Bonner v. Rite Aid Corp. ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ERNEST L. BONNER, JR., M.D., No. 2:19-cv-00674-MCE-JDP 12 Plaintiff, 13 v. MEMORANDUM AND ORDER 14 RITE AID CORPORATION, and DOES 1 through 50, 15 Defendants. 16 17 18 On April 22, 2019, Plaintiff Ernest L. Bonner, Jr., M.D. (“Plaintiff”) initiated the 19 present action against Defendant Thrifty Payless, Inc., doing business as Rite Aid 20 (erroneously sued as Rite Aid Corporation) (“Defendant” or “Rite Aid”), pursuant to this 21 Court’s diversity jurisdiction under 28 U.S.C. § 1332. Presently before the Court is 22 Defendant’s Motion for Summary Judgment or, alternatively, Adjudication of Issues, 23 which has been fully briefed. ECF Nos. 66 (“Def.’s Mot.”), 69 (“Pl.’s Opp’n”), 71. For the 24 reasons set forth below, Defendant’s Motion is GRANTED.1 25 /// 26 /// 27 1 Because oral argument would not have been of material assistance, the Court ordered this 28 matter submitted on the briefs. E.D. Local Rule 230(g). 1 BACKGROUND 2 3 A. Factual Background2 4 1. Defendant’s Policies and Procedures 5 In March 2013, Defendant’s Regulatory Compliance Department created a panel 6 as part of an investigation/review program to ensure compliance with the U.S. Drug 7 Enforcement Administration (“DEA”), title 21 of the Code of Federal Regulations, and the 8 Federal Controlled Substances Act, “wherein pharmacies are required to monitor the 9 dispensing of controlled substances, reduce the potential risk of abuse, and minimize 10 dependence liability.” Hart Decl., ECF No. 66-4 ¶ 5. As such, the panel “reviews 11 investigation files and determines whether any remedial measures need to be taken.” Id. 12 In addition, Defendant also provides its own policies and guidelines to its employees 13 regarding similar concerns. Id. ¶ 6. Among these policies are Defendant’s “Procedures 14 for Validation and Dispensing of High Alert Controlled Substances,” and “NexGen 15 Automated Red Flag Documentation Process for High Alert Controlled Substances,” 16 both of which require pharmacists to perform their due diligence in validating the 17 legitimacy of prescriptions for controlled substances. See Exs. A–B, Hart Decl., ECF 18 No. 66-4, at 8–22. 19 Defendant provides a six-step procedure for validating and dispensing controlled 20 substances, and if a prescription cannot be filled, pharmacists are instructed to “relay 21 this information to the patient” which “MUST be done in a respectful manner, [and the 22 pharmacist must] never accuse the patient or make unnecessary comments.” See Hart 23 Decl., ECF No. 66-4 ¶¶ 8–9 (alterations in original). If there is suspicious activity, 24 Defendant’s policies instruct pharmacists to fill out a “Service Now ticket,” in which “they 25 enter their five (5) digit store number, where the issue occurred, and a description 26 /// 27 2 Unless otherwise noted, the following relevant and undisputed facts are taken, primarily verbatim, from Defendant’s Separate Statement of Undisputed Material Facts and Plaintiff’s Response 28 thereto. ECF Nos. 66-3, 69-2. 1 (i.e. prescriber name, prescriber address, prescriber DEA, and description of the 2 suspicious activity).” Id. ¶ 10. 3 Defendant’s investigation/review program consists of the following four steps: 4 A. Step 1: A “suspicious subscriber ticket” is submitted by a pharmacist at a Rite Aid location; 5 B. Step 2: The ticket, along with analytics (e.g. data received 6 from a compilation of various pharmacies nationwide) is reviewed according to Rite Aid’s policies; 7 C. Step 3: If there is evidence of possible suspicious activity, 8 then clinical protocol will be initiated, and an investigation of the prescriber will proceed. 9 D. Step 4: The analytics and results from the investigation will 10 then be reviewed by an investigation/review panel. 11 Id. ¶ 11. “If a decision is made to discontinue filling controlled substance prescriptions 12 from a particular prescriber, the prescriber will be given written notice of the decision.” 13 Id. ¶ 12. According to Defendant, such a decision is not permanent, and the “prescriber 14 may contact Rite Aid and request that their case be revisited. Rite Aid will then continue 15 to monitor the prescriber and may reinstate the prescriber as early as 6 months to 16 1 year.” Id. ¶ 13. 17 2. Defendant’s Actions Toward Plaintiff 18 On January 22, 2019, a suspicious subscriber ticket was opened by one of 19 Defendant’s pharmacists at a Rite Aid store located in Sacramento, California. The 20 subscriber ticket provided the following description: 21 Received a[] [prescription] written from [Plaintiff]. Prescriber notes state[] Walgreens does not accept this provider. Upon 22 further investigation, the prescriber[’]s phone number is listed under different patient profiles. [Phone numbers omitted] 23 When we called the first number there was no answering machine or prompts. The person just answers it as “hello”. 24 When asked to verify a[] [prescription] they said no one was in the office until Thursday. The patient wanted to ring [Plaintiff’s] 25 cell phone which we could not accept. Is this [doctor] acceptable to fill for? Unable to verify the [doctor’s] info[.] 26 27 Ex. C, Hart Decl., ECF No. 66-4, at 24. This subscriber ticket was given to Janet Hart, 28 Defendant’s Director of the Government Affairs and Regulatory Affairs divisions, who 1 then proceeded to review the analytics for Plaintiff. Hart Decl., ECF No. 66-4 ¶¶ 4–5, 15. 2 According to Ms. Hart, 3 [t]he analytics for [Plaintiff] showed that his prescriptions from all pharmacies (e.g. Rite Aid, Walgreens, CVS) for non- 4 controlled substances had decreased from 45% in 2016 to 21% in 2019 (i.e. prescriptions for controlled substances 5 increased from 55% to 79%) . . . Oxycodone (a semi-synthetic opioid drug prescribed for pain), in particular, comprised of 6 41.5% of his overall prescribed medications [between December 2018 and February 2019]. 7 8 Id. ¶ 16; see also Ex. D, Hart Decl., ECF No. 66-4, at 26–27 (analytics for Plaintiff); but 9 see Pl.’s Opp’n, at 11 (“Those charts confirm[] that Plaintiff[’s] patient load had increased 10 significantly by March, 2018. . . . Defendant’s charts confirm a 35% reduction of the 11 opiate Pain medication, a 49% reduction of Benzodiazepines (i.e. Alprazolam, 12 Diazepam), and also 52% reduction of non-scheduled medication between March 2018 13 and February 2019.”). Based on a review of the analytics and the subscriber ticket, 14 Defendant initiated clinic protocol and commenced an investigation of Plaintiff. Hart 15 Decl., ECF No. 66-4 ¶ 16. 16 On March 29, 2019, the investigation/review panel, which Ms. Hart is a part of, 17 reviewed a number of prescribers and unanimously decided to discontinue filling 18 prescriptions for controlled substances written by thirteen prescribers, including Plaintiff. 19 But see Pl.’s Statement of Disputed Facts, ECF No. 69-2, at 5 ¶ 17 (disputing on 20 grounds that “there is no evidence provided as to whom the 13 prescribers were or 21 whether there were 12 other prescriber[s] that were Black listed by Rite Aid.”). 22 According to Ms. Hart, the decision to discontinue filling Plaintiff’s prescriptions for 23 controlled substances was based, in part, on Plaintiff’s high and increased number of 24 prescriptions for controlled substances, and that 41.5% of Plaintiff’s overall prescriptions 25 were for Oxycodone. See Hart Decl., ECF No. 66-4 ¶ 18. 26 On April 1, 2019, Defendant sent Plaintiff a letter which stated the following: 27 This is to notify you that our pharmacy locations will no longer fill prescriptions from your office for Schedule II, III, IV and V 28 controlled substances effective April 15, 2019. Rite Aid has 1 taken this action because of our concern about increased reports of controlled substance prescription drug abuse, 2 especially Oxycodone. Rite Aid and our pharmacists have a responsibility to take appropriate steps to reduce the potential 3 that drugs we dispense are not diverted or abused. 4 We regret any inconvenience that this action may cause. However, Rite Aid is committed to reducing the potential for 5 diversion and abuse of controlled substances and finds it necessary to take this action at this time. If you have any 6 questions regarding this matter, you may direct those questions to Janet Hart, Government Affairs at [contact 7 information omitted.] 8 Ex. J, Hart Decl., ECF No. 66-4, at 52. Ms. Hart states in her declaration that to date, 9 Plaintiff “has never made a request regarding his case reevaluation or revisitation.” Hart 10 Decl., ECF No. 66-4 ¶ 22. However, Plaintiff states that he “was never informed that he 11 could challenge[]” this decision or that this decision was not permanent. See Pl.’s 12 Statement of Disputed Facts, ECF No. 69-2, at 7 ¶¶ 27–28. 13 3. Effect on Plaintiff’s Patients 14 In response to Defendant’s Special Interrogatories, Set One, Plaintiff identified, in 15 part, four patients as witnesses and they were subsequently deposed. See Ex. G, 16 Maxwell Decl., ECF No. 66-5, at 81–87. The Court will recount their deposition 17 testimonies below. 18 a. Cecelia Burke 19 20 In 2019, Ms. Burke attempted to fill her Oxycodone prescription written by Plaintiff 21 at one of Defendant’s pharmacies in Castro Valley, California. See Ex. H, Burke Dep., 22 ECF No. 66-5, at 91–92. However, Ms. Burke was told that Defendant “can’t fill this 23 prescription, and [she] said okay.” Id. at 92–93 (unable to remember who she spoke to). 24 She could not recall any one at the pharmacy giving her a specific reason behind the 25 refusal, only that the conversation was very brief and she did not ask any follow-up 26 questions. Id. at 93. Ms. Burke was able to fill the prescription at another pharmacy. Id. 27 Additionally, Ms. Burke testified that she was no longer Plaintiff’s patient but 28 confirmed that Defendant’s refusal to fill her prescription was not a reason behind her 1 decision to leave Plaintiff. See id. at 94. When asked why she left, Ms. Burke stated: 2 “You know, I’d really rather not get into that if that’s possible. Um, having to wait hours 3 and hours and hours and hours for an appointment became very frustrating to me.” Id. 4 at 96–97. 5 b. Margaret Fenton 6 7 On April 12, 2019, Defendant filled Ms. Fenton’s prescription for Buprenorphine, 8 which was written by Plaintiff. See Ex. I, Fenton Dep., ECF No. 66-5, at 102. A few 9 days later, on April 17, 2019, Ms. Fenton dropped off another prescription written by 10 Plaintiff at one of Defendant’s pharmacies. Id. at 103. Ms. Fenton subsequently 11 received a phone call, possibly from a pharmacy technician, informing her that 12 Defendant was unable to fill the prescription “because their company policy was to not fill 13 prescriptions from” Plaintiff. Id. at 103–04. When Ms. Fenton asked why this happened, 14 the employee said that “she didn’t know” and “could only tell [her] it was company policy 15 to no longer fill any prescriptions from” Plaintiff. Id. at 104–05. Ms. Fenton then tried to 16 have the prescription filled at CVS Pharmacy, who also refused to fill it but did not give a 17 reason. Id. at 107–08. In the end, Ms. Fenton was able to get the prescription filled at 18 Walgreen’s. Id. at 106. At the time of her deposition, Ms. Fenton was still Plaintiff’s 19 patient. Id. at 111. 20 c. Reginald Smith 21 22 On February 28, 2019, Mr. Smith attempted to fill an Oxycodone prescription 23 written by Plaintiff at one of Defendant’s pharmacies located in Sacramento, California. 24 See Ex. J, Smith Dep., ECF No. 66-5, at 114–15. According to Mr. Smith, the 25 pharmacist told Plaintiff over the phone that Mr. Smith “should be on a higher dosage 26 and more expensive medications,” that “the prescription wasn’t written correctly and 27 professionally,” and that “Mr. Smith [was] paying with cash, [which] was a red flag.” 28 /// 1 Id. at 115. Ultimately, the pharmacist told Mr. Smith that they were not going to fill the 2 prescription. Id. at 117. 3 The following day, on March 1, 2019, Mr. Smith tried to have the same 4 prescription filled at another one of Defendant’s pharmacies in Vallejo, California. See 5 id. at 118. However, that pharmacy also refused to fill the prescription, indicating that 6 the dosage amount was incorrect. See id. at 119 (testifying that the pharmacist told him 7 “[t]hat if [Plaintiff] would write it for a higher amount, he would fill it.”). Mr. Smith 8 eventually had the prescription filled at a CVS Pharmacy. Id. at 120. At the time of his 9 deposition, Mr. Smith was still a patient of Plaintiff. Id. at 114. 10 d. Waheed Guirgis 11 12 Sometime in 2018 or 2019, Mr. Guirgis tried to have an Oxycodone prescription 13 written by Plaintiff filled at one of Defendant’s pharmacies in Sacramento, California. 14 See Ex. K, Guirgis Dep., ECF No. 66-5, at 123–24. However, a pharmacy technician 15 told him that Plaintiff “has been flagged in [their] system and [they are] no longer filling 16 prescriptions for him.” Id. at 124. No further details were given, and Mr. Guirgis did not 17 ask any follow-up questions. See id. at 125–26. Mr. Guirgis informed Plaintiff of what 18 happened, and Plaintiff told him to “find another pharmacy.” Id. at 127. Ultimately, Mr. 19 Guirgis was able to have his prescription (and subsequent prescriptions written by 20 Plaintiff) filled at other pharmacies. See id. at 127, 131. At the time of his deposition, 21 Mr. Guirgis was still Plaintiff’s patient. Id. at 132. 22 B. Procedural History 23 Plaintiff filed his original Complaint in this Court on April 22, 2019, which asserted 24 the following causes of action against Defendant: (1) Unfair Competition in violation of 25 California Business and Professions Code §§ 17200 et seq. (“UCL”); (2) Intentional 26 Interference with Prospective Economic Advantage (“IIPEA”); (3) Negligent Interference 27 with Prospective Economic Advantage (“NIPEA”); (4) Defamation; (5) Intentional 28 Infliction of Emotional Distress (“IIED”); (6) violation of 42 U.S.C. § 1981 (“§ 1981”); and 1 (7) violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). ECF No. 1. In 2 response to Defendant’s first motions to dismiss and strike, Plaintiff filed a First 3 Amended Complaint on June 20, 2019, which alleged the same causes of action listed 4 above. ECF Nos. 4, 5, 9. Defendant subsequently moved to dismiss Plaintiff’s IIED, 5 § 1981, and Title VII causes of action and moved to dismiss and strike Plaintiff’s claims 6 for restitution and punitive damages on July 5, 2019. ECF Nos. 11, 12. On February 18, 7 2020, the Court granted the motion to dismiss the IIED and § 1981 claims with leave to 8 amend, granted the motion to dismiss the Title VII claim without leave to amend, and 9 denied the motion to strike as moot. See ECF No. 22. 10 Plaintiff filed the operative Second Amended Complaint (“SAC”) on March 9, 11 2020. ECF No. 23. Defendant again moved to dismiss the IIED and § 1981 causes of 12 action and moved to dismiss and strike the requests for restitution and punitive 13 damages. ECF Nos. 24, 25. On June 1, 2020, the Court granted Defendant’s motion to 14 dismiss in its entirety without leave to amend, denied the motion to strike as moot, and 15 stated that the case shall proceed on the UCL, IIPEA, NIPEA, and Defamation causes of 16 action. See ECF No. 44. Defendant subsequently filed its Answer on June 5, 2020. 17 ECF No. 45. 18 19 STANDARD3 20 21 The Federal Rules of Civil Procedure provide for summary judgment when “the 22 movant shows that there is no genuine dispute as to any material fact and the movant is 23 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. 24 25 3 Defendant cites the California summary judgment standard in its pleadings. See Def.’s Mot. at 7. Plaintiff also cites California law and rules of court in arguing that Defendant’s moving papers are defective. See Pl.’s Opp’n, at 5–8. “[U]nder the Erie doctrine, federal law governs the procedural aspects 26 of summary judgment in a diversity case, while the law of the forum controls the substantive issues.” Caesar Elec. Inc. v. Andrews, 905 F.2d 287, 289 n.3 (9th Cir. 1990); see Erie R.R. Co. v. Tompkins, 304 27 U.S. 64, 78 (1938). Accordingly, the Court applies the federal summary judgment standard set forth in Federal Rule of Civil Procedure 56. Furthermore, all references to “Rule” or “Rules” are to the Federal 28 Rules of Civil Procedure. 1 Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is to 2 dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325. 3 Rule 56 also allows a court to grant summary judgment on part of a claim or 4 defense, known as partial summary judgment. See Fed. R. Civ. P. 56(a) (“A party may 5 move for summary judgment, identifying each claim or defense—or the part of each 6 claim or defense—on which summary judgment is sought.”); see also Allstate Ins. Co. v. 7 Madan, 889 F. Supp. 374, 378–79 (C.D. Cal. 1995). The standard that applies to a 8 motion for partial summary judgment is the same as that which applies to a motion for 9 summary judgment. See Fed. R. Civ. P. 56(a); State of Cal. ex rel. Cal. Dep’t of Toxic 10 Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998) (applying summary 11 judgment standard to motion for summary adjudication). 12 In a summary judgment motion, the moving party always bears the initial 13 responsibility of informing the court of the basis for the motion and identifying the 14 portions in the record “which it believes demonstrate the absence of a genuine issue of 15 material fact.” Celotex, 477 U.S. at 323. If the moving party meets its initial 16 responsibility, the burden then shifts to the opposing party to establish that a genuine 17 issue as to any material fact actually does exist. Matsushita Elec. Indus. Co., Ltd. v. 18 Zenith Radio Corp., 475 U.S. 574, 586–87 (1986); First Nat’l Bank v. Cities Serv. Co., 19 391 U.S. 253, 288–89 (1968). 20 In attempting to establish the existence or non-existence of a genuine factual 21 dispute, the party must support its assertion by “citing to particular parts of materials in 22 the record, including depositions, documents, electronically stored information, 23 affidavits[,] or declarations . . . or other materials; or showing that the materials cited do 24 not establish the absence or presence of a genuine dispute, or that an adverse party 25 cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The 26 opposing party must demonstrate that the fact in contention is material, i.e., a fact that 27 might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, 28 Inc., 477 U.S. 242, 248, 251–52 (1986); Owens v. Local No. 169, Assoc. of W. Pulp and 1 Paper Workers, 971 F.2d 347, 355 (9th Cir. 1992). The opposing party must also 2 demonstrate that the dispute about a material fact “is ‘genuine,’ that is, if the evidence is 3 such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 4 477 U.S. at 248. In other words, the judge needs to answer the preliminary question 5 before the evidence is left to the jury of “not whether there is literally no evidence, but 6 whether there is any upon which a jury could properly proceed to find a verdict for the 7 party producing it, upon whom the onus of proof is imposed.” Anderson, 477 U.S. at 251 8 (quoting Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)) (emphasis in original). 9 As the Supreme Court explained, “[w]hen the moving party has carried its burden under 10 Rule [56(a)], its opponent must do more than simply show that there is some 11 metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. Therefore, 12 “[w]here the record taken as a whole could not lead a rational trier of fact to find for the 13 non-moving party, there is no ‘genuine issue for trial.’” Id. at 587. 14 In resolving a summary judgment motion, the evidence of the opposing party is to 15 be believed, and all reasonable inferences that may be drawn from the facts placed 16 before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 17 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 18 obligation to produce a factual predicate from which the inference may be drawn. 19 Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff’d, 20 810 F.2d 898 (9th Cir. 1987). 21 22 ANALYSIS 23 24 A. First Claim for Relief: Unfair Competition 25 The UCL defines “unfair competition” as “any unlawful, unfair or fraudulent 26 business act or practice and unfair, deceptive, untrue or misleading advertising . . .” Cal. 27 Bus. & Prof. Code § 17200; see also Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 28 20 Cal. 4th 163, 180 (1999) (stating that there are three separate varieties of unfair 1 competition: acts or practices which are unlawful, or unfair, or fraudulent). “To have 2 standing under California’s UCL, . . . plaintiffs must establish that they (1) suffered an 3 injury in fact and (2) lost money or property as a result of the unfair competition.” 4 Birdsong v. Apple, Inc., 590 F.3d 955, 959 (9th Cir. 2009) (citing Cal. Bus. & Prof. Code 5 § 17204). In other words, the injury must be economic in nature. See Mastel v. Miniclip 6 SA, 549 F. Supp. 3d 1129, 1144 (E.D. Cal. 2021). 7 In his declaration, Plaintiff states that he has “suffered emotional and financial 8 harm at the hands of [Defendant’s] pharmacies because [he] chose to reduce the 9 amount of all medications prescribed by [him] to the minimal effective dose of medicine 10 for the treatment of [his] patients.” Pl.’s Decl., ECF No. 69-1 ¶ 27. However, he does 11 not specify what financial harm he suffered. 12 Indeed, Plaintiff claims only that “he has had patients leave his practice and it is 13 untold how many patients have failed to come to his practice because of the taint on his 14 reputation because of Defendant’s actions.” Pl.’s Opp’n, at 15. However, four witnesses 15 testified at their depositions that they were eventually able to fill their prescriptions 16 despite Defendant’s refusal and three witnesses were still patients of Plaintiff. See Ex. I, 17 Fenton Dep., ECF No. 66-5, at 111; Ex. J, Smith Dep., id., at 114; Ex. K, Guirgis Dep., 18 id., at 132. The one witness, Ms. Burke, who testified that she was no longer Plaintiff’s 19 patient, did not say or suggest that she left Plaintiff’s practice because of Defendant’s 20 actions; in fact, she confirmed that Defendant’s refusal to fill her prescription was not the 21 reason for leaving Plaintiff. See Ex. H, Burke Dep., id., at 94, 96–97. Accordingly, there 22 is nothing in the present evidentiary record to show that Plaintiff suffered any economic 23 injury as a result of Defendant’s refusal to fill prescriptions written by Plaintiff. Instead of 24 providing any evidence to the contrary, Plaintiff simply states that “[f]urther discovery will 25 disclose what patients have left [] Plaintiff’s practice to go to other physicians whom 26 Defendant Rite Aid will fill the prescriptions for,” and “what patients have left [] Plaintiff’s 27 practice since April 1, 2019.” Pl.’s Statement of Disputed Facts, ECF No. 69-2, 28 /// 1 at 8–9 ¶¶ 32–33. What Plaintiff has not explained is what further discovery is needed or 2 why he has not been able to obtain or present such evidence after four years of 3 litigation. 4 Because Plaintiff cannot demonstrate that he suffered an injury-in-fact, he does 5 not have standing to pursue his UCL claim. Therefore, Defendant’s Motion is GRANTED 6 as to this claim. 7 B. Second and Third Claims for Relief: IIPEA and NIPEA 8 To make a prima facie case of IIPEA, a plaintiff must demonstrate: 9 (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the 10 plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional acts on the part of the defendant designed to 11 disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by 12 the acts of the defendant. 13 Youst v. Longo, 43 Cal. 3d 64, 71 n.6 (1987). The tort of NIPEA differs in that the 14 defendant’s conduct does not need to be intentional. Venhaus v. Shultz, 155 Cal. App. 15 4th 1072, 1078 (2007). 16 Like his UCL claim above, Plaintiff cannot show that he has suffered economic 17 harm. Plaintiff again asserts that he has lost patients resulting from Defendant’s actions, 18 including Ms. Burke. See Pl.’s Opp’n, at 16; Pl.’s Statement of Disputed Facts, ECF 19 No. 69-2, at 12 ¶ 10, 14 ¶ 4. But as previously discussed, Ms. Burke confirmed that 20 Defendant was not the reason she left Plaintiff. Aside from reiterating that further 21 discovery will disclose which patients left his practice, Plaintiff has not provided any 22 supporting evidence, especially since four witnesses testified in their depositions that 23 they were able to fill their prescriptions at other pharmacies and that none of them left 24 Plaintiff’s practice because of Defendant’s actions. 25 Because Plaintiff cannot satisfy the economic harm element, his claims for IIPEA 26 and NIPEA cannot survive. Defendant’s Motion is thus GRANTED as to both claims. 27 /// 28 /// 1 C. Fourth Claim for Relief: Defamation 2 Under California law, the elements of a defamation claim are “(a) a publication 3 that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency 4 to injure or that causes special damage.” Taus v. Loftus, 40 Cal. 4th 683, 720 (2007). A 5 publication is communication of the allegedly defamatory statement “to a third person 6 who understands its defamatory meaning as applied to the plaintiff.” Shively v. 7 Bozanich, 31 Cal. 4th 1230, 1242 (2003). The statement need not be published to the 8 “public at large; communication to a single individual is sufficient.” Smith v. Maldonado, 9 72 Cal. App. 4th 637, 645 (1999). Nor must the statement be intentionally 10 communicated to a third person. Haley v. Casa Del Rey Homeowners Ass'n, 153 Cal. 11 App. 4th 863, 877–78 (2007). On the contrary, a defamatory statement negligently 12 communicated to a third party will suffice. Id. A statement is negligently communicated 13 “[i]f a reasonable person would recognize that an act creates an unreasonable risk that 14 the defamatory matter will be communicated to a third person.” Id. at 878–79. 15 Plaintiff alleges that Defendant’s employees made the following statements to his 16 patients: (1) Plaintiff lost his license to practice medicine; (2) Plaintiff’s license was 17 “revoked”; (3) Plaintiff is under investigation by the DEA and/or the Food and Drug 18 Administration; (4) Plaintiff is “being investigated” and is “under review” for writing too 19 many prescriptions; (5) Plaintiff and his medical office were creating “fake” and 20 “fraudulent” pill prescriptions; and (6) Defendant sent a letter to Plaintiff stating that they 21 would no longer fill any prescription written by him. See SAC, ECF No. 23 ¶ 2; Ex. G, 22 Maxwell Decl., ECF No. 66-5, at 82 (Plaintiff’s response to Defendant’s interrogatory 23 asking for “each and every statement and/or other information that [Plaintiff] contend[s] 24 was defamatory and/or falsely made about [him] by any RITE AID employee”). 25 However, all four of Plaintiff’s patients testified at their depositions that none of 26 Defendant’s employees made any of these statements to them. See Ex. H, Burke Dep., 27 id., at 94–96; Ex. I, Fenton Dep., id., at 109–10; Ex. J, Smith Dep., id., at 116–17; Ex. K, 28 Guirgis Dep., id., at 128–30. As such, Plaintiff cannot show that defamatory statements 1 || were made and thus, his defamation claim fails. Accordingly, Defendant’s Motion is 2 | GRANTED on this claim. 3 4 CONCLUSION 5 6 For the foregoing reasons, Defendant's Motion for Summary Judgment, ECF 7 | No. 66, is GRANTED. The Clerk of Court is directed to enter judgment in favor of 8 | Defendant and to close the case. 9 IT |S SO ORDERED. 10 | Dated: May 23, 2023 14 JAK, Whip AX XC - Marlies 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14