Judge Stephen P. Pfahler, Case Number: 20STCV24147, Date: 2024-08-23 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 20STCV24147, Date: 2024-08-23 Tentative Ruling

Case Number: 20STCV24147 Hearing Date: August 23, 2024 Dept: 68

Dept. 68

Date: 8-23-24

Case 20STCV24147

Trial Date: N/A

OSC RE: STAY

MOVING PARTY: Plaintiff, Kenneth Bradley, M.D., et al.

RESPONDING PARTY: Defendant CVS Pharmacy, Inc.

RELIEF REQUESTED

OSC re: Stay

SUMMARY OF ACTION

On June 25, 2020, Kenneth Bradley filed a complaint against CVS Pharmacy, Inc. (CVS) for Declaratory Relief and Injunction. Dr. Bradley filed the complaint due to the refusal of CVS to fill certain Schedule II, III, IV and V Controlled Substance prescriptions for patients of the doctor. On July 8, 2020, Plaintiffs Bradley and Southern California Pain Consultants, Inc. filed a first amended complaint for 1. Declaratory Relief, and for Injunction; 2. Unfair Competition (Business and Professions Code § 17200; 3. Interference With Contractual Relations; 4. Interference With Prospective Economic Relations; 5. Negligent Interference With Prospective Economic Relations; and 6. Violation Of Unruh Civil Rights Act, and also added new defendants Longs Drug Stores California, LLC, et al. On September 15, 2020, the court sustained the demurrer of CVS with 20 days leave to amend, and denied Plaintiff’s motion for preliminary injunction.

On October 5, 2020, Plaintiffs filed a second amended complaint for 1. Declaratory Relief, and for Injunction; 2. Unfair Competition (Business and Professions Code § 17200; 3. Interference With Contractual Relations; 4. Interference With Prospective Economic Relations; 5. Negligent Interference With Prospective Economic Relations; and 6. Violation Of Unruh Civil Rights Act. On January 11, 2021, the court sustained the demurrer, and stayed the entire action “pending resolution by the Board of Pharmacy.”

On May 28, 2021, the Second Appellate District affirmed the January 11, 2021, order.

RULING: Stay to Continue.

On May 22, 2024, the court set an OSC re: Necessity of Further Stay, and invited the parties to submit briefs.

Defendants CVS Pharmacy, Inc., Longs Drug Stores California, L.L.C., Garfield Beach CVS, L.L.C., and Autumn Miller, maintain the stay should continue both pursuant to the Court of Appeal opinion, and the pending complaint before the Board of Pharmacy. Plaintiffs present discussion regarding the Board of Pharmacy proceeding and the impropriety of the CVS defendants conduct in refusing to fill the prescriptions. Plaintiffs also maintain the ongoing stay prejudices Plaintiffs given the five-year trial date deadline will accrue in 2025. Plaintiffs rely on said challenges as the basis for lift of the stay.

The Court of Appeal specifically affirmed the trial court on grounds of primary jurisdiction doctrine. In addition to citing primary jurisdiction as the basis for affirming, the court rejected the arguments, restated at least in part, in Plaintiffs’ supplemental brief regarding the conduct of the board. The appellate court also deferred to the decision of the Board of Pharmacy regarding resolution of potential issues before returning to the court: “For all the reasons discussed above, a ruling from the Board will provide a benefit to the court in ruling on issues that are reserved for its decision.”

Given the findings in the opinion, the court affirmed the stay of the action pending Board resolution. “This action shall remain stayed to permit Bradley to pursue a complaint with the Board. Following a final Board decision on such a complaint, the action shall proceed on any remaining issues. Should Bradley elect not to file such a complaint, the action shall be dismissed. Respondents CVS Pharmacy, Inc., et al., are entitled to their costs on appeal.”

Defendants represent the Plaintiffs filed their complaint with the board on July 7, 2021. A hearing took place on May 8, 2024, with further briefing concluding on July 17, 2024. The parties are awaiting a decision from the administrative hearing judge.

The court declines (re)consider the arguments presented in Plaintiffs’ brief and defers to the Court of Appeal. As also written by the court of appeal, the court finds no basis of prejudice from a continuing stay pending resolution by the board. Potential appeals of any decision from the administrative law judge also raises no concerns given the specific and categorically clear language of the Second Appellate District opinion.

Furthermore, should Plaintiffs continue to raise concern over the trial deadline, the court directs Plaintiffs to Code of Civil Procedure section 583.340 regarding determining trial deadlines.

The case remains stayed pending the Board review and decision. The court sets a new OSC re: Stay of the Case for December 3, 2024. The parties may submit supplemental briefs of no more than five (5) pages per side 10 days before the hearing date. The briefs should only address any decision from the Board, either pending or issued. If a decision is issued, the parties may also address the procedural posture of the action, including a potential basis removal of the stay. If the decision remains pending or an appeal on the Board decision was filed, the parties are to provide an update with no other discussion on the merits. Re-argument and challenge to the Court of Appeal opinion will not be considered.

Plaintiffs to give notice.