CASE NAME: Shabsis v. The Regents of the University of California, et al.
CASE NUMBER: BC567668
HEARING DATE: 1/20/17
CALENDAR NUMBER: 9
DATE FILED: 12/24/14
TRIAL DATE: 10/10/17
NOTICE: OK
PROCEEDING: Demurrer (First Amended Complaint)
DEMURRING PARTY: Defendant The Regents of the University of California (named as “The Regents of the University of California” and “Resnick Neuropsychiatric Hospital of UCLA”)
OPPOSING PARTY: Plaintiff Michael Shabsis

COURT’S TENTATIVE RULING

The Regents’ demurrer to the eleventh cause of action is sustained with 20 days leave to amend. Counsel for Defendant to give notice.

STATEMENT OF THE CASE

This action arises out of Plaintiff Michael Shabsis’s consumption of Chantix, a smoking cessation medication manufactured by Defendant Pfizer, Inc. (Pfizer). Plaintiff alleges that he began taking the medication in September 2013 when it was prescribed to him by his physician, Philip Cogen, M.D., and that he subsequently suffered a severe psychotic breakdown leading to personal injuries. In the First Amended Complaint (FAC), Plaintiff asserts eleven causes of action: 1) medical negligence; 2) respondeat superior; 3) denial of medical care (42 U.S.C. § 1983); 4) excessive force (42 U.S.C. § 1983); 5) battery; 6) negligence; 7) strict product liability (failure to warn); 8) strict product liability (negligence); 9) breach of express warranty; 10) breach of implied warranty; and 11) negligence. In addition to Pfizer and Dr. Cogen, Plaintiff has named The Regents of the University of California (The Regents) and the County of Los Angeles and the Los Angeles County Sheriff’s Department as defendants. The Regents now demur to the eleventh cause of action. Plaintiff opposes the demurrer.

DISCUSSION

I. Legal Standard

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. ( Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) The court therefore treats the demurrer as admitting all properly pled material facts, but not contentions, deductions, or conclusions of fact or law. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” ( Code Civ. Proc., § 452.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

II. Analysis

The Regents demur to the eleventh cause of action on two grounds. First, it contends that as a matter of law a defendant cannot be held liable for both professional and general negligence on the same set of facts. Because the first and second causes of action for medical negligence and respondeat superior seek to hold The Regents liable for professional negligence, it argues that the eleventh cause of action for general negligence is subject to demurrer because it is based on the same factual circumstances. Second, The Regents argue that to the extent the eleventh cause of action is based on the product liability claims asserted against Pfizer, the cause of action cannot proceed for two reasons: i) strict tort liability does not extend to the provision of services, and ii) the product liability claims are preempted by federal law.

In support of the first ground, The Regents cite Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, which held that “[a]s to any given defendant, only one standard of care obtains under a particular set of facts, even if the plaintiff attempts to articulate multiple or alternate theories of liability.” (Id. at p. 998.) In Flowers, the plaintiff sued a hospital and nurse for injuries sustained following a fall from her gurney. The plaintiff alleged that the nurse, and by extension the hospital, was negligent in failing to ensure that the railing of her gurney was raised so as to prevent a fall. (Id. at pp. 995-996.) The Court determined that the plaintiff could not state a cause of action for ordinary negligence as well as professional negligence on the same set of facts because “the same factual predicate [cannot] give rise to two independent obligations to exercise due care according to two different standards.” (Id. at p. 1000.) According to the Court, “this is a legal impossibility: a defendant has only one duty, measured by one standard of care, under any given circumstances.” (Ibid.)

In this case, the first cause of action labeled “medical negligence” is based on Dr. Cogen’s prescription of Chantix, which Plaintiff alleges was a failure to exercise due care in treating Plaintiff’s disorder. (FAC ¶¶ 15, 22, 29.) Plaintiff alleges that Dr. Cogen should not have prescribed Chantix because he should have known, based on his education and training, Chantix was contraindicated for a person in Plaintiff’s condition. (FAC ¶ 31.) The second cause of action labeled “respondeat superior” is brought solely against The Regents and is based on the allegation that Dr. Cogen was The Regent’s employee or agent when he prescribed Chantix. (FAC ¶ 35.) In other words, the second cause of action is based on the same factual predicate as the first. Finally, in the eleventh cause of action, to which The Regents now demur, Plaintiff simply reincorporates the factual allegations underlying the other causes of action. (FAC ¶¶ 98-103.) For instance, Plaintiff alleges that “[a]s a direct and proximate result of the afore-described carelessness and negligence of the defendants, and each of them, Plaintiff sustained heretofore and hereinafter described injuries and damages.” (FAC ¶ 100.) In other words, there are no independent or separate facts underlying the eleventh cause of action for general negligence. It is premised on the same factual predicate as the first and second causes of action for “medical negligence” and “respondeat superior.”

In opposition to the demurrer, Plaintiff contends that the eleventh cause of action is based on a different set of facts from the first and second causes of action. Specifically, while the first and second causes of action are based on Dr. Cogen’s alleged professional negligence, and The Regent’s liability for the professional negligence based on the doctrine of respondeat superior, the eleventh cause of action is based on The Regent’s alleged failure as an ordinary employer to reasonable train and supervise its employees and agents. According to Plaintiff, “Flowers is utterly distinguishable and completely inapplicable in the instant case and REGENT can be held liable for ordinary negligence stemming from their function as a run of the mill employer with duties to reasonably supervise and train its employees/agents—a crystal clear distinction from professional negligence—since REGENTS[’s] liability arises from a different set of facts.” (Opposition, p. 5:7-11.)

The allegations of the FAC do not bear out this distinction. This action is based on Dr. Cogen’s prescription of Chantix and the injuries that allegedly flowed from the prescription. As discussed, the same factual predicate underlies the first, second, and eleventh cause of action, and it cannot give rise to multiple independent obligations to exercise due care according to different standards. “[A] defendant has only one duty, measured by one standard of care, under any given circumstances.” (Flowers, supra, 8 Cal.4th at p. 1000.)

In opposition, Plaintiff contends that Flowers is no longer good law. Plaintiff cites Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343. However, that case involved intentional tort claims based on conduct different from the type of conduct that underlies a claim for professional negligence. In Unruh-Haxton, the gravamen of the lawsuit was the allegation that two doctors had stolen human genetic material from patients receiving fertility treatments. (Id. at p. 349.) The Court determined that the intentional torts arising from this alleged intentional conduct were not based on professional negligence and were not subject to the Medical Injury Compensation Reform Act (MICRA) statute of limitations: “None of the patients assert the egg harvesting medical procedures fell below the standard of care. Rather, it is the intentional and malicious quest to steal genetic material that is the focus of the lawsuit.” (Id. at pp. 349, 355-356.) Thus, Unruh-Haxton is factually distinguishable from this case, which attempts to assert professional and ordinary negligence based on the same underlying conduct.

Plaintiff also cites Pouzbaris v. Prime Healthcare Services-Anaheim, LLP (2015) 236 Cal.App.4th 116. However, review was subsequently granted and the opinion superseded by Pouzbaris v. Prime Healthcare Services-Anaheim (Case No. S226846), which deferred further action pending the California Supreme Court’s consideration of Flores v. Presbyterian Intercommunity Hospital (Case No. S209836). The Court issued its opinion in Flores on May 5, 2016 (see Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75), and on August 31, 2016, the Court dismissed review and remanded the case to the Court of Appeal.

In sum, Plaintiff fails to allege sufficient facts to support the eleventh cause of action. The demurrer is sustained with 20 days leave to amend.
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1. The Regents’ “third” point is that the eleventh cause of action is duplicative of the first and second causes of action. This argument is essentially the same as the first ground.
2. See California Supreme Court website: [as of Jan. 18, 2017].
3. With respect to The Regents’ second ground for demurrer, the court notes that Plaintiff states he is “not alleging products liability on a negligence theory against the REGENTS.” (Opposition, p. 2:8-9.)