Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for writ of mandate. Harry Woolpert, Judge. (Retired judge of the San Luis Obispo Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Super.Ct.No. RCV094907
Tucker Ellis & West, Mollie Benedict, Rebecca Lefler, and Aggie Lee, for Petitioners.
No appearance for Respondent.
Holstein, Taylor, Unitt & Law, and Brian C. Unitt, for Real Parties in Interest.
OPINION
McKinster, Acting P. J.
In this matter, we have reviewed the petition, the opposition filed by real parties in interest, and petitioner’s reply. We have determined that resolution of the matter involves the application of settled principles of law and that issuance of a peremptory writ in the first instance is, therefore, appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
We agree with petitioner that the complaint, as it stands, does not support a theory of recovery based on a physical or performance defect of the subject patch. However, we are not persuaded that such an amendment would have been prohibited by law. (See Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932.) This question should be resolved in the first instance by the trial court.
Accordingly, the petition is granted in part and denied in part.
DISPOSITION
Let a peremptory writ of mandate issue, directing the Superior Court of San Bernardino County to conditionally vacate its order denying summary judgment. If real parties in interest file an appropriate motion to amend their complaint within 30 days of the date on which this order becomes final, and if the trial court grants any such motion (with or without conditions), the trial court shall reinstate the order denying summary judgment. However, if real parties in interest do not seek to amend their complaint or if any such motion is denied, the trial court shall reconsider petitioners’ motion for summary judgment in light of the views expressed above.
Petitioners are directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
Each party shall bear their own costs.
I concur: Richli, J.
KING, J. Dissenting.
I disagree with the majority as it relates to its partial grant of the peremptory writ of mandate. Real parties’ second amended complaint does support a theory of recovery based on a “physical or performance defect of the subject patch.”
“[F]actual issues presented in opposition to a motion for summary judgment should be considered if the controlling pleading, construed broadly, encompasses them. In making this determination, courts look to whether the new factual issues present different theories of recovery or rest on a fundamentally different factual basis.” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1257 (Laabs).) Here, real parties’ controlling pleading is the second amended complaint. By way of this pleading, real parties have sufficiently alleged a “physical or performance defect of the subject patch.” The second amended complaint need not be amended; the trial court properly considered real parties’ undisputed facts Nos. 21 through 45.
As alleged by real parties, “on or about April 22, 2004, Decedent applied the Duragesic patch, along with her Vicodin and Prozac as prescribed by [the doctor], which caused depressed respirations and low blood pressure resulting in Decedent’s death on May 1, 2004.” As contended in the second cause of action for strict products liability, “. . . [Petitioners], and each of them, knew of the defective condition of the Duragesic patch and its warning literature before any such medication was placed into the stream of commerce and ultimately sold to the public, and knew or had reason to know of the danger . . . such defective condition posed to foreseeable users . . . . [Petitioners] sold the medication without remedying the defect, and that [petitioners] purposely did not warn of the defect in an attempt to conceal it from foreseeable users. [Petitioners], and each of them, failed to warn of the defect or remedy the defect . . . .” (Italics added.) Albeit within the context of punitive damages, these allegations clearly place petitioners on notice that real parties seek recovery on theories of a physical defect in the patch and a failure to warn. More ambiguous are the allegations contained in paragraph 15; nonetheless, construed broadly, they encompass the concepts of a physical defect in the patch as well as a failure to warn.
Petitioners rely on Laabs for the proposition that real parties, in opposition to the motion for summary judgment, cannot raise factual issues outside of their pleadings. This case is not Laabs. In Laabs, plaintiff raised an entirely separate and distinct condition of property as that which was dangerous. In her complaint, plaintiff alleged that the intersection was dangerous because of sight distance problems. In opposition to the motion for summary judgment she submitted material facts on a wholly different condition of property, 300 feet down the roadway. The wholly different condition was not even factually referenced in her complaint, let alone alleged to serve as a basis for her alleged dangerous condition liability. Here, it is clear from real parties’ undisputed facts Nos. 21 through 45 that liability is premised on the same theories of liability as presented in the second amended complaint. The undisputed facts deal with the same product, the Duragesic patch, as well as the same basic defect, that being that the product, in combination with Vicodin and Prozac, causes depressed respirations and low blood pressure which can result in death.
Undisputed facts Nos. 21 through 45 are within the ambit of real parties’ second amended complaint. On that basis, I would deny the petition.