Order Submitted MatterCal. Super. - 6th Dist.May 24, 2018\DWQQUIAUJNH NNNNNNNNNr-IHHHr-Ar-tr-AHHp-A OOQQUI-PUJNV-‘OKDOOQONUI-PUJNHO SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA LAWRENCE HASHA, et a1., I ' Cas'e No. 18-CV-328673 Plaintiffs, ORDER RE. MOTION TO QUASH VS- AND DEMURRER ARASH PADIDAR, et a1., Defendants, The following matters came 0n for hearing befor\e the Honorable Mark H. Pierce 0n September 26, 2019, at 9:00 a.m. in Department 2: (1) the motion by defendant Abbott Laboratories (“Abbott”) to quash service of summons; and (2) the demurrer by defendants Terumo Medical Corporation (“Terumo”), St. Jude Medical LL\C, St. Jude Medical, Inc., and Abbott to the third cause of action of the second amended complaint (“SAC”) of plaintiffs Lawrence Hasha (“Lawrence”) and Elena Hasha (collectively, “Plaintiffs”).1 The matters having been submitted, the Court finds and orders as follows: 1 At times, the Court refers to the parties by their first names for purposes of clarity. (See Rubenstein v. Rubenstein (2000) 81 Ca1.App.4th 1131, 1136, fi1. 1.) 1 ORDER RE: MOTION TO QUASH AND DEMURRER \OOOflmUl-thH N [\J N [\J N [\J N [\) N r-A r-A H r-A p-A r-A r-l r-A r-A v-I 00 Q ON Ul A LA) N F-* O \O OO 'fl O\ U} h U.) N fi-l O 44 Factual and Procedural Backgrofind This action arises out of interventional radiology procedures performed on Lawrence by various doctors over'the course oftwo days in March 2017. (SAC, 1N FR-2, FR_-5, IT-l, & GN- 1.) Plaintiffs allege that they did not consent to the procedures, they were misled as to who would conduct the procedures, and the doctors failed to adequately treat and obtain care for Lawrence. (Id. at 1W FR-2, FR-3, FR-4, IT-l, & GN-l .) As a result, Plaintiffs suffered injuries. (Id. atfl 11, FR-6, IT-l, & GN-l.) Plaintiffs further allege that they were injured by defective ‘ Angio-Seal devices that were used in the procedures. (Id. at 1m Prod. L-1 -Prod. L-7.) Based on 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 of action for: (1) fraud; (2) Violation 0f the ~ Consumers Legal Remedies Act; (3) products liability; (4) battery; (5) breach of fiduciary duty; (6) general negligence; (7) elder abuse and neglect; (8) general negligence; and (9) gen'eral negligence. On May 29, 2019, Abbott filed the instant motion to quash service of summons. That ~ same day, Defendants filed the pending demurrer. Plaintiffs filed an opposition to the demurrer 011 September 13, 2019. On September 19, 2019, Defendants filed a reply in support of their demurrer. I I I Discussion I. Motion to Quash Abbott moves to quash service of summons on the ground that this Court does not have personal jurisdiction over it, an Illinois corporation. (See Code Civ. Procl, § 418.10, subd. (a)(1)-)' A. Legal Standard California courts “may exercise jurisdictién on any basis not inconsistent with the Constitution of this state or 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 of the suit does not 2 ORDER RE: MOTION TO QUASH AND DEMURRER \OOONONU‘ILUJNH NNNNNNNNNr-tr-Ib-It-AHp-Ar-tp-Ap-AI-I WNQM-PWNHOWOOVQm-PWNv-IO offend “traditional notions of fair play and substantial justice.” [Citations.]’ ” (DVI, Inc. v. Super. Ct. (2002) 104 Cal.App.4th 1080, 1089-1090, quoting International Shoe C0. v. Washington (1945) 326 U.S. 310, 316.) The “minimum contacts” doctrine embraces two types ofpersonal jurisdiction: general . jurisdiction and specific jurisdiction. (Vans Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Ca1.4th 434, 445.) General jurisdiction exists wheré the defendant’s contacts in the forum are so “substantial, continuous and systematic” that there need not be any relationship between the alleged causes of action and the defendant’s relationship to the forum. (Ibid.) Specific jurisdiction “results when the defendant’s contacts With the forum state, though not enough to subj ect the defendant to the general jurisdiction of the forum, are sufficient to subj ect the defendant to suit in the forum on a cause of action related to or arising out of those contacts.” (Sonora Diamond Corp. v. Super. Ct. (2000) 83 Cal.App.4th 523, 536.) I A defendant may move to quash service of the summons on the ground the court lacks personal jurisdiction. (Code CiV. Proc., § 41 8.10, subd. (a)(l).) When a defendant challenges personal jurisdiction by filing a motion t0 quash, the plaintiff opposing the motion has the initial burden of proving, by a preponderance of the evidence, the factual bases justifying the exercise ofjuriédiction. (ViaView, Inc. v. Retzlaff(201 6) 1 Ca1.App.5th 198, 209-210; BBA Aviation PLC v. Super. Ct. (2010) 190 Ca1.App.4th 421, 428-429 (BBA).) “The plaintiff must d0 more than merely allege jurisdictional facts; plaintiffmust provide affidavits and other authenticated documents demonstrating competent evidence ofjurisdictional facts. [Citation.]” (BBA, supra, 190 Ca1.App.4th at pp. 428-429; Strasner v. Touchstone‘Wireless Repair & Logistics, LP (2016) 5 Cal.App.5th 215, 221-222 [“The plaintiff m_ust provide specific evidentiary facts, through affidavits and other authenticated documents, sufficient to allow the court to independently conclude whether jurisdiction is appropriate. [Citation] The plaintiff cannot rely on allegations in an unverified complaint 0r vague and conclusory assertions of ultimate facts. [Citation.]”].) “If the plaintiff does so, the burden shifts to the defendant to present a compelling case that the exercise ofjurisdiction would be unreasonable. [Citation.]” (BBA, supra, 190 Ca1.App.4th at p. 429; Snowney v. Harrah ’s Entertainment, Inc. (2005) 35 Cal. 4th 1,054, 1062.) 3 ORDER RE: MOTION TO QUASH AND DEMURRER \oooqoxmhwwH NNNNNNNNNr-Ir-lr-Ar-Ap-Ap-np-AHHH OOQQM-PWNHOKDOOQONM-PWNHO B. Merits 0f the Motion Here, Plaintiffs did not file any opposition to the motion. Thus, Plaintiffs failed to meet their initial burden to prove, by a preponderance of the evidence, the factual bases justifying the exercise ofjurisdiction over Abbott. Accordingly, Abbott’s motion to quash service of summons is GRANTED. II. Demurrer I Defendants demur t0 the third cause of action of the SAC on the grounds of uncertainty and failure to allege facts sufficient to constitute a cause of action. (See Code Civ. Proc., 430.10, subds (e) & (f).) A. Request for Judicial Notice ‘ Defendants ask the Court to 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 to 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 Securitigs and Exchange Commissiop 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 subj ects ofjudicial notice under Evidence Code section 452, subdivision (c) as the FDA’s approval of the Angio- Seal device, and changes thereto, constitute official acts. (See People v. Morales (2018) 25 Cal.App.5th 502, 512, fn. 7 [taking judicial notice of materials on an official government website, which discussed official acts].) The documents filed with the United States Securities and Exchange Commission are not proper subjects ofjudicially notice under Evidence Code section 452, subdivisions (c) and (h). First, Evidence Code section 452, subdivision (c) only authorizes a court t0 take judicial notice of “[o]fficial acts of the legislative, executive, and judicial departments of the United 4 ORDER RE: MOTION TO QUASH AND DEMURRER \oooqoxmpmwp... NNNNNNNNNr-lr-lr-Ar-IHHr-Ap-Ap-Ap-I OONQM-RWNHowmflom-PWNHO States and of any state of the United States.” Under this subdivision, a court may take judicial ‘ notice of official correspondence and documents prepared by agencies and officials. (Field v. Bowen (201 1) 199 Ca1.App.4th 346, 370, fn. 5.) In contrast, information and documents prepared by private parties and on file with a state agency are not subj ect to judicial notice as official acts. (People v. Thacker (1985) 175 Ca1.App.3d 594, 596-599; accord Hughes v. Blue Cross ofN. Cal. (1989) 215 Ca1.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). Second, Evidence Code section 452, subdivision (h) authorizes judicial notice of “[flacts and propositions that are not reasonably subj ect to dispute and are capable of immediate and accurate determination by resort to sources 0f 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 to treatises, ‘ encyclopedias, almanacs and the like or by persons learned in the subj ect matter.” (Gould v. Maryland Sound Industries, Inc. (1995) 31 Ca1.App.4th 1137, 1145; accord Hughes, supra, 21 5 Ca1.App.3d at p. 856, fn. 2.) The documefits filed with the United States Securities and Exchange Commission do not fall within this subdivision as a general matter or 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 subj ect to dispute. (See Huiz‘t v. Southern Cal. Gas C0. (2010) 188 Ca1.App.4th 1586, 1604, fn. 10 (Huitt) [a court may not rely on the mere fact information is published on a website for the proposition that the information is not reasonably subj ect to dispute].) While it might be appropriate in some cilrcumstances to take judicial notice of the existence of a website itself, the same is not true of its factual content especially since Defendants do not establish that the contents of the filings are not reasonably subj ect to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (See Searles Valley Minerals Operations, Inc. v. State Bd. oquualization (2008) 160 Ca1.App.4th 5 14, 5 19 [declining to take judicial notice of materials contained 0n the 5 ORDER RE: MOTION TO QUASH AND DEMURRER \ooouoxLALmJQH NNNNNNNNNb-At-Av-Ar-Av-Ar-Ap-Ap-AHp-A OONONM-PWNHOKOOOQQUI-PWNHO website pages of the American Coal Foundation and the U.S. Department of Energy]; see also Duronslet v. Kamps (2012) 203 Ca1.App.4th 717, 737 [declining to take judicial notice of general h information on “Nurse Practitioner Practice” posted on the California Board of Registered Nursing website].) Thus, the documents filed with the United States Securities and Exchange Commission cannot be judicially noticed under Evidence Code section 452, subdivision (h). For the same reasons, the press release issued by Terumo is not a proper subj ect of judicial notice under Evidence Code section 452, subdivision (h). (See Huitt, supra, 188 Ca1.App.4th at p. 1604, ffi. 10 [a court may not rely on the mere fact information is published on a website for the proposition that the information is not reasonably subj ect to dispute].) Accordingly, Defendants’ request for judicial notice is DENIED IN PART and GRANTED IN PART. The request is DENIED as to 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 of a demurrer is to test the legal sufficiency 0f a pleading. (Trs. OfCapital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Ca1.App.3d 617, 621.) Consequently, “ ‘[a] demurrer reaches only to the contents of 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 of a demurrer to test the truth of the allegations [in the challenged pleading] or 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 admits all facts properly pleaded, [it does] not [admit] contentions, deductions or conclusions of law 0r fact.” (George v. Automobile Club ofSouthern California (201 1) 201 Cal.App.4th 1112, 1120.) 6 ORDER RE: MOTION TO QUASH AND DEMURRER \oooqoxmpme NNNNNNNNNr-Ax-Ar-Ar-lr-Ay-Ap-Ar-Ap-IH OOQONUI-PUJNHooooflONUI-DUJNHO C. Merits of the Demurrer As a preliminary matter, given the Court’s ruling 6n Abbott’s motion to quash service of summons, the demurrer to the third cause of action is MOOT to the extent it is brought by Abbott. Next, the Court turns to the merits of the demurrer to the extent it is brought by the remaining Defendants, Terumo, St. Jude Medical LLC, and St. Jude Medical, Inc. In the third cause of action for products liability, Plaintiffs allege they were injured on or about March 7 through 9, 2017, by three Angio-Seal devices. (Complaint, 1111 Prod. L-1 & Prod. L-7.) Each of the Angio-Seal devices bore a St. Jude Medical label and reference number. (Id. at fl Prod. L-l .) The products were allegedly defective when they left Defendants’ control, and each of the Defendants knew the products would be purchased and used without inspection for defect. (Id. at 1] Prod. L-2.) At the time of injury, the products were being used in the manner intended by Defendants. (Ibid) Plaintiffs were allegedly purchasers of the products, users of the products, bystanders to the use 0f the product, and “[the] Patient in whorfi product was deployed.” (Id. at 11 Prod. L-3.) Plaintiffs allege that their injuries were the proximate result of the strict liability of the Defendants who distributed, “manufactured[,] or assembled the product[s].” (Id. at 1m Prod. L-4 & Prod. L-7.) Plaintiffs further allege that their injuries were the proximate result of the negligence of Defendants, who owed them a duty. (Id. at 11 Prod. L-S.) Lastly, Plaintiffs allege that their injuries were the proximate result of a breach of express and implied warranties by Defendants. (Id. at fl Prod. L-6.) Terumo, St. Jude Medical LLC, and St. Jude Medical, Inc. argue, among other things, that the third cause of action fails because its allegations are uncertain and Plaintiffs do not plead sufficient facts to support their theories 0f strict liability, negligence, and breach 0f warranty. This argument is well-taken. With respect to Plaintiffs’ strict liability theOry, Plaintiffs do not plead adequate facts regarding the nature of the defect and, consequently, it is unclear whether Plaintiffs are alleging a design defect, a manufacturing defect, or 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 of the 7 ORDER RE: MOTION TO QUASH AND DEMURRER \oooqoxmpmw.‘ NNNNNNNNNHHr-AHHHb-va-Ap-A OOQONM-PUJNHOKOOOQONKII-PUJNi-‘O cause of action]; see also Merrill v. Navegar, Inc. (2001) 26 Ca1.4th 465, 479 (Merrill) [a plaintiffmay base a products liability claim on a defect in either the design or 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 Ca1.App.4th 547, 559 [a plaintiff must plead that he or she was injured as a result of a defect in the product]; see also O’Neil v. Crane C0. (2012) 53 Ca1.4th 335, 347 [the plaintiff’s injury must have been caused by a defect in the product] .) Regarding Plaintiffs’ negligence theory, Plaintiffs fail to allege that the alleged defept in the Angio-Seal devices was due to Defendants’ negligence; rather, Plaintiffs merely allege that their injuries were caused by Defendants’ negligence. (See Merrill, supra, 26 Ca1.4th at p. 479 [“Under a negligence theory, a plaintiffmust also prove ‘an additional element, namely, that the defect in the product was due to negligence of the defendant.’ ”].) I . Finally, With respect to Plaintiffs’ breach of Warranty theory; Plaintiffs fail to allege facts showing that they were in privity with Defendants or that some exception t0 the general rule requiring privity in an action for breach of express or implied warranty applies. (See Burr 'v. Sherwin Williams Co. (1954) 42 Cal.2d 682, 695-696 [the general rule is that privity of contract is required in an action for breach of either express or implied warranty]; accord Blanca v. Baxter Healthcare Corp. (2008) 158 Cal.App.4th 1039, 1058-1059.) In opposition, Plaintiffs argue their allegations are sufficient to 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 to demurrer, and in some cases, such as this, more is required. (See Esparza v. Kaweah Delta Dist. Hospital (20 1‘6) 3 Ca1.App.5th 547, 555; see also People ex rel. Dept. ofTransportatiqn v. Super. Ct. (1992) 5 Ca1.App.4th 1480, 1484) 8 ORDER RE: MOTION TO QUASH AND DEMURRER \omxloxLAAwNH NNNNNNNNNHHHHr-tr-tr-AHHp-A OONONLII$UJNHOKOOOQQMQWNHO Accordingly, the demurrer t0 the third cause of action is SUSTAINED, With 90 days’ leave to amend, to the extent it is brought by Terumo, St. Jude Medical LLC, and St. Jude Medical, Inc. October ___, 2019 - OCT 10 2019 W Ia’fww Mark H. Pierce Judge of the Superior Court 9 ORDER RE: MOTION TO QUASH AND DEMURRER SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE 191 NORTH FIRST STREET SAN JOSE, CALIFORNIA 95 1 13 .fimmz ‘5' r _u c “‘1 CIVIL DIVISION RE: Lawrence Hasha et al vs Arash Radidar et al Case Number: 18CV328673 PROOF OF SERVICE Order on Submitted Matter was delivered to the parties listed below the above entitled case as set forth in the sworn declaration below. If you. a pérty represented by you, or a witness to be called on behalf of that party need an accommodation under the American with Disabilities Act, please contact the Court Administrator's office at (408) 882-2700, or use the Court’s TDD line (408) 882-2690 or the Voice/TDD California Relay Service (800) 735-2922. DECLARATION OF SERVICE BY MAIL: | declare that l served this notice by enclosing a true copy in a sealed envelope, addressed to each person whose name is shown below. and by depositing the envelope with postage fully prepaid, in the United States Mail at San Jose, CA on October 10. 2019. CLERK OF THE COURT, by Mai Jansson. Deputy. cc: Lawrence Hasha PO Box 29393 SAN FRANCISCO CA 94129 Elena Hasha PO Box 29393 SAN FRANCISCO CA 94129 Stephen K Rose PO BOX 29393 San Francisco CA 94129 Elspeth Victoria Hansen 221 W Broadway San Diego CA 92101 Bradford J Hinshaw Hinshaw Marsh Still & Hinshaw LLP 12901 Saratoga Ave Saratoga CA 95070 Joseph Spalding Picchi 2300 Contra Costa Blvd Ste 350 PLEASANT HILL CA 94523 James John Zenere 1033 Willow St San Jose CA 95125 cw-9027 REV 12/08/16 PROOF OF SERVICE
