Judge: Upinder S. Kalra, Case: 24STCV13791, Date: 2025-01-31 Tentative Ruling

Case Number: 24STCV13791    Hearing Date: January 31, 2025    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   January 31, 2025                                            

CASE NAME:           Walid Mounir Chaarawi v. California CVS Pharmacy, LLC

CASE NO.:                24STCV13791

DEMURRER TO FIRST AMENDED COMPLAINT

MOVING PARTY:  Defendant Garfield Beach CVS, LLC, erroneously sued as California CVS Pharmacy, LLC

RESPONDING PARTY(S): Plaintiff Walid M. Chaarawi

REQUESTED RELIEF:

1.      Demurrer to the FAC in full for failing to sufficiently state a claim and for uncertainty.

TENTATIVE RULING:

1.      Demurrer to the FAC is OVERRULED in its entirety.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On June 3, 2024, Plaintiff Walid Mounir Chaarawi (Plaintiff) filed a Complaint against Defendant California CVS Pharmacy, LLC with causes of action for: general negligence.

On July 26, 2024, Defendant filed a demurrer to the Complaint.

On September 23, 2024, Plaintiff filed the operative First Amended Complaint (FAC) with causes of action for: (1) negligence and (2) breach of duties. According to the FAC, Defendant refused to refill Plaintiff’s heart medication because they claimed Plaintiff’s doctor did not authorize a refill. Plaintiff alleges that he was subsequently rehospitalized for heart attack complications and when discharged learned that Defendant did not have the medication in stock. Plaintiff further alleges that Defendant refilled the prescription without doctor authority which in turn caused Plaintiff to develop internal bleeding.

On October 25, 2024, Defendant filed the instant demurrer to the FAC. On December 4, 2024, Plaintiff filed an opposition. On January 28, 2025, Defendant filed a reply.

LEGAL STANDARD:

Meet and Confer

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3). ¿The meet and confer requirement also applies to motions to strike. (CCP § 435.5.) Here, the parties met and conferred on October 17, 2024 and October 18, 2024 but were unable to resolve the issues. (Peregretti Decl. ¶ 4.) Accordingly, this requirement is met.

Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action.¿(Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context.¿In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. …. 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¿147 Cal.App.4th at 747.)¿¿ 

¿ 

When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.) Courts also consider exhibits attached to the complaint and incorporated by reference. (See Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94 (Frantz).)¿ 

ANALYSIS:

First Cause of Action – Intentional Negligence

Defendant contends that this claim is for professional negligence and is time barred pursuant to CCP § 340.5. Plaintiff does not dispute that this claim is for professional negligence. (Opp. 3:8-11, 4:4-6, 5:2-6.) Instead, Plaintiff argues that the FAC is timely because Defendant actively concealed information about negligent care so the statute of limitations is two years under CCP § 335.1.

“’The test reasonably must be whether the negligence occurred within the scope of the “skill, prudence, and diligence commonly exercised by practitioners of his profession.”…’ (Bellamy v. Appellate Dept. (1996) 50 Cal.App.4th 797, 801.) More so, Plaintiff’s cause of action falls underneath the Medical Injury Compensation Reform Act (MICRA) which defined professional negligence as “a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.” (CCP § 340.5(2).)

As a cause of action for professional negligence, Plaintiff’s cause of action must be commenced “three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” (CCP § 340.5.)

“The limitations period begins when the plaintiff’s suspicions are aroused. The period is not affected by the plaintiff’s diligence in finding facts to support his lawsuit.” (Knowles v. Sup. Ct. (2004) 118 Cal.App.4th 1290, 1300.) “For purposes of the one-year period, discovery of the injury means the plaintiff has discovered ‘both his or her injury and its negligent cause.’” (Filosa v. Alagappan (2020) 59 Cal.App.5th 772, 779.) “The plaintiff ‘need not be aware of either the specific facts or the actual negligent cause of the injury. [Citation.] If the plaintiff has notice or information of circumstances that would put a reasonable person on inquiry notice, the limitation period is activated.’” (Ibid.)

Here, Plaintiff’s first cause of action is for professional negligence and is therefore subject to the limitations period articulated in CCP §340.5. However, it is not time barred on its face. First, Plaintiff alleges that he sought a refill of Brilinta on September 17, 2022, which Defendant refused to fill stating no physician order. (FAC 2:17-22.) Plaintiff alleges that as a result of not taking the Brilinta, he suffered a mild heart complication which required treatment at the ER. (FAC 2:23-27.) After discharge, Plaintiff returned to that CVS on September 22, 2022 and was told the medicine was out of stock. (FAC 3:1-7.) Notably, however, Plaintiff alleges:

“Plaintiff had discovered that the cardiac physician had sent the refill of Brilinta to CVS Pharmacy on September 12, 2022 but the CVS Pharmacists told the Plaintiff on September 17, 2022 that the cardiac physician did not send the refill of Brilinta to CVS which the doctor did send it, but the cause was that the CVS Pharmacy on September 17, 2022 did not have the Brilinta in stock on that day period.” (FAC 3:8-12.)

What the FAC does not do is allege when Plaintiff discovered that Defendant had the doctor authorization but refused the fill the prescription anyway. “When the relevant facts are not clear, such that the cause of action might be but is not necessarily time-barred, the judge must overrule the demurrer.” (Citizens for a Responsible Caltrans Decision v. Dept. of Transportation (2020) 46 Cal.App.5th 1103, 1114.) Defendant’s interpretation of the FAC that Plaintiff’s claim clearly accrued by September 22, 2022 incorrectly reads additional factual allegations into the FAC that do not exist.[1] Moreover, attached to the complaint is a printout of Plaintiff’s medical chart dated June 15, 2023, which read liberally, suggests that Plaintiff first learned of the error on that date, which was within the one-year statute of limitations period. (See Complaint, Exhibit 2.)  

Accordingly, the court OVERRULES the demurrer to the First Cause of Action.

Second Cause of Action – Breach of Duties

The arguments here are the same as above. The result is the same.

While Plaintiff alleges that he began experiencing symptoms including bleeding after taking medication for a month, the pleading does not allege when he spoke with his physician and when the physician told him that continuing to take Brilinta for over one year caused his injury. (FAC 3:13-24.) As above, Defendant adds facts to the FAC that are not there.

Accordingly, the court OVERRULES the demurrer to the Second Cause of Action.

CONCLUSION:

            For the foregoing reasons, the court decides the pending motion as follows:

1.      Demurrer to the FAC is OVERRULED in its entirety. Defendant is to Answer Only by February 18, 2025.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             January 31, 2025                     __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court