DEPARTMENT C33 LAW AND MOTION

 Judge James L. Crandall

 

These are the Court’s tentative rulings.  They may become orders if the parties do not appear at the hearing.  The Court also might make a different order at the hearing.  (Lewis v. Fletcher Jones Motor Cars, Inc. (2012) 205 Cal.App.4th 436, 442, fn. 1.) 

 

If counsel wish to submit on the tentative ruling, please call the Court Clerk (657-622-5233) to notify the Court that all parties are submitting on the tentative and no appearance will be necessary. The tentative will then become the final ruling. If no one appears at the hearing the tentative will be the final ruling. Either side may appear and argue the Court’s tentative ruling.

 

PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPARE AN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE.

 

The Orange County Superior Court has implemented administrative orders, policies, and procedures noted on the Court’s website to address the limitations and restrictions presented during the COVID-19 pandemic at Civil Covid-19. Due to the fluid nature of this crisis, you are encouraged to frequently check the Court’s website at https://www.occourts.org/ for the most up to date information relating to Civil Operations. 

 

APPEARANCES:  “Unless otherwise ordered by the Court, all Unlimited and Complex proceedings will be conducted via telephonic appearance through CourtCall with each party/attorney having the option to appear by CourtCall video if the [Court], in [its] discretion, permits a video appearance instead of an audio appearance.”  Based on Orange County Superior Court Third Amended Administrative Order No. 2020/06, paragraph 12(c), the Court requests that the parties appear by way of CourtCall.     If a party is unable to appear by way of CourtCall, please contact the Court Clerk.  Please see, Civil Limited Unlimited & Complex Appearance Process at:

 

·         Civil Covid-19;

 

·         Civil Limited, Unlimited and Complex (Updated June 11, 2020); and

 

·         Third Amended Administrative Order No. 20/06.

 

All appearances will be telephonic through CourtCall.  Contact CourtCall at 888-882-6878 or CourtCall.  Requests for fee waivers may be submitted to CivilSRL@occourts.org or the drop box outside the Central Justice Center courthouse

 

COURT REPORTERS:  Official court reporters (i.e. court reporters employed by the Court) are NOT typically provided for law and motion matters in this department.  If a party desires a record of a law and motion proceeding, it will be the party’s responsibility to provide a court reporter.  Parties must comply with the Court’s policy on the use of privately retained court reporters which can be found at:

 

·         Civil Court Reporter Pooling; and

 

·         For additional information, please see the court’s website at  Court Reporter Interpreter Services for additional information regarding the availability of court reporters.

 

PUBLIC ACCESS:  The public may listen to remote court hearings at no cost by calling the public access number (657-231-1414) and entering the access code for this Department (12129895#) and PIN for this Department (12129895#). The public will be able to listen, but not participate in the proceedings.  The public access number and the access code for a particular unlimited civil courtroom can be obtained at:

 

·         Civil Limited, Unlimited and Complex (Updated June 11, 2020)

 

Video CourtCall is now available.

 

 

TENTATIVE RULINGS ON LAW & MOTION MATTERS

 

Date: January 21, 2021 - NOW AT 10:00 a.m.

 

#

Case Name

Tentative

1

Dallal vs. Stellar Capital, Inc.

 

30-2015-00778704

 

Motion for Leave to File Amended Cross-Complaint filed by Cross-Complainants Stephen J. Haythorne and Stellar Capital, Inc

 

The motion of Cross-Complainants Stephen J. Haythorne and Stellar Capital, Inc. for leave to file a Second Amended Cross-Complaint (“SACC”) is GRANTED.

 

Code of Civil Procedure section 473, subdivision (a)(1) provides: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading . . . ” Section 576 provides: “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.” The court's discretion should be exercised liberally in favor of amendments. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.)

 

On February 4, 2016, almost five years ago the court overruled, in part, and sustained, in part, Cross-Defendants Dan Barone, Michael Dallal, Mayer Dallal, Tabitha Mazarra Dallal, & Mortgage Bank of California’s Demurrer to the First Amended Cross-Complaint. (ROA 197.) The court overruled the demurrer to the first cause of action as to the Dallal cross-defendants and the fourth cause of action as to cross-defendant Michael Dallal. The court’s February 4, 2016 order granted Defendant 10-days leave to file an amended cross-complaint. (ROA 197.)

 

Cross-Complainants failed to file an amended cross-complaint within the 10-days granted by the court. However, shortly after the expiration of the deadline to file an amended cross-complaint, on February 26, 2016, Cross-Complainants’ attempted to e-file the Second Amended Cross-Complaint (“SACC”), however, the filing was rejected. (ROA 201.)

 

On February 29, 2016, the Cross-Complaint was successfully filed and served on Cross-Defendants. (ROA 203.) On March 17, 2016, Cross-Defendants filed a Motion to Strike to SACC. (ROA 206.)

 

Cross-Complainants filed the instant Motion for Leave to file a SACC on May 9, 2016. Before the court could hear either the Motion to Strike or the instant Motion, on May 13, 2016, a Notice of Stay of Proceedings was filed and the case was stayed pursuant to filing of bankruptcy by Stephen J. Haythorne. 

 

Cross-Complainant have submitted the declaration of their former attorney, Rick L. Raynsford, who attests that due to his medical condition of Central Serous Retinopathy (“CSR”) which causes him to suffer from blurry vision, he misread the order granting Cross-Defendant’s demurrer as granting Cross-Complainants 30-days leave to amend the cross-complaint instead of the 10-days that was granted by the court. (Raynsford Decl., ¶ 2-5.) Based on this error, Raynsford attests that he initially attempted to file the SACC on February 26, 2016, and after it was rejected he re-filed it on February 29, 2016.

 

Cross-Complainants have shown that promptly after their counsel realized that the court had granted 10-days leave to amend and not 30-days leave to amend Cross-Complainants filed their SACC. 

 

With respect to prejudice to Cross-Defendant, the opposition states that “[b]y April 21, 2020, Defendant’s bankruptcy case had concluded and the stay on these proceedings was lifted.” (Motion, 2:24-25; Ex. 2.) Although Cross-Complainants did not promptly set a hearing on their motion to amend their Cross-Complaint after the stay was lifted, Cross-Defendant has been aware that Cross-Complainants filed a SACC since February 29, 2016.  

 

Accordingly, the Motion is GRANTED. 

 

Cross-Complainants to give notice.

 

Future Hearings:

No future hearings

 

2

The World Protection Group, Inc vs. Nicholas Holdings, LLC

 

30-2018-00999549

Demurrer to First Amended Cross-Complaint filed by Cross-Defendant The World Protection Group, Inc

 

The demurrer filed by Cross-Defendant The World Protection Group, Inc. (“WPG”) to the first and second causes of action for breach of contract alleged in the First Amended Cross-Complaint (“FACC”) filed by Nicholas Holdings, LLC (“Nicholas Holdings”) is OVERRULED.

 

Timeliness:

 

Code of Civil Procedure section 430.40, subdivision (a) provides: “A person against whom a complaint or cross-complaint has been filed may within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.” It lies within the Court’s discretion whether to consider a demurrer to an answer filed after that time.  (C. Civ. Proc. § 473; McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 281-282.)  

 

In McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 281, the court stated: 

 

“Even assuming for argument's sake that the demurrer was filed late, the trial court nevertheless had discretion to entertain it. ‘There is no absolute right to have a pleading stricken for lack of timeliness in filing where no question of jurisdiction is involved, and where, as here, the late filing was a mere irregularity [citation]; the granting or denial of the motion is a matter which lies within the discretion of the court.’ [Citations.]”

 

“As provided by statute: ‘The court may, in furtherance of justice, and on any terms as may be proper, ... enlarge the time for answer or demurrer.’ (Code Civ. Proc., § 473, subd. (a)(1).) The trial court may exercise this discretion so long as its action does ‘not affect the substantial rights of the parties.’ [Citations.]”

 

Here, the FACC was served via electronic mail on July 28, 2020. Therefore, WPG had until August 31, 2020 to file the demurrer. However, WPG waited until September 8, 2020 to meet and confer with Nicholas Holdings, the same day that the demurrer was filed. (Hollins Decl., ¶ 3.) Accordingly, the demurrer was filed late. Although the demurrer was filed late, the court has discretion to consider the demurrer. Nicholas Holdings does not content that any “substantial rights” were affected. Therefore, the court will rule on the merits of the Motion.

 

First and Second Causes of Action for Breach of Contract: 

 

The elements of breach of contract are (1) existence of a contract, (2) plaintiff’s performance or excuse from non-performance, (3) breach by defendant, and (4) damages. (First Commercial Mortgage Co. v. Reece (2001) 89 Cal. App. 4th 731, 745.) 

 

WPG argues that the FACC does not sufficiently allege the element of breach because it is made on information and belief with no supporting facts for that belief alleged.

 

Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1158–1159 states:

 

“A ‘ “[p]laintiff may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true.” ’ (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550, 67 Cal.Rptr.3d 330, 169 P.3d 559, italics added), and thus a pleading made on information and belief is insufficient if it ‘merely assert[s] the facts so alleged without alleging such information that “lead[s] [the plaintiff] to believe that the allegations are true.” ’ (Id. at p. 551, fn. 5, 67 Cal.Rptr.3d 330, 169 P.3d 559.)”

 

The first cause of action is based on the breach of a 2010 agreement between WPG and Nicholas Holding. In paragraphs 10 and 11 of the FACC, Nicholas Holdings alleges that WPG breached the 2010 agreement.

 

Specifically, paragraph 10 of the FACC alleges that: “Cross-Defendants failed to perform their obligations under the 2010 Agreement and breached the contract by failing and refusing to return all Client Materials as required by the terms of the 2010 Agreement.”

 

In paragraph 11 of the FACC, “Nicholas Holding alleges on information and belief that Cross-Defendants failed to perform other obligations under the 2010 Agreement and breached the contract by one or more of the following acts . . .”

 

Although the allegations of breach in paragraph 11 are based on “information and belief,” the allegations in paragraph 10 are not based on “information and belief” and sufficiently allege that WPG breached the agreement by failing and refusing to return all Client Material. Accordingly, breach of the 2010 agreement is sufficiently alleged and the demurrer to the first cause of action is OVERRULED. 

 

The second cause of action is based on the breach of a 2012 agreement between WPG and Nicholas Holdings.

 

In paragraphs 24 and 25 of the FACC, Nicholas Holdings alleges that WPG breached the 2012 agreement. Specifically, paragraph 24 of the FACC alleges that: “Cross-Defendants failed to perform their obligations under the 2012 Agreement and breached the contract by failing and refusing to return all Client Materials as required by the terms of the 2012 Agreement.”

 

In paragraph 25 of the FACC, “Nicholas Holding alleges on information and belief that Cross-Defendants failed to perform other obligations under the 2012 Agreement and breached the contract by one or more of the following acts . . .”

 

Although the allegations of breach in paragraph 25 are based on “information and belief,” the allegations in paragraph 24 are not based on “information and belief” and sufficiently allege that WPG breached the agreement by failing and refusing to return all Client Material. Accordingly, breach of the 2012 agreement is sufficiently alleged and the demurrer to the first cause of action is OVERRULED.

 

Future Hearings:

Motion to Compel: 3/25/21

Jury Trial: 7/6/21

 

3

Prieto vs. DaVita, Inc.

 

30-2020-01124594

Demurrer to First Amended Complaint filed by Defendant DVA Renal Healthcare, Inc.

 

Defendant’s demurrers to the First Amended Complaint’s first and second causes of action for general negligence and premises liability are overruled.

 

Defendant shall file and serve its answer within 10 days.

 

Defendant argues that the claims for general negligence and premises liability should be dismissed as they fall under professional negligence.

 

The California Supreme Court provided guidance in Flores v. Presbyterian Intercommunity Hosp. (2016) 63 Cal.4th 75 (“Flores”), when it concluded: 

 

[W]hether negligence in maintaining hospital equipment or premises qualifies as professional negligence depends on the nature of the relationship between the equipment or premises in question and the provision of medical care to the plaintiff. A hospital's negligent failure to maintain equipment that is necessary or otherwise integrally related to the medical treatment and diagnosis of the patient implicates a duty that the hospital owes to a patient by virtue of being a health care provider. Thus, if the act or omission that led to the plaintiff's injuries was negligence in the maintenance of equipment that, under the prevailing standard of care, was reasonably required to treat or accommodate a physical or mental condition of the patient, the plaintiff's claim is one of professional negligence under [Code of Civil Procedure] section 340.5. But section 340.5 does not extend to negligence in the maintenance of equipment and premises that are merely convenient for, or incidental to, the provision of medical care to a patient. Arguably every part of a hospital's plant would satisfy such a standard, since the medical care of patients is, after all, the central purpose for which any hospital is built. [Citation.] Even those parts of a hospital dedicated primarily to patient care typically contain numerous items of furniture and equipment—tables, televisions, toilets, and so on—that are provided primarily for the comfort and convenience of patients and visitors, but generally play no part in the patient's medical diagnosis or treatment. Although a defect in such equipment may injure patients as well as visitors or staff, a hospital's general duty to keep such items in good repair generally overlaps with the “obligations that all persons subject to California's laws have” [citation], and thus will not give rise to a claim for professional negligence. If, for example, a chair in a waiting room collapses, injuring the person sitting in it, the hospital's duty with respect to that chair is no different from that of any other home or business with chairs in which visitors may sit. (Id. at pp. 88-89.)

 

Here, the First Amended Complaint alleges plaintiff was injured while she was on the scale being weighed when another patient, due to crowding around the scale, fell onto her and injured her.

 

Under Flores, for pleading purposes, this would not qualify as professional negligence. The injury resulted from the maintenance/layout of the premises, not from the rendering of services.

 

Moreover, it was not a result of any equipment failure but from another patient falling into plaintiff. 

 

Future Hearings:

MSC: 9/3/21

Jury Trial: 10/4/21

 

4

Tibbetts vs. WLBD (San Juan Capistrano) Assoc., LLC

 

30-2020-01148833

Motion to Strike Portions of Complaint filed Lyon Management Group, Inc and WLBD (San Juan Capistrano) Association

 

The motion to strike punitive damages brought by Defendant WLBD (San Juan Capistrano) Associates, LLC and Defendant/Cross-Complainant Lyon Management Group, Inc. as to the complaint of Plaintiff Donald Tibbetts is GRANTED.

 

Civil Code section 3294(a) provides, “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

 

Section 3294(c) defines malice, oppression, and fraud as follows:

 

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

 

(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

 

(3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

 

Here, Plaintiff alleges he suffered a slip and fall accident while using a stairway on premises owned and maintained by Defendants. Plaintiff generally alleges Defendants’ knowledge of the dangerous condition, but he does not allege any specific prior incidents or prior complaints which gave Defendants notice of a dangerous condition regarding the stairway. 

 

In Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279 (“Nolin”), the Court of Appeal upheld an award of punitive damages for a slip and fall accident. However, Nolin involved a slip and fall at a convenience store near the gasoline pumps, due to a longstanding oil/gas leak from a defective pump. The testimony of the defendant’s employees showed that the store’s management was well aware of this issue and the danger it posed prior to the plaintiff’s accident, but the defendant failed to take action. (Id. at 282-284.)

 

Plaintiff argues that her punitive damages allegations are viable under a conscious disregard theory of malice. “[M]alice does not require actual intent to harm. [Citation] Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1228.) “To support an award of punitive damages on the basis of conscious disregard of the safety of others, a plaintiff ‘must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.’” (Penner v. Falk (1984) 153 Cal.App.3d 858, 867.)

 

Here, Plaintiff does not allege facts showing that Defendants were aware of the dangerous condition of the stairway and willfully refused to take action. Plaintiff generally alleges that Defendant knew of the dangerous condition, but he does not allege facts showing that prior complaints were made to Defendants about this dangerous condition, or that Defendants were aware of prior accidents by people using the stairway.

 

Plaintiff’s conclusory allegations that Defendants acted with malice by failing to maintain and/or repair the stairway are insufficient to demonstrate conscious disregard for Plaintiff’s safety that could support punitive damages. Therefore, the motion to strike is GRANTED.

 

Future Hearings:

Jury Trial: 6/27/22

 

5

BTP, Inc. vs. Garden Park Townhomes Association

 

30-2019-01107999

Application for Right to Attach Order/Writ of Attachment filed by Plaintiff BTP, Inc.

 

In 2011, Plaintiff BTP, Inc. was hired by Defendant Garden Park Townhomes Association to repair and/or replace “certain wood with stucco and foam enhancements” pursuant to a written agreement. 

 

In 2015, Plaintiff and Defendant entered into a promissory note under which Defendant would make monthly payments of $20,000 to BTP for work already performed and work to be performed.  Plaintiff claims that Defendant has not paid for the work performed and asserts the following six causes of action:  (1) Breach of Contract; (2) Breach of Promissory Note; (3) Breach of Implied Covenant of Good Faith and Fair Dealing; (4) Common Count – Reasonable Value of Services; (5) Common Count – Open Book Account; and (6) Common Count – Account Stated. 

 

By this motion, Plaintiff BTP, Inc. moves for a Right to Attach Order in the amount of $1,797,498.47 ($1,048,975.98 principal plus $159,422.49 in interest; $100,000 in late fees; $450,000 in attorneys’ fees and $40,000 in estimated costs).  

 

An attachment may be issued “only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney’s fees.”  CCP § 483.010(a). 

 

Further, an attachment cannot be issued on a claim secured by any interest in real property, unless the security is “valueless or has decreased in value to less than the amount then owing on the claim.”  CCP § 483.010(b). 

 

A claim is “fixed or readily ascertainable” if the damages can be measured by reference to the contract and there is a reasonable and certain method for computing the damages.  CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 540.  In other words, “the contract sued on must furnish a standard by which the amount due may be clearly ascertained and there must exist a basis upon which the damages can be determined by proof.”  Lewis v. Steifel (1950) 98 Cal.App.2d 648, 650.  

 

The contract and promissory note underlying Plaintiff’s claims are attached as Exhibits 1 and 2 to the Declaration of Victoria Nicholson.  The contract’s “Scope of Work” is described as:

 

“Contractor will secure all work, labor, equipment and materials and will provide management, supervision and contract administration necessary to construct and complete in a good, expeditious, workmanlike and substantial manner the replacement of wood, as necessary, with foam enhancements, to be charged at a rate of stucco: $20.00 per square foot, foam trim: 2x4 $20.00 per foot 2x6 $25.00 per foot, 2x8, 2x10, 2x12 and 4x6 $30.00 per foot, flashing $2.50 per foot, wood $15.00 per foot, gates and hardware $300.00 each, garage door 4s12 beam + side supports $2,500.00.  The costs of permits and inspection fees are extra and shall be billed by Contractor to Owner as incurred.  At the completion of the Project the amounts owed by Owner to Contractor shall be reconciled and any sums owing from Owner to Contract shall be paid.”

 

Pursuant to the contract, Defendant’s representative is to “verify the work invoiced is completed and sign off for payment.”  Exhibit 1 at ¶ 4.  

 

The contract does not include any estimate of either the amount or value of work to be performed.

 

The subsequent Promissory Note promises payment of “the principal sum of $300,000 billed to date which sum is subject to increase for future work to be undertaken . . .”  There is no estimate or ceiling on the value of the “future work” to be undertaken.

 

In support of its valuation of the amount owed, Plaintiff submits the Declaration of Terri Mihalovich-Gerstner, Plaintiff’s accountant and bookkeeper.  According to her declaration, she conducted onsite inspections to verify Plaintiff’s work and, based on her inspections, determined the amount owed.  Mihalovich-Gerstner Dec. ¶¶ 4-19 and Exhibits 3-7 (attached to the Nicholson Declaration). 

 

However, neither Nicholson nor Mihalovich-Gerstner provide any evidence as to whether the work performed was ‘necessary” or was “verified” by Defendant’s representative.  Accordingly, there is no way to readily ascertain the amount due.  

 

In its reply, Plaintiff asserts that, at a minimum, it has established the probable validity of its quantum meruit claim.  “To recover in quantum meruit, a party . . . must show the circumstances were such that the services were rendered under some understanding or expectation of both parties that compensation therefor was to be made. . . . The measure of recovery in quantum meruit is the reasonable value of the services rendered provided they were of direct benefit to the defendant. In other words, quantum meruit is equitable payment for services already rendered.” E. J. Franks Construction, Inc. v. Sahota (2014) 226 Cal.App.4th 1123, 1127–1128 (internal quotation marks and citations omitted). 

 

Further, “[t]o recover on a claim for the reasonable value of services under a quantum meruit theory, a plaintiff must establish both that he or she was acting pursuant to either an express or implied request for services from the defendant and that the services rendered were intended to and did benefit the defendant.” Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782, 794 (internal citation omitted). 

 

Plaintiff’s evidence does not establish the essential elements of the claim.  First, Plaintiff failed to show that the work done was necessary or verified by Defendant.  Accordingly, there is no showing that the work actually performed was done at the express or implied request of Defendant. 

 

Second, Plaintiff did not present evidence of the “reasonable value” of the services, a necessary element of a quantum meruit claim.  CACI 371.  

 

Plaintiff’s application is DENIED.

 

Plaintiff filed:

 

(i) objections to the Declaration of Steven Nguyen filed by Defendant in support of its opposition;

 

(ii) objections to defendant’s citations of Nicholson’s deposition testimony; and

 

(iii) an “Opposition to Defendant’s Claim of exemption to Plaintiff’s Motion for Right to Attach Order and Writ of Attachment.”  (The last is a response to Defendant’s one-paragraph argument that its property is exempt pursuant to CC § 5735.) 

 

Because the motion is denied based on Plaintiff’s failure to meet its burden of proof, the objections are irrelevant and the Court makes no rulings on them.

 

Future Hearings:

MSC: 4/16/21

Jury Trial: 6/21/21

 

6

Orozco vs. Guaranty Chevrolet Motors, Inc.

 

30-2020-01133767

Motion to Compel Production filed by Plaintiff Josue Orozco

 

Motion taken off calendar by Moving Party.

 

Future Hearings:

MSC: 10/1/21

Jury Trial: 11/1/21

 

7

Rosandic vs. Memorialcare Health System

 

30-2017-00927673

1. Motion to Compel Deposition (Oral or Written) filed by Defendants Saddleback Memorial Laguna Hills and Memorial Health Services

2. Motion to Compel Deposition (Oral or Written) filed by Defendants Saddleback Memorial Laguna Hills and Memorial Health Services

 

ANALYSIS:  Defendants Memorial Health Services, dba Memorialcare Health Systems, and Saddleback Memorial Medical Center move for an order to compel the depositions of Curtis Barton and Janette McDonnell.  Defendants also move for an order to show cause re contempt, imposing an issue sanction precluding Plaintiff from recovering loss of earnings and earning capacity, and a monetary sanction of $1,050 against Plaintiff. 

 

Curtis Barton and Janette McDonnell are not parties to the lawsuit or party-affiliated witnesses. Personal service is required to serve an effective subpoena on a deponent or records custodian who is not a party. (Code Civ. Proc. § 2020.220(b)-(c).)

 

Where the witness whose deposition is sought is not a party (or a “party-affiliated” witness), a subpoena must be served to compel his or her attendance, testimony, or production of documents. (Code Civ. Proc. §§ 2020.010(b), 2025.280(b); Terry v. SLICO (2009) 175 Cal.App.4th 352, 357.)  

 

Under subdivision (b) of Code Civ. Proc. § 2025.480, if a nonparty disobeys a depo subpoena, the subpoenaing party may seek a court order compelling the nonparty to comply with the subpoena within 60 days after completion of the deposition record. Objections or other responses to a business records subpoena are the deposition record for purposes of measuring the 60-day period for a motion to compel. (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 132-133; Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1192.)

 

Defendants subpoenaed Curtis Barton and Janette McDonnell.  (Declaration of Mira Firth (“Firth Decl.”), Exhibits B and C.) However, the subpoenas do not have a proof of service filled out indicating that they were personally served.  Thus, Defendants did not establish that service of their initial subpoenas was proper to confer jurisdiction over the third parties.

 

However, Plaintiff, who is representing himself and the co-plaintiff, communicated that he represented the third parties and would provide dates for their depositions.  (Firth Decl. Exhibit D.)  Plaintiff did not provide dates. Defendants noticed the depositions again for 9-24-20 by serving notices of depositions. (Firth Decl. Exhibit E.) 

 

Because Defendants only served deposition notices, the non-party affiliated deponents were not compelled to appear.

 

The declaration of Myra Firth states: “The witnesses were not subpoenaed as Mr. Rosandic advised he was representing them.” However, Mr. Rosandic’s statement regarding representation did not alleviate the need for subpoenas to be served. 

 

On 9-18-20, Plaintiff again stated that the witnesses were unavailable and that he would provide alternative dates. (Firth Decl. Exhibit F.) The examination did not occur, and Plaintiff has not provided dates.  (Firth Decl. ¶ 9 and Exhibit G thereto.) 

 

Defendants filed the instant motion on 10-7-20, which is less than 60 days after Plaintiff’s response on 9-18-20. Thus, the motion is timely. 

 

However, Defendants have not established that subpoenas were served that would compel the witnesses’ attendance. Defendants have not met this initial burden. Accordingly, they are not entitled to an order compelling Curtis Barton and Janette McDonnell to appear for examination and produce documents.

 

Regarding sanctions, a nonparty opposing such motion without substantial justification is subject to sanctions. (Code Civ. Proc. §§ 1987.2(a), 2020.030, 2025.480; Person v. Farmers Ins. Group of Cos. (1997) 52 Cal.App.4th 813, 818.) However, the motion is denied, and therefore sanctions are not warranted. 

 

RULING:  Defendants Memorial Health Services, dba Memorialcare Health Systems, and Saddleback Memorial Medical Center motion for an order compelling the depositions of Curtis Barton and Janette McDonnell is DENIED. 

 

Future Hearings:

Motion to Compel: 2/18/21

Motion to Compel:  2/25/21

MSC: 4/23/21

Jury Trial: 5/24/21

 

8

Lam vs. California Career Institute

 

30-2019-01087173

1. Motion to Compel Answers to Form Interrogatories filed by Defendant California Career Institute

2. Motion to Compel Answers to Special Interrogatories filed by Defendant California Career Institute

3. Motion to Compel Response to Requests for Admissions filed by Defendant California Career Institute

4. Motion to Compel Production filed by Defendant California Career Institute

5. Ex Parte

 

1. Motion to Compel Plaintiff’s Responses to Form Interrogatories, Set One

 

Defendant California Career Institute’s motion to compel Plaintiff Vivian Lam’s responses to form interrogatories, set one is GRANTED.

 

Defendant served form interrogatories, set one to Plaintiff on 4/28/20 under Code of Civil Procedure section 2030.010.

 

Plaintiff did not serve responses or respond to Defendant’s subsequent meet and confer letters. Plaintiff has not opposed this motion.

 

Pursuant to Code of Civil Procedure section 2030.290, Plaintiff is ordered to respond to Defendant’s form interrogatories within 30 days.

 

The Court orders Plaintiff to pay monetary sanctions to Defendant in the amount of $435 in relation to this motion.

 

2.  Motion to Compel Plaintiff’s Responses to Special Interrogatories, Set One

 

Defendant’s motion to compel Plaintiff’s responses to special interrogatories, set one is GRANTED.

 

Defendant served special interrogatories, set one to Plaintiff on 4/28/20 under Code of Civil Procedure section 2030.010. Plaintiff did not serve responses or respond to Defendant’s subsequent meet and confer letters. No opposition has been filed to this motion.

 

Pursuant to Code of Civil Procedure section 2030.290, Plaintiff is hereby ordered to respond to Defendant’s special interrogatories within 30 days.

 

The Court orders Plaintiff to pay monetary sanctions to Defendant in the amount of $435 in relation to this motion.

 

3. Motion to compel Plaintiff’s Responses to Requests for Admissions, Set One

 

Defendant’s motion to compel Plaintiff’s responses to requests for admission, set one is DENIED without prejudice. 

 

Defendant served requests for admissions, set one to Plaintiff on 4/28/20 under Code of Civil Procedure section 2033.010. Plaintiff did not serve responses or respond to Defendant’s subsequent meet and confer letter. Defendant seeks an order compelling Plaintiff to provide responses to the requests for admission. No opposition has been filed.

 

The Code of Civil Procedure does not provide authority for a motion to compel responses to requests for admission. Rather, Code of Civil Procedure section 2033.280 provides that if a party fails to respond to requests for admission, the non-responding party may be (a) deemed to have waived objections to the requests, and (b) the requesting party may move for an order to deem the requests for admission admitted by the non-responding party. 

 

Defendant may file an amended motion seeking relief as provided under section 2033.280 within 30 days .

 

4. Motion to Compel Plaintiff’s Responses to Requests for Production of Documents, Set One

 

Defendant’s motion to compel Plaintiff’s responses to requests for production of documents, set one is GRANTED.

 

Defendant served requests for production of documents, set one to Plaintiff on 4/28/20 under Code of Civil Procedure section 2031.010. Plaintiff did not produce documents or respond to Defendant’s subsequent meet and confer letters or oppose this motion.

 

Pursuant to Code of Civil Procedure section 2031.300, Plaintiff is ordered to respond and produce documents within 30 days.

 

The Court orders Plaintiff to pay monetary sanctions to Defendant in the amount of $435 in relation to this motion.

 

5. Ex parte motion to continue trial.

 

Here, Plaintiff has submitted a declaration showing her unavailability due to excusable circumstances, i.e. concerns about spreading COVID-19 to vulnerable family members, under subdivision (c)(2). 

 

RULING: Plaintiff’s ex parte application to continue trial is GRANTED. Trial is continued to October 18, 2021 at 9:00 a.m. in Department C33. 

 

Future Hearings:

Jury Trial: 3/15/21

 

9

Chen v. Liu

 

30-2019-01099537

1. Motion to Compel Answers to Form Interrogatories filed by Defendant Shijie Liu as to Plaintiff Tomii International, Inc.

2. Motion to Compel Answers to Special Interrogatories filed by Defendant Shijie Liu as to Plaintiff Tomii International, Inc.

3. Motion to Compel Production filed by Defendant Shijie Liu as to Plaintiff Tomii International, Inc.

4. Motion to Compel Answers to Form Interrogatories filed by Defendant Shijie Liu as to Plaintiff Guanghuo Chen

5. Motion to Compel Answers to Special Interrogatories filed by Defendant Shijie Liu as to Plaintiff Guanghuo Chen

6. Motion to Compel Production filed by Defendant Shijie Liu as to Plaintiff Guanghuo Chen

 

MOTION #1: Motion to Compel Answers to Form Interrogatories filed by Defendant Shijie Liu as to Plaintiff Tomii International, Inc. (ROA #45)

 

Defendant’s Shijie Liu motion to compel answers to form interrogatories from Plaintiff Tomii International, Inc. is MOOT. Plaintiff served responses to form interrogatories. 

 

Defendant’s request for sanctions is denied. 

 

Moving defendant to give notice. 

 

MOTION #2: Motion to Compel Answers to Special   Interrogatories filed by Defendant Shijie Liu as to Plaintiff Tomii International, Inc. (ROA #46)

 

Defendant’s Shijie Liu motion to compel answers to special interrogatories from Plaintiff Tomii International, Inc. is MOOT. Plaintiff served responses to special interrogatories. 

 

Defendant’s request for sanctions is denied. 

 

Moving defendant to give notice. 

 

MOTION #3: Motion to Compel Answers to Form Interrogatories filed by Defendant Shijie Liu as to Plaintiff Guanghuo Chen (ROA #47)

 

Defendant’s Shijie Liu motion to compel answers to form interrogatories from Plaintiff Guanghuo Chen is MOOT. Plaintiff served responses to form interrogatories. 

 

Defendant’s request for sanctions is denied. 

 

Moving defendant to give notice. 

 

MOTION #4: Motion to Compel Answers to Special Interrogatories filed by Defendant Shijie Liu as to Plaintiff Guanghuo Chen (ROA #48) 

 

Defendant’s Shijie Liu motion to compel answers to special interrogatories from Plaintiff Guanghuo Chen is MOOT. Plaintiff served responses to special interrogatories. 

 

Defendant’s request for sanctions is denied. 

 

Moving defendant to give notice. 

 

MOTION #5: Motion to Compel Production filed by Defendant Shijie Liu as to Plaintiff Guanghuo Chen (ROA #49)

 

Defendant’s Shijie Liu motion to compel answers to requests for production from Plaintiff Guanghuo Chen is MOOT. Plaintiff served responses to requests for production. 

 

Defendant’s request for sanctions is denied. 

 

Moving defendant to give notice. 

 

MOTION #6: Motion to Compel Production filed by Defendant Shijie Liu as to Plaintiff Tomii International, Inc. (ROA #50)

 

Defendant’s Shijie Liu motion to compel answers to requests for production from Plaintiff Tomii International, Inc. is MOOT. Plaintiff served responses to requests for production. 

 

Defendant’s request for sanctions is denied. 

 

Moving defendant to give notice.

 

Future Hearings:

Motion to Compel: 2/18/21

2 Motions to Compel: 2/25/21

2 Motions to Compel: 3/18/21

Motion to Compel: 3/25/21

MSC: 5/21/21

Jury Trial: 6/21/21

 

10

Bakkers vs. Bakkers

 

30-2017-00902286

Motion for Judgment on the Pleadings filed by Defendants Jeffery Parham, Gaby J. Bakkers

 

Defendants Gaby Bakkers and Jeffrey Parham’s motion for judgment on the pleadings as to the First Amended Complaint filed by Plaintiffs Michael Y.C. Bakkers, Andrew P.J. Bakkers and Joyce J.P. Leidelmeyer is GRANTED in part and DENIED in part.

 

Defendants’ request for judicial notice of Exhibits A through F is GRANTED.

 

First cause of action for Financial Elder Abuse:

 

Defendants argue that Plaintiffs lack standing to sue for financial elder abuse claim because they failed to comply with Section 377.32 of the Code of Civil Procedure.

 

“The Elder Abuse Act . . . authorizes an action to be brought not only by the elder, but also by the elder's ‘personal representative’ when the elder is alive but ‘lacks capacity pursuant to [s]ection 812 of the Probate Code, or is of unsound mind, but not entirely without understanding, pursuant to [section 38] of the Civil Code. . .” Under those circumstances the elder's personal representative may demand return of property on the elder's behalf and, if unsuccessful, may bring an action for damages and other relief. (§ 15657.6.) ‘Personal representative’ is defined as ‘a person or entity that is either’ ‘(1) [a] conservator, trustee, or other representative of the estate of an elder or dependent adult’ or ‘(2) [a]n attorney-in-fact of an elder or dependent adult who acts within the authority of the power of attorney.’ (§ 15610.30, subd. (d); § 15657.6 [adopting definition of personal representative contained in § 15610.30, subd. (d) ].) (Tepper v. Wilkins (2017) 10 Cal.App.5th 1198.) 

 

Section 377.32, subdivision (a) provides as follows:

 

“The person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent's successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following:

 

(1) The decedent's name.

 

(2) The date and place of the decedent's death.

 

(3) ‘No proceeding is now pending in California for administration of the decedent's estate.’

 

(4) If the decedent's estate was administered, a copy of the final order showing the distribution of the decedent's cause of action to the successor in interest.

 

(5) Either of the following, as appropriate, with facts in support thereof:

 

(A) ‘The affiant or declarant is the decedent's successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) and succeeds to the decedent's interest in the action or proceeding.’

 

(B) ‘The affiant or declarant is authorized to act on behalf of the decedent's successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) with respect to the decedent's interest in the action or proceeding.’

 

(6) ‘No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding.’

 

(7) ‘The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct.’”

 

In the operative First Amended Complaint (“FAC”) Plaintiffs claim standing as “successor in interest” and as “interested persons.”  (FAC, ¶¶ 5-7, 80.) However, in their opposition, Plaintiffs contend that as trustees of the valid Paul and Joan Bakkers Trust, Plaintiffs have standing to sue for elder abuse as the personal representatives of Paul and Joan Bakkers and are therefore not required to comply with Section 377.32 of the Code of Civil Procedure. However, the operative First Amended Complaint (“FAC”) does not allege that Plaintiffs are the appointed “personal representative” of Paul and Joan Bakkers. 

 

As such, the Motion should be GRANTED with 10 days leave to amend as to the elder abuse cause of action.

 

Second Cause of Action for Intentional Interference with Expected Inheritance (“IIEI”):

 

Defendants argue that this cause of action fails because Plaintiffs have an adequate remedy in probate court. In Beckwith v. Dahl (2012) 205 Cal.App.4th 1039 the court found that “IIEI is only available when the aggrieved party has essentially been deprived of access to the probate system.” (Id. at 1053.)  The Beckwith court further found that barring IIEI claims when adequate remedy exists “strike[s] the appropriate balance between respecting the integrity of the probate system, guarding against tort liability for inherently speculative claims, and protecting society’s interest in providing a remedy for injured parties.” (Id. at 1056.)

 

Here, Defendants’ contend that Plaintiffs asserted their claim in the probate court. Plaintiffs disagree and have shown that the probate court was asked to determine the validity of the 2014 Trust. (Opp., Ex. C.) The probate court ruled that the 2014 Trust Amendment, the 2014 Power of Appointment, the 2015 Power of Appointment, the 2014 Reconveyance, and the 2014 Monetary Gift were all invalid. (Opp., Ex. C.) The court of appeal affirmed the probate court’s judgment. (Opp., Ex. D.) The trust documents directed the distribution of only the remainder estate. (“Opp., 4:22-23.) Therefore, Plaintiffs have sufficiently shown that the issues in the probate court only involved the validity of estate planning documents, and that the probate court did not rule on the expected inheritance of the two real properties that were not addressed in the trust or the modifications to the trusts. Plaintiff have therefore not had an opportunity to pursue their IIEI claims in probate.

 

Accordingly, the Motion is DENIED as to the IIEI claim.

 

Defendants to give notice

 

Future Hearings:

Jury Trial: 3/1/21

 

11

Garcia vs. South Coast Global Medical Center

 

30-2019-01060953

Motion for Summary Judgment and/or Adjudication filed by Defendant Davinder Singh

 

Enrique Garcia Sanchez was admitted to co-defendant South Coast Global Medical Center in November 2017 with a diagnosis of acute abdominal pain/pancreatitis, acute hypokalemia and alcohol abuse.  His condition deteriorated while he was there.  He developed a severe infection and other complications.  He was discharged on 12/27/19 to a long-term acute care facility where he died on 12/31/17.  

 

Sanchez’s estate and his surviving heirs (Plaintiffs Johanna Garcia and Katherine Vanessa Garcia) sue for medical negligence and wrongful death. 

 

Defendant Davinder Singh, M.D. was one of Sanchez’s treaters.  By this motion, he seeks summary judgment of Plaintiffs’ complaint in his favor. This hearing is the second continued hearing on the motion.  When Singh initially filed the MSJ, the notice period was two days short.  Accordingly, the Court continued the hearing 84 days to provide full statutory notice.  The second hearing was then continued because Singh had not filed the supporting expert declaration.  

 

Singh seeks summary judgment on the ground that to a reasonable degree of medical probability, no negligent act or omission on his part caused or substantially contributed to Sanchez’s death.  This assertion is supported by the Declaration of Jonathon Ellis, M.D.  The Ellis declaration addresses treatment by two doctors—Singh and Quraishi.   Ellis provides the following opinions re: Singh.

 

11. . . . The care and treatment provided by Dr. Singh at all times complied with the standard of care.  His examination was appropriate and further intervention not required at that time. 

 

12. It is also my opinion, to a reasonable degree of medical probability, that no act or omission on the part of either Dr. Quraishi or Dr. Singh caused nor was a substantial factor in causing this patient’s death. To a reasonable degree of medical probability, this patient’s chances of survival given his severe alcoholic pancreatitis, multiorgan failure and multiple co-morbidities was less than 50%. His prognosis was poor at the time of admission and did not substantially improve. Moreover, even assuming the PEG tube traversed this patient’s colon (which is a known risk and complication that can happen absent negligence), the fistula was controlled and there is no evidence of the tract having been disrupted, therefore, to a reasonable degree of medical probability the peg tube perforation did not cause nor substantially contribute to this patient’s death. 

 

Ellis Dec. (Exhibit F), ¶¶ 11 and 12.  

 

Singh’s motion is also based on the argument that Plaintiffs’ complaint is barred by the MICRA statute of limitations.  Sanchez died on 12/31/17.  Singh argues that the under the appropriate statute (CCP § 340.5), Plaintiffs had one year in which to bring their claims.  Plaintiffs, however, filed their suit on 3/29/19—three months after the statutory deadline.  

 

Plaintiffs oppose the motion on three grounds. 

 

First, they argue that the motion must be denied because Singh initially gave less than 75-days’ notice. 

 

Second, they offer the Declaration of James H. Tabibian, a licensed gastroenterologist, who opines that Singh breached the applicable standard of care.  Tabibian’s declaration is offered in response to the Ellis declaration and, like the Ellis declaration, addresses treatment by both Singh and Quraishi.  With regard to Singh, Tabibian states: 

 

20.   It is my opinion that the treatment provided to Mr. Garcia Sanchez by the two gastroenterologists involved in Mr. Sanchez’ care, Dr. Essam Quraishi and Dr. Davinder Singh, fell below the standard of care. 

 

. . .  

 

26.  When Dr. Singh first saw Mr. Sanchez, he noticed brown seepage at the PEG site.  However, he failed to order a CT scan to assess the problem, thus delaying the diagnosis. 

 

. . .  

 

30.  To a reasonable degree of medical probability, the breaches in the standard of care outlined in Paragraphs 20-26 were a substantial factor in causing the death of 49 year old Enrique Sanchez.  To reasonable degree of medical probability, Ms. [sic] Sanchez would have survived the acute pancreatitis episode and would have eventually been released from the hospital had it not been for the PEG tube which perforated through his colon and associated complications.  This improperly placed PEG leaked feculent materials and was associated with peritonitis and the resulting sepsis, which is corroborated by the clinical findings and certificate of death.  After having developed sepsis, Mr. Sanchez deteriorated rapidly and expired on December 31, 2017. 

 

Tabibian Dec., ¶¶ 20, 26 and 30.  

 

Plaintiffs’ third argument is that the claims are not time-barred because there was delayed discovery and, in any case, Plaintiff Katherine Garcia was a minor at the time of Sanchez’s death and had three years from the time of death in which to bring her claims. 

 

Each of the arguments is addressed, below. 

 

Notice.  When the motion was initially filed, Singh gave only 73 days’ notice.  At the initial hearing date, the Court continued the hearing on the motion for 84 days.  Relying on Robinson v. Woods (2008) 168 Cal.App.4th 1258, Plaintiffs argue the Court did not have power to continue the hearing in order to provide proper notice.  Robinson does not support Plaintiffs’ position.  To the contrary, Robinson recognized that a trial court can continue an improperly noticed MSJ, so long as the continuance provides a full 75 days’ notice from the time of the continuance.  See Robinson, 168 at 1267-1268.   Plaintiffs have had proper statutory notice. 

 

Expert declaration.  Tacitly conceding that a sufficient expert declaration bars summary judgment on a medical malpractice claim, Singh argues that the Tabibian declaration should not be considered because it is conclusory and speculative.   Singh argues the declaration is conclusory and speculative because Tabibian fails to state he is familiar with the standard of care for gastroenterologists in the same or similar circumstances.  Singh’s expert asserts: “Based on my education, training and experience, I am familiar with the standard of care for physicians specializing in Gastroenterology who provide care to patients like Enrique Garcia Sanchez.  I am qualified to render an expert opinion in this case.” Ellis Dec., ¶ 3.  His “education, training and experience” are set forth in ¶ 1 of his declaration.  It is similar to Tabibian’s “education, training and expertise.”  See Tabibian Dec., ¶¶ 2-3.  Thus, if one is qualified, so is the other. 

 

Singh also objects that Tabibian fails to specify why a CT scan was required by the standard of care.  Comparing the two declarations side by side shows that the level of conclusion and speculation are very similar.  Ellis summarizes the medical records and then states:  “On December 28, 2017, the patient was evaluated by gastroenterologist Davinder Singh, M.D. who at the time of examination had only limited history available to him. He noted a small amount of dark colored seepage at this initial examination as well as bleeding from the tracheostomy site. He advised the nurses to use oral medications. Later that same day the patient was transferred to UCI for a high level of care. Dr. Singh had no further involvement in this patient’s care.”  Ellis Dec., ¶ 11.  Ellis then opines that Singh’s treatment was within the standard of care and was not a substantial factor in causing the death.  Ellis Dec., ¶¶ 11 and 12. 

 

Like Ellis, Tabibian summarizes the medical records and then states: “When Dr. Singh first saw Ms. Sanchez, he noticed brown seepage at the PEG site.  However, he failed to order a CT scan to assess the problem, thus delaying the diagnosis.”  Tabibian Dec., ¶ 26.  Tabibian also provides expected outcomes for Sanchez’ condition.  Tabibian Dec., ¶¶ 27-30.  He concludes with the opinion that Singh’s treatment (together with Quraishi’s) was a substantial factor in causing the death.  Tabibian Dec. ¶¶ 30.  Again, the declarations are roughly equal in specificity.  If one is sufficient to support summary judgment, the other is sufficient to raise a triable issue of fact.  See UMFs 15 and 17-22.  Singh’s objections to the Tabibian declaration are OVERRULED.

 

Statute of Limitations.  Statute of limitations is an affirmative defense and Singh had the burden of proving each element.  Drexler v. Peterson (2016) 4 Cal.App.5th 1181, 1188.  Singh’s motion establishes the date of Sanchez’ death 12/31/17; the date the action was filed; and Plaintiffs’ failure to serve a Notice of Intent to Sue.  (UMFs 23-25).  The evidence was sufficient to meet Singh’s burden.  

 

In response, Plaintiffs provide evidence of delayed discovery.  As set forth in Ellis’ declaration, Singh treated Sanchez on 12/28/17 while Sanchez was at Kindred Hospital (he was admitted to Kindred from South Coast on 12/2717).  Ellis Dec., ¶¶ 7.i. and 7.j at 4:20-5:2.  After he was examined by Singh, Sanchez was transferred to UCI.  Ellis Dec., ¶ 7.k (at 5:3-5).  Sanchez died at UCI and, following his death, UCI and the Coroner’s Office informed Plaintiffs “that there had been problems [with] the medical treatment [Sanchez] received at South Coast Global Medical Center.”  PUMF #20.  In a medical malpractice case, the statute of limitations begins to run when one suspects, or reasonably should suspect, that he has been injured in some wrongful way. Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1295.  Plaintiffs, laypersons, have presented evidence that they were told by UCI and the Coroner, experts, that the problem lay with South Coast Global.  Singh treated Sanchez at Kindred Hospital, not at South Coast Global.  Plaintiffs did not plead delayed discovery in their complaint but have provided sufficient evidence of delayed discovery in opposition to the summary judgment motion to raise a triable issue of material fact as to the statute of limitations affirmative defense.

 

Singh’s motion for summary judgment is DENIED.

 

Future Hearings:

MSC: 4/16/21

Jury Trial: 6/14/21