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This case was last updated from Los Angeles County Superior Courts on 12/27/2020 at 08:57:21 (UTC).

GINA CASTLEBERRY PREWITT ET AL VS WEIGHT LOSS CENTERS ET AL

Case Summary

On 09/12/2011 GINA CASTLEBERRY PREWITT filed an Other lawsuit against WEIGHT LOSS CENTERS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are SUZANNE G. BRUGUERA and MONICA BACHNER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9464

  • Filing Date:

    09/12/2011

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

SUZANNE G. BRUGUERA

MONICA BACHNER

 

Party Details

Plaintiffs

PREWITT ADRIAN

PREWITT GINA CASTLEBERRY

PREWITT GINA CASTLEBERRY-

Defendants

1-800-GET-THIN

CHARLES KLASKY

DOES 1 THROUGH 50

MODERN INSTITUTE FOR PLASTIC SURGERY

NEW LIFE SURGERY CENTER

PERER MARVIN ANTON M.D.

SABBAGH NURI

TOP SURGEONS LLC

VALENCIA AMBULATORY SURGERY CENTER LLC

WEIGHT LOSS CENTERS

OMIDI KAMBIZ BENIAMIA AKA JULIAN OMIDI

OMIDI CINDY

DE VIDA USA LLC

SURGERY CENTER MANAGEMENT LLC

1-800-GET-THIN LLC

CALIFORNIA HOSPITAL MANAGEMENT &

Not Classified By Court

LYNDA T. BUI CHAPTER 7 TRUSTEE

Attorney/Law Firm Details

Plaintiff Attorneys

HERZOG IAN ESQ.

HERZOG IAN ISAAC

Defendant Attorneys

PRINDLE AMARO GOETZ HILLYARD BARNES

ZUK MICHAEL A. ESQ.

TROPE KONARD L. ESQ.

JAROSCAK MAUREEN PATRICIA

REINHOLTZ JACK RUSSELL

REINHOLTZ JACK R. ESQ.

WELDEN WILLIAM BINGHAM

BLESSEY ESQ. RAYMOND

 

Court Documents

Minute Order -

9/13/2018: Minute Order -

Joinder to Motion - JOINDER TO MOTION FOR SANCTIONS PURSUANT TO CCP 128.5

9/5/2019: Joinder to Motion - JOINDER TO MOTION FOR SANCTIONS PURSUANT TO CCP 128.5

Opposition - OPPOSITION DEFENDANT MARVIN PERER, M.D.'S OPPOSITION TO PLAINTIFF'S MOTION TO LIFT STAY

12/3/2020: Opposition - OPPOSITION DEFENDANT MARVIN PERER, M.D.'S OPPOSITION TO PLAINTIFF'S MOTION TO LIFT STAY

Notice - NOTICE NOTICE OF RULING ON PLAINTIFFS' MOTION TO LIFT STAY AND NOTICE OF STATUS CONFERENCE RE: ARBITRATION

12/21/2020: Notice - NOTICE NOTICE OF RULING ON PLAINTIFFS' MOTION TO LIFT STAY AND NOTICE OF STATUS CONFERENCE RE: ARBITRATION

COMPLAINT FOR DAMAGES FOR 1. MEDICAL MALPRACTICE 2. INTENTIONAL MISREPRESENTATION 3. NEGLIGENT MISREPRESENTATION 4. NEGLIGENT REFERRAL 5. NEGLIGENT HIRING 6. LOSS OF CONSORTIUM

9/12/2011: COMPLAINT FOR DAMAGES FOR 1. MEDICAL MALPRACTICE 2. INTENTIONAL MISREPRESENTATION 3. NEGLIGENT MISREPRESENTATION 4. NEGLIGENT REFERRAL 5. NEGLIGENT HIRING 6. LOSS OF CONSORTIUM

Minute Order -

4/30/2012: Minute Order -

Minute Order -

7/11/2012: Minute Order -

PLAINTIFFS? T%IEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT?S PETITION TO COMPEL ARBITRATION: DECLARATION OF COUNSEL

7/31/2012: PLAINTIFFS? T%IEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT?S PETITION TO COMPEL ARBITRATION: DECLARATION OF COUNSEL

NOTICE OF MOTION AND MOTION OF DEFENDANT MARVIN A. PERER, M.D. TO STRIKE PORTIONS OF PLAINTIFFS? SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION OF VADIM BRASLA?SKY IN

8/24/2012: NOTICE OF MOTION AND MOTION OF DEFENDANT MARVIN A. PERER, M.D. TO STRIKE PORTIONS OF PLAINTIFFS? SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION OF VADIM BRASLA?SKY IN

VALENCIA AMBULATORY SURGERY CENTER, LLC?S REPLY TO PLAINTIFFS? OPPOSITION TO DEMURRER TO SECOND CAUSE OF ACTION FOR INTENTIONAL MISPRESENTATION

9/28/2012: VALENCIA AMBULATORY SURGERY CENTER, LLC?S REPLY TO PLAINTIFFS? OPPOSITION TO DEMURRER TO SECOND CAUSE OF ACTION FOR INTENTIONAL MISPRESENTATION

NOTICE OF LODGEMENT OF DEPOSITIONS OF CHARLES KLASKY IN SUPPORT OF PLAINTIFF?S SUPPLEMENTAL OPPOSITION TO DEFENDANT?S PETITION TO COMPEL ARBITRATION

11/21/2012: NOTICE OF LODGEMENT OF DEPOSITIONS OF CHARLES KLASKY IN SUPPORT OF PLAINTIFF?S SUPPLEMENTAL OPPOSITION TO DEFENDANT?S PETITION TO COMPEL ARBITRATION

NOTICE OF RELATED CASE

12/19/2012: NOTICE OF RELATED CASE

PROOF OF SERVICE SUMMONS -

10/17/2014: PROOF OF SERVICE SUMMONS -

TENTATIVE RULING

2/11/2015: TENTATIVE RULING

DEFENDANTS REPPLY TO PLAINTIFF'S RESPONSE TO MOTION TO STAY CIVIL ACTION PENDING COMPLETION OF ARBITRATION

6/17/2015: DEFENDANTS REPPLY TO PLAINTIFF'S RESPONSE TO MOTION TO STAY CIVIL ACTION PENDING COMPLETION OF ARBITRATION

NOTICE OF CHANGE OF FIRM NAME

1/19/2016: NOTICE OF CHANGE OF FIRM NAME

NOTICE OF ENTRY OF JUDGMENT OR ORDER

7/11/2017: NOTICE OF ENTRY OF JUDGMENT OR ORDER

Minute Order -

10/31/2017: Minute Order -

364 More Documents Available

 

Docket Entries

  • 09/16/2021
  • Hearing09/16/2021 at 08:30 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Further Status Conference

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  • 12/21/2020
  • DocketNotice (Notice of Ruling on Plaintiffs' Motion to Lift Stay and Notice of Status Conference Re: Arbitration); Filed by Michael Omidi (Defendant); Cindy Omidi (Defendant)

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  • 12/16/2020
  • Docketat 09:30 AM in Department 71, Monica Bachner, Presiding; Further Status Conference (Regarding Arbitration) - Held - Continued

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  • 12/16/2020
  • Docketat 09:30 AM in Department 71, Monica Bachner, Presiding; Hearing on Motion - Other (to Lift Stay) - Held - Motion Denied

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  • 12/16/2020
  • DocketRuling; Filed by Clerk

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  • 12/16/2020
  • DocketMinute Order ( (Motion of Plaintiffs, Gina Castleberry-Prewitt and Adrian Pre...)); Filed by Clerk

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  • 12/10/2020
  • DocketReply (to Opposition to Plaintiffs' Motion to Lift Stay); Filed by Adrian Prewitt (Plaintiff); Gina Castleberry- Prewitt (Plaintiff)

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  • 12/03/2020
  • DocketOpposition (The Top Surgeons Defendants' Joinder and Opposition to M.s Bui's Motion to Lift Stay); Filed by 1-800-Get-Thin (Defendant); Modern Institute for Plastic Surgery (Defendant); New Life Surgery Center (Defendant) et al.

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  • 12/03/2020
  • DocketOpposition (DEFENDANT MARVIN PERER, M.D.'S OPPOSITION TO PLAINTIFF'S MOTION TO LIFT STAY); Filed by Marvin Anton Perer, M.D. (Defendant)

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  • 12/03/2020
  • DocketStatus Report; Filed by Michael Omidi (Defendant); Cindy Omidi (Defendant)

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767 More Docket Entries
  • 10/20/2011
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 10/20/2011
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 10/20/2011
  • DocketProof of Service (not Summons and Complaint); Filed by Plaintiff/Petitioner

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  • 10/20/2011
  • DocketPROOFOF SERVICE OFSUMMONS

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  • 10/20/2011
  • DocketProof of Service (not Summons and Complaint); Filed by Plaintiff/Petitioner

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  • 10/20/2011
  • DocketProof of Service (not Summons and Complaint); Filed by Plaintiff/Petitioner

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  • 09/16/2011
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 09/12/2011
  • DocketCOMPLAINT FOR DAMAGES FOR 1. MEDICAL MALPRACTICE 2. INTENTIONAL MISREPRESENTATION 3. NEGLIGENT MISREPRESENTATION 4. NEGLIGENT REFERRAL 5. NEGLIGENT HIRING 6. LOSS OF CONSORTIUM

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  • 09/12/2011
  • DocketComplaint; Filed by Gina Castleberry- Prewitt (Plaintiff); Adrian Prewitt (Plaintiff)

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  • 09/12/2011
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC469464    Hearing Date: December 16, 2020    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

GINA CASTLEBERRY PREWITT, et al.,

vs.

WEIGHT LOSS CENTERS, et al.

Case No.: BC469464

Hearing Date: December 16, 2020

Plaintiffs’ motion to lift the stay is denied.

Chapter 7 Bankruptcy Trustee Linda T. Bui (“Trustee”) and Plaintiffs Gina Castleberry-Prewitt and Adrian Prewitt (collectively “Plaintiffs”) move for an order to lift the stay in the instant as to Defendant Marvin A. Perer, M.D. (“Perer”), 1-800-Get-Thin, LLC (“Get-Thin”), Modern Institute for Plastic Surgery, Inc. (“Modern Institute”), Valencia Ambulatory Surgery, LLC (“Valencia Ambulatory”), Top Surgeons, LLC (“Top Surgeons”), New Life Surgery, LLC (“New Life”), and Nuri Sabbagh (“Sabagh”) (collectively, “Defendants”). Plaintiffs move to lift the stay on the grounds that the arbitration of Plaintiffs’ claims against Defendants Julian Omidi (“Julian”), Michael Omidi (“Michael”), and Cindy Omidi (“Cindy”) (collectively “Omidi Defendants”) has no bearing on Plaintiffs’ claims against Defendants, which should be allowed to proceed, because Omidi Defendants and Defendants are not claiming they are bound by the acts or omissions of each other, and as such, the issues against Defendants, including the medical malpractice action against Perer, are not subsumed by the issues to be arbitrated. (Motion, pg. 2.)

Plaintiffs filed the instant motion on September 22, 2020. On December 3, 2020, three oppositions to the instant motion were filed. First, Perer filed an opposition. Second, Omidi Defendants, not including Julian, filed an opposition. Finally, Get-Thin, Modern Institute, Valencia Ambulatory, Top Surgeons, New Life, California Hospital Management & Collection, Inc. (“CHMC”), Surgery Center Management, LLC (“Surgery Center”), and De Vida USA, LLC (“De Vida”) (collectively “Top Surgeons Defendants”) filed a joinder to the Omidi Defendants’ opposition and opposition to the motion. The Court notes Plaintiff’s motion did not seek to lift the stay as to CHMC, Surgery Center, or De Vida. The Court also notes Julian is not a party to the opposition filed by the Omidi Defendants. In addition, Sabagh has not filed an opposition; however, a review of the Court record demonstrates Sabagh has not been served in the instant action. On December 10, 2020, Plaintiffs filed a reply to Perer’s opposition. As of the date of this hearing, Plaintiffs have not filed replies to the oppositions of Omidi Defendants or Top Surgeons Defendants.

Background

On January 18, 2017, the Court denied Omidi Defendants’ renewed Petition to Compel Arbitration, which the Omidi Defendants appealed, and on March 25, 2019, the Court of Appeal reversed and remanded the ruling. Specifically, in its Remittitur, the Court of Appeal directed the Court to enter a new order granting the petition to compel arbitration and ordered that, on remand the Court would have the opportunity to exercise its discretion under C.C.P. §1281.2, “to determine the timing of the arbitration and the proceedings with parties not subject to the arbitration agreement.” (5/28/19 Remittitur, pg. 21.)

Standing of Chapter 7 Bankruptcy Trustee

Trustee has standing to bring the instant motion notwithstanding the fact she has not substituted in as plaintiff in the instant action. Omidi Defendants and Top Surgeon Defendants both argue the Court should deny the instant motion due to the lack of the Trustee’s standing. (O-Opposition, pgs. 1-5; T-Opposition, pgs. 1-2.) However, the authorities cited by Omidi Defendants and Top Surgeon Defendants relating to the procedures for substitution of parties do not involve whether a Chapter 7 Bankruptcy Trustee, the real party in interest of the Plaintiffs’ claims, is required to substitute in as plaintiff in state court proceedings commenced prior to the bankruptcy.

“In the context of bankruptcy proceedings, it is well understood that ‘a trustee, as the representative of the bankruptcy estate, is the real party in interest, and is the only party with standing to prosecute causes of action belonging to the estate once the bankruptcy petition has been filed.’ The commencement of Chapter 7 bankruptcy extinguishes a debtor's legal rights and interests in any pending litigation, and transfers those rights to the trustee, acting on behalf of the bankruptcy estate.  Thus, ‘[g]enerally speaking, a pre-petition cause of action is the property of the Chapter 7 bankruptcy estate, and only the trustee in bankruptcy has standing to pursue it.’” (M & M Foods, Inc. v. Pacific American Fish Co., Inc. (2011) 196 Cal.App.4th 554, 562 (Citations omitted).)

Courts are split on whether the trustee in Chapter 7 bankruptcy proceedings must be substituted as plaintiff in state court proceedings commenced prior to bankruptcy, or whether such substitution is optional, and the proceedings can continue in the debtor's name (Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Group 2020) ¶¶2:506, 2:7; see ABA Recovery Services, Inc. v. Konold (1988) 198 Cal.App.3d 720, 726 [substitution of trustee optional]; see also Bostanian v. Liberty Savings Bank (1997) 52 Cal.App.4th 1075, 1083 [debtor may not prosecute action, trustee must prosecute action].) However, even in Bostanian, in which the Court found the debtor did not have the option to pursue the action and it is the trustee who must prosecute the action, the Court of Appeal made no holding as to whether the trustee must substitute in as plaintiff in order to pursue the action and instead determined that until the debtor secures the trustee’s abandonment of the claim, the debtor lacks standing. Accordingly, the Court finds Omidi Defendants and Top Surgeon Defendants have not cited to authority requiring a Chapter 7 Bankruptcy Trustee, which has standing to pursue the debtors’ claims as the real party in interest, to formally substitute in as plaintiff in an action to pursue claims that were filed prior to the bankruptcy.

Motion to Lift Stay

C.C.P. §1281.2(d) provides that: “If the court determines that a party to the arbitration is also a party to litigation in a pending court action or special proceeding with a third party as set forth under [C.C.P. §1281.2(c)] the court (1) may refuse to enforce the arbitration agreement and may order intervention or joinder of all parties in a single action or special proceeding; (2) may order intervention or joinder as to all or only certain issues; (3) may order arbitration among the parties who have agreed to arbitration and stay the pending court action or special proceeding pending the outcome of the arbitration proceeding; or (4) may stay arbitration pending the outcome of the court action or special proceeding.”

C.C.P. §1281.2(c), provides that: “A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact…”

Plaintiffs submit no argument, evidence, or case authority in support of their motion to lift stay. (Motion, pgs. 1-2.) The Court finds Plaintiffs’ motion is insufficiently supported.

In opposition, Perer argues that because the gravamen of Plaintiffs’ claim in both her action against Perer and the Arbitration Defendants are identical, namely alleged injuries arising out of the subject lap band procedure, this constitutes an overlapping issue between the two proceedings which is sufficient to require the imposition of the stay. (P-Opposition, pg. 3.) In reply, Plaintiffs assert that Perer is not a party to the arbitration and that the arbitration against Arbitration Defendants is based on their alleged fraud in advertising for a gastric bypass procedure, and tests and pre-ops in preparation thereof, regardless of whether a patient’s insurance would ultimately cover the procedure. (Reply, pg. 2.) Plaintiffs argue that, therefore, the case against Arbitration Defendants is only for fraud and that but for such fraud she would not have submitted to the endoscopy by Perer, in which her esophagus was perforated, and as such, Perer’s negligence in performing the endoscopy is not at issue in the arbitration. (Reply, pg. 2.) However, Plaintiffs raise these issues for the first time in reply, and as such, Perer and Top Surgeons Defendants have not had an opportunity to respond to them. Moreover, Plaintiffs submit no argument, even in reply, as to why the stay should be lifted as to Top Surgeons Defendants, especially given the Court of Appeal’s determination that Plaintiffs’ claims against the Omidi Defendants were subject to arbitration because of the broad provisions of the arbitration agreement providing for “all claims” that “arise out of or relate to treatment or service provided” and because the Omidis were alleged to have controlled and directed the individuals and entities that communicated with Gina and her insurance company and to have owned, operated and controlled the entity that hired and/or contracted with the medical personnel who treated Gina as well as the facility where she received that treatment. (5/28/19 Remittitur, pg. 21.)

In opposition, Omidi Defendants argue that failure to maintain the stay would prejudice them because the July 31, 2013 First Amended Complaint alleges that Omidi Defendants are responsible for the actions of Perer, misrepresented Perer’s qualifications, submitted false billings, misrepresented his services, and engaged in false advertising. (O-Opposition, pgs. 2-3, 5.) Omidi Defendants argue that proceeding to try the case against Perer and Top Surgeons Defendants in the absence of Omidi Defendants is a violation of due process. (O-Opposition, pgs. 3, 5.) Specifically, Omidi Defendants argue that they would be prejudiced by being precluded from participation in a proceeding involving their own alleged misconduct and that Top Surgeons Defendants would likewise be prejudiced given Plaintiffs have alleged they are alter egos of Omidi Defendants. (O-Opposition, pg. 3.) Plaintiffs not filed a reply to the Omidi Defendants, and submits no argument relating to whether their action against Omidi Defendants overlap with the causes of action for which they seek the stay lifted—namely, those asserted against Perer and Top Surgeons Defendants.

Based on the foregoing, Plaintiffs’ motion to lift the stay is denied.

Dated: December _____, 2020

Hon. Monica Bachner

Judge of the Superior Court

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