Minute Order

Cal. Super. - 6th Dist.May 24, 2018

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Lawrence Hasha et al vs Arash Radidar et al Hearing Start Time: 9:00 AM 18CV328673 Hearing Type: Hearing: Demurrer Date 0f Hearing: 09/26/2019 Comments: 3 Heard By: Pierce, Mark H Location: Department 2 Courtroom Reporter: Reporter Pro Tempore Courtroom Clerk: Mai Jansson Court Interpreter: Court Investigator: Parties Present: Future Hearings: Hansen, Elspeth Victoria Attorney Rose, Stephen K Attorney Exhibits: - Pro Tem Reporter: Mark Brickman. Andrew Tauber for St Jude. Ryan Williams via court call for Reginal Medical. Tentative contested by Pltf. Matter heard. Amended Complaint clue 0n 12-30-19 by stipulation of all parties. Tentative adopted as follows: Currently before the Court are: (1) the motion by defendant Abbott Laboratories ( Abbott ) t0 quash service of summons; and (2) the demurrer by defendants Terumo Medical Corporation (Terumo ), St. Jude Medical LLC, St. Jude Medical, |nc., and Abbott t0 the third cause 0f action 0f the second amended complaint ( SAC) 0f plaintiffs Lawrence Hasha ( Lawrence ) and Elena Hasha (collectively, Plaintiffs ). Factual and Procedural Background This action arises out 0f interventional radiology procedures performed 0n Lawrence by various doctors over the course oftwo days in March 2017. (SAC, FR-2, FR-5, |T-1, & GN-l.) Plaintiffs allege that they did not consent to the procedures, they were misled as t0 who would conduct the procedures, and the doctors failed t0 adequately treat and obtain care for Lawrence. (Id. at FR-Z, FR-3, FR-4, |T-1, & GN-l.) As a result, Plaintiffs suffered injuries. (Id. at 11, FR-6, |T-1, & GN-l.) Plaintiffs further allege that they were injured by defective Angio-Seal devices that were used in the procedures. (Id. at Prod. L-l-Prod. L-7.) Based 0n the foregoing allegations, Plaintiffs filed the operative SAC against numerous defendants, including Abbott, Terumo, St. Jude Medical LLC, and St. Jude Medical, Inc. (collectively, Defendants ), alleging causes 0f action for: (1) fraud; (2) violation ofthe Consumers Legal Remedies Act; (3) products liability; (4) battery; (5) breach 0f fiduciary duty; (6) general negligence; (7) elder abuse and neglect; (8) general negligence; and (9) general negligence. On May 29, 2019, Abbott filed the instant motion t0 quash service 0f summons. That same day, Defendants filed the pending demurrer. Plaintiffs filed an opposition to the demurrer 0n September 13, 2019. Discussion Printed: 9/27/2019 09/26/2019 Hearing: Demurrer r 18CV328673 Page 1 0f 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER I. Motion t0 Quash Abbott moves t0 quash service 0f summons 0n the ground that this Court does not have personal jurisdiction over it, an Illinois corporation. (See Code Civ. Proc., 418.10, subd. (a)(l).) A. Legal Standard California courts may exercise jurisdiction 0n any basis not inconsistent with the Constitution 0f this state 0r of the United States. (Code Civ. Proc., 410.10.) The federal Constitution permits a state t0 exercise jurisdiction over a nonresident defendant if the defendant has sufficient minimum contacts with the forum such that maintenance 0f the suit does not offend traditional notions 0f fair play and substantial justice. [Citations.] (DVI, Inc. v. Super. Ct. (2002) 104 Cal.App.4th 1080, 1089-1090, quoting International Shoe Co. v. Washington (1945) 326 U.S. 310, 316.) The minimum contacts doctrine embraces two types 0f personal jurisdiction: general jurisdiction and specificjurisdiction. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Ca|.4th 434, 445.) General jurisdiction exists where the defendant s contacts in the forum are so substantial, continuous and systematic that there need not be any relationship between the alleged causes 0f action and the defendant s relationship t0 the forum. (|bid.) Specific jurisdiction results when the defendant s contacts with the forum state, though not enough t0 subject the defendant t0 the general jurisdiction of the forum, are sufficient to subject the defendant t0 suit in the forum 0n a cause 0f action related t0 0r arising out 0f those contacts. (Sonora Diamond Corp. v. Super. Ct. (2000) 83 Cal.App.4th 523, 536.) A defendant may move t0 quash service 0f the summons 0n the ground the court lacks personal jurisdiction. (Code Civ. Proc., 418.10, subd. (a)(l).) When a defendant challenges personal jurisdiction by filing a motion t0 quash, the plaintiff opposing the motion has the initial burden 0f proving, by a preponderance 0f the evidence, the factual basesjustifying the exercise ofjurisdiction. (ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 209-210; BBA Aviation PLC v. Super. Ct. (2010) 190 Cal.App.4th 421, 428-429 (BBA).) The plaintiff must d0 more than merely allege jurisdictional facts; plaintiff must provide affidavits and other authenticated documents demonstrating competent evidence ofjurisdictional facts. [Citation] (BBA, supra, 190 Cal.App.4th at pp. 428-429; Strasner v. Touchstone Wireless Repair & Logistics, LP (2016) 5 Cal.App.5th 215, 221 222 [The plaintiff must provide specific evidentiary facts, through affidavits and other authenticated documents, sufficient t0 allow the court t0 independently conclude whether jurisdiction is appropriate. [Citation] The plaintiff cannot rely on allegations in an unverified complaint 0r vague and conclusory assertions 0f ultimate facts. [Citation] ].) If the plaintiff does so, the burden shifts t0 the defendant t0 present a compelling case that the exercise ofjurisdiction would be unreasonable. [Citation] (BBA, supra, 190 Cal.App.4th at p. 429; Snowney v. Harrah s Entertainment, Inc. (2005) 35 Cal. 4th 1054, 1062.) Printed: 9/27/2019 09/26/2019 Hearing: Demurrer r 18CV328673 Page 2 0f 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER B. Merits 0f the Motion Here, Plaintiffs did not file any opposition t0 the motion. Thus, Plaintiffs failed t0 meet their initial burden t0 prove, by a preponderance 0f the evidence, the factual bases justifying the exercise ofjurisdiction over Abbott. Accordingly, Abbott s motion to quash service of summons is GRANTED. ||. Demurrer Defendants demur t0 the third cause 0f action 0f the SAC 0n the grounds 0f uncertainty and failure to allege facts sufficient t0 constitute a cause 0f action. (See Code Civ. Proc., 430.10, subds (e) & (1‘).) A. Request forJudicial Notice Defendants ask the Court t0 take judicial notice 0f matters reflected in: (1) the Food and Drug Administration ( FDA) premarket approval ( PMA ) database listing for the Angio-Seal device; (2) the FDA PMA approval listing database listing for changes t0 the Angio-Seal device; (3) documents filed with the United States Securities and Exchange Commission; and (4) a press release issued by Terumo. Defendants assert that matters reflected in the FDA PMA database listings for the Angio-Seal device and the documents filed with the United States Securities and Exchange Commission are judicially noticeable under Evidence Code section 452, subdivisions (c) and (h). Defendants contend that the press release issued by Terumo is judicially noticeable under Evidence Code section 452, subdivision (h). The FDA PMA database listings for the Angio-Seal device are proper subjects ofjudicial notice under Evidence Code section 452, subdivision (c) as the FDA s approval 0f the Angio-Seal device, and changes thereto, constitute official acts. (See People v. Morales (2018) 25 Cal.App.5th 502, 512, fn. 7 [takingjudicial notice 0f materials 0n an official government website, which discussed official acts].) The documents filed with the United States Securities and Exchange Commission are not proper subjects 0f judicially notice under Evidence Code section 452, subdivisions (c) and (h). First, Evidence Code section 452, subdivision (c) only authorizes a court to take judicial notice 0f [o]fficia| acts 0f the legislative, executive, and judicial departments 0f the United States and 0f any state 0f the United States. Under this subdivision, a court may take judicial notice 0f official correspondence and documents prepared by agencies and officials. (Field v. Bowen (2011) 199 Cal.App.4th 346, 370, fn. 5.) In contrast, information and documents prepared by private parties and 0n file with a state agency are not subject t0 judicial notice as official acts. (People v. Thacker (1985) 175 Cal.App3d 594, 596 599; accord Hughes v. Blue Cross of N. Cal. (1989) 215 Cal.App.3d 832, 856, fn. 2 (Hughes).) Thus, the documents filed with the United States Securities and Exchange Commission cannot be judicially noticed under Evidence Code section 452, subdivision (c). Printed: 9/27/2019 09/26/2019 Hearing: Demurrer r 18CV328673 Page 3 0f 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Second, Evidence Code section 452, subdivision (h) authorizesjudicial notice 0f [flacts and propositions that are not reasonably subject t0 dispute and are capable 0f immediate and accurate determination by resort t0 sources of reasonably indisputable accuracy. These include, for example, facts which are widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference t0 treatises, encyclopedias, almanacs and the like 0r by persons learned in the subject matter. (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145; accord Hughes, supra, 215 Cal.App3d at p. 856, fn. 2.) The documents filed with the United States Securities and Exchange Commission d0 not fall within this subdivision as a general matter 0r under the particular circumstances presented here. The mere fact that the filings, and their contents, are publicly available on websites does not demonstrate that they are not reasonably subject t0 dispute. (See Huitt v. Southern Cal. Gas C0. (2010) 188 Cal.App.4th 1586, 1604, fn. 10 (Huitt) [a court may not rely 0n the mere fact information is published 0n a website for the proposition that the information is not reasonably subject to dispute].) While it might be appropriate in some circumstances t0 take judicial notice 0f the existence 0f a website itself, the same is not true 0f its factual content especially since Defendants d0 not establish that the contents 0f the filings are not reasonably subject t0 dispute and are capable 0f immediate and accurate determination by resort t0 sources of reasonably indisputable accuracy. (See Searles Valley Minerals Operations, Inc. v. State Bd. 0f Equalization (2008) 160 Cal.App.4th 514, 519 [declining t0 take judicial notice 0f materials contained 0n the website pages 0f the American Coal Foundation and the U.S. Department of Energy]; see also Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 737 [declining t0 takejudicial notice 0f general information 0n Nurse Practitioner Practice posted 0n the California Board 0f Registered Nursing website].) Thus, the documents filed with the United States Securities and Exchange Commission cannot bejudicially noticed under Evidence Code section 452, subdivision (h). For the same reasons, the press release issued by Terumo is not a proper subject ofjudicial notice under Evidence Code section 452, subdivision (h). (See Huitt, supra, 188 Cal.App.4th at p. 1604, fn. 10 [a court may not rely 0n the mere fact information is published 0n a website for the proposition that the information is not reasonably subject to dispute].) Accordingly, Defendants request forjudicial notice is DENIED IN PART and GRANTED IN PART. The request is DENIED as t0 the documents filed with the United States Securities and Exchange Commission and the press release issued by Terumo. The request is GRANTED as t0 the FDA PMA database listings for the Angio-Seal device. B. Legal Standard The function 0f a demurrer is t0 test the legal sufficiency ofa pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App3d 617, 621.) Consequently, [a] demurrer reaches only t0 the contents 0f the pleading and such matters as may be considered under the doctrine ofjudicial notice [citation]. (Hilltop Properties, Inc. v. State (1965) 233 Cal.App.2d 349, 353; see Code Civ. Proc., 430.30, subd. (a).) It is not the ordinary function 0f a demurrer t0 test the truth 0f the allegations [in the challenged pleading] 0r the accuracy with which [the plaintiff] describes the defendant s conduct. . [Citation] Thus, the facts alleged in the pleading are deemed to be true, however improbable they may be. [Citation] [Citations.] (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958.) However, while [a] demurrer Printed: 9/27/2019 09/26/2019 Hearing: Demurrer r 18CV328673 Page 4 0f 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER admits all facts properly pleaded, [it does] not [admit] contentions, deductions 0r conclusions 0f law 0r fact. (George v. Automobile Club 0f Southern California (2011) 201 Cal.App.4th 1112, 1120.) C. Merits ofthe Demurrer As a preliminary matter, given the Court s ruling on Abbott s motion to quash service of summons, the demurrer t0 the third cause 0f action is MOOT t0 the extent it is brought by Abbott. Next, the Court turns t0 the merits 0f the demurrer t0 the extent it is brought by the remaining Defendants, Terumo, St. Jude Medical LLC, and St. Jude Medical, Inc. In the third cause 0f action for products liability, Plaintiffs allege they were injured 0n 0r about March 7 through 9, 2017, by three Angio-Seal devices. (Complaint, Prod. L-l & Prod. L-7.) Each 0f the Angio-Seal devices bore a St. Jude Medical label and reference number. (Id. at Prod. L-1.) The products were allegedly defective when they left Defendants control, and each 0f the Defendants knew the products would be purchased and used without inspection for defect. (Id. at Prod. L-2.) At the time of injury, the products were being used in the manner intended by Defendants. (|bid.) Plaintiffs were allegedly purchasers 0f the products, users 0f the products, bystanders t0 the use 0f the product, and [the] Patient in whom product was deployed. (Id. at Prod. L-3.) Plaintiffs allege that their injuries were the proximate result ofthe strict liability 0fthe Defendants who distributed, manufactured[,] 0r assembled the product[s]. (Id. at Prod. L-4 & Prod. L-7.) Plaintiffs further allege that their injuries were the proximate result 0f the negligence 0f Defendants, who owed them a duty. (Id. at Prod. L-5.) Lastly, Plaintiffs allege that their injuries were the proximate result ofa breach 0f express and implied warranties by Defendants. (Id. at Prod. L-6.) Terumo, St. Jude Medical LLC, and St. Jude Medical, Inc. argue, among other things, that the third cause 0f action fails because its allegations are uncertain and Plaintiffs d0 not plead sufficient facts t0 support their theories of strict liability, negligence, and breach of warranty. This argument is weII-taken. With respect t0 Plaintiffs strict liability theory, Plaintiffs do not plead adequate facts regarding the nature 0f the defect and, consequently, it is unclear whether Plaintiffs are alleging a design defect, a manufacturing defect, 0r both. (See County 0f Santa Clara v. Super. Ct. (2009) 171 Cal.App.4th 119, 126 [the pleading must contain sufficient particularity and precision to acquaint the defendants with the nature, source and extent 0f the cause 0f action]; see also Merrill v. Navegar, Inc. (2001) 26 Ca|.4th 465, 479 (Merrill) [a plaintiff may base a products liability claim 0n a defect in either the design 0r manufacture of a product].) Furthermore, Plaintiffs do not allege that their injuries were caused by the alleged defect in the Angio-Seal devices; instead, they merely allege they were injured by the defective products. (See Milwaukee Electric Tool Corp. v. Super. Ct. (1993) 15 Cal.App.4th 547, 559 [a plaintiff must plead that he 0r she was injured as a result of a defect in the product]; see also O'Neil v. Crane Co. (2012) 53 Ca|.4th 335, 347 [the plaintiff s injury must have been caused by a defect in the product].) Regarding Plaintiffs negligence theory, Plaintiffs fail t0 allege that the alleged defect in the Angio-Seal devices was due t0 Defendants negligence; rather, Plaintiff s merely allege that their injuries were caused by Defendants negligence. (See Merrill, supra, 26 Ca|.4th at p. 479 [ Under a negligence theory, a plaintiff must also prove an additional element, namely, that the defect in the product was due t0 negligence 0f the Printed: 9/27/2019 09/26/2019 Hearing: Demurrer r 18CV328673 Page 5 0f 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER defendant. ].) Finally, with respect t0 Plaintiffs breach 0f warranty theory, Plaintiffs fail t0 allege facts showing that they were in privity with Defendants or that some exception to the general rule requiring privity in an action for breach 0f express 0r implied warranty applies. (See Burr v. Sherwin Williams C0. (1954) 42 Ca|.2d 682, 695- 696 [the general rule is that privity 0f contract is required in an action for breach 0f either express 0r implied warranty]; accord Blanco v. Baxter Healthcare Corp. (2008) 158 Cal.App.4th 1039, 1058 1059.) In opposition, Plaintiffs argue their allegations are sufficient t0 state a claim for products liability, highlighting the fact that they used a Judicial Council form complaint. But Judicial Council form complaints are not invulnerable t0 demurrer, and in some cases, such as this, more is required. (See Esparza v. Kaweah Delta Dist. Hospital (2016) 3 Cal.App.5th 547, 555; see also People ex rel. Dept. of Transportation v. Super. Ct. (1992) 5 Cal.App.4th 1480, 1484) Accordingly, the demurrer t0 the third cause 0f action is SUSTAINED, with 10 days leave t0 amend, t0 the extent it is brought by Terumo, St. Jude Medical LLC, and St. Jude Medical, Inc. Printed: 9/27/2019 09/26/2019 Hearing: Demurrer r 18CV328673 Page 6 0f 6