On 10/24/2016 BRETT STETTNER filed a Personal Injury - Medical Malpractice lawsuit against PASADENA MEADOWS NURSING CENTER ET A. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is BENNY C. OSORIO. The case status is Disposed - Dismissed.
Disposed - Dismissed
Stanley Mosk Courthouse
Los Angeles, California
BENNY C. OSORIO
SAAD AYMAN M.D.
MEMORIAL HERMANN SOUTHWEST HOSPITAL
MATHIOULAKIS STAN M.D.
PASADENA MEADOWS NURSING CENTER
MAN DAVID M.D.
CORRIGAN PETER W. M.D.
MAN DAVID; M.D.
SAAD AYMAN; M.D.
DOES 1 THROUGH 100
XI XUDONG; M.D.
CORRIGAN PETER W.; M.D.
STONEKING JENNIFER NICOLE; M.D.
MATHIOULAKIS STAN; M.D.
ANDERSON VERNON; M.D.
LANDCASTER MELISSA; M.D.
BALAN PRAKASH; M.D.
NISSEN LAW FIRM
FIRM NISSEN LAW
WEISS DAVID J. LAW OFFICE OF
WEISS DAVID J. ESQ.
GITTLER & BRADFORD
SMYSER KAPLAN & VESELKA L.L.P.
BERG RANDY A. ESQ.
SCHMID & VOILES
2/23/2018: NOTICE OF FILING OF NOTICE OF APPEAL (UNLIMITED JURISDICTION)
7/25/2018: Notice of Entry of Judgment
7/25/2018: Notice of Entry of Judgment
7/31/2018: Memorandum of Costs (Summary)
10/24/2016: COMFLAINT FOR WRONGFUL DEATH (MEDICAL MALPRACTICE) AND ELDER ABUSE
2/21/2017: DECLARATION OF ANN SEYMORE
2/24/2017: OPPOSED EX PARTE APPLICATION FOR EARLIER HEARING DATE ON MOTION TO QUASH; MEMORANDUM OF POINTS AND AUTHORITIES
3/21/2017: CIVIL DEPOSIT
4/6/2017: REQUEST FOR DISMISSAL
4/10/2017: STIPULATION TO EXTEND TIME FOR DEFENDANT, PASADENA MEADOWS NURSING CENTER, L.P.'S TO FILE ITS RESPONSE TO PLAINTIFFS' COMPLAINT, AND (PROPOSED) ORDER (C.C.P., SECTION 430.41)
4/10/2017: ORDER RE STIPULATION TO EXTEND TIME FOR DEFENDANT, PASADENA MEADOWS NURSING CENTER, L.P.'S TO FILE ITS RESPONSE TO PLAINTIFFS' COMPLAINT
4/24/2017: FIRST AMENDED COMPLAINT FOR WRONGFUL DEATH (MEDICAL MALPRACTICE) AND ELDER ABUSE
5/18/2017: DEFENDANT, PASADENA MEADOWS NURSING CENTER, L.P.'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF THE FIRST COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF MARVIN G. FISCHLER IN
5/18/2017: DEFENDANT, PASADENA MEADOWS NURSING CENTER, L.P.'S NOTICE OF HEARING ON DEMURRERS AND GENERAL AND SPECIAL DEMURRERS TO PLAINTIFF'S FIRST MENDED COMPLAINT; MEMORANDUM OF POINTS AND WTHORITIES AND DECLA
6/26/2017: STIPULATION TO FILE SECOND AMENDED COMPLAINT AND WITHDRAWAL OF DEMURRER/ MOTION TO STRIKE
DocketRequest For Copies; Filed by Huntington Hospital, a California (Defendant); Huntington Memorial Hospital (Defendant)Read MoreRead Less
DocketNotice; Filed by Brett Stettner (Plaintiff)Read MoreRead Less
DocketNotice OF MINUTE ORDERRead MoreRead Less
Docketat 08:30 AM in Department A; Jury Trial (Jury Trial; Order of Dismissal) -Read MoreRead Less
DocketMinute order entered: 2018-08-06 00:00:00; Filed by ClerkRead MoreRead Less
Docketat 10:30 AM in Department A; Final Status Conference (Final Status Conference; Matter continued) -Read MoreRead Less
DocketMinute order entered: 2018-08-03 00:00:00; Filed by ClerkRead MoreRead Less
Docketat 10:30 AM in Department A; Final Status Conference - HeldRead MoreRead Less
DocketMinute order entered: 2018-08-02 00:00:00; Filed by ClerkRead MoreRead Less
DocketPartial Judgment; Filed by Huntington Hospital, a California (Defendant)Read MoreRead Less
DocketProof of Serv of Ntc by Mail; Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
DocketProof-Service/SummonsRead MoreRead Less
DocketPROOF OF SERVICE OF SUMMONSRead MoreRead Less
DocketProof-Service/Summons; Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
DocketSummons Filed (on Plaintiffs Brett Stettner's and Tiffany Stettner's Complaint ); Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
DocketComplaint (for Plaintiffs Brett Stettner and Tiffany Stettner ); Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketSummons; Filed by Plaintiff/PetitionerRead MoreRead Less
DocketCOMFLAINT FOR WRONGFUL DEATH (MEDICAL MALPRACTICE) AND ELDER ABUSERead MoreRead Less
DocketComplaint; Filed by Brett Stettner (Plaintiff)Read MoreRead Less
Case Number: BC638363 Hearing Date: December 09, 2020 Dept: M
Case Name: American/BCEGZ, et al. v. Shores LLC, et al.
Case No.: BC538363
Motion: Nadel Residential and Commercial Inc’s Motion for Leave to File a Second Amended Cross-Complaint
Hearing Date: 12/9/2020
On October 26, 2020, Cross-Defendant/Cross-Complainant Nadel Residential and Commercial Inc. (“Nadel”) filed a motion for leave to file a second amended cross-complaint. Defendants Trademark, RedRock, American/BCEGZ, and Railcraft (“Opposing Defendants”) filed four separate oppositions. Nadel filed a combined reply.
Nadel filed a Cross-Complaint in this case on July 22, 2014 and filed a First Amended Cross-Complaint on May 16, 2016. Nadel seeks to amend the cross-complaint to add specificity and additional facts to the pleadings to clarify its claims against each of the named cross-defendants on the current causes of action. Nadel also seeks to split claims against different categories of cross-defendants into separate causes of action in anticipation of summary judgment motions on certain causes of action. Nadel also seeks to add new allegations of contractual indemnity against certain Cross-Defendants as well as add a successor liability cause of action against a successor in interest to one of its presently named Cross-Defendants.
A party may obtain leave of court to file a cross-complaint at any time during the course of a lawsuit, and leave may be granted in the interest of justice. (Code Civ. Proc., §§ 426.50, 428.50; see also Sidney v. Superior Court (1988) 198 Cal.App.3d 710, 718.). “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect.” (Code Civ. Proc., § 473.) California Code of Civil Procedure section 576 also grants the court power to allow a party to amend its pleading.
California courts are required to permit liberal amendment of pleadings in the interest of justice between the parties to an action. (Dieckmann v. Superior Court (1985) 175 Cal.App.3d 345, 352.) Generally, amendment must be permitted unless there is unwarranted delay in requesting leave to amend or undue prejudice to the opposing party. (Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1377.) Even if a good amendment is proposed in proper form, unwarranted delay in presenting it may – of itself—be a valid reason for denial. (Emerald Bay Community Association v. Golden Eagle Ins. Corp. (2005) 130 Cal.App.4th 1078, 1097.)
Request for judicial notice
Nadel requests judicial notice of fourteen facts/ existence and content of the following documents. The request for judicial notice is GRANTED.
Nadel seeks leave to amend the complaint to add factual allegations in the first amened cross-complaint.
Opposing Defendants generally argue that Code of Civil Procedure section 583.210 prevents Nadel from asserting causes of actions against them. Trademark is the only Cross-Defendant that also argues that the proposed amendments would be prejudicial. On Reply, Nadel argues that the Court should defer on considering Opposing Defendants’ arguments as to the Moe Defendants. Nadel also argues that the Phase I Case Management Order (“CMO”) in this case makes section 583.210 inapplicable. Nadel argues that Opposing Defendants have all made general appearances in this action.
The Court entered into Phase I of the CMO on May 22, 2017. Phase I of the CMO provides, “All parties to this action are deemed to have filed cross-complaints for equitable indemnity against all other parties to this action and all parties are deemed to have raised all applicable affirmative defenses in answer thereto, without the need for separate cross-complaints to be filed by each party.” (See RJN ¶¶ 7 - 8 & Ex. F ¶ F [emphasis added].) It also provides, “All parties who want to pursue any other causes of action or supplement other allegations or claims, against any party(ies) shall file and serve the cross-complaint within 30 days of the date of entry of this CMO, unless extended by leave of Court. Parties who appear after the signing of this order, shall, within thirty (30) days of their appearance, file and serve their respective cross-complaints, unless extended by leave of Court. All complaints or cross-complaints filed and served must be responded to separately and any and all affirmative defenses must be raised in said pleading.” (Ibid.).
The Court disagrees that the propriety of the Moe amendments are not at issue here. The Court further disagrees that Phase 1 of the CMO affects Nadel’s service obligations. The first amended cross-complaint filed on May 16, 2016 contained only four causes of action. (See Ex. K to RJN.) Nadel filed its cross-complaint and first amended cross-complaint prior to the Court’s entry of the Phase I of the CMO and had named Moes 1 – 100 as Defendants. The above portion of the CMO was intended to prevent the further filing of cross-complaints for equitable indemnity. Here, Nadel has already filed its cross-complaint which included a claim for equitable indemnity and had already named Moe Defendants. Under Section 583.210, Nadel was required to serve the Moe defendants within three years. However, Nadel filed Moe Amendments on July 14, 2020 naming the following parties as Moes 1 – 3:
MOE 1: American/BCEGZ, A Joint Venture;
MOE 2: American Multifamily Inc.; and
MOE 3: BCEGI–USA Inc.
(See 07/14/2020 Moe Amendment). Nadel also filed Moe Amendments on August 24, 2020, naming Moes 4 – 8 as:
MOE 4: Railcraft International (2010) Inc.; MOE 5: Trademark Construction Company, Inc. dba J.M.W. Truss and Components; MOE 6: RedRock Security and Cabling, Inc.; MOE 7: Dror Harel dba Harel Construction Services; and MOE 8: Jade, Inc.
(See 008/24/2020 Moe Amendment).
Nadel argues that Opposing Defendants have waived section 583.210 by making general appearances in this action. The Court disagrees.
The waiver of a legal right cannot be established without a clear showing of intent to give up such right. (Pacific Valley Bank v. Schwenke (1987) 189 Cal.App.3d 134, 145, 234 Cal.Rptr. 298). The burden is on the party claiming the waiver “to prove it by evidence that does not leave the matter doubtful or uncertain and the burden must be satisfied by clear and convincing evidence that does not leave the matter to speculation.” (In re Marriage of Vomacka (1984) 36 Cal.3d 459, 469, 204 Cal.Rptr. 568, 683 P.2d 248.)
(Brookview Condominium Owners' Assn. v. Heltzer Enterprises-Brookview (1990) 218 Cal.App.3d 502, 513.). Nadel has not met its burden in showing that Opposing Defendants waived Code of Civil Procedure section 583.210. Opposing Defendants have shown that despite the various stays in this action, Nadel failed to serve them prior to the three-year deadline. Therefore, the motion for leave to file a second amended cross-complaint as to the Opposing Defendants is denied.
Nadel’s proposed second amended cross-complaint contains twelve causes of action for (1) equitable indemnity; (2) apportionment of fault/contribution; (3) declaratory relief – duty to defend; (4) breach of written contract; (5) contractual indemnity; (6) declaratory relief – duty to defend third party beneficiary; (7) breach of contract – third party beneficiary; (8) contractual indemnity; (9) declaratory relief – duty to defend third party beneficiary; (10) breach of written contract – third party beneficiary; (11) contractual indemnity; and (12) successor liability. (See 10/29/2020 Errata, Ex. A. to Tiwana Decl.). Here, Nadel added factual allegations to the first cause of action for equitable indemnity, changed the allegations in the contribution cause of action, added specific allegations as to the dispute between Nadel and other Cross-Defendants in the third cause of action (Compare FACC ¶¶ 17 – 20, with Proposed SACC ¶¶ 29 – 48), and shortened the breach of contract allegations. To the extent that the amendments to the first four causes of action include allegations as to Opposing Defendants, those amendments are denied.
Nadel also argues that the proposed second amended cross-complaint also adds new causes of action for claims that have only recently accrued. Nadel argues that certain cross-defendants owe a contractual duty to indemnify from different contracts. The Court agrees that the proposed additions of the fifth through twelfth causes of action only recently accrued. The motion is granted as to these proposed causes of actions. Therefore, the motion for leave to amend is granted in part and denied in part.
Get Deeper Insights on Court Cases