Opinion
C091318
05-25-2021
STELLA ALTRAIDE et al., Plaintiffs and Appellants, v. PFIZER, INC. et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34201800233326CUMMGDS)
This action arises out of decedent's treatment for prostate cancer at a Kaiser medical facility, which included a Lupron injection in 2012 and 2013, and the medication Effexor in 2013. Decedent died in May 2015, and this action was filed in May 2018 against Kaiser Foundation Health Plan, Inc., The Permanente Medical Group, Inc., Kaiser Foundation Hospitals, decedent's primary care physician, and three additional doctors and a nurse who were involved in his cancer treatment. In 2019, decedent's wife, their children, and their daughter-in-law filed the operative complaint, which added AbbVie Inc., Abbott Laboratories, Inc., Pfizer, Inc., and two additional nurses as defendants. As alleged in this complaint, AbbVie and Abbott Laboratories are biopharmaceutical companies that manufactured the Lupron that was administered to decedent, and Pfizer is a pharmaceutical company that manufactures Effexor.
Plaintiffs appeal from judgments entered after the trial court sustained various demurrers to their third amended complaint. In particular, the court sustained demurrers to all causes of action brought by decedent's children and daughter-in-law, and all causes of action against the defendants that were not named until the most recent complaint. The trial court also granted a motion brought by the non-pharmaceutical defendants to strike punitive damages allegations. On appeal, plaintiffs argue the trial court erred in sustaining the demurrers filed by AbbVie, Abbott Laboratories, and Pfizer entirely without leave to amend. As to the non-pharmaceutical defendants, plaintiffs contend the trial court erred in granting the motion to strike their punitive damages allegations and sustaining demurrers as to their causes of action for: loss of consortium; constructive fraud; enhancement of harm; joint venture, joint enterprise, and conspiracy; and declaratory relief without leave to amend. We will affirm the judgments.
I. BACKGROUND
To properly contextualize plaintiffs' third amended complaint and the trial court's rulings with respect to this pleading, we begin with an overview of the procedural history of plaintiffs' various claims against defendants.
In March 2016, decedent's wife, Stella Altraide, sent "Kaiser Permanente" a notice of her intent to file a medical malpractice action against it under Code of Civil Procedure section 364. In May 2016, Stella, Nkem Ayeni-Aarons, and Ibibia Altraide demanded arbitration against Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, and the Permanente Medical Group (collectively, the "Kaiser entities"). Nkem and Ibibia are among Stella's children with decedent. In May 2017, the three of them filed an action in superior court against the Kaiser entities alleging they failed to show a valid arbitration agreement. The superior court sustained the defendants' demurrer without leave to amend and entered judgment in their favor. Meanwhile, Stella, Nkem, and Ibibia withdrew from the arbitration.
Because many of the plaintiffs share a last name, they will be referred to after first reference by their first names. No disrespect is intended.
Code of Civil Procedure section 364, subdivision (a), requires plaintiffs to give a defendant at least 90 days' notice of their intention to sue before filing a medical malpractice action.
In May 2018, Stella, Nkem, and Ibibia filed this action against the Kaiser entities, as well as Dr. Buchanan, Dr. Eyolfson, Dr. Lee, Dr. Keene, and nurse Suk, alleging lack of informed consent, fraud, and negligent misrepresentation. The trial court sustained defendants' demurrer with leave to amend on the basis that these causes of action were survival causes of action for decedent's injuries and none of the plaintiffs had filed the action as the personal representative of decedent's estate or complied with Code of Civil Procedure section 377.32.
"[U]nlike a wrongful death action, a survival action is a cause of action that existed while the decedent is alive and survives the decedent. The decedent's personal representative or successor in interest may commence that action." (Adams v. Superior Court (2011) 196 Cal.App.4th 71, 78-79; see Code Civ. Proc., § 377.30.)
The first amended complaint added as plaintiffs Donald Altraide, Kalada Altraide, Grant Altraide, and Diane Benjamin, all of whom are also children of decedent and Stella. The complaint alleged causes of action for: (1) lack of consent, (2) lack of informed consent, (3) fraud by intentional false misrepresentation, (4) fraud by negligent misrepresentation, (5) fraudulent concealment, breach of fiduciary duty, and breach of the covenant of good faith and fair dealing, (6) fraud by false promise, (7) loss of consortium, and (8) battery. The loss of consortium claim was asserted by Stella and the remaining causes of action were asserted by all plaintiffs as survival claims. Stella filed a declaration pursuant to Code Civil Procedure section 377.32 to commence the action as decedent's successor in interest. The trial court sustained defendants' demurrer as to the children's causes of action without leave to amend based on lack of standing. The court also sustained the demurrer with leave to amend as to Stella's first, second, seventh, and eighth causes of action based on the statute of limitations, and as to the sixth cause of action for failure to state a claim.
In the second amended complaint, Stella raised the same claims as pled in the first amended complaint, except the sixth cause of action became a claim for misrepresentation and false promise, and the eighth cause of action became a cause of action for medical battery, simple battery, aggravated battery, and assault. All plaintiffs asserted the fifth cause of action and alleged new causes of action for: (9) wrongful death, (10) negligence and strict product liability, (11) joint venture, joint enterprise, and conspiracy, and (12) declaratory relief. The court granted a motion to strike the fifth cause of action only as to the children, the sixth cause of action only as to misrepresentation, and the eighth, tenth, eleventh, and twelfth causes of action entirely based on plaintiffs' failure to obtain leave to include them. The trial court sustained defendants' demurrer to the first, second, seventh, eighth, and ninth causes of action based on the statute of limitations, and to the sixth cause of action based on the failure to state a claim. The court denied leave to amend. Thus, only Stella's causes of action for fraud by intentional false misrepresentation; fraud by negligent misrepresentation; and fraudulent concealment, breach of fiduciary duty, and breach of the covenant of good faith and fair dealing survived the demurrer and motion to strike. These became the first three causes of action in plaintiffs' third amended complaint, which plaintiffs did obtain leave to file.
We have now arrived at the pleading that is the subject of this appeal. The third amended complaint was filed in August 2019 and added AbbVie, Abbott Laboratories, Pfizer, and nurses Ugbo and Gardizi as defendants. As set forth above, Stella continued to allege: (1) fraud by intentional false misrepresentation, (2) fraud by negligent misrepresentation, and (3) fraudulent concealment, breach of fiduciary duty, and breach of the covenant of good faith and fair dealing. Her children joined her in alleging: (4) strict product liability (design defect), (5) strict product liability (failure to warn), (6) negligence, (7) wrongful death, (8) negligent infliction of emotional distress and intentional infliction of emotional distress, (10) constructive fraud, (11) enhancement of harm, (12) joint venture, joint enterprise, and conspiracy, and (13) declaratory relief. The ninth cause of action for loss of consortium was brought by Alice Altraide—Grant's wife and decedent's daughter-in-law—who was added as a plaintiff. As we will discuss in relevant detail below, not all of the causes of action were asserted against each of the defendants.
Separate demurrers to the third amended complaint were filed by: (1) decedent's primary care physician, Dr. Buchanan; (2) nurses Suk, Ugbo, and Gardizi; (3) the Kaiser entities, Dr. Eyolfson, Dr. Lee, and Dr. Keene; (4) AbbVie and Abbott Laboratories; and (5) Pfizer.
The court sustained the demurrers to the third amended complaint filed by Pfizer, AbbVie, Abbott Laboratories, Ugbo, and Gardizi in their entirety. As to the other defendants, the court sustained the demurrers as to the claims asserted by the children and Alice as well as to all but the first three causes of action in their entirety. Thus, the court explained that the first three causes of action asserted by Stella remained at issue as to the Kaiser entities, Dr. Buchanan, Dr. Eyolfson, Dr. Lee, Dr. Keene, and Suk.
As a general matter, the various rulings concluded the children did not have standing to assert survivor claims, Alice failed to state a claim for loss of consortium, the complaint failed to state a cause of action as to nurses Ugbo and Gardizi, the statute of limitations barred various claims between the parties, and plaintiffs had otherwise failed to state a claim against AbbVie, Abbott Laboratories, and Pfizer. We will discuss the court's orders in further detail in the context of the issues raised by plaintiffs. The demurrers were sustained without leave to amend on the basis that plaintiffs did not explain how they could resolve any of the deficiencies identified by the court. As to all of the defendants except Pfizer, the trial court also noted it was plaintiffs' fourth attempt to plead a valid cause of action. Additionally, the trial court granted the non-pharmaceutical defendants' motion to strike punitive damages allegations based on plaintiffs' failure to obtain a court order pursuant to Code of Civil Procedure section 425.13 to assert them.
The court entered judgments dismissing all claims against Pfizer, AbbVie, Abbott Laboratories, Ugbo, and Gardizi. The trial court also issued a judgment in favor of the Kaiser entities, Dr. Buchanan, Dr. Eyolfson, Dr. Lee, Dr. Keene, and Suk, and against the children and Alice. Plaintiffs filed a timely notice of appeal.
II. DISCUSSION
A. Appealability
The non-pharmaceutical defendants argue that, with the exception of nurses Ugbo and Gardizi, Stella is not appealing from a final judgment and her appeal should be dismissed under the "one final judgment" rule codified in Code of Civil Procedure section 904.1, subdivision (a). "Subject to exceptions not applicable here, that subdivision authorizes appeal '[f]rom a judgment, except . . . an interlocutory judgment,' i.e., from a judgment that is not intermediate or nonfinal but is the one final judgment. [Citation.] Judgments that leave nothing to be decided between one or more parties and their adversaries, or that can be amended to encompass all controverted issues, have the finality required by section 904.1, subdivision (a). A judgment that disposes of fewer than all of the causes of action framed by the pleadings, however, is necessarily 'interlocutory' (Code Civ. Proc., § 904.1, subd. (a)), and not yet final, as to any parties between whom another cause of action remains pending." (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 741.) Stella appears to concede the issue. As set forth above, the trial court only entered judgment as to all claims brought against defendants Pfizer, AbbVie, Abbott Laboratories, Ugbo, and Gardizi and/or on behalf of the children and Alice. These judgments are appealable. (See Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 437 [in multiparty lawsuit, judgment was final and appealable with respect to plaintiff's claims against certain defendants].) No judgment was entered as between Stella and the Kaiser entities, Dr. Eyolfson, Dr. Lee, Dr. Keene, Dr. Buchanan, or Suk. Accordingly, we will only address claims for which there is a related appealable judgment. B. Standard of Review
"It is well established that a demurrer tests the legal sufficiency of the complaint. [Citations.] On appeal from a dismissal entered after an order sustaining a demurrer, we review the order de novo, exercising our independent judgment about whether the petition states a cause of action as a matter of law. [Citations.] We give the petition a reasonable interpretation, reading it as a whole and viewing its parts in context. [Citations.] We deem to be true all material facts that were properly pled. [Citation.] We must also accept as true those facts that may be implied or inferred from those expressly alleged. [Citation.] We may also consider matters that may be judicially noticed, but do not accept contentions, deductions or conclusions of fact or law." (City of Morgan Hill v. Bay Area Air Quality Management Dist. (2004) 118 Cal.App.4th 861, 869-870; see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
"If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.] If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. [Citation.] The plaintiff has the burden of proving that an amendment would cure the defect." (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
Even under de novo review, orders and judgments are presumed to be correct, and the appellant must affirmatively show error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) "To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error. [Citations.] When a point is asserted without argument and authority for the proposition, 'it is deemed to be without foundation and requires no discussion by the reviewing court.' [Citations.] Hence, conclusory claims of error will fail." (In re S.C. (2006) 138 Cal.App.4th 396, 408.) With respect to citations to the record, the appellant must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." (Cal. Rules of Court, rule 8.204(a)(1)(C).) "If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived." (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) Throughout their opening brief, plaintiffs appear to refer us to their trial court briefs to locate arguments on their behalf. For instance, at various points, to support an assertion that the trial court abused its discretion in denying leave to amend, plaintiffs state they "would have amended their complaint to reflect allegations made in the Opposition to Demurrer, Motion to Vacate, and Reply to Opposition to Motion to Vacate." "It is well settled that the Court of Appeal does not permit incorporation by reference of documents filed in the trial court. . . . We therefore disregard these purported incorporations by reference." (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 294, fn. 20.) Additionally, any arguments raised or only supported by authority on reply have been waived. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.) These rules apply to plaintiffs even though they are representing themselves in this appeal. (McComber v. Wells (1999) 72 Cal.App.4th 512, 523.) C. Children's Standing
1. Survival Claims
In their demurrer, AbbVie and Abbott Laboratories argued decedent's children lacked standing to bring survival claims on decedent's behalf. This argument was directed at the children's claims for design defect (fourth cause of action), failure to warn (fifth cause of action), negligence (sixth cause of action), enhancement of harm (eleventh cause of action), and joint venture, joint enterprise, and conspiracy (twelfth cause of action). In opposition, the children conceded they had no standing to assert survival claims, but argued they had standing to assert these claims. The trial court rejected this argument. On appeal, decedent's children contend the trial court incorrectly held none of them had standing to assert these claims against AbbVie and Abbott Laboratories.
We pause to note that in ruling on the demurrers filed by the non-pharmaceutical defendants, the trial court similarly concluded the children lacked standing to assert survival causes of action. Plaintiffs' opening brief only disputes the issue of decedent's children's standing as to Abbott Laboratories and AbbVie. Further, none of their authorities address the children's standing to assert any survival claims. For instance, plaintiffs cite Boeken v. Philip Morris USA Inc. (2013) 217 Cal.App.4th 992, 997, which involved a wrongful death action brought by a child, for the proposition that they "each suffered an injury of loss by reason of decedent's death." A wrongful death action is not a survival action. (Adams v. Superior Court, supra, 196 Cal.App.4th at pp. 78-79.) Decedent's children have forfeited any claim the trial court erred in concluding they lacked standing to allege a survival claim by failing to cite any relevant authority.
As we will explain in Part II.E.1, the trial court correctly dismissed the wrongful death claims against AbbVie and Abbott Laboratories based on the statute of limitations.
On reply, plaintiffs appear to contend the children have standing to bring strict products liability claims because liability extends to any person as to whom an injury from a defective product is reasonably foreseeable. Plaintiffs forfeited this argument by not raising it in their opening brief. Additionally, the authority they cite does not, in fact, suggest they would have standing to assert a products liability claim based on the alleged foreseeability that they "would be injured as a result of administration of defective products upon [d]ecedent."
Instead, the children's standing arguments are directed at preserving causes of action that were not asserted as survival claims. They suggest defendants' actions of "having their unlearned intermediaries inject a defected Lupron into [d]ecedent, combined with a failure to warn decedent of the consequences, amounted to at least a reckless infliction of emotional distress . . . or negligent infliction of emotional distress" on them. The trial court addressed plaintiffs' eighth cause of action for negligent infliction of emotional distress and intentional infliction of emotional distress separately from the question of whether the children had standing; it dismissed this cause of action as to AbbVie and Abbott Laboratories based on the failure to state a claim. Indeed, in a separate portion of their opening brief, plaintiffs argue the trial court erred in sustaining AbbVie and Abbott Laboratories' demurrer to this cause of action. Having concluded decedent's children have forfeited their other standing arguments, we will turn now to this question.
2. Negligent and Intentional Infliction of Emotional Distress
"Negligent infliction of emotional distress is not an independent tort; it is the tort of negligence to which the traditional elements of duty, breach of duty, causation, and damages apply." (Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 126.) In Thing v. La Chusa (1989) 48 Cal.3d 644, our Supreme Court held that in a claim for negligent infliction of emotional distress, "[i]n the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the plaintiff: (1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness." (Id. at p. 647, italics added.)
The trial court concluded plaintiffs' claim for negligent infliction of emotional distress against AbbVie and Abbott Laboratories failed as a matter of law because the complaint did not allege that any of the plaintiffs was present at the time of the injury-producing event, which were the Lupron injections, and was contemporaneously aware the injections were causing injury to decedent. The trial court explained the complaint indicates decedent's side-effects began several days after the injections. The court also stated that this cause of action "attributes plaintiffs' alleged emotional distress to the [d]ecedent's death more than two years later, damages for which would be recoverable under the wrongful death claim if at all."
The tort of intentional infliction of emotional distress "is entirely different from negligent infliction of emotional distress. [Citation.] The elements of the tort are '(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.' " (Ess v. Eskaton Properties, Inc., supra, 97 Cal.App.4th at p. 129.) Even "when the plaintiff's claim is based on alleged recklessness, it is generally, if not always, required that the plaintiff be present at the time the outrageous conduct occurred." (Id. at p. 131.) Plaintiffs assert that, when read in context, they alleged they were present at the time of the injury-producing event. Plaintiffs do not cite their complaint in support of this assertion. Further, the complaint does not, in fact, allege any of them were present for the Lupron injections.
Additionally, with respect to intentional infliction of emotional distress, " ' "[c]onduct, to be ' "outrageous" ' must be so extreme as to exceed all bounds of that usually tolerated in a civilized society." ' [Citation.] In order to avoid a demurrer, the plaintiff must allege with 'great[ ] specificity' the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community." (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.) Here, to support their cause of action, plaintiffs alleged that due to the defendant drug manufacturers' "negligence, intentional, and reckless conduct in the manufacture and warning of the toxic effects associated with their drugs, plaintiffs suffer emotional distress and shock from decedent's death." The trial court concluded plaintiffs' claim for intentional infliction of emotional distress was without merit because the complaint failed to allege any outrageous conduct attributable to AbbVie and Abbott Laboratories in connection with their manufacture and distribution of Lupron. Plaintiffs argue that, "when read in context," they "alleged facts showing outrageous conduct" and "factual support of the outrageousness is not needed, because evidence of the defect and lethality of the injection exist in [the] public domain." Again, plaintiffs do not cite their complaint in support of this assertion. Thus, plaintiffs' have established no error with respect to the trial court's dismissal of their eighth cause of action or any claims asserted by decedent's children. Nor does their opening brief propose any amendments that could cure the defects in their pleading. (See People ex rel. Brown v. Powerex Corp. (2007) 153 Cal.App.4th 93, 112 [appellant has "duty to spell out in his brief the specific proposed amendments on appeal"].) Further, a cause of action for either negligent or intentional infliction of emotion distress has a two-year statute of limitations. (See Code Civ. Proc., § 335.1 ["An action for . . . injury to, or for the death of, an individual caused by the wrongful act or neglect of another"]; Wassman v. South Orange County Community College Dist. (2018) 24 Cal.App.5th 825, 852 [intentional infliction of emotional distress].) Thus, plaintiffs cannot meet their burden of demonstrating an amendment could cure the defects in their pleading because a claim for negligent or intentional infliction of emotional distress would be barred by the statute of limitations, as we will discuss further in Part II.E.1. We will affirm the trial court's dismissal of the eighth cause of action against AbbVie and Abbott Laboratories. D. Alice's Claim for Loss of Consortium (Ninth Cause of Action)
The ninth cause of action purports to state a claim for loss of consortium by Alice. The claim alleges Alice "is wife of plaintiff-child Grant" and that the wrongful conduct by defendant drug manufacturers toward decedent caused severe emotional distress and injury to Grant that disturbs their marriage, resulting in loss of consortium to Alice. In ruling on the demurrers filed by AbbVie, Abbott Laboratories, and Dr. Buchanan, the court concluded Alice had failed to state a claim because she was not married to decedent. Plaintiffs' opening brief asserts this was error but cites no authority and articulates no argument. This was insufficient to establish error or avoid forfeiture of the issue. (In re S.C., supra, 138 Cal.App.4th at p. 408; People v. Baniqued, supra, 85 Cal.App.4th at p. 29.) E. Statute of Limitations
1. AbbVie and Abbott Laboratories
Plaintiffs challenge the trial court's conclusion that plaintiffs' wrongful death claims and Stella's survival claims against AbbVie and Abbott Laboratories are barred by the statute of limitations. As set forth above, the trial court separately concluded decedent's children had no standing to assert survival causes of action and that Alice had no standing to raise her claim for loss of consortium. The trial court also determined that AbbVie and Abbott Laboratories' demurrer to the causes of action for design defect (fourth cause of action), failure to warn (fifth cause of action), negligence (sixth cause of action), negligent and intentional infliction of emotional distress (eighth cause of action), enhancement of harm (eleventh cause of action), and joint venture, joint enterprise, and conspiracy (twelfth cause of action) must be sustained because these causes of action failed to state a claim as a matter of law. Plaintiffs address the merits of each of these claims. Nonetheless, as pled and as previously discussed, the fourth through sixth causes of action were survival claims because they were based on injuries to decedent. As such, they are included in our analysis of the statute of limitations issue, and our conclusion that they are time-barred renders unnecessary any further discussion of whether they otherwise set forth a valid cause of action. Additionally, AbbVie and Abbott Laboratories demurred to all of plaintiffs' causes of action on the basis that they were barred by the applicable statute of limitations and "[a] judgment of dismissal after a demurrer has been sustained without leave to amend will be affirmed if proper on any grounds stated in the demurrer, whether or not the court acted on that ground." (Carman v. Alvord (1982) 31 Cal.3d 318, 324.) Thus, to the extent it is unclear which causes of action the trial court sustained the demurrer to based on the statute of limitations, we are not constrained by its ruling on appeal.
As we will discuss in Parts II.G-H, the trial court did not err in dismissing plaintiffs' eleventh and twelfth causes of action for "enhancement of harm" and "joint venture, joint enterprise, and conspiracy" based on their failure to assert valid independent causes of action. As such, we have omitted them from this discussion of the trial court's ruling on the statute of limitations.
The limitations period "runs from the moment a claim accrues." (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.) "Generally speaking, a cause of action accrues at 'the time when the cause of action is complete with all of its elements.' " (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806.)
The trial court relied on the two-year statute of limitations governing personal injury and wrongful death claims. (Code Civ. Proc., § 335.1 ["An action for . . . injury to, or for the death of, an individual caused by the wrongful act or neglect of another"]; see also Fox v. Ethicon Endo-Surgery, Inc., supra, 35 Cal.4th at p. 809, fn. 3 [products liability claims].) Plaintiffs do not challenge the applicability of this particular statute of limitations to their claims. Instead, they rely on the discovery rule to contend that their wrongful death claims and Stella's survival claims against Abbott and AbbVie are timely. Under this exception to the general rule of accrual, "the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her." (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110.) "Wrong" is not used in a technical sense, "but rather in accordance with its 'lay understanding.' " (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397-398.) "A plaintiff need not be aware of the specific 'facts' necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her." (Jolly v. Eli Lilly & Co., supra, at p. 1111.) The plaintiff need not know whom to sue at this point. (Id. at p. 1114, fn. 13.) "The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action." (Fox v. Ethicon Endo-Surgery, Inc., supra, at p. 807.) In other words, "a potential plaintiff who suspects that an injury has been wrongfully caused must conduct a reasonable investigation of all potential causes of that injury. If such an investigation would have disclosed a factual basis for a cause of action, the statute of limitations begins to run on that cause of action when the investigation would have brought such information to light." (Id. at pp. 808-809.) Even where, as plaintiffs allege, a fiduciary duty exists, if a plaintiff "became aware of facts which would make a reasonably prudent person suspicious, she had a duty to investigate further, and she was charged with knowledge of matters which would have been revealed by such an investigation." (Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 875.)
The complaint alleges that, after his second Lupron injection in 2013, decedent complained about pain in his shoulders and knees that began as a mild ache and progressed to severe pain. Decedent questioned whether the symptoms were attributable to Lupron. Dr. Eyolfson said they were not and allegedly "feigned ignorance and said that decedent's medical injuries could not be true" after he was asked again on several different occasions from 2013 until 2015. The trial court concluded Stella's survivor claims against AbbVie and Abbott Laboratories were barred because the complaint indicated decedent was actually suspicious by 2013, and the action was not filed within two years. Likewise, the trial court concluded plaintiffs' wrongful death claims against AbbVie and Abbott Laboratories were time-barred because decedent died in 2015 and these defendants were not sued until 2019. "In order to rely on the discovery rule for delayed accrual of a cause of action, '[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.' " (Fox v. Ethicon Endo-Surgery, Inc., supra, 35 Cal.4th at p. 808.) As the trial court concluded, neither requirement is met by this complaint.
Plaintiffs cite the allegation in their complaint that, "[a]fter independent research and consultation with other healthcare providers, it became apparent to plaintiffs from about July 2016 and thereafter, that . . . pharmaceutical manufacturers of Effexor, gold seeds, and Lupron were working in concert in a conspiracy to defraud patients like decedent and intentionally conceal the known risks or warnings from him." This allegation is insufficient. It is true that "a diligent plaintiff's investigation may only disclose an action for one type of tort (e.g., medical malpractice) and facts supporting an entirely different type of tort action (e.g., products liability) may, through no fault of the plaintiff, only come to light at a later date. Although both claims seek to redress the same physical injury to the plaintiff, they are based on two distinct types of wrongdoing and should be treated separately in that regard." (Fox v. Ethicon Endo-Surgery, Inc., supra, 35 Cal.4th at pp. 814-815.) However, even where this concept applies, "[a] plaintiff seeking to utilize the discovery rule must plead facts to show his or her inability to have discovered the necessary information earlier despite reasonable diligence." (Id. at p. 815.) Plaintiffs' allegations were insufficient to establish any of their causes of action accrued within the limitations period. Nor have plaintiffs specified any facts they could allege that would cure this defect. The trial court concluded "the allegations [in the third amended complaint] effectively admit plaintiffs could have with reasonable diligence discovered that Lupron caused or contributed to the [d]ecedent's death as early as 2015." In particular, the complaint cites a 2010 lawsuit and a 2001 investigation by the FDA that the court stated were equally available to plaintiffs in 2015. Thus, the trial court did not err in sustaining the demurrer without leave to amend based on the statute of limitations.
Plaintiffs also rely on the relation back doctrine, but it lends no assistance where no complaint is filed within the applicable limitations period. Our Supreme Court has, in in the context of the discovery rule, "recognize[d] the effect of Code of Civil Procedure sections 474 and 583.210, subdivision (a). Section 474 provides that, '[w]hen the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint . . . , and such defendant may be designated . . . by any name,' customarily 'Doe,' and 'when his true name is discovered,' the complaint 'must be amended accordingly . . . .' For its part, section 583.210, subdivision (a), provides that the 'complaint shall be served upon a defendant within three years' of its filing. Hence, the plaintiff can 'file[] a timely complaint under section 474 . . . . From the time such a complaint is filed,' under section 583.210, subdivision (a), he 'has three years,' and the machinery of discovery, 'to identify . . . the defendant,' amend the complaint, and 'serve [him] . . . , effectively enlarging the ... limitations period for three years' through the doctrine that the amended complaint 'relates back' to the original one." (Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 398.) Here, plaintiffs have not established that even the original complaint was timely.
Furthermore, plaintiffs have not demonstrated the relation back doctrine applies. The operative complaint, which was not filed until August 2019, was the first to name AbbVie and Abbott Laboratories as defendants. "The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed. [Citations.] A recognized exception to the general rule is the substitution under [Code of Civil Procedure] section 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint. [Citations.] If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed." (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.)
In order to apply the relation back doctrine, the original complaint "must state a cause of action against each Doe defendant." (Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1143.) The complaint must also "allege that the plaintiff is ignorant of the Doe defendant's name." (Ibid.) " 'Code of Civil Procedure section 474 is to be liberally construed. [Citation.]' [Citation.] Nevertheless, its requirements, as so construed, are mandatory. [Citation.] Failure to comply with Code of Civil Procedure section 474 does not prevent a plaintiff from filing an amendment adding a new defendant; however, it does prevent the amendment from relating back." (Id., at pp. 1143-1144.)
Plaintiffs' opening brief noted that, in their third amended complaint, their wrongful death claim alleged "relation back applies," but they neither cite nor discuss any allegations in their original complaint. Rather, they impermissibly attempt to incorporate by reference their trial court briefing related to the demurrer. The caption in their initial complaint stated "DOES 1-200," but there is no further specific mention of any Doe defendants within the complaint, and no allegation that plaintiffs were ignorant of their true identity. "A further and nonprocedural requirement for application of the . . . relation-back doctrine is that [plaintiffs] must have been genuinely ignorant of [the new defendant]'s identity at the time [they] filed [their] original complaint." (Woo v. Superior Court, supra, 75 Cal.App.4th at p. 177.) As set forth above, in their most recent complaint, plaintiffs allege "it became apparent to plaintiffs from about July 2016 and thereafter, that . . . pharmaceutical manufacturers of Effexor, gold seeds, and Lupron were working in concert in a conspiracy to defraud patients like decedent and intentionally conceal the known risks or warnings from him." This allegation suggests they were aware of these defendants' identity at the time they filed the original complaint. The relation-back doctrine simply does not apply.
Plaintiffs have failed to demonstrate the trial court erred in concluding their wrongful death claims and Stella's survival claims against AbbVie and Abbott Laboratories are barred by the statute of limitations. Further, plaintiffs offer no amendment that would cure the defects in their pleading. Consequently, the trial court did not err in dismissing plaintiffs' claims against AbbVie and Abbott Laboratories without leave to amend.
2. Pfizer
The third amended complaint alleges decedent took the medication Effexor in 2013, and then "began to suffocate, suffered panic attacks, and was almost dying." Pfizer was first named as a defendant in 2019.
Plaintiffs argue the trial court erred in concluding their claims for strict liability (failure to warn), negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, and loss of consortium against Pfizer were barred by the statute of limitations. Pfizer also demurred to the loss of consortium claim on the ground that it failed to state a claim, and the trial court explained that, if it had not sustained the demurrer based on the statute of limitations, this argument was also sufficient to sustain the demurrer as to this cause of action. As set forth in Part II.D, plaintiffs have forfeited any assertion that Alice stated a valid claim for loss of consortium.
The trial court concluded that even if the discovery rule applied as asserted by plaintiffs, it would only extend the two-year statute of limitations set forth in Code of Civil Procedure section 335.1 until July 2018, rendering the claims for strict liability, negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress untimely. We agree. At a minimum, plaintiffs cannot establish any of these claims are timely because they have not demonstrated the relation back doctrine applies. Additionally, plaintiffs offer no amendment that would cure the defects in their pleading. Thus, the trial court did not err in dismissing plaintiffs' claims against Pfizer without leave to amend. F. Constructive Fraud (Tenth Cause of Action)
The tenth cause of action alleges the Kaiser entities had a fiduciary relationship with decent and because they intentionally concealed a contract and plan with decedent, plaintiffs lost valid claims of wrongful death, lack of consent, lack of informed consent, battery, and assault against defendants, as well as finances and time. The complaint also generally alleged that, in 2016, plaintiffs requested an arbitration agreement and plan between these entities and decedent, but none was provided. To the extent this cause of action was brought by decedent's children, the court sustained the demurrer based on their lack of standing. The trial court then held the tenth cause of action failed to state a claim because the existence of an agreement had no bearing on Stella's discovery of the underlying injury and ability to timely file suit, and thus plaintiffs failed to allege any causation. Plaintiffs' forfeiture of the standing issue with respect to decedent's children's survivor claims renders there no appealable issue for us to address as to this cause of action. We will affirm the trial court's dismissal of decedent's children's claim for constructive fraud without leave to amend based on their lack of standing. G. Enhancement of Harm (Eleventh Cause of Action)
The trial court sustained demurrers filed by the Kaiser entities, Dr. Eyolfson, Dr. Lee, Dr. Keene, Suk, Ugbo, Gardizi, AbbVie, and Abbott Laboratories to the eleventh cause of action purportedly for enhancement of harm on the ground that it stated the law of joint and several liability but not a valid, independent cause of action. Plaintiffs assert this was error, but cite no authority that supports this conclusion. Indeed, the authority cited in plaintiffs' reply brief supports the trial court's ruling. Plaintiffs argue they alleged independent predicate claims but they name causes of action already pled in their complaint. This only demonstrates the point. Their enhancement of harm allegation did not support a separate cause of action. Further, plaintiffs have proposed no amendments that could cure the defects in their pleading. Plaintiffs have not demonstrated the trial court erred in sustaining demurrers to their eleventh cause of action without leave to amend. H. Joint Venture, Joint Enterprise, and Conspiracy (Twelfth Cause of Action)
The trial court also sustained demurrers filed by the Kaiser entities, Dr. Eyolfson, Dr. Lee, Dr. Keene, Suk, Ugbo, Gardizi, AbbVie, and Abbott Laboratories to the twelfth cause of action purportedly for joint venture, joint enterprise, and conspiracy on the ground that it failed to allege a complete, independent cause of action. Again, plaintiffs have failed to establish error. Rather, they cite authority that explains "[c]onspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration." (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511.) " '[I]n order to state a cause of action based upon a conspiracy theory the plaintiff must allege the formation and operation of the conspiracy, the wrongful act or acts done pursuant to it, and the damage resulting from such acts. [Citation.] In making such allegations bare legal conclusions, inferences, generalities, presumptions, and conclusions are insufficient.' " (State of California ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 419, italics added.) The complaint alleges "a special relationship and an agreement" among AbbVie, Abbott Laboratories, Dr. Eyolfson, Dr. Keene, Suk, Ugbo, and Gardizi "in the perpetration of fraud upon decedent" and "with respect to the furtherance of the tortious and negligent prescription of the defected products or failure to warn about them to decedent and others like him." These generalities and bare legal conclusions were insufficient to state a cause of action based on a conspiracy theory.
Further, plaintiffs separately attempted to allege causes of action for fraud, negligence, strict liability (failure to warn), and strict liability (design defect). As to AbbVie and Abbott Laboratories, a conspiracy based on negligence or strict liability would be barred by the statute of limitations for the reasons previously discussed. (See, e.g., Kenworthy v. Brown (1967) 248 Cal.App.2d 298, 301 ["[i]n any action based on a civil conspiracy the statute of limitations is determined by the nature of the action in which the conspiracy is alleged"].) Plaintiffs did not allege any of their fraud claims against AbbVie and Abbott Laboratories. Moreover, the statute of limitations for fraud is three years. (Code Civ. Proc., § 338, subd. (d).) Given plaintiffs' failure to demonstrate the applicability of the discovery rule or the relation back doctrine, even if plaintiffs could identify specific amendments that would allege a fraud claim against AbbVie and Abbott Laboratories, it would be barred as well. Thus, we cannot conclude the trial court erred in sustaining AbbVie and Abbott Laboratories' demurrer to the twelfth cause of action without leave to amend.
On appeal, plaintiffs challenge the trial court's conclusion that, with respect to the Kaiser entities, Dr. Eyolfson, Dr. Lee, and Dr. Keene, there was no underlying cause of action on which to base the conspiracy claim because plaintiffs had asserted in their opposition to demurrer that this cause of action was premised on their claims for products liability, but the products liability claims were not asserted against these defendants. There is no appealable judgment between Stella and the these defendants, Alice did not assert this claim, and the children have not established standing to raise survivor claims. There is an appealable judgment as between Stella and nurses Ugbo and Gardizi. In a separate ruling to which plaintiffs do not cite, the court explained the products liability claims were not asserted against the nurses, and thus there was also no underlying cause of action on which to base the conspiracy claim as to them. Indeed, plaintiffs conceded in their opposition to the demurrer that their products liability claims were not directed at the nurses. Therefore, we cannot conclude the trial court erred in sustaining Ugbo and Gardizi's demurrer to the twelfth cause of action without leave to amend.
Plaintiffs have proposed no amendments as to Ugbo and Gardizi that could cure the defects in their complaints. They argue they would amend their complaint to show the Kaiser entities are liable for strict products liability because they participated in the chain of distribution of Lupron from the manufacturer to decedent. They make no such suggestion as to the nurses. Plaintiffs also contend they could have amended their complaint to plead claims against "[r]espondents" under "the Unfair Competition Law based on their unlawful, unfair, or fraudulent acts." This is again a bare legal assertion that is insufficient to state a cause of action; moreover, it is not clear this suggestion is directed at Ugbo and Gardizi. To the extent there is an appealable order by a party with standing, plaintiffs have established no error as to the dismissal of their twelfth cause of action without leave to amend. I. Declaratory Relief (Thirteenth Cause of Action)
Plaintiffs thirteenth cause of action sought a declaration of their rights under the insurance contract and plan with the Kaiser entities "because there has been actionable breach by defendants[,] and defendants have a policy or pattern and practice of ignoring or violating applicable laws." The trial court concluded plaintiffs had failed to state a claim because plaintiffs did not plead a present controversy for which they could seek a present declaration of rights. In particular, plaintiffs do not allege they are still performing under the contract. Again, there is no appealable judgment between Stella and the Kaiser entities, Alice did not assert this claim, and the children have not established standing to raise survivor claims. To the extent this issue is before us, we find no error. Further, plaintiffs have proposed no amendments that could cure the defects in their pleading.
Plaintiffs have not demonstrated the trial court erred in sustaining any demurrers that relate to an appealable judgment. J. Punitive Damages
In support of their reply brief, plaintiffs filed a request that we take judicial notice of various documents related to the arbitration proceeding or in the trial court's record. We deferred ruling on this request for judicial notice and now deny it. Exhibit F is already part of the record on appeal. The remaining attachments do not appear to be relevant to the issues we address. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1089, fn. 4.) Additionally, while we may take judicial notice of the existence of court records under Evidence Code section 452, subdivision (d), we "cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact." (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, fn. 7.)
As set forth above, the trial court granted the non-pharmaceutical defendants' motion to strike the punitive damages allegations in the third amended complaint based on plaintiffs' failure to obtain a court order to assert them under Code of Civil Procedure section 425.13. Plaintiffs argue this was error. We need not address this issue because, to the extent there is an appealable judgment before us, plaintiffs have not established the court erred in sustaining demurrers to the third amended complaint entirely as to the claims brought by decedent's children and Alice, or claims brought against Ugbo and Gardizi. As such, whether the trial court should have also stricken the punitive damages allegations appended to those dismissed claims is irrelevant.
"In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code. The court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed within two years after the complaint or initial pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier." (Code Civ. Proc., § 425.13, subd. (a).)
III. DISPOSITION
The judgments are affirmed. Respondents shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
/S/_________
RENNER, J. We concur: /S/_________
ROBIE, Acting P. J. /S/_________
MURRAY, J.