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civil tentative rulings


The court does not issue tentative rulings on Writs of Attachment, Writs of Possession, Claims of Exemption, Claims of Right to Possession, Motions to Tax Costs After Trial, Motions for New Trial, or Motions to Continue Trial.


Under California Rules of Court, rule 3.1308 and Local Rule 701, any party opposed to the tentative ruling must notify the court, and other parties, by 4:00 p.m. on the court day before the hearing of their intention to appear for oral argument. The court's notice must be made by facsimile to 559-733-6774.


Timestamp: 03/22/2017 at 9:14pm



The Tentative Rulings for Thursday March 23, 2017 are:

Re:              Porras, et al. v. Kaweah Delta Health Care District, et al.

Case No.:    VCU 264320

Date:           March 23, 2017

Time:          8:30 A.M. 

Dept.          2– The Honorable David C. Mathias

Motion:      Defendant Kaweah Delta Healthcare District’s Motion for Summary Adjudication as to the Fifteenth Affirmative Defense in its Answer and for Summary Judgment as to the First Cause of Action in Plaintiff’s Complaint

Tentative Ruling: To grant defendant Kaweah Delta Healthcare District’s motion for summary adjudication as to the Fifteenth Affirmative Defense in its answer and for summary judgment as to the first cause of action in plaintiff’s complaint.

OPERATIVE FACTS

Plaintiff Levi Porras went to the Emergency Department of Kaweah Delta Medical Center (KDMC) on February 4, 2015, at approximately 2:36 a.m. with complaints of abdominal pain. Mr. Porras was first examined by Daniel Villegas, P.A., who noted in Mr. Porras history that his present illness began the previous day and that the pain worsened throughout the day. Mr. Porras also complained of vomiting on the day he went to KDMC and mild pain.

PA Villegas ordered an ultrasound of Mr. Porras’ abdomen that revealed that “the appendix is not visualized. A fair amount of bowel gas was in right lower quadrant of the abdomen, the appendix was not visualized.  Appendicitis cannot be excluded.”

A subsequent examination was performed by Fredrick Wu, PA and his notes indicate that the abdominal exam was normal:  “Gastrointestinal: No CVA tenderness; There is no guarding or rebound; The abdomen is soft and non-distended.” At approximately 7:28 p.m. on February 4, 2015, Mr. Porras was discharged in stable condition and given prescriptions for Zofran and MiraLax powder with instructions to return to KDMC the next day for a reexamination or sooner if he felt his condition was worsening at any time before the next day.

Mr. Porras went to Valley Children’s Hospital on February 5, 2015 where it was determined that he had appendicitis. He underwent a laparoscopic appendectomy later that day and eventually was released on February 13, 2015.

Plaintiff subsequently sent a notice of intent to sue under CCP §364 to Kaweah Delta Health Care District (a confirmed public entity within the standard set forth in California Government Code §900.4) dated May 27, 2015 that KDHCD received on or about June 1, 2015.

This Notice of Intent to Sue was sent to KDHCD’s Risk Management Department and not directed to KDHCD’s Board of Directors, its clerk, auditor, or secretary of the Board and this notice did not contain the information required to present a Government Code claim under Government Code §911.2.  There is no record of Mr. Porras submitting a subsequent timely government claim for damages against KDHCD, or an application to file a late government claim and/or a Petition to the Court to Waive the requirement of filing a government claim as per the applicable Government Code sections.

STANDARD OF REVIEW

A defendant moving for summary judgment (MSJ) must make a prima facie showing that there are no triable issues of fact to meet its initial burden of production. See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.App.4th 826, 861.  “[A] defendant moving for summary judgment [must] present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” Aguilar, at 854, fn. omitted.  Circumstantial evidence to support a defendant’s summary judgment motion “can consist of factually devoid discovery responses from which an absence of evidence can be inferred,” but the burden should not shift without stringent review of the direct, circumstantial, and inferential evidence.” See Scheiding v. Dinwiddle Construction Co. (1999) 69 Cal.App.4th 64, 83.

Once the defendant has met its burden, the burden shifts to the plaintiff to make a prima facie showing that a triable issue of material fact exists. Aguilar, at 850.  “A prima facie showing is one that is sufficient to support the position of the party in question. [citation] No more is called for.” Aguilar, at 851.

A summary judgment shall be granted in all cases where the action has no merit C.C.P. 437c(a). The moving party must establish that there is no triable issue as to any material fact and that the party is therefore entitled to a judgment as a matter of law.  C.C.P. 437c(c).

When ruling on a summary judgment, the Court must first identify the issues raised by the pleadings, since it is these allegations that must be addressed in the moving papers.  Next the Court must determine whether the evidence offered by the moving party establishes facts that negate the opponent’s claims and justify a judgment for the moving party.  If the motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable material factual issue. See Waschek v. Department of Motor Vehicles (1997) 59 Cal.App.4th 640, 644.          

Once the moving party establishes that either (1) one or more elements of a cause of action or defense cannot be proved, or (2) all the elements of a cause of action or defense have been met, the burden then shifts to the opposing party to show that a triable issue of one or more material facts exists. See C.C.P. 437c. The opposing party may not rely upon the mere allegations or denials of its pleadings to show that triable issues of material fact exists but, instead, must state specific facts to show that a triable issue of material fact exists as to each cause of action or defense thereto. See C.C.P. 437c(o)(2)

Under California law, healthcare providers are obligated to “possess and exercise, in both diagnosis and treatment, that reasonable degree of knowledge and skill which is reasonably possessed and exercised by other members of the profession in similar circumstances.”  See Landeros v. Flood (1976) 17 Cal. App.2d 399, 408; Johnson v. Superior Court (Rosenthal) 143 Cal.App.4th 297, 305.  The applicable standard of care is the “basic issue” in a medical malpractice action and is “peculiarly within the knowledge of experts.” See Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 108, fn.1; Jameson v. Desta (2013) 215 Cal.App.4th 1144, 1171.

Especially as to physicians, they must possess and diligently apply the degree of learning of skill ordinarily possessed by their peers.  This duty applies to both diagnosis and treatment.  See Lawless v. Calaway (1944) 24 Cal. 2d 101, 108; Huffman v. Linquist (1951) 37 Cal.2d 465, 473; Keon v. Prisinzano (1972) 23 Cal.App.3d 275, 279.

Moreover, the mere medical possibility that the negligence of the health care provider caused the patient’s injury is insufficient standing alone to create a triable issue of fact that would defeat an MSJ.  The patient/plaintiff must show that there is a triable issue of material fact as to causation “within a reasonable medical probability based upon competent expert testimony.” See Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App. 4th 1304, 1316.

In sum, a medical malpractice plaintiff must provide expert testimony as to (1) the applicable standard of care; (2) whether the standard of care was met or breached, and (3) whether the negligence caused the plaintiff’s injuries except where the negligence is a matter of ordinary common knowledge (such as the leaving of a surgeon’s scalpel or sponge in the patients’ body.)  See Scott v. Rayhrer (2010) 185 Cal.App.4th 1513, 1546; Landeros, at 408-410; and Dozier v. Shapiro (2011) 199 Cal.App.4th 1509, 1519-21 (expert testimony required); Leonard v. Watsonville Community Hospital (1956) 47 Cal.2d 509, 519; Elcome v. Chin (2003) 110 Cal.App.4th 310, 317 (ordinary negligence by a health care provider where no expert testimony was required to support the plaintiff’s claims)

ANALYSIS

The Court finds that summary judgment in favor of KDHCD should be granted both as to plaintiff Levi Porras’ failure to comply with the administrative procedures set forth in the California Government Claims Act and because defendant KDHCD met the applicable standard of care in its care and treatment of the Plaintiff.

Plaintiff Levi Porras asserts that he was injured as a result of negligence or other improper conduct by the KDMC medical staff on February 4, 2015. Mr. Porras then sent a "Notice of Intent" under CCP § 364 to Kaweah Delta Health Care District, but did not serve the Board of Directors, or any other statutorily designated   persons, with a claim for damages against KDHCD under Government Code § 911.2.  Nor did any of the statutorily designated   persons to receive this claim under §911.2 receive this "Notice of lntent."

“Section  905  requires  the presentation of "all  claims  for  money  or damages against local  public  entities," subject  to exceptions not  relevant  here.  Claims  for  personal injury  and  property  damage  must  be presented within  six months  after  accrual; all other  claims  must  be presented   within  a year. §911.2.)  "[N]o  suit  for  money  or damages may  be brought  against  a public  entity  on a cause  of action  for which  a claim  is required  to be presented   ... until a written  claim  therefore has been presented to the  public  entity  and  has  been acted  upon  ... or has  been deemed  to have  been  rejected  ...."(§945.4.)   CA (2)(2) “Thus,   under these statutes, failure to timely present  a claim  for  money  or damages to a  public entity bars a plaintiff from  filing  a lawsuit against that  entity."    (Also see DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 990)

Here, Mr. Porras served his "Notice of Intent” to sue a healthcare provider under CCP § 364 that is not the equivalent of a proper claim for damages against a public entity as per Government Code §911.2. Mr. Porras would have had to properly serve a Government Code claim on KDHCD   on or before August 4, 2015 to be timely. Mr. Porras did not timely do so.

Even  if this Notice of Intent could be deemed as a proper Government Code  claim under §911.2,  Government Code§ 915(a)  further requires that this claim be served on the governmental agency by either delivery to the clerk,  secretary   or auditor of the entity  or by mailing  it to the clerk,  secretary, auditor, or governing body at its principal office. The claims presentation requirements of §915 are only met when proper service has been made and the claim has actually been received by the public entity’s governing body.

In regard to the facts of this matter, the Court finds from a review of KDHCD undisputed material facts 11 through 31 of its separate statement of undisputed material facts and the unconverted evidence offered in support of these undisputed material facts that KDHCD has met its burden to show that no triable issues of fact exist as to this Defendant.

Specifically, the Court finds that no triable issue of fact exists as to whether the medical staff at KDMC that examined and treated plaintiff Levi Porras acted at all times within the applicable standard of care while rendering treatment to this plaintiff during the time period that is at issue in this action; and that there is no triable issue of fact as to whether any act or omission by any of the medical staff at KDMC who examined and/or treated plaintiff Levi Porras caused or contributed to the injuries alleged in his complaint

Based on the foregoing, defendant KDHCD’s Motion for Summary Adjudication as to KDHCD’s Fifteenth Affirmative Defense and Summary Judgment as to plaintiff’s first cause of action are hereby granted.

 If no one requests oral argument, defendant KDHCD shall submit a proposed order in compliance with CCP section 437c(g) and prepared and served in compliance with CRC, rule 3.1312.

Re:              Doe, et al. v. Doe, et al. and Related Cross-Action

Case No.:    VCU 267848

Date:           March 23, 2017

Time:          8:30 A.M. 

Dept.          2– The Honorable David C. Mathias

Motions:     (1) Demurrer to Cross-Complaint of Catherine S. Doe and Joseph Oldenbourg and (2) Motion to Strike Portions of the Cross-Complaint of Catherine S. Doe and Joseph Oldenbourg

Tentative Rulings: To sustain Cross-Defendants Russell M. Doe. et al.’s demurrer to cross-complaint of Catherine S. Doe and Joseph Oldenbourg as to Cross-Complainant’s 2nd and 3rd causes of action without leave to amend and to dismiss the cross-complaint as to Tamara J. Doe without prejudice and (2) to grant Cross-Defendants’ motion to strike portions of the cross-complaint of Catherine S. Doe and Joseph Oldenbourg with 10 days leave to amend, subject to the court’s ruling on the cross-Defendant’s demurrer.

This demurrer is in response to the cross-complaint of Catherine S. Doe and Joseph Oldenbourg that asserts causes of action for breach of fiduciary duty, conversion, breach of contract, and for an accounting.

This cross-complaint is one of a number of actions and cross-actions between the respective parties to the cross-complaint at issue in this demurrer where the subject matter of these actions is a continuing dispute between these parties as to the management of family properties known as to the TEC-Doe properties, the Doe-7 Trust and the Doeville corporation. The purpose of this present cross-complaint and three other related actions and cross-actions is an effort to judicially resolve these family disputes as to the management of the family trusts and properties by Russell Doe and to obtain a full accounting of the business and financial interests of Catherine S. Doe and Joseph Oldenbourg so that they may receive the income and assets from the family estate and trusts to which they may be entitled and to resolve the multiple lawsuits that have been initiated between these parties.

The Court’s record indicates that the cross-complainants received proper notice of this demurrer and motion to strike.  The court has reviewed the Cross-Complainants response and Cross-Defendant’s reply thereto.

Request for Judicial Notice

Cross-Defendants’ request for judicial notice is granted as to Exhibit “3” as an official judicial act under Evidence Code §452(c) Judicial notice as to Exhibits “1,” “2,” and “4” is granted only as to the date of filing of these documents, but denied in all other respects:

“Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable.  StorMedia, Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9. StorMedia stated:  “In ruling on a demurrer, a court may consider facts of which it has taken judicial notice. CCP §430.30(a)This includes the existence of a document.   When judicial notice is taken of a document, however, the truthfulness and proper interpretation of the document are disputable. Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.

For a court to take judicial notice of the meaning of a document submitted by a demurring party based on the document alone, without allowing the parties an opportunity to present extrinsic evidence of the meaning of the document, would be improper.   A court ruling on a demurrer therefore cannot take judicial notice of the proper interpretation of a document submitted in support of the demurrer.  StorMedia, Inc. v. Superior Court, supra, 20 Cal.4th at p. 457, fn. 9;  Joslin v. H.A.S. Ins. Brokerage, supra, 184 Cal.App.3d at p. 374.  In short, a court cannot by means of judicial notice convert a demurrer into an incomplete evidentiary hearing in which the demurring party can present documentary evidence and the opposing party is bound by what that evidence appears to show.

Demurrer to the Cross-Complainants’ Oldenbourg and Catherine Doe’s Second Cause of Action for Conversion

Cross-Complainants’ Joseph Oldenbourg and Catherine Doe (hereinafter identified collectively as “the Oldenbourgs”) charge in their conversion cause of action that because Russell Doe “failed to farm” certain family property for three years, the Oldenbourg lost an unspecified income that might otherwise have been earned from farm lease income and/or the lease or sale of surface water rights, converted an unspecified 10% management fee by failing to disburse an unspecified sum of income.

But California law is well-established that for a cause of action for conversion to arise out of the possession of money, there must be a specific and identifiable amount of money involved, and thus the unspecified claim for money that the Oldenbourgs allege in their cross-complaint does not create a cause of action for conversion.  See PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil, & Shapiro (2007) 150 Cal.App.4th 384, 395. 

Cross-Complainants concede that the Second Cause of Action may be dismissed, based on the grounds stated in the General Demurrer. Accordingly, cross-defendants’ demurrer to the Oldenbourgs’ second cause of action for conversion is sustained without leave to amend. In the event that further information is obtained by Cross-Complainants through the discovery process that may support the within cause of action they must seek further leave from the Court to amend their complaint.

Demurrer to the Third Cause of Action for Breach of Contract

This cause of action arises out of a previous partition action brought by the cross-defendants against the Oldenbourgs that involved a Purchase and Sale Agreement that the Oldenbourgs refused to sign and cross-defendants breached confidentiality provisions in this Agreement by disclosing these provisions in their partition action. This Agreement is not attached to the Oldenbourgs’ current cross-complaint nor are the essential provisions of this Agreement set forth in the cross-complaint at issue in this demurrer.

Where the Oldenbourgs were not parties to the Agreement when the cross-complainants filed their partition action, there was no contractual duty owed to the Oldenbourgs, and it is undisputed that non-parties to a contract lack standing to enforce that contract. See e.g., Hatchwell v. Blue Shield of California (1988) 198 Cal.App.3d 1027, 1034. 

Moreover, it would be inequitable for the Oldenbourgs to subsequently sign the Agreement and then bring an action for breach of contract that arose before they became signatories to the Agreement given that since they were aware that terms of the Agreement had already been breached before they became parties to it, that this awareness constitutes a waiver of any right that the Oldenbourgs might have had to enforce the confidentiality provisions of this Agreement.  See. e.g., Leiter v. Etinge (1966) 246 Cal.App.2d 306. 316; Civil Code §3515 (“He who consents to an act is not wronged by it.”) and Civil Code §3516 (“Acquiescence in error takes away the right of objecting to it.”

Cross-defendants also correctly note that the Oldenbourgs do not allege in their cross-complaint that they performed or had an excuse for non-performance of their obligations under the agreement, which is a necessary element to state a cause of action or breach of contract.  See, e.g., Oasis W. Realty LLC v. Goldman.

Cross-Complainants concede that the Third Cause of Action may be dismissed, based on the grounds stated in the General Demurrer. Accordingly, cross-defendants’ demurrer to the Oldenbourgs’ third cause of action for breach of contract is sustained without leave to amend. In the event that further information is obtained by Cross-Complainants through the discovery process that may support the within cause of action they must seek further leave from the Court to amend their complaint.

Demurrer to All Causes of Action as to Tamara J. Doe.

Cross-Complainants concede that all Cause of Action may be dismissed, based on the grounds stated in the General Demurrer, as to Tamara J. Doe. Accordingly, cross-defendants’ demurrer to all Causes of Action in the Cross-Complaint as to Tamara J. Doe is sustained without leave to amend. In the event that further information is obtained by Cross-Complainants through the discovery process that may support the Cross-Complaint as to this individual they must seek further leave from the Court to amend their complaint.

Cross-Defendants Russell M. Doe and Tamara J. Doe’s Motion to Strike Portions of Cross-Complaint is granted for the reasons stated in Cross-Defendants response. Cross-complainant’s generally concede the motion as to the items referenced in paragraphs 2-7 of Cross-Defendants motion and request leave to amend.  The same liberal policy re amendment of pleadings applies as on sustaining demurrers.  Subject to the court’s ruling herein relating to the cross-defendant’s general demurrer as to the Second and Third Causes of Action and as to Tamara J. Doe, Cross-Complainant’s shall have ten days leave to amend.  

Based on the foregoing, the court sustains Cross-Defendants Russell M. Doe. et al.’s demurrer to cross-complaint of Catherine S. Doe and Joseph Oldenbourg as to Cross-Complainant’s 2nd and 3rd causes of action without leave to amend and dismisses the cross-complaint as to Tamara J. Doe without prejudice and grants Cross-Defendants’ motion to strike the terms referenced in paragraphs 2-7 of the cross-complaint of Catherine S. Doe and Joseph Oldenbourg with 10 days leave to amend, subject to the court’s ruling on the Cross-Defendant’s demurrer.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order..

Re:              Saphieh v. Medaa

Case No.:    VCL 174232

Date:           March 23, 2017

Time:          8:30 A.M. 

Dept.          2– The Honorable David C. Mathias

Motion:     Motion to Vacate Default Judgment Entered Due to Attorney Excusable Neglect and Inadvertence Pursuant to CCP §473(b)

Tentative Ruling: To grant in part and deny in defendant’s Motion to Vacate Default Judgment Entered Due to Attorney Excusable Neglect and Inadvertence Pursuant to CCP §473(b)

CCP 473(b) provides in relevant part to this present motion that “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.

Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.”

Defendant Medaa filed his motion under CCP §473(b) on February 14, 2017 accompanied by an affidavit of fault supplied by his counsel that, under §473(b) mandates that the court set aside the default entered against Mr. Medaa if his moving papers were filed within six months from the entry of the default.

But in this action, there are two separate and distinct defaults and/or default judgment that are at issue. Plaintiff Sephieh obtained a default judgment against defendant Medaa on July 6, 2016 that was exclusively limited to the return to the plaintiff of the property at issue in this unlawful detainer action with no monetary damages demanded in the request to enter default.  As to this default, defendant Medaa is barred from relief because his motion to set aside this default was filed after the six-month period from the July 6, 2016 entry of default had expired.

Then on September 26, 2016, plaintiff Sephieh obtained a second default judgment against defendant Medaa for monetary damages in the amount of $9,166.00.  In response to this second default judgment, defendant Medaa timely filed an affidavit of fault from his attorney Brian N. Folland with his §473(b) motion that indicated that the failure to timely respond to the plaintiff’s complaint was the result of it being lodged in the wrong case file by an employee of Mr. Folland’s law firm.

Thus, this attorney can base his “attorney’s affidavit of fault” on the errors committed by his administrative staff such that relief under CCP §473(b) is mandatory as to the default judgment that plaintiff obtained on September 26. 2016. See Hu v. Fang (2002) 104 Cal.App.4th 61, 64; Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 703.

Accordingly, the “attorney affidavit of fault” that attorney Brian N. Folland supplied with defendant Medaa’s moving papers for this matter mandates under CCP §473(b) that this Court grant defendant Medaa’s  motion to set aside the default that plaintiff Saphieh entered against defendant Medaa on September 26, 2016.

Defendant Medaa’s shall file his answer to plaintiff’s complaint no later than ten days from the service date of the notice of this ruling.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:              Ibarra v. Tulare Regional Medical Center, et al.

Case No.:    VCU 262492

Date:           March 23, 2017

Time:          8:30 A.M. 

Dept.          2– The Honorable David C. Mathias

Motion:     Plaintiff Angelina Ibarra’s Motion for Leave to File a First Amended Complaint

Tentative Ruling:  To grant plaintiff Angelina Ibarra’s Motion for Leave to File a First Amended Complaint. Ms. Ibarra shall file and serve her First Amended Complaint within ten days from the notice of this ruling.

This is a medical negligence action where plaintiff Angelina Ibarra charges that the Emergency Room staff and physicians at the Tulare Regional Medical Center (“TRMC”) failed to properly diagnose and effectively treat a blood clot in an artery.  Ms. Ibarra seeks to amend her complaint to (1) remove her claim against defendant Family Health Care to Federal Court; (2) dismiss defendant Douglas Middleton MD from this action; and (3) add a fraud cause of action to her complaint. 

The Court also notes from its file that Ms. Ibarra previously moved this Court on February 14, 2017 to amend her complaint on similar grounds as those raised in this present motion, but that the requirements of California Rule of Court 3.1324(b) mandated that this Court deny plaintiff’s February 14, 2017 motion without prejudice.

Further, where the moving papers for Ms. Ibarra’s original February 14 motion for leave to amend her complaint were served on TRMC’s counsel on January 17. 2017, the Court is not persuaded that TRMC’s April 6, 2017 motion for summary judgment will be unduly prejudiced by permitting Ms. Ibarra leave to file a First Amended Complaint given that TRMC has been aware for more than two months of Ms. Ibarra’s intention to do so.

STANDARD OF REVIEW

Courts will generally grant leave to parties to amend their pleadings to allege any additional facts that the Court finds lacking or to clarify any unclear or ambiguous allegations. “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” See Angie M. v. Superior Court (Hiemstra)(1995) 37 Cal.App;.4th 1217, 1227.

The court has discretion “in furtherance of justice” to grant leave to amend a party’s pleading (CCP §§473(a)(1); 576) Leave to amend should be liberally granted “at any stage of the proceedings, up to and including trial” absent prejudice to the adverse party See Atkinson v. Elk. Corp.  2003) 109 Cal.App.4th 739, 761)

Even where a party seeks to amend its pleading near the time of trial, and this request would require a trial continuance, the court should still permit the amendment See Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 297. Delay alone is not grounds for denial. See Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-65.

It is an abuse of discretion to deny a timely motion for leave to amend if the motion does not prejudice the opposing party. See Morgan v. Superior Court (1959) 172 Cal. App. 2d 527, 530-31.

Similarly, if discovery and investigation develop factual grounds that justify a timely amendment to a pleading, leave to amend must be liberally granted (Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596) It is an abuse of discretion to deny a timely motion for leave to amend if the motion does not prejudice the opposing party (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530-31.)

The court should not ordinarily evaluate the merits of the proposed amended pleading to decide whether to grant leave to amend (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048) It is the legal sufficiency of the amended pleading that should be tested by demurrer of other appropriate proceedings (Kittredge, at 1048, citing California Casualty General Insurance Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281.

While it is true that leave to amend is generally liberally granted, the grant of leave is not automatic.  Objectionable subject matter of the amendment, the conduct of the moving party, or the belated presentation of the amendment can justify the exercise of discretion by a trial court to deny leave. (Dos Pueblos Ranch and Imp. Co. v. Ellis (1937) 8 Cal.2d 617, 622; Ross v. McDougal (1939) 31 Cal.App.2d 114, 121. ) Even if a good amendment is proposed in proper form, unwarranted delay in presenting it may be a reason for denial. (California Concrete Co. v. Beverly Hills Savings and Loan Ass’n (1989) 215 Cal.App.3d 260, 272)

CCP §576 further adds that “. . . any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, allow a party to amend a pleading or pretrial conference order.”

ANALYSIS

In her first amended complaint, Ms., Ibarra seeks (1) to remove federally-funded defendants Family Health Care Network and its employer David Larios from this state court action in anticipation of potentially bringing an action in federal court against these defendants; (2) assert a new fraud cause of action against defendant David Smith, M.D. and (3) dismiss defendant Douglas Middleton from this action.

It appears the Plaintiff may have good cause to remove defendants Family Health Care Network and its employer David Larios given that FHCN is a federally-funded program and thus any claim that Ms. Ibarra should have against these defendants should be litigated in the federal, and not the California state courts.

As to the dismissal of defendant Middleton, Ms. Ibarra recently became aware on or about November 1, 2016 (when discovery provided her with the identity of the TRMC ER nurses who participated in the treatment on Ms. Ibarra on June 21, 2014 at approximately 4:34 p.m.) that as the result of clerical errors by these attending TRMC ER nurses, that defendant Middleton did not participate in the treatment of Ms. Ibarra in any way. 

The Court finds that the lack of treatment provided to Ms. Ibarra from defendant Middleton, and the identification of the ER nurses at TRMC who were involved in treating Ms. Ibarra are significant changes in the facts of this case that would justify the amending of Ms. Ibarra’s complaint. It may also warrant additional discovery from TRMC and the recently-identified nurses at the TRMC ER who actually participated in Ms. Ibarra’s treatment on that day.

Ms. Ibarra also seeks to add a fraud cause of action against defendant Smith based on the treatment records of Ms. Ibarra’s June 21, 2014 visits to the TRMC ER. She bases this fraud cause of action on unverified interrogatory responses from Dr. Smith that Ms. Ibarra received in October of 2016 that state that “I have no recollection of either of any two encounters with Plaintiff” on June 21, 2014 at the emergency department of TRMC” when it is alleged that Dr. Smith actually treated Ms. Ibarra on that day at 4:34 p.m.

Ms. Ibarra has also learned from an expert review of the medical records that TRMC provided to her in discovery that Dr. Smith dictated and transcribed notes of his June 21, 2014 examinations and treatment of Ms. Ibarra 39 days later on July 30, 2014 (that was 20 days after Ms. Ibarra’s leg had to be amputated on July 10, 2014) This contradicts the claim that Dr. Smith stated in his interrogatory responses that he never saw or treated Ms. Ibarra at any time on June 21, 2014.

Ms. Ibarra’s original complaint was based on the inaccurate presumption that on June 21, 2014 she was seen and treated by Dr. Middleton at her 4:24 p.m. visit to the TRMC ER and subsequently by Dr. Smith at her 11:25 p.m. visit to the TRMC ER. But discovery conducted subsequent to the filing of Ms. Ibarra’s original complaint suggests that she saw Dr. Smith at only her 4:24 p.m. visit and was not seen by Dr. Smith at her 11:25 p.m. visit to the TRMC ER.

Ms. Ibarra also seeks to allege in her amended complaint that Dr. Smith created false notes that reflect that he treated her at her 11:25 p.m. trip to the ER and concluded from his examination of her that “her limb was not at risk.”

Ms. Ibarra further contends that the discovery that she has obtained since she filed her original complaint contain a number of new significant facts as to the nature and extent of care and treatment that she received during her visits to the TRMC ER on June 21 and 22, 2014.

Ms.  Ibarra also charges that her original complaint does not reference what she contends to be fraudulent treatment notes that mislead her into believing that her subsequently-amputated right limb was not “at risk” and did not discover this perceived misrepresentation until her nurse consultant reviewed Ms. Ibarra’s medical records sometime in December of 2014.

Based on these facts that Ms. Ibarra recently discovered, she charges that TRMC and specifically Dr. Smith attempted to “cover up” their medical negligence and as such justifies her right to file a First Amended Complaint that pleads a fraud cause of action against the defendants.

Based on the foregoing, the Court grants plaintiff Angelina Ibarra’s motion for leave to file a first amended complaint to recite new facts and allegations (i.e., that Dr. Middleton did not treat Ms. Ibarra, the nature of Dr. Smith’s alleged intentional concealment and misrepresentation, and the additional description of the TRMC nurses negligence) and a new fraud cause of action based on these newly discovered facts in the interests of justice.

Plaintiff Angelina Ibarra is directed to file and serve her First Amended Complaint within ten days from the notice of this ruling.

 If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:              Proteus, Inc.

Case No.:    VCL 176239

Date:           March 23, 2017

Time:          8:30 A.M. 

Dept.          2– The Honorable David C. Mathias

Motion:      Defendant Northside Boxing Club’s Motion to Compel Further Responses to Request for Production of Documents and for Sanctions

Tentative Ruling:  To continue Defendant Northside Boxing Club’s Motion to Compel Further Responses to Request for Production of Documents and for Sanctions to March 30, 2017, 8:30 am; dept. 2.  Discovery motions in unlawful detainers may be made at “anytime” upon giving five days’ notice.  CCP 1159.  The deadline is extended where service is by Overnight Mail by two court days. CCP 1013.   The Defendant’s motion is untimely given these timelines.    Any opposition shall be filed and electronically served no later than March 27, 2017 3’oclock pm. Any reply may be made on the date of hearing.  The court intends to issue a tentative ruling prior to hearing pursuant to the local rules.   

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.


This concludes the civil tentative rulings



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