Ambriz v. CVS Pharmacy, Inc.

Decision Date02 April 2020
Docket NumberNo. 1:19-cv-01391-NONE-SKO,1:19-cv-01391-NONE-SKO
PartiesBLANCA AMBRIZ, individually and on behalf of D.A., a minor as his Guardian Ad Litem, Plaintiffs, v. CVS PHARMACY, INC. et al., Defendant.
CourtU.S. District Court — Eastern District of California



Plaintiffs Blanca Ambriz, individually, and on behalf of D.A., a minor as his Guardian ad Litem, filed this action in California state court against defendants CVS Pharmacy, Inc. ("CVS"), CVS Store #2944 - Pharmacy ("CVS Store"), and CVS Health Corporation ("CVS Health") after plaintiff D.A. was allegedly provided an incorrect prescription by the CVS Store and suffered from an adverse reaction as a result. (Doc. No. 2.) CVS removed the action to this federal court asserting jurisdiction based on the diversity of citizenship of the parties and that the amount in




///// controversy exceeds $75,000. (Doc. No. 2.)1 Currently pending before the court is CVS' motion to dismiss the complaint in its entirety for failure to state a claim. (Doc. No. 5.) For the reasons discussed below, the motion to dismiss is granted in part and denied in part.


On March 15, 2018, plaintiffs went to the CVS Store to pick up prescription medication, amoxicillin and ibuprofen, for plaintiff D.A. (Doc. No. 2-4 at ¶ 18.) However, the CVS Store "incorrectly mixed the prescription, leaving it excessively concentrated." (Id.) Plaintiff D.A. ingested the incorrectly mixed medication and "within minutes" he began to vomit, had a fever, his eyes rolled to the back of his head, and his entire body shook for about one minute. (Id.) Plaintiff D.A. was taken to Sierra View Medical Center in an ambulance and was provided medical care by his primary care physician and Valley Children's Healthcare. (Id. at ¶ 19.)

After plaintiff D.A. ingested the incorrect medication, the CVS Store allegedly called plaintiff Ambriz "to inform her that they did not mix the amoxicillin correctly." (Id. at ¶ 18.) The CVS Store called plaintiff Ambriz twice on the same day that plaintiffs picked up the incorrectly mixed prescription medication. (Id. at ¶ 20.) The following day, plaintiff Ambriz went to the CVS Store with the prescription bottles. (Id.) Plaintiff Ambriz spoke to a CVS Store employee who allegedly informed plaintiff Ambriz that "she was sorry for what occurred and said that she was unable to sleep knowing of the mistake that was made." (Id.) Plaintiff Ambriz then provided the prescription bottles to the CVS Store employee. (Id.) Later that day, another CVS employee called plaintiff Ambriz to provide an update regarding the incident, but the complaintdoes not describe the update that was allegedly provided. (Id.) Though CVS allegedly opened a file regarding the incident, "no cooperation or information has yet been provided" to plaintiffs. (Id. at ¶ 21.)

The complaint alleges that plaintiffs served a notice of intent to commence a civil action on defendants around February 5, 2019. (Id. at ¶ 22.) See California Code of Civil Procedure § 364 (requiring notice of intent to sue at least 90 days before filing a complaint asserting a health care provider's professional negligence). On June 13, 2019, plaintiffs filed a complaint in the Tulare County Superior Court. (Doc. No. 2-4.) The complaint utilizes a California Judicial Council form and has attached to it additional pages with factual allegations. (Id.) The complaint asserts four claims against defendants for negligence, strict products liability, negligent infliction of emotional distress ("NIED"), and negligent hiring, retention, and supervision of staff.2 (Id.) CVS removed the action to this federal court asserting jurisdiction under 28 U.S.C. § 1332 based on the diversity of citizenship of the parties and that the amount in controversy exceeds $75,000. (Doc. No. 2.) Plaintiffs have not contested federal jurisdiction and, as noted above, the court appears to have jurisdiction over this action.


The purpose of a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). A dismissal may be warranted where there is "the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In short, the complaint must"give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

The court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the court will not assume the truth of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Federal Rule of Civil Procedure 8(a) does not require detailed factual allegations, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to survive dismissal under Rule 12(b)(6). Iqbal, 556 U.S. at 676. A complaint must do more than allege mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555.

While federal pleading rules require that a plaintiff allege facts showing he or she is entitled to relief, the rules "do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted." Johnson v. City of Shelby, Miss., 574 U.S. 10, 11 (2014). "Federal Rules of Civil Procedure are designed to discourage battles over mere form of statement." Id. (internal quotations and citation omitted). Therefore, a complaint that is "inartfully drawn" will nonetheless survive dismissal if it contains "sufficient facts under the applicable notice pleading standards" of Rule 8(a). Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008).


Here, CVS moves to dismiss plaintiffs' complaint in its entirety. CVS argues that because California law only allows "professional" negligence claims to be asserted against healthcare providers, plaintiffs' first claim for "general" negligence must be dismissed. As to the second claim, CVS argues that California law prohibits pharmacies from being held strictly liable. Turning to plaintiffs' third claim, CVS argues that plaintiff Ambriz has failed to allege sufficient facts to recover under the "bystander" theory of NIED. As to plaintiffs' final claim asserting negligent hiring, retention, and supervision, CVS argues that this claim is also a "professional"negligence claim and therefore, dismissal is appropriate. The court addresses each claim and the respective arguments as to those claims in order below.

A. First Claim: Negligence

CVS argues that the "general" negligence claim must be dismissed because California law only allows "professional" negligence claims to be asserted against health care providers. (Doc. No. 5 at 9-12.) Though plaintiffs concede that their first claim should have been labeled as one for professional negligence, they respond that CVS' argument is one of form, rather than substance. (Doc. No. 7 at 4:19-24.) Therefore, dismissal of this claim is not appropriate according to plaintiffs because the complaint includes sufficient factual allegations showing that, if proven, they are entitled to relief under some legal theory. (Id.) The court finds plaintiffs' argument on this issue to be persuasive.

California has a statutory regime for medical malpractice and negligence claims, called the Medical Injury Compensation Reform Act of 1975 ("MICRA"). See, e.g., Flowers v. Torrance Mem'l Hosp. Med. Ctr., 8 Cal. 4th 992, 999 (1994) (MICRA "contains numerous provisions effecting substantial changes in negligence actions against health care providers, including a limitation on noneconomic damages, elimination of the collateral source rule as well as preclusion of subrogation in most instances, and authorization for periodic payments of future damages in excess of $50,000.") (citations omitted).

MICRA governs "professional negligence" claims against "health care providers." The term "professional negligence" is defined under MICRA as:

a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.

Cal. Civ. Code § 3333.1(c)(2). In turn, "health care providers" includes entities that are licensed pursuant to Division 2 of California's Business and Professions Code. Civ. Code § 3333.1(c)(1). Pharmacies, which are licensed under Division 2 of the Business and Professions Code, areconsidered "health care providers" under MICRA. See Cal. Bus. & Prof. Code § 4110(a).3 Here, plaintiffs' claim is subject to MICRA because they allege that the CVS Store (i.e., a healthcare provider) negligently filled a prescription (i.e., rendering of professional services). See Civ. Code § 3333.1(c)(2). Therefore, plaintiffs must assert a professional negligence...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT