Judge William A. Crowfoot, Case Number: 23AHCV01009, Date: 2023-10-11 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV01009, Date: 2023-10-11 Tentative Ruling

On May 5, 2023, plaintiff Paul Chew (“Plaintiff”), appearing in propria persona, filed this action against defendant Thrifty Payless, Inc. dba Rite Aid Pharmacy (“Defendant”) (erroneously sued as “Rite Aid”). The Complaint attaches a 2-page attachment asserting a cause of action for intentional tort and a document entitled “Sworn Affidavit of Paul Chew” (the “Affidavit”).

“A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. [Citation.]” (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.)

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).)

Plaintiff alleges that Defendant and its employee, Janet Sai, conspired with the Department of Homeland Security (“DHS”) to withhold the second shot of the Moderna vaccine for SARS-Cov-2 (COVID-19) in order to expose him to the virus. (See generally, Compl.) Plaintiff claims that on May 7, 2021, Sai “intentionally contacted [him] by using a needle to pierce [his] skin for a split second and withdrawing it before injecting the Moderna vaccine.” (Compl., IT-1, p. 1.) Plaintiff asserts that this direct physical contact “constituted a tort of battery.” (Id.) Plaintiff also alleges that Sai falsified his vaccination records to reflect that he had been vaccinated, despite failing to inject him with the vaccine. (Id.)

Plaintiff “did not discover the fake injection until days afterward” and while he attempted to get the second Moderna injection at Defendant’s other pharmacy locations, he was unable to because his records falsely showed that he had already received the vaccine. (Compl., IT-1, p. 2.) Plaintiff was only able to receive his second shot when the Center for Disease Control and Prevention (“CDC”) authorized a third shot of the vaccine for seniors. (Id.)

Defendant argues that Plaintiff’s action is barred by the statute of limitations for professional negligence pursuant to Code of Civil Procedure section 340.5. Code of Civil Procedure section 340.5 establishes a one-year limitations period for any "action for injury or death against a health care provider based upon such person's alleged professional negligence." (Code Civ. Proc., § 340.5.) The one-year period runs from the date "the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury." (Ibid.) The statute also establishes a three-year outer limitations period that runs from the date of injury regardless of when the plaintiff discovers the injury. Therefore, Defendant argues, the complaint is time-barred because Plaintiff’s action is based on the professional negligence of a healthcare provider and Plaintiff filed this action more than a year after he learned of the fake vaccination.

Defendant argues that although Plaintiff’s complaint identifies a cause of action for “intentional tort”, his claim is actually one for professional negligence because Plaintiff takes issue with the standard of medical care that he received. Defendant cites a number of cases in support of this contention; the Court finds the discussion in the most recently issued case, Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, instructive. In Larson, the Court of Appeal distinguished between claims for intentional tort based on intentional misconduct, like stealing and selling a person’s genetic material, from claims for intentional tort based on professional negligence, such as the way an anesthesiologist performed their job. (230 Cal.App.4th at p. 352 [citing Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 355-356].) The Larson court specifically noted that the plaintiff’s claims “concern[ed] the manner in which [the defendant] rendered his professional services as an anesthesiologist, not some collateral course of conduct pursued for [the anesthesiologist]’s own gain or gratification.” (Ibid.) The Larson court added that the plaintiff did not allege that the anesthesiology acted with any other intent or had any reason to intentionally injure him, nor did he allege that the anesthesiologist deliberately deviated from the consent the plaintiff provided for his surgery.” (Ibid.)

Here, Plaintiff alleges that Sai and Defendant conspired with DHS and intended to withhold the vaccine from him and expose him to COVID-19. (Compl., IT-1, pp. 1-2.) This allegation of intentional injury and violation of Plaintiff’s consent takes his claim outside the realm of professional negligence. On a demurrer, the Court assumes the truth of Plaintiff’s allegations. Therefore, Defendant’s demurrer on the grounds that the action is time-barred is OVERRULED.

Defendant argues that Plaintiff fails to allege sufficient facts to plead a breach of duty, causation, or damages. With respect to a breach of duty, Defendant argues that Plaintiff merely alleges that he was at increased risk of contracting it and that the cases cited by Plaintiff do not support the legal assertion that Defendant owed or breached a duty of care. To establish a battery claim, the plaintiff must prove that the defendant touched or caused the plaintiff to be touched with the intent to harm or offend them, that they did not consent to the touching, that the plaintiff was harmed or offended by the conduct, and that a reasonable person in the plaintiff’s situation would have been offended by the touching. (CACI No. 1300.)

Here, Plaintiff’ alleges that Sai committed a battery (i.e., breached a duty of care) because she interfered with his “right to be freed [sic] from intentional and harmful contact” by failing to give him the vaccine. Plaintiff alleges that the needle of the vaccine was placed on top of his skin; it is uncertain whether he is alleging that the needle pierced his skin. (Compare Compl., IT-1, p. 1 with Affidavit, p. 2-15.) Regardless of whether his skin was pierced, Plaintiff does not allege that he suffered any harm from the needle touching him. Consequently, Plaintiff fails to state sufficient facts to allege a cause of action for the intentional tort of battery. Because the Court sustains the demurrer on this ground, the Court need not address whether Plaintiff’s claim is barred by the Public Readiness and Emergency Preparedness (“PREP”) Act.

Plaintiff requests leave to amend to add a claim for intentional infliction of emotional distress and willful misconduct. Plaintiff also requests leave to add DHS as a defendant. In its reply brief, Defendant argues that leave to amend should not be granted because Plaintiff does not allege “extreme or outrageous conduct.” However, leave to amend must be granted where there is a reasonable probability of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) At this stage of the pleadings, where Plaintiff’s allegations must be taken as true, it appears that there is a reasonable probability that Plaintiff will be able to allege a claim for intentional infliction of emotional distress. Therefore, the Court sustains the demurrer with 20 days’ leave to amend

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.