Ana Salazar v. CVS Health, et al.

(Michael Antonovich Antelope Valley Courthouse: Dept. A14) August 18, 2026 DEPARTMENT A14 LAW AND MOTION RULINGS Department A14 Tentative Rulings If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at [email protected] or calling 661 483-5774. . If a matter is also scheduled for a CMC, TSC, OSC, etc., an appearance is still required even if the parties are willing to submit on the tentative ruling.

STATE OF CALIFORNIA COUNTY OF LOS ANGELES - NORTH DISTRICT ANA SALAZAR, Plaintiff, v. CVS HEALTH; CVS PHARMACY; ANTINO RIVAS; and DOES 1 through 100, Defendants. | Case Number 22AVCV00223 [TENTATIVE] RULING ON MOTOIN Date of Hearing: August 18, 2026 Dept. A-14 Judge William H. Forman | I.

Background

This is a medical malpractice case. Defendant Garfield Beach CVS, LLC, erroneously sued as CVS Pharmacy, Inc. (CVS), moves for summary judgment. The operative complaint is a Second Amended Complaint (SAC) file on October 21, 2025. The SAC asserts causes of action for (1) Professional Medical Negligence (Medical Malpractice); (2) Willful Misconduct; (3) Gross Negligence; (4) Fraudulent Concealment; (5) Lack of Informed Consent; (6) Medical Battery; (7) Breach of Fiduciary Duty; and (8) Negligent Hiring, Training, Supervision, and Retention.

The allegations of the SAC concern an alleged in jury that Plaintiff suffered on April 7, 2021, when she went to a CVS in Lancaster, California to receive a COVID-19 vaccination shot. Defendant Ifejika, an employee of CVS, gave Plaintiff an initial injection that caused her to bleed at the injection site. (SAC, para. 30.) Plaintiff alleges that Ifejika "had injected a used needle" into her arm. (SAC, para. 33.) Plaintiff a times refers to this needle as "contaminated" or "used." Later in the SAC she explains what she means by this: "The needle was used contaminated in that it was unwrapped, lacking any protected covering or encasing, normally used to prevent accidental punctures. . . .

The used contaminated needle lacked any needle cap or needle shield on or around its piercing bevel or point." (Para 49(b) and (c)." While previous versions of the complaint alleged that the needle was contaminated with a foreign substance, the SAC appears to have abandoned that allegation. Plaintiff alleges that Ifejika the produced a second needle and injected Plaintiff with the contents of that needle. (SAC, paras. 35-38.) Ifejika allegedly did not tell Plaintiff what was in that needle. (Id.)

Plaintiff alleges that she became sick and suffered emotional distress as a result of the shots she received at CVS when she went in to get her COVID-19 vaccination. (SAC, paras. 43-44.) The SAC proceeds to allege that Ifejika surreptitiously disposed of the first needle, and On November 24, 2025, CVS, CVS Health, Rivas, and Ifejika each answered the complaint. On April 1, 2026, CVS and CVS Health together (hereinafter referred to as "Defendants"), Ifejika, and Rivas each filed a motion for summary judgment.

On July 29, 2026, Plaintiff filed an opposition to the present motion for summary judgment. On August 7, 2026, Defendant filed a reply. ----- II. Requests for Judicial Notice Defendants' RJN - Defendants request that the Court take judicial notice (1) that Plaintiff filed her complaint, FAC, and SAC in the present case, (2) that Plaintiff did not file any complaint in the U.S. District Court, for the District of Columbia, and (3) the March 10, 2020 Declaration of United States Health and Human Services Secretary Alex Azar invoking the Public Readiness and Emergency Preparedness Act for the COVID-19 pandemic effective February 4, 2020 (PREP Act).

Defendant's request is GRANTED. (Evid. Code, Sec.Sec. 452 subd. (a), (c), (h), 453.) Plaintiff's RJN - Plaintiff requests that the Court take judicial notice of (1) the October 7, 2025 Order After Hearing, (2) the May 14, 2024 Ruling, (3) Plaintiff's SAC, (4) California Business and Professions Code, Section 4113.1, (5) 85 Fed. Reg. 15,198, 15,202 (March 17, 2020), and (6) Coleman v. Sharp Memorial Hosp., No. 37-2023-00033307-CU-PO-CTL, 2024 Cal. Super. LEXIS 10893 (Cal. Sup. Ct. March 29, 2024).

Plaintiff's request is GRANTED. (Evid. Code, Sec.Sec. 452, subd. (a), (c), 453.) The Court notes that judicial notice of filings within the instant action is unnecessary, and further notes that Coleman is not binding or precedential on this Court. ----- III. Evidentiary Objections Defendant's Evidentiary Objections - Defendant objects to portions of Plaintiff's declaration and the Declaration of Ruwanthi Campano, M.D. Defendant's objections to Plaintiff's Declaration are SUSTAINED as to No. 11 (D'Amico).

Defendant's objections to Plaintiff's Declaration are OVERRULED as to Nos. 1-10, 12. Defendant's objections to the Declaration of Ruwanthi Campano, M.D. are SUSTAINED as to Nos. 14, 15, 17, 18. Defendant's objection to the Declaration of Ruwanthi Campano, M.D. are OVERRULED as to Nos. 13, 16. Plaintiff's Evidentiary Objections - Plaintiff objects to portions of the Declaration of Kim Moore. Plaintiff's objections are not numbered. However, Plaintiff's objections are SUSTAINED as to the following as improper legal opinion: 1.

The administration of COVID-19 vaccines in April 2021 constituted the administration of a covered countermeasure under the Public Readiness and Emergency Preparedness ("PREP") Act. See Paragraph 8(b) 2. All actions taken by covered persons including but not limited to pharmacy, pharmacists, its agents, and employees in connection with the preparation and administration of COVID-19 vaccines, including decisions made during the injection process to ensure that a patient received the vaccine, fall within the scope of covered activities under the PREP Act.

At all relevant times, Defendants, including CVS and its pharmacists, were "covered persons" under the PREP Act. See Paragraph 8(c) 3. Moreover, Defendants actions with respect to the April 7, 2021 preparation of and administration of Plaintiff's COVID-19 vaccine fall within the scope of covered activities, and as such are immune from liability, under the PREP Act. See Paragraph 8(p) Plaintiff's remaining objections to the Declaration of Kim Moore are OVERRULED. Plaintiff also objects to portions of the Declaration of Mark Needham, MD.

Plaintiff's objection is SUSTAINED as to the following as improper non-expert opinion: 1. Further, Defendant Antino Rivas was not involved in the April 7, 2021, vaccination at issue in this case and as such, to a reasonable degree of medical probability, nothing that Defendant Rivas did or failed to do caused or contributed to Plaintiff's claimed injuries or damages. See Paragraph 11(i)

Plaintiff's remaining objections to the Declaration of Mark Needham, MD are OVERRULED. ----- IV.

Legal Standard

Standard for Motion for Summary Judgment - Summary judgment is proper "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Code Civ. Proc., Sec.437c, subd. (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Code Civ.

Proc., Sec. 437c, subd. (p)(2).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option, he or she must present evidence "and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence." (Aguilar, supra, 25 Cal.4th at 865-66.) Under the latter approach, a defendant's initial evidentiary showing may 'consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.' [Citation.]

In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. [Citation.] (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103 (internal citations omitted).) Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (See Code Civ.

Proc. Sec. 437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.) The court must grant a motion for summary judgment if, after all admissible evidence is considered, there is no triable issue as to any material fact. (See Code Civ. Proc.

Sec. 437c(c).) The court has no discretion to deny a summary judgment motion where the moving party has met their burden and the opposing party has failed to establish any triable issue of material fact exists, and the moving party is entitled to judgment as a matter of law. (Krasley v. Superior Court (1980) 101 Cal.App.4th 59, 70.) A party may also move for summary adjudication as to one or more causes of action within an action, one or more claims for damages, or one or more issues of duty if the party contends the cause of action has no merit, that there is no merit to a claim for damages, or that one or more defendants did not owe a duty to the plaintiff. (Code Civ.

Proc., Sec. 437c, subd. (f)(1).) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment, shall proceed in all procedural respects as a motion for summary judgment, and shall only be granted if it completely disposes of a cause of action, a claim for damages, or an issue of duty. (Id at Sec. 437c, subd. (f)(1)-(2).) ----- V.

Discussion

Application - Defendants move for summary judgment, or in the alternative summary adjudication. The causes of action asserted against Defendants are: (1) Professional Medical Negligence (Medical Malpractice); (2) Willful Misconduct; (4) Fraudulent Concealment; (5) Lack of Informed Consent; and (8) Negligent Hiring, Training, Supervision, and Retention. a. Defendants' Immunity from Suit and Liability Pursuant to the PREP Act i. PREP Act The Public Readiness and Emergency Preparedness Act, known as the PREP Act, provides that "a covered

person shall be immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure." (42 U.S.C. Sec. 247d-6d, subd. (a)(1).) PREP Act immunity applies to any claim "that has a causal relationship with the administration to or use by an individual of a covered countermeasure, including a causal relationship with the design, development, clinical testing or investigation, manufacture, labeling, distribution, formulation, packaging, marketing, promotion, sale, purchase, donation, dispensing, prescribing, administration, licensing, or use of such countermeasure." (42 U.S.C., Sec. 247d-6d, subd. (a)(2).)

The PREP Act is invoked when "the [HHS] Secretary makes a determination that a disease or other health condition or other threat to health constitutes a public health emergency, or that there is a credible risk that the disease, condition, or threat may in the future constitute such an emergency." (42 U.S.C. Sec. 247d-6d, subd. (b)(1).) The Secretary "controls the scope of immunity through the declaration and amendments, within the confines of the PREP Act." (Estate of Maglioli v. Alliance HC Holdings LLC (2021) 16 F.4th 393, 401.)

The Secretary's declaration "may specify[] the manufacture, testing, development, distribution, administration, or use of one or more covered countermeasures." (42 U.S.C. Sec. 247d-6d, subd. (b)(1).) The PREP Act created the Covered Countermeasure Process Fund to compensate "eligible individuals for covered injuries directly caused by the administration or use of a covered countermeasure pursuant to such declaration." (42 U.S.C. Sec. 247d-6e, subd. (a).) The PREP Act provides that "the sole exception to the immunity from suit and liability of covered persons ... shall be for an exclusive Federal cause of action against a covered person for death or serious physical injury proximately caused by willful misconduct ... by such covered person." (42 U.S.C.

Sec. 247d-6d, subd. (d)(1).) Such an action "shall be filed and maintained only in the United States District Court for the District of Columbia." (42 U.S.C. Sec. 247d-6d, subd. (e)(1).) The term "willful misconduct" is defined as an act or omission that is taken to achieve a wrongful purpose, knowingly without justification, and in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit. (42 U.S.C. Sec. 247d-6d, subd. (c)(1)(A)(i)-(iii).)

The "willful misconduct" standard shall be construed as establishing a standard for liability that is more stringent than a standard of negligence in any form or recklessness. (42 U.S.C. Sec. 247d-6d, subd. (c)(1)(B). An individual may not bring a suit under 42 U.S.C. Sec. 247d-6d, subd. (d)(1) unless the individual has exhausted the remedies available under Sec. 247d-6e, subd. (a), the Covered Countermeasure Process Fund. (42 U.S.C. Sec. 247d-6e, subd. (d)(1).) ii. COVID-19 On March 10, 2020, the Secretary issued a declaration under the PREP Act "to provide liability immunity for activities related to medical countermeasures against COVID-19." (Defendants' RJN, Ex.

A; Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15,198, 15,198 (Mar. 17, 2020).) The declaration provided immunity for covered persons for the use of covered countermeasures. Covered countermeasures include "any antiviral, any other drug, any biologic, any diagnostic, any other device, or any vaccine, used to treat, diagnose, cure, prevent, or mitigate COVID-19... or any device used in the administration of any such product." (Id. at 15,202.)

When used in respect to the administration of a covered countermeasure, "covered person" includes any person or entity that is a distributor of such countermeasure or a qualified person who administered or dispensed such countermeasure. (42 U.S.C. Sec. 247d-6d, subd. (i)(2)(B)(ii)-(iv).) A "distributor" means a person or entity engaged in the distribution of drugs, biologics, or devices, including retail pharmacies. (42 U.S.C., Sec. 247d-6d, subd. (i)(3).) "A qualified person means a licensed health professional or other individual authorized to prescribe, administer, or dispense Covered Countermeasures under the law of the state in which the Covered Countermeasure was prescribed, administered, or dispensed; or a person within a category of persons identified as qualified in the Secretary's Declaration." (Defendant's RJN, Ex.

A, 15,199.) The March 10, 2020 Secretary's Declaration under the PREP Act discusses administration of covered countermeasures as follows: The PREP Act does not explicitly define the term ''administration'' but does assign the Secretary the

responsibility to provide relevant conditions in the Declaration. In Section IX of the Declaration, the Secretary defines ''Administration of a Covered Countermeasure,'' as follows: Administration of a Covered Countermeasure means physical provision of the countermeasures to recipients, or activities and decisions directly relating to public and private delivery, distribution, and dispensing of the countermeasures to recipients; management and operation of countermeasure programs; or management and operation of locations for purpose of distributing and dispensing countermeasures.

The definition of ''administration'' extends only to physical provision of a countermeasure to a recipient, such as vaccination or handing drugs to patients, and to activities related to management and operation of programs and locations for providing countermeasures to recipients, such as decisions and actions involving security and queuing, but only insofar as those activities directly relate to the countermeasure activities. Claims for which Covered Persons are provided immunity under the Act are losses caused by, arising out of, relating to, or resulting from the administration to or use by an individual of a Covered Countermeasure consistent with the terms of a Declaration issued under the Act.

Under the definition, these liability claims are precluded if they allege an injury caused by a countermeasure, or if the claims are due to manufacture, delivery, distribution, dispensing, or management and operation of countermeasure programs at distribution and dispensing sites. Thus, it is the Secretary's interpretation that, when a Declaration is in effect, the Act precludes, for example, liability claims alleging negligence by a manufacturer in creating a vaccine, or negligence by a health care provider in prescribing the wrong dose, absent willful misconduct.

Likewise, the Act precludes a liability claim relating to the management and operation of a countermeasure distribution program or site, such as a slip-and-fall injury or vehicle collision by a recipient receiving a countermeasure at a retail store serving as an administration or dispensing location that alleges, for example, lax security or chaotic crowd control. However, a liability claim alleging an injury occurring at the site that was not directly related to the countermeasure activities is not covered, such as a slip and fall with no direct connection to the countermeasure's administration or use.

In each case, whether immunity is applicable will depend on the particular facts and circumstances. (Defendants' RJN, Ex. A; Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15,198, 15,200 (Mar. 17, 2020).) iii. Defendants' Burden Defendants move for summary judgment on the grounds that they are immune from suit and liability under the PREP Act. To establish immunity, Defendants must establish that they were acting as covered persons, engaged in the administration of a covered countermeasure, and that Plaintiff's injury was caused by, arose out of, related to, or resulted from said administration.

There are several undisputed facts relevant to PREP Immunity here. Pursuant to the statutory framework set forth, administration and distribution of COVID-19 vaccines are designated as "covered countermeasures" under the PREP Act. (UMF No. 2.) Also undisputed is that Defendants were authorized to administer the COVID-19 vaccine and constitute "covered persons" for the purposes of the PREP Act. (Plaintiff's UMF No. 6.) Plaintiff presented to the CVS on April 7, 2021 for the purpose and intent of receiving a COVID-19 vaccine. (UMF, No. 10.)

However, the parties dispute whether the PREP Act applies to the initial injection. Simply put, the parties dispute whether the insertion of a needle during the vaccination process that did not contain a dose of the COVID-19 vaccine is causally connected to the administration the vaccine. Defendant argues the first injection is expressly covered by the PREP Act, as the first needle was injected and intended for administration of the vaccine but was by human error not pre-dosed with the vaccination.

Plaintiff argues the first injection "had nothing to do with a Covid 19 vaccine." (UMF, No. 11.) Defendants submit the Declaration of Defendant Ifejika in support. Ifejika declares that he was employed as a COVID-19 Travel Vaccine Pharmacist for Defendants beginning in January of 2021 to assist in vaccination clinics during the pandemic. (Ifejika Decl., P. 2.) He states that during the relevant period in April of 2021, the customary protocol for administering COVID-19 vaccines involved one pharmacist administering vaccines and one nurse assisting by pre-drawing doses from multi-dose vials into single-use, retractable syringes for efficient and safe administration. (Id at P. 4.)

Ifejika also states that both of the syringes used were VanishPoint

Retractable syringes with an automated retraction technology used for the administration of the COVID-19 vaccine. These are single-use syringes, and designed such that once the plunger is depressed after medication delivery, the needle automatically retracts into the barrel, rendering it unusable and eliminating the possibility of reuse or accidental needle sticks. (Id at P. 5.) He states that if the plunger is already fully depressed before insertion and the needle has not been retracted, the syringe contains no medication and cannot inject any substance into a patient. (Ibid; Defendants' Ex. 10.)

On April 7, 2021, Ifejika, based on his prior experience at that vaccination location, assumed the nurse on staff had pre-batched and pre-filled the syringes in preparation for the vaccination line, and when Plaintiff arrived for her appointment, he selected what he believed as a pre-filled VanishPoint syringe from the prepared batch. Only after inserting the needle did Ifejika notice that the plunger was fully depressed and no liquid was present. (Id at P.P. 6-9.) Ifejika states that no air or any other substance could have been delivered into Plaintiff's arm as the plunger was fully depressed. (Id at P. 10.)

He further states that the syringe could not have previously been used as the needle had not retracted. (Id.) Ifejika states he then removed the empty syringe, properly discarded it in a Sharps container per standard protocol, cleaned Plaintiff's arm, and retrieved a new, pre-filled VanishPoint syringe containing the COVID-19 vaccine and administered the vaccine to Plaintiff. (Id at P. 11.) Ifejika further declares that the single-use retractable VanishPoint syringes used to administer the vaccine eliminate the possibility of cross-contamination or reuse of a needle, and that to a reasonable degree of medical probability, there was no circumstance under which Plaintiff could have been injected with a used needle or needle containing any substance at all, including air. (Id at P. 17.)

Defendant also provides the Declaration of Dr. Kimberly Moore, a retained expert and licensed registered pharmacist with extensive experience administering the COVID-19 vaccine in retail pharmacy settings. (Moore Decl., P.P. 1, 4; Defendants' Exhibit 11.) Moore declares that based on her experience, in early 2021, COVID-19 vaccines were only available in multi-use vials that required an individual dose to be drawn into a single-use syringe to then be injected into the patient's deltoid muscle. (Moore Decl., P.P. 8, (d)-(e).)

Moore states that an empty-needle insertion during a high-volume administration setting of a vaccine, such as the administration of the COVID-19 vaccine during the pandemic, is a recognized occurrence, which may occur due to syringe malfunction, mechanical defect, plunger positioning, or human factors, even where appropriate care is exercised, and that empty needle insertion is not a breach of the standard of care, but rather, is a known risk inherent in the vaccination process during the pandemic. (Moore Decl., P. 8 (f), (g).)

Moore further contends that if a pharmacist reasonably believes an empty-needle insertion occurred and the vaccine dose was not delivered, the appropriate and acceptable standard of care is to administer a replacement dose to ensure the patient receives the intended dose as such action is medically appropriate, reasonable, and consistent with CDC guidance and pharmacy vaccination protocols. (Moore Decl., P. 8 (h), (i).) Moore also states that failing to administer a second injection when the pharmacist believes the initial injection did not deliver the vaccine would fall below the standard of care. (Moore Decl., P. 8 (j).)

As to the case at hand, Moore states that Plaintiff presented to CVS and consented to receive the COVID-19 vaccine on April 7, 2021, the needles used on Plaintiff were the VanishPoint syringes with automated retraction technology, and that to a reasonable degree of medical probability, on review of the video evidence of Plaintiff receiving the injection, the first injection was empty, and because the needle was not retracted, to a reasonable degree of medical probability, the first injection could not have been a used needle. (Moore Decl., P. 8(l).)

Therefore, Moore states that to a reasonable degree of medical probability, the second injection administered contained the COVID-19 vaccine and ensured Plaintiff received the intended vaccination. (Moore Decl., P. 8 (n), (o).) Defendant further submits the Declaration of Mark Richard Needham, M.D., M.B.A., a physician with experience in vaccination procedures and the mechanisms, risk and medical evaluations of needlestick injuries, and adverse events related to the COVID-19 vaccine. (Needham Decl., P.P. 1-2, 6.)

Needham states that after review of the records and video evidence (Exhibit 9) of the vaccination encounter, the plunger of the first syringe used to administer the vaccine was fully depressed at the time of insertion, which from a medical and mechanical standpoint, indicates the syringe was empty and no medication or substance was injected. (Needham Decl., P.

11 (a).) Defendant also submits transcripts of Plaintiff's depositions. Plaintiff testified to the following relevant facts: Plaintiff went to the CVS Premises for the purpose of receiving the COVID-19 vaccine after scheduling the vaccination appointment in advance. (Ex. 8, p. 20:25, 22:11-12.) Plaintiff scheduled an appointment to receive the COVID-19 vaccine and received confirmation from CVS of the appointment. (Ex. 8, p. 20:20-25.) Plaintiff arrived for the vaccine at approximately 8:50 a.m., 10 minutes before her 9:00 a.m. appointment, and waited approximately 15 minutes. (Ex. 8, p. 22:9-21.)

Plaintiff was then escorted to the back of the pharmacy to the cubicles where the person in charge of doing the vaccine was located. (Ex. 8, p. 22:22-23:4.) Plaintiff asked another customer in line for vaccination to take a photograph of her receiving the injection. This individual asked Ifejika at the time of injection "two shots?" (Ex. 8, p. 25:1-3, 30:5-25, 31:7-11.) Plaintiff did not see either the first or second shot being prepared, sealed, or prefilled, did not see whether the syringes appeared new or used, and did not see anything regarding the source or disposal of either needle. (Ex. 8, p. 31:7-33:21.)

Plaintiff did not see what Ifejika did with the first needle after injection. (Ex. 8, p. 38:2-16.) The second shot Plaintiff received was a COVID-19 vaccine, and Plaintiff states the reason she was there was to receive the COVID-19 vaccine. (Ex. 8, p. 40:23-12.) At her later deposition, Plaintiff stated she does not know whether the second syringe contained the COVID-19 vaccine. (Ex 12, p. 118:17-119:7.) Attached to Exhibit 8 and 12 are photographs of Plaintiff receiving both injections. There is little published case law on PREP immunity.

However, as to summary judgment motions specifically, non-binding, but persuasive decisions from various jurisdictions have established the need for the defendant to demonstrate a causal connection between a plaintiff's loss and a covered countermeasure. (See Austbo v. Greenbriar Nursing Home No. Two, Inc. (2025) OK 85, 20, 23; Wilhelms v. ProMedica Health Sys., Inc. 2023- Ohio 143, 205 N.E.3d 1159, 1161 (Ohio Ct. App. 2023); Ashley v. Anonymous Physician 1, 245 N.E.3d 658, 2024 WL 4142508, at *1 (Ind.

Ct. App. 2024).) Here, the Court finds that Defendants' evidentiary showing is sufficient to satisfy their burden of showing that the injection at issue was directly related to Defendants' administration of countermeasure activities, and that any injury Plaintiff allegedly suffered as a result of the first injection was caused in the process and for the purpose of administration of the COVID-19 vaccine. The covered countermeasure at issue is the COVID-19 vaccine. Plaintiff made an appointment to get the vaccine; she showed up for her appointment; she met with Ifejika to get the vaccine; and she in fact received a vaccination shot from Ifejika (as even she admitted at her first deposition).

The PREP Act does not require that a covered countermeasure be successfully delivered by every needle insertion; it immunizes any loss "arising out of, relating to, or resulting from the administration" of the countermeasure. (42 U.S.C. Sec. 247d-6d, subd. (a)(1).) Ifejika's selection and use of a syringe he believed contained the vaccine, drawn from the batch designated for its administration, is an activity and decision directly relating to the delivery and dispensing of that vaccine. Furthermore, the syringe is independently a device used in the administration of the vaccine, and thus a covered countermeasure in its own right, whether or not the particular unit contained a dose.

Recently, in an unpublished, yet persuasive decision, the New York County Supreme Court held that "[t]he PREP Act is triggered only where there are allegations that the defendant administered countermeasures improperly, thus causing injury [Citations]." (Adler v. Dewitt Rehab. & Nursing Ctr., 2026 N.Y. Misc. LEXIS 5116, *28.) The plain language of the PREP Act is broad and sweeping in scope. As discussed, administration of a covered countermeasure includes not only the physical provision of a countermeasure to a recipient, such as the direct injection of the vaccine itself, but also includes activities related to management and operation of locations for providing countermeasures, including decisions and actions made, so long as they directly relate to the countermeasure activities. (Defendants' RJN, Ex.

A; Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15,198, 15,200 (Mar. 17, 2020).) In Maney v. Brown (2024) 91 F.4th 1296, the Ninth Circuit Court of Appeals affirmed that PREP Act immunity is not limited to the actual injection of the vaccine itself. (Maney, supra, 91 F.4th at 1301.) The Court reasoned:

The phrasing "administration to...an individual of a covered countermeasure" could refer only to the act of physically giving a countermeasure to a particular person--for example, injecting someone with a vaccine shot. However, in Sec. 247d-6d(a)(2)(B), the Act provides that the scope of immunity under paragraph (1) includes various activities with a causal relationship to the administration of a countermeasure beyond injecting someone with a vaccine. Most significantly, subsection (a)(2)(B) lists several terms, including "administration," without reference to "an individual."

This is consistent with the expansive causal relationship the subsection provides; for example, the "design, development," "manufacture," and "distribution" of a vaccine are multiple links removed in the chain of events from the ultimate injecting of an individual with a vaccine. By referring to "administration . . . of [a covered] countermeasure," in the context of a list that expands the conduct within the Act's scope of immunity, and without requiring a direct link to an individual, subsection (a)(2)(B) broadens the scope of immunity to administrative activities other than the physical act of directly injecting a particular person with a vaccine. (Ibid at 1300-01 (emphasis added).

See also Hampton v. California (9 th Cir. 2023) 83 F.4th 754, 764 ("At the very least, then, for PREP Act immunity to apply, the underlying use or administration of a covered countermeasure must have played some role in bringing about or contributing to the plaintiff's injury. It is not enough that some countermeasure's use could be described as relating to the events underpinning the claim in some broad sense.").) The Secretary's interpretation of "administration of a protected countermeasure" for COVID-19 precludes liability even for dangerous conditions on a property, immunizing covered persons for incidents such as vehicle collisions and premises liability claims, such as slip-and-fall incidents, if there is a direct connection to the countermeasure's administration, such as where an individual suffers such harm while being on the premises for a vaccine and the conditions were created by the operation of a countermeasure program. (Defendants' RJN, Ex.

A; Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15,198, 15,200 (Mar. 17, 2020).) Here, Defendant has submitted competent evidence that the first injection was an activity and decision directly relating to the delivery, distribution, and dispensing of the countermeasures to Plaintiff. First, Ifejika's Declaration establishes that the first injection was given in error in the process of administering the COVID-19 vaccine based on his assumption, in accordance with standard vaccination practice at the location, that the syringe had been pre-filled.

Second, Dr. Moore declares that empty shots which have not been prefilled were a recognized occurrence in administration of the COVID-19 vaccines in large-scale vaccination centers at the time Plaintiff received the injections. Third, Plaintiff's deposition testimony corroborates a causal link between the first injection and Defendants' administration of the vaccine as a licensed retail pharmacy. The sole purpose for her presence was to receive the vaccination as advertised by the pharmacy. Fourth, the circumstances set forth in the complaint and Defendants' evidence support this finding.

Both injections were given by Ifejika, who is a COVID-19 Travel Vaccine Pharmacist, whose role at CVS was to assist and administer the COVID-19 vaccines. Both injections were given successively in the same seat within the pharmacy designated for vaccine administration and in close temporal proximity, almost in immediate succession. The first shot was given during Plaintiff's scheduled appointment to receive the vaccine and was given with the intent and belief that it contained the vaccine. The same type of syringe was used for both injections, which was the standard syringe used at the time for COVID-19 vaccine administration, and Ifejika declares the first syringe came from a batch of what he believed were pre-filled COVID-19 vaccine syringes in accordance with the standard administration practices of that specific CVS location.

The purpose of the PREP Act is to immunize and shield protected persons from negligence, improper administration, and other tort liability in connection with administration of the COVID-19 vaccine. Defendants' evidence has established that the first injection was an empty, unused, single-use syringe, that Ifejika mistakenly believed the syringe was pre-filled with the vaccine, inserted the needle without realizing the syringe did not contain the vaccine, and promptly thereafter disposed of the syringe and injected a second syringe containing the intended dose.

Whether these facts give rise to negligence in administration of the vaccine, maintenance of the vaccination program premises, or administration of the program generally is not relevant, as the PREP Act was expressly designed to preclude actions based thereon. Similarly irrelevant to PREP immunity is any

inference of negligence on Defendants' or Ifejika's part in administering a blank dose, as claims for negligence against a health care provider in prescribing the wrong dose are strictly barred under the PREP Act absent willful misconduct. (Defendants' RJN, Ex. A; Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15,198, 15,200 (Mar. 17, 2020).) Therefore, Defendants have presented sufficient evidence to demonstrate that the first injection was an act in relation to the administration of a covered countermeasure, establishing the requisite causal relationship between Plaintiff's injury and the administration.

The burden shifts to Plaintiff to establish a triable question of fact exists as to whether the injury has a causal connection to the administration of the vaccine. iv. Plaintiff's Burden Plaintiff argues that the present action is not preempted by the PREP Act, and notes that Defendants should be precluded from further arguing PREP applicability, as it has been litigated twice, once on May 14, 2024 and again on October 7, 2025. (Plaintiff's Ex. F, G.) Plaintiff asserts that nothing in the operative SAC alleges her injuries are the result of a COVID-19 vaccination, and thus, the PREP Act does not apply. (Opp., p. 21-22.)

Furthermore, because the first syringe was completely empty, on Defendants' own admission, no "antiviral, any other drug, any biologic, any diagnostic, any other device, or any other vaccine" was involved and therefore, no countermeasure to trigger the PREP Act was involved in the first injection. (Opp., p. 14:1-7.) The problem with Plaintiff's argument lies in her definition of "administration." As discussed above, "administration" encompasses actions, decisions, operations, and general management in relation to covered countermeasures.

Plaintiff's premise, that because the first syringe was empty no covered countermeasure was involved, misapprehends the statute. The covered countermeasure is the vaccine Plaintiff came to receive, not the contents of any specific syringe. The immunity reaches any loss relating to or arising out of its administration. That an individual dose went undelivered no more removes the pharmacist's conduct from the administration of the vaccine than would a mismeasured or wrong dose; indeed, the Secretary's Declaration expressly identifies negligence by a health care provider in prescribing the wrong dose as conduct the Act precludes. (Defendants' RJN, Ex.

A; 85 Fed. Reg. at 15,200.) In Plaintiff's response to Defendants' Statement of Undisputed Material Facts, Plaintiff does not expressly dispute that "[a]ll of Plaintiff's alleged injuries arise from, relate to, or are connected with the administration and use of a COVID-19 vaccine during the COVID-19 public health emergency," but merely disputes the appropriate legal standard. (UMF, No. 24.) In opposition to the motion, Plaintiff has provided no evidence refuting Defendants' evidence that the syringe and needle used to administer the first shot was a VanishPoint syringe, that the first syringe was taken from a batch of syringes specifically designated for administration of the COVID-19 vaccine, or that any other injections or vaccinations were being given, to anyone, in the designated location on the designated date.

Plaintiff has also submitted no evidence establishing that the first injection was not given in the process of COVID-19 vaccine administration or that there was no causal connection between Defendants' administration of the vaccine and the first injection. The Declaration of Ruwanthi Campano, MD does not put forth any evidence that refutes Defendant's showing that they were engaged in a covered countermeasure. Campano's Declaration actually appears to substantiate this characterization. (Campano Decl., P. 9 ["This has nothing to do with the injection of a covid-19 vaccine.

This has to do with the injection technique and the lack of informed consent and duty to relate an unforeseen occurrence in the administration of a vaccine by this pharmacist on April 7, 2021, that is what is being called into dispute."].) Further, as Dr. Campano's opinions on the alleged negligence of Ifejika in administering the two injections (id.) are largely immaterial. The point of Defendants' PREP argument is not that they are blameless of negligence, but that the PREP Act immunizes their actions.

Similarly, the Declaration of John Peterson PharmD speaks to Ifejika's conduct falling below the standard of care but is silent as to any evidence or facts bearing on PREP immunity. Again, Peterson also appears to characterize the first injection as occurring in the process of "vaccine administration." (Peterson Decl., P. 5 (a) ["The pictures of the vaccine administration on April 7, 2021 show the pharmacist injecting the plaintiff with what appears to be an empty syringe and the plaintiff begins to bleed.

The pharmacist then immediately wipes the plaintiff's arm with a paper towel and immediately injects the patient with another syringe."].)

Plaintiff argues that this lawsuit "is about injecting Plaintiff SALAZAR with two needles, the first of which was clearly not part any Covid 19 vaccine administration." (UMF, p. 109, No. 19.) However, Plaintiff simultaneously characterizes the first injection as being given in the administration of the vaccine by a pharmacist. (See UMF, Nos. 14-18, 20 ["This has nothing to do with the injection of a covid-19 vaccine. This has to do with the injection technique and the lack of informed consent and duty to relate an unforeseen occurrence in the administration of a vaccine by this pharmacist on April 7, 2021, that is what is being called into dispute."]; UMF p. 28, No. 4 ["The pictures of the vaccine administration on April 7, 2021 show the pharmacist injecting the plaintiff with what appears to be an empty syringe and the plaintiff begins to bleed."]; UMF, p. 222, No. 9 [in response to Defendants' statement of fact that "Defendants [] did not intend to harm Plaintiff in the administration of her COVID-19 vaccine," Plaintiff disputes on the grounds that "IFEJIKA never looked at the first syringe before injecting it."].)

Plaintiff is correct in noting that the underlying operative SAC does not allege injury from the second injection, the vaccine itself, or the side effects resulting therefrom. However, on summary judgment, where Defendants have met their burden, Plaintiff must produce evidence to establish that a triable issue of material fact exists as to the defense of PREP immunity. She has failed to do so. It is true that many Courts have held that in actions arising from failure to administer covered countermeasures do not confer PREP immunity on defendants.

These cases are factually distinguishable. The cases specifically deal with failure to implement any protective measures at all. In Adler, the New York County Supreme Court reiterated that where a plaintiff's claims "pertain only to the defendant's failures to act, [] such allegations do not amount to the administration of countermeasures," but PREP is triggered where the plaintiff brings suit for improper administration of countermeasures. (Adler v. Dewitt Rehab. & Nursing Ctr., 2026 N.Y. Misc.

LEXIS 5116, *28.) In Eaton v. Big Blue Healthcare (2020) 480 F.Supp.3d 1184, 1195, plaintiff brought a wrongful death action after his mother died of COVID-19 she contracted at a rehabilitation facility. Plaintiff alleged that the facility was negligent in not taking measures to protect his mother from COVID-19. The facility removed the case to federal court, claiming that the PREP Act applied to its conduct. The district court rejected the argument as the complaint alleged defendant had not so much injured the decedent in the course of administration of countermeasures but had failed to protect decedent from COVID-19. (Id., at 1194.) "The PREP Act still requires a causal connection between the injury and the use or administration of covered countermeasures, and that link is not present under Defendants' interpretation."(Id.)

Here, unlike the decedent in Eaton, Plaintiff was a recipient of countermeasures under the PREP Act, and suffered her alleged injury - the first injection - as part of that administration. In Dupervil v. Alliance Health Operations, LLC (E.D.N.Y. 2021) 516 F.Supp.3d 238, 256, the Court determined the PREP Act did not apply because (1) allegations of failing to administer countermeasures to protect against COVID-19 does not constitute administration of countermeasures, and (2) the Court rejected defendant's argument that a facility is per se covered for all claims arising from the facility merely because it was using covered countermeasures somewhere in the facility where there is no causation and no allegation that the harm suffered was the result of the administration or use of countermeasures on or by the injured party.

In Coleman v. Sharp Memorial Hosp., No. 37-2023 00033307-CU-PO-CTL, 2024 Cal. Super. LEXIS 10893 (Cal. Sup. Ct. March 29, 2024), the Court overruled Defendant's demurrer regarding PREP immunity where the Plaintiff's complaint may have been based on administration of a covered countermeasure, but also, could be read to be based on fraudulent concealment of life-saving treatments separate and apart from any COVID-19 countermeasure. Because multiple interpretations of the complaint's allegations were possible, the Court could not determine as a matter of law whether PREP immunity applied at the pleadings stage. (Ibid.)

Here, Plaintiff is not bringing suit for Defendants' failure to act. Rather, based on the unrefuted evidence provided by Defendants, Plaintiff brings suit for Defendants' improper injection in the course of administration of a protected countermeasure. Defendants, who are protected persons under PREP, were actively engaging in distribution and administration of the COVID-19 vaccine, a protected countermeasure. Plaintiff was only on site to receive the vaccine. Plaintiff was seated in the designated COVID-19 vaccination area.

Plaintiff received both the first and second shots while seated to receive a scheduled COVID-19 vaccine. Plaintiff received both shots from Ifejika, who was employed as a COVID-19 Travel Vaccine Pharmacist, whose role was to administer

COVID-19 vaccines. As discussed, this evidence is sufficient to show that a covered person, engaged in administration of covered countermeasures, caused the harm alleged. The Court cannot find based on the evidence presented that the first injection was unrelated to the covered countermeasure of administering the vaccine. Finally, Plaintiff's argument that the prior orders of this Court overruling Defendants' demurrers as to PREP Act immunity preclude relitigation of the issue is not persuasive.

On a demurrer, the Court only looks to the face of the complaint in making its determination. As discussed, the complaint and FAC alleged facts different from what is in the SAC, namely that Plaintiff was injected with a "hazardous" substance in the first injection and then injected with an "unknown" substance in the second injection. (See Complaint of April 4, 2022 at, paras. 18 and 19.) Such allegations on demurrer must be taken as true. Summary judgment is different. Plaintiff has not come forward with evidence to support either allegation.

Defendants, on the other hand, have produced uncontroverted evidence that the first syringe was empty (and not previously used) and the second syringe contained the COVID-19 vaccine. . Accordingly, Defendants CVS and CVS Health are entitled to PREP Act immunity, and Defendants' motion for summary judgment is therefore GRANTED. Because the sole exception to PREP Act immunity is an exclusive federal cause of action that may be pursued only after the plaintiff exhausts the Countermeasures Injury Compensation Program and then only in the United States District Court for the District of Columbia (42 U.S.C.

Sec.Sec. 247d-6d, subds. (d)(1), (e)(1), 247d-6e, subd. (d)(1)), this Court lacks jurisdiction to adjudicate a claim of willful misconduct. Plaintiff's second cause of action for willful misconduct therefore cannot proceed in this forum, and the Court does not reach whether Plaintiff could otherwise satisfy that heightened standard. ----- VI.

Conclusion

Defendants CVS Health and Garfield Beach CVS, LLC's Motion for Summary Judgment is GRANTED. Case Number: 24AVCV01017 Hearing Date: August 18, 2026 Dept: A14 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES - NORTH DISTRICT SANDRA M LOZANO OLAEZ, Plaintiff, v. VALLARTA FOOD ENTERPRISES, INC. dba VALLARTA SUPERMARKETS; and DOES 1 through 50, inclusive, Defendants. | Case Number 24AVCV01017 [TENTATIVE] STATEMENT OF DECISION Date of Hearing: August 18, 2026 Dept. A-14 Judge William H. Forman | I.

Background

Defendant Vallarta Food Enterprises, Inc. ("Defendant") moves the Court for an order compelling Plaintiff Sandra M Lozano Olaez ("Plaintiff") to attend her deposition. On August 19, 2024, Plaintiff filed a complaint against Defendant, asserting one cause of action for Negligence and Premises Liability. Specifically, Plaintiff claims that on August 22, 2022, while on the premises of 440 E Palmdale Blvd., Palmdale, CA 93550 (the "Property"), which is owned, managed, controlled, inspected, serviced, maintained, operated, leased, and rented by Defendant, Plaintiff was injured when she slipped and fell on a