On 02/07/2018 COURTNEY J CROSBY filed a Personal Injury - Other Product Liability lawsuit against JANSSEN PHARACEUTICAL INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is WILLIAM F. HIGHBERGER. The case status is Pending - Other Pending.
Pending - Other Pending
Stanley Mosk Courthouse
Los Angeles, California
WILLIAM F. HIGHBERGER
CROSBY COURTNEY J. T-50417
JOHNSON & JOHNSON PHARMACEUTICAL RESEARCH
JANSSEN PHARACEUTICAL INC
JANSSEN RESEARCH AND DEVELOPMENT LLC
JOHNSON & JOHNSON
DOES 1 TO 50
ORTHO MCNEIL JANSSEN PHARMACETICAL INC
ORTHO MCNEIL PHARMACEUTICAL PRODUCTS LP
DOES 1 TO 50 INCLUSIVE
JANSSEN LP FKA JANSSEN PHARMACEUTICAL PRODUCTS LP
JANSSEN RESEARCH AND DEVELOPMENT LLC FKA JOHNSON & JOHNSON PHARMACEUTICAL RESEARCH & DEVELOPMENT LLC
JANSSEN PHARMACEUTICALS INC. AKA ORTHO-MCNEIL-JANSSEN PHARMACEUTICAL INC. AKA ORTHO-MCNEIL PHARMACEUTICAL PRODUCTS INC.
HUDSON RODNEY MICHAEL
HANSSEN WILLIAM A.
12/28/2018: Motion to Quash Service of Summons
12/28/2018: Proof of Service by Mail
1/2/2019: Proof of Service (not Summons and Complaint)
1/16/2019: Minute Order
1/16/2019: Certificate of Mailing for
1/30/2019: Certificate of Mailing for
1/30/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
2/1/2019: Motion re:
3/11/2019: Minute Order
3/11/2019: Certificate of Mailing for
3/12/2019: Challenge To Judicial Officer - Peremptory (170.6)
3/12/2019: Certificate of Mailing for
5/13/2019: Notice of Rejection - Pleadings
5/13/2019: Certificate of Mailing for
2/8/2018: ORDER ON COURT FEE WAIVER
2/7/2018: COMPLIANT FOR DAMAGES FOR 1. STRICT PRODUCT LIABILITY; ETC
Summons (on Complaint)Read MoreRead Less
Notice of Rejection - Pleadings; Filed by ClerkRead MoreRead Less
Certificate of Mailing for ([Notice of Rejection - Pleadings]); Filed by ClerkRead MoreRead Less
Notice of Rejection - Pleadings; Filed by ClerkRead MoreRead Less
Certificate of Mailing for ([Minute Order (Hearing on Motion to Quash Service of Summons and to oppose r...)] and Court Reporter's Transcript of 1/30/19 and Minute Order of 1/30/19); Filed by ClerkRead MoreRead Less
at 09:11 AM in Department 10, William F. Highberger, Presiding; Court OrderRead MoreRead Less
Certificate of Mailing for (Minute Order (Court Order) of 03/11/2019); Filed by ClerkRead MoreRead Less
Minute Order ( (Court Order)); Filed by ClerkRead MoreRead Less
Motion to Disqualify Judge William F. Highberger Pursuant to CCP 170.6 For Prejudice; Filed by Crosby, Courtney J. T-50417 (Plaintiff)Read MoreRead Less
Motion re: (to Oppose Defendants Motion to Quash Service of Summons); Filed by Crosby, Courtney J. T-50417 (Plaintiff)Read MoreRead Less
Notice of Motion (requesting this court to postpone hearing defendants motion to quash serive of summons until plaintiff has an opportunity to respond); Filed by Crosby, Courtney J. T-50417 (Plaintiff)Read MoreRead Less
Proof of Service (not Summons and Complaint) (of specially appearing Defendant Janssen Pharmaceuticals, Inc.'s Amended Notice of Motion and Motion To Quash Service of Summons and to Oppose Request For Entry of Default and Supporting Documents); Filed by Janssen Pharmaceuticals, Inc. (Defendant)Read MoreRead Less
Notice of Motion (to Quash Service of Summons and to Oppose Request For Entry of Default); Filed by Janssen Pharmaceuticals, Inc. (Defendant)Read MoreRead Less
Motion to Quash Service of Summons (and to Oppose Request for Entry of Default); Filed by Janssen Pharmaceuticals, Inc. (Defendant)Read MoreRead Less
Proof of Service by Mail; Filed by Janssen Pharmaceuticals, Inc. (Defendant)Read MoreRead Less
ORDER ON COURT FEE WAIVERRead MoreRead Less
Order on Court Fee Waiver (Superior Court); Filed by ClerkRead MoreRead Less
Complaint; Filed by Crosby, Courtney J. T-50417 (Plaintiff)Read MoreRead Less
COMPLIANT FOR DAMAGES FOR 1. STRICT PRODUCT LIABILITY; ETCRead MoreRead Less
Request to Waive Court Fees; Filed by Crosby, Courtney J. T-50417 (Plaintiff)Read MoreRead Less
Case Number: BC693360 Hearing Date: May 25, 2021 Dept: 10
BC693360 Crosby v. Janssen Pharmaceuticals, Inc.
May 25, 2021 Tentative
Defendant Janssen Pharmaceuticals, Inc.’s Motion for Judgment on the Pleadings: Granted without leave to amend
Defense Request for Judicial Notice: Granted
Plaintiff’s prior filing is a proper subject of judicial notice for both the fact of its filing and the contents of the pleading signed by plaintiff personally. Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 343.
Merits of Motion:
Plaintiff first sued this defendant (and various related co-defendants who have not appeared in this action (BC693360) to date) in a Complaint filed in pro per by Mr. Crosby on November 8, 2016 and assigned docket number BC640177.
Mr. Crosby made a Motion for Appointment of Counsel in BC640177, which was heard on June 6, 2017 and continued to June 26, 2017. On June 26, 2017, when it was clear that none of the plaintiff attorneys with thousands of clients in JCCP 4775 Risperdal and Invega Product Liability Cases wished to assume representation of Mr. Crosby after having been informed of his desire for such representation, the Court denied the motion for reasons more fully set forth in the Minute Order of June 26, 2017. At that time and by the same Minute Order the Court also set an Order to Show Cause returnable some months hence, on November 8, 2017, why the matter should not be dismissed if there had been no service of the Summons and Complaint by such date. The file in this matter shows that the June 26 Minute Order was served by U.S. Mail on Mr. Crosby on July 31, 2017. When there was no service of that pleading accomplished by that date and with no filing by Mr. Crosby showing good cause for a continuance of the Order to Show Cause, that action was dismissed without prejudice on November 8, 2017.
This action against the same defendant (and various related co-defendants who have not appeared in this action (BC693360) to date) was filed February 7, 2018 by plaintiff, again acting in pro per. Defendant Janssen Pharmaceuticals, Inc. specially appeared in this action on December 28, 2018 by a Motion to Quash Service of Summons. That motion was granted January 30, 2019 as reflected in the Minute Order of that date and the Reporter’s Transcript of proceedings on that date. The public file shows various efforts by plaintiff Crosby to accomplish service of the Complaint and Summons issued July 1, 2019, culminating in a proof of service by U.S. Mail on this defendant filed with this Court on December 15, 2020. This defendant made a general appearance by filing its Answer on January 20, 2021.
This motion was filed April 16, 2021 and properly noticed for hearing on May 25, 2021. Plaintiff served and filed a timely Opposition on May 12, 2021, and defendant served and filed a timely Reply on May 18, 2021.
The gist of defendant’s motion is that the prior Complaint includes a clear statement by plaintiff that “plaintiff was put on notice on 10/7/13 that he had gynecomastia for ingesting Risperdal” (BC640177 Complaint at 4:3-4), also stated as “Plaintiff ingest[ed] Risperdal/Risperdone off and on for many, many years, from 9/20/04 until 10/7/13 when Risperdal was discontinue[d], because plaintiff[’s] treating Physician diagnose[d] plaintiff with gynecomastia as a result of ingesting Risperdal.” BC640177 Complaint at 3:8-11.
Since the relevant statute of limitations for personal injury claims of this type against a manufacturer is two years pursuant to either C.C.P. § 335.1(a) or § 340.8, defendant urges that this action filed four (4) years and four (4) months after the conceded date of notice to plaintiff (i.e., October 7, 2013) demonstrates by reference only to these two pleadings that the pending suit is untimely. The Court agrees with this defendant that the two-year limit applies, not the three-year limitations period applicable to medical malpractice claims against medical provider defendants such as doctors and hospitals covered by C.C.P. § 340.5, a contention urged by plaintiff in his Opposition.
The only serious question presented at this time is whether plaintiff should be granted leave to amend to add in pleading allegations that (a) he is incarcerated and entitled to as much as two years additional time to file pursuant to C.C.P. § 352.1 or (b) that his claim should be tolled because he had corresponded with Johnson & Johnson “asking to file a claim” and was also delayed while waiting to hear back from two potential law firms.
There is no reason to allow leave to amend the pleading to show coverage by C.C.P. § 352.1(a) because an additional two years does not save plaintiff’s claim. It otherwise accrued October 7, 2013 and a delayed accrual on October 7, 2015 would still make this filing some 28 months thereafter untimely under the controlling two-year statute. (This also assumes that plaintiff was already incarcerated as of October 7, 2013, when his claim accrued, a necessary predicate for the delayed accrual provision to have any potential applicability. Defendant suggests this is the case based on an entry on a California Department of Corrections and Rehabilitation website, but the Court is NOT taking judicial notice of n. 5 in the Memorandum of Points and Authorities.)
There is no reason to allow leave to amend to plead a claim for tolling based on equitable estoppel as the basic elements are missing, and plaintiff’s Opposition provides no reason to believe they might exist. This defendant is not chargeable with delays in plaintiff hearing back from potential advocates who might sue Janssen or Johnson & Johnson. Insofar as he wants to claim Janssen, via its parent, Johnson & Johnson, misled him such that he sat on his rights, he does not set forth the four needed elements for estoppel:
(1) that the defendant told plaintiff while the claim was still timely that action would be taken making a suit unnecessary;
(2) that plaintiff reasonably relied on this representation;
(3) that the representation was proven false but only after the limitations period had run; and
(4) the plaintiff then proceeded diligently to bring his claim in court.
Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 384 (bold emphasis added). See generally for a review of how equitable estoppel applies when a plaintiff is (as here) aware of the claim and the identity of the wrongdoer but is dissuaded by the wrongdoer from taking timely action 3 B. Witkin, Summary of California Procedure (5th ed.) “Actions” § 763.
Here we get two insights to the factual basis for his potential tolling/equitable estoppel claim: (a) his Opposition and (b) his BC640177 Complaint. In the recent Opposition, plaintiff states:
In 2013 when plaintiff discovered he had obtain[ed] enlarged breast[s] as a result of the use of Risperdal plaintiff wrote Johnson & Johnson a letter asking to file a claim. Johnson & Johnson wrote me back and had me sign some release papers for my medical records. Johnson & Johnson told me that I could file a claim with them. J&J had me thinking for 14 months that I could file a claim with them, and after 14 months they stop[ped] corresponding with me.
Opposition, ¶ 2 (bold emphasis added).
In his original complaint plaintiff stated the following on the same subject:
When plaintiff was put on notice on 10/7/13 that he had gynecomastia for ingesting Risperdal, plaintiff filed an informal complaint for monetary compensation with Johnson and Johnson Pharmaceutical [sic], who had me sign a release of my medical records, for seven months defendnats [sic] kept saying that they were reviewing my case as though they were going to process my claim, then defendants just stop[ped] their correspondence with me.
BC640177 Complaint at 4:3-9 (bold emphasis added).
Neither of these provide a sufficient basis for equitable estoppel or tolling as they cannot support the necessary third element set forth above: That plaintiff first learned that defendant was not going to resolve his claim without formal litigation AFTER the limitations deadline has passed. Here, there are two alternative ways to track it: (a) assuming delayed accrual under C.C.P. § 352.1(a) applies (though not yet pled and with uncertainty as to plaintiff’s incarceration status from October 7, 2013 to the date of the first Complaint filing, from prison, on November 8, 2016) or (b) assuming that delayed accrual does not apply. If the former, the claim would have delayed accrual on October 7, 2015 and a reset limitations deadline of October 7, 2017. If the latter, there would be no delayed accrual and the limitations period would expire in the ordinary course on October 7, 2015.
For these purposes, the longer limitations period resulting from potential application of delayed accrual clearly cuts off any equitable estoppel argument since plaintiff’s act of filing suit on November 8, 2016 proves he knew not to wait on defendant any further while he still had a timely claim to file. Only if he does NOT get the benefit of C.C.P. § 352.1(a) is there any possibility that tolling/equitable estoppel might help.
While plaintiff does not exactly tell us how soon after he got notice of his medical problem and defendant’s alleged responsibility on October 7, 2013, that he submitted his “informal complaint” to Johnson & Johnson, we do know that after he gave up waiting to hear good news from defendant, he contacted two different law firms, first Ferrer, Poirot & Wansbrough (Opposition at 1) and then Nations Law Firm (Opposition at 1; BC640177 Complaint at 4:15-17). We also know that Nations Law Firm told him “on 8/19/16 they drop[ped] me as their client, stating that my case was to[o] complicated.” BC640177 Complaint at 4:16-17. Plaintiff says in his Opposition that he waited to get an answer from Ferrer, Poirot & Wansbrough “8 months” and then contacted Nations and then waited either “eight months” (BC640177 Complaint at 4:15) or “one year” (Opposition at 1).
Using the shorter time estimate (as to the time waiting to hear back from Nations), plaintiff spent 16 months waiting to hear from potential lawyers AFTER realizing that he was getting no useful response from defendant, and he then filed on November 8, 2016. This tells us that he had given up on hearing from defendant no later than May 2014, which is seven months after he got notice on October 7, 2013 (i.e., the time period pled in BC640177). Even if plaintiff had to wait 14 months after October 7, 2013 before giving up on defendant, i.e., until December 2014 (as asserted in the Opposition to this motion), that would still be within either of the two limitations periods (i.e., with or without delayed accrual per C.C.P. § 352.1(a)) and thus early enough such that equitable estoppel is not available to him. Simply put, even if defendant lulled him for a time to delay filing suit, he became aware that this was futile long before the limitations period had expired under either of the two possible scenarios.
For all of these reasons, granting leave to amend to plead either theory would be futile, for which reason leave is denied. Defendant to submit [Proposed] Judgment by June 22, 2021.
C.C.P. § 352.1(a) provides: “If a person entitled to bring an action, mentioned in Chapter 3 (commencing with Section 335), is, at the time the cause of action accrued, imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life, the time of that disability is not a part of the time limited for the commencement of the action, not to exceed two years.”
Since the first complaint was dismissed without prejudice, its otherwise timely filing does not save plaintiff’s second filing from a valid statute of limitations defense. Wood v. Elling Corp. (1977) 20 Cal.3d 353, 359; Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 299.
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