 879.)  If the complaint fails to plead, or if the defendant negates, any essential element of a particular cause of action,” then the demurrer is properly sustained.  (Williams v. Sacramento River Cats Baseball Club, LLC (2019) 40 Cal.App.5th 280, 286, emphasis by Cantu Court, parallel citations omitted.)  Plaintiffs only provide legal conclusions.  The demurrer must be sustained.

Plaintiffs also refer to the allegations of decedent’s out-of-pocket costs and note that there is no allegation indicating that they individually did not pay for those costs.  As Taft notes in reply, this argument is not supported by the SAC, where plaintiffs affirmatively allege that only the decedent paid certain costs. (SAC, ¶¶50-51.)  Nor is the inference that plaintiffs would draw a reasonable one.  There is no reason to believe from this complaint that any of the plaintiffs actually paid money. 

Plaintiffs also cite to Allergan, Inc. v. Athena Cosmetics, Inc. (Fed. Cir. 2011) 640 F.3d 1377, again for the proposition that there is no “business dealings” requirement.  Allergen is in accord with state law and does not support plaintiffs’ position.  While there is no “direct business dealings” requirement under the UCL, there is an injury-in-fact requirement.  None of the individual plaintiffs have alleged any such injury against Taft. They generally refer to the fact that they have suffered such an injury but it is unclear upon what that is based.  Given that this is the second amended complaint, the court concludes that plaintiffs have done their best to plead around this problem but cannot do so. Thus, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.  The court notes, however, that defendants demur on this ground only to the standing of the individuals; they do not claim that decedent’s representative lacks standing.

The demurrer to the public nuisance claim, however, is OVERRULED IN PART AND SUSTAINED IN PART.  The Court of Appeal explained the standing requirements for a public nuisance claim thusly.  “A public nuisance is ‘one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.’  (§ 3480.)  A private party can maintain an action based on a public nuisance ‘if it is specially injurious to himself, but not otherwise.’ (§ 3493.)  The damage suffered must be different in kind and not merely in degree from that suffered by other members of the public.  (Institoris v. City of Los Angeles (1989) 210 Cal.App.3d 10, 21; Brown v. Petrolane, Inc. (1980) 102 Cal.App.3d 720, 725–726; Venuto v. Owens–Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 124–125.)”  (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1040.)  “[W]e note that emotional distress damages are available only in actions based on public nuisance, and require a showing of special injury to the plaintiff ‘of a character different in kind from that suffered by the general public.’  (Institoris v. City of Los Angeles, supra, 210 Cal.App.3d 10, 21, emphasis in original; Civ.Code, § 3493.)  The difference shown here was one of degree only, in that these plaintiffs were subjected to greater noise levels than those suffered by the general public, including the remaining plaintiffs.  These facts do not support an action based on public nuisance.  (Institoris, supra, at p. 21; Venuto v. Owens–Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 124.)”  (Baker v. Burbank-Glendale-Pasadena Airport Authority (1990) 220 Cal.App.3d 1602, 1610, parallel citations omitted, emphasis by Institoris court.)

Plaintiff Gianna has alleged that she suffered damage that is special in kind and different than that which the general public suffers.  The thrust of this cause of action is that Taft assisted in the creation of the opioid epidemic.  Gianna’s special harm is detailed in the first cause of action, and those allegations are incorporated into the public nuisance claim.  (SAC, ¶¶19-33, 127.)  There, plaintiffs allege that Gianna feared her physical safety when being driven home from school by her grandmother, who was high on opioids.  That fear for her physical safety is different in kind than the emotional distress suffered more generally.

In reply, Taft claims that the end result is still emotional distress of a varying degree.  That is not how the court reads the SAC or the cases, at least as applied to Gianna.  Here, the fear of physical harm is a different injury from the emotional distress suffered by the general public, and the court cannot reasonably infer that members of the public experienced fear of physical safety.  Support for overruling the demurrer on this basis is also found in Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540.  There, the court held that the plaintiff’s allegation that her respiratory illnesses were aggravated was an injury different in kind versus the general public’s risks of heart disease and lung cancer.  “Explaining the governing common law rule, codified in Civil Code section 3493, the Venuto court stated, ‘Where the nuisance alleged is not also a private nuisance as to a private individual [that is, where there is no allegation of an interference with a known property right] he does not have a cause of action on account of a public nuisance unless he alleges facts showing special injury to himself in person or property of a character different in kind from that suffered by the general public.’  The court then concluded any general irritation to the respiratory tract suffered by the public at large and the plaintiffs' aggravated allergies and respiratory disorders were simply different degrees of the same kind of ailments.  (Venuto, supra, 22 Cal.App.3d at p. 125.)  Notably, this conclusion was not dependent on the fact the various illnesses or disorders were all allegedly caused by inhaling the polluted air generated by the defendant's manufacturing plant, but the failure of the plaintiffs to allege with any specificity a different kind of injury they had suffered, as distinguished from the general respiratory irritation endured by other affected residents.  In marked contrast, the aggravation of Birke's childhood asthma and chronic allergies alleged in the first amended complaint is not at all similar to the increased risks of heart disease and lung cancer the general public (or that portion of the public who use Oakwood's outdoor common areas) face, although both are caused by breathing secondhand tobacco smoke.  At the very least, we are not prepared to say, as a matter of law and at the pleading stage of this case, the injuries are of the same kind and simply differ in degree.”  (Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1549–1550.)

The same logic applies here.  It is not just general emotional distress at issue here. Instead, Gianna’s fear for her safety is a different type of injury.  One injury is a fear of physical injury, while the other is emotional sadness based on a loved one’s condition.  While it is true that the allegation is emotional to some degree even as to Gianna, the point is that Gianna was put in physical jeopardy.  One might suffer only “emotional distress” by being shot at with a gun (assuming the bullet misses), but that is different enough in kind from the emotional distress one suffers when a loved one is shot at.  It is distinctive enough to differentiate it from the general type of harm suffered by the public due to the opioid crisis and the demurrer is therefore OVERRULED as to Gianna.

The situation is different as to Karolyn and Matthew.  There, the court believes the allegations are still of emotional distress similar to that suffered by the general public albeit to a different degree.  Both have detailed the source of their emotional distress, and the court has no doubt but that the specifics alleged are not typical of the general public.  (SAC, ¶¶19-30.)  But that is not the test.  Even in the context of a public nuisance, the specific details of how someone interacts with the public nuisance may vary; the question is whether the ultimate harm is the same.  Karolyn’s and Matthew’s allegations only offer certain details about the source of the emotional distress, but the kind of injury is the same as that suffered by the public more generally.  Caretaking and a ruined wedding are not separate injuries in the same way that fear of physical injury is.  Rather, they are the normal outgrowth of having a loved one addicted to opioids.

That said, the matter is not free from doubt.  Among other things, the court needs to better understand the “general public.”  To the extent that the public consists of those actually addicted, Karolyn and Matthew are different.  On the other hand, to the extent that in this context the general public can be thought of as people with very close friends, loved ones, or relatives who are addicted, then Karolyn and Matthew seems similarly situated.  There is a second issue.  If one attempts to parse further, there is a difference between knowing and dealing with a loved one who is addicted to opioids and actually being that person’s caretaker.  The court cannot tell from this complaint the extent to which Karolyn and Matthew are alleging caretaking responsibilities.  By that the court does not mean occasional aid rendered to decedent.  Rather, if Karolyn or Matthew routinely and regularly—as part of their daily (or almost daily) lives—had to care for decedent, that is of a kind different from merely dealing with the raw emotion of seeing a loved one deteriorate and perhaps die from opioid addiction.  While this is the second amended complaint, the court is inclined to give Karolyn and Matthew one last chance to plead sufficient facts.  If they cannot do so, they ought to stand on their complaint.  If they can, they should try, but this will be the last time leave to amend is granted. 

Because leave is being granted, the court deals briefly with Taft’s causation argument.  It lacks merit.  “Causation may consist of either ‘(a) an act; or [¶] (b) a failure to act under circumstances in which the actor is under a duty to take positive action to prevent or abate the interference with the public interest or the invasion of the public interest.’  (Rest.2d.Torts, § 824; see Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1552 [same].)  A plaintiff must show the defendant's conduct was a ‘substantial factor’ in causing the alleged harm.  (Birke, at p. 1548; CACI No. 2020.)”  (Citizens for Odor Nuisance Abatement v. City of San Diego (2017) 8 Cal.App.5th 350, 359, parallel citations omitted.)  As the court previously noted, the allegations here are not great and arguably support the inference that Taft was not a substantial factor in the epidemic.  But given that this is a demurrer and inferences must be made in plaintiffs’ favor, the pleading passes muster as to causation.

Thus, the demurrer to the public nuisance claim is OVERRULED as to Gianna and SUSTAINED WITH LEAVE TO AMEND as to Karolyn and Matthew.  Leave to amend is 30 days.  The demurrer as to the UCL claim is SUSTAINED WITHOUT LEAVE TO AMEND as to the individuals.