Demurrer (Judge Marc Marmaro)


Case Number: BC567668??? Hearing Date: January 20, 2017??? Dept: 37

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: Defendants County of Los Angeles and Los Angeles County Sheriff?s Department
OPPOSING PARTY: Plaintiff Michael Shabsis

COURT?S TENTATIVE RULING

The demurrer is overruled in its entirety. Counsel for Plaintiff 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 (collectively, the County Defendants) as defendants. The County Defendants now demur to the third, fourth, fifth, sixth, and eleventh causes of action, which are the only causes of action asserted against them. 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 County Defendants? demurrer is based on a defect or misjoinder of parties and causes of action. (Code Civ. Proc., ? 430.10, subd. (d).) They contend that there is no nexus between the alleged civil rights violations for denial of medical care and excessive force asserted against them, and the claims for medical negligence, product liability, and breach of warranty asserted against the other defendants?i.e., Dr. Cogen, the Regents, and Pfizer. Consequently, the County Defendants argue there is no ground for their compulsory or permissive joinder, and they effectively conclude that Plaintiff should bring a separate lawsuit in order to adjudicate the claimed civil rights violations.

In the FAC, Plaintiff essentially alleges two courses of conduct against the County Defendants. First, Plaintiff alleges that the County Defendants? failure to provide medical care to Plaintiff while he was in their custody was part of a series of events leading to his personal injuries. Specifically, Plaintiff alleges that he began taking Chantix in September 2013 when Dr. Cogen prescribed the medication to help Plaintiff quit smoking. (FAC ? 15.) Plaintiff alleges that because of his consumption of Chantix, he had a severe psychotic breakdown that led to psychosis and violent behavior towards his grandfather. As a result of the psychotic breakdown, Plaintiff was arrested and incarcerated in the County Defendants? Twin Towers Jail around the New Year period of 2013 to 2014. (Id. ? 17.) Plaintiff alleges that while he was in custody, the County Defendants ignored the pleas of his parents and public defender that Plaintiff needed psychiatric care and medications, and that because he was still psychotic and experiencing a severe manic episode, the County Defendants placed Plaintiff into complete isolation. (Id. ? 18.) Plaintiff alleges that because the County Defendants failed to provide adequate medical and psychiatric care, and due to the conditions of solitary confinement (e.g., the lights were constantly on), on January 2, 2014, he used his hands and fingers to gouge out his own eyes, rendering him permanently blind. (Id. ? 19.) Plaintiff alleges that it was the County Defendants? denial of medical care that forms the nexus between their liability and the liability of the other defendants for their role in prescribing or otherwise providing the drug Chantix. (Id. ? 40 [third cause of action].) Plaintiff labels this conduct, as alleged, as a ?chain- reaction of inextricably interrelated series of events?.? (Opposition at 2)

The second course of conduct for which Plaintiff seeks to hold the County Defendants liable relates to the alleged use of excessive force. In the court?s view, this cannot properly be characterized as part of the alleged interrelated series of events. Specifically, Plaintiff alleges that while he was in the County Defendants? custody, the County Defendants ?caused [him] to fall.? (FAC ? 18.) Plaintiff alleges that after the incident of January 2, 2014, he was transported to the County USC Hospital where it was determined that he suffered a fractured hip as a result of the fall. (Id. ? 19.) Plaintiff alleges that the officer of the County Defendants physically abused him, and it is this course of conduct that underlies the fourth and fifth causes of action for excessive force and battery. (See id. ?? 46-47, 53-54.) This course of conduct, and the injuries resulting therefrom, are distinct from the first course of conduct and have no nexus to the action asserted against Dr. Cogen, The Regents, or Pfizer.

The Code of Civil Procedure provides for the compulsory and permissive joinder of parties. The general rule of compulsory joinder is that the plaintiff must join any person whose interest is such that 1) in the person?s absence, complete relief cannot be afforded among those already parties to the action; or 2) any judgment rendered in the person?s absence might either a) prejudice the person?s ability to protect his or her interest in later litigation, or b) leave any of the parties before the court exposed to a risk of additional liability or inconsistent obligations. (Code Civ. Proc., ? 389, subd. (a).) The rule of permissive joinder is that the plaintiff may join a defendant if 1) a right to relief is asserted against the defendant jointly, severally, or in the alternative; 2) the right to relief arises out of the same transaction or series of transaction; and 3) there is at least one question of law or fact common to all parties joined. (Id. ? 379, subd. (a)(1).)

The County Defendants are properly joined in this action based on the allegations set forth in the third cause of action for denial of medical care. As discussed, Plaintiff attributes his blindness and related personal injuries to a series of interrelated events beginning with his taking of Chantix and ending with the County Defendants? alleged failure to provide adequate medical and psychiatric care while Plaintiff was in their custody. Thus, there would appear to be an issue with respect to the apportionment of fault among the several defendants, and it is not clear that the court could afford complete relief in the County Defendants? absence in light of Plaintiff?s allegations. At the very least, permissive joinder is appropriate in this respect. Plaintiff seeks to hold Dr. Cogen, The Regents, Pfizer, and the County Defendants jointly liable for his blindness and personal injuries arising out of his psychotic episode; there is an alleged factual nexus between the third cause of action for failure to provide medical care and the claims alleged against Dr. Cogen, The Regents, and Pfizer; and there are common questions as to Plaintiff?s alleged injuries and the cause of those injuries. Accordingly, the County Defendants are properly joined in this action by virtue of the third cause of action for denial of medical care.

As long as there is a common question involving each of the parties joined, the joinder-of-parties rules are satisfied, and the plaintiff may then join any other causes of action against any of the defendants joined, even if unrelated to the common question. (Code Civ. Proc., ? 427.10, subd. (a).) For instance, in a personal injury case arising out of an automobile accident, the plaintiff may sue the driver of the car causing his injury and the owner of the car, with the common question of liability satisfying the party-joinder rules. The plaintiff may then join an unrelated claim against the owner of the car, including for example, for nonpayment of a promissory note. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016) Parties to the Action, ? 2:222.)

In this case, the fourth cause of action for excessive force is based on the alleged physical abuse of the County Defendants? officers while Plaintiff was incarcerated. The court agrees with the County Defendants that this cause of action is factually distinct from the rest of the lawsuit, which is based on the chain of events beginning with the alleged medical negligence and related claims (against Dr. Cogen, The Regents, and Pfizer) and ending with the alleged denial of care asserted against the County Defendants. However, the Code of Civil Procedure permits the liberal joinder of unrelated causes of action with respect to defendants who are properly joined as parties because of a common question of law or fact. As discussed, the County Defendants are properly joined as parties, and the fourth cause of action, though unrelated, is by extension appropriately asserted. (Code Civ. Proc., 427.10, subd. (a).)

The fifth, sixth, and eleventh causes of action for battery, negligence, and negligence appear to be essentially duplicative of the underlying causes of action for failure to provide medical care and excessive force. For instance, the alleged battery is based on the use of excessive force (FAC ?? 53-54), and the alleged negligence is based on the failure to provide timely medical and psychiatric care (id. ? 60(d)) and the failure to properly hire, train, and supervise employees (id. ? 60(c), (e)). The eleventh cause of action simply incorporates the previous allegations and does not provide any additional facts. (Id. ?? 98-103.)

The Monell allegations comprise part of the civil rights claims asserted against the County Defendants. Although the allegations are set off under their own heading in paragraph 64, Plaintiff acknowledges that the placement of the allegations was an inadvertent ?slip up? and that the allegations underlie the third and fourth causes of action for denial of medical care and excessive force. At least with respect to the fourth cause of action, the allegations are sufficient to show that the County Defendants had policies that amounted to a deliberate indifference of Plaintiff?s constitutional rights. (See Van Ort v. Estate of Stanewich (9th Cir. 1996) 92 F.3d 831, 835.)

The court notes the County Defendants? point that prejudice may result from their joinder in this action. However, there are other procedures available to address these concerns. For instance, where joinder would be prejudicial or inconvenient to a particular defendant, the defendant may bring a motion to sever pursuant to Code of Civil Procedure section 1048, subdivision (b). (See Weil & Brown, supra, ? 2:206.) Additionally, because the liberal rules on party joinder and joinder of unrelated claims may lead to unduly complicated proceedings, to avoid unfairness or hardship to any party, the court may order separate trial on any of the causes of action joined, or make any other order to prevent embarrassment, delay, or undue expense. (Code Civ. Proc., ? 379.5; Weil & Brown, supra, ? 2:230.) The County may raise these matters in an appropriate motion.

In sum, the demurrer for misjoinder of parties is overruled, and Plaintiff?s Monell allegations are sufficient.
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1. The County Defendants also contend that Plaintiff fails to sufficiently allege government liability for the alleged civil rights violations under Monell v. Department of Social Services of City of New York (1978) 436 U.S. 658.
2. This is in contrast to the federal rule, which requires that all claims joined must arise out of the same transaction or series of transactions. (F.R.C.P., Rule 20(a).)