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This case was last updated from Los Angeles County Superior Courts on 07/07/2019 at 13:58:10 (UTC).

KIM D MIDDLETON ET AL VS HOLLYWOOD HEALTH CENTER INC ET AL

Case Summary

On 09/25/2015 KIM D MIDDLETON filed a Personal Injury - Medical Malpractice lawsuit against HOLLYWOOD HEALTH CENTER INC. This case was filed in Los Angeles County Superior Courts, Governor George Deukmejian Courthouse located in Los Angeles, California. The Judge overseeing this case is PATRICK T. MADDEN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5760

  • Filing Date:

    09/25/2015

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Governor George Deukmejian Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

PATRICK T. MADDEN

 

Party Details

Plaintiffs and Guardian Ad Litems

CORRAL MELISSA

MIDDLETON KIM D.

DONTE SNOW JR.

MELISSA CORRAL

MCMURRAY & HENRIKS LLP

KIM D. MIDDLETON

Plaintiff and Petitioner

MIDDLETON KIM D.

Defendants and Respondents

BRAR HARMINDER S. M.D.

DASHER DENNIS SCOTT M.D.

DOES 1 THROUGH 20

HOLLYWOOD HEALTH CENTER INC. A MEDICAL

KAISER FOUNDATION HEALTH PLAN INC.

KAISER FOUNDATION HOSPITALS

ROSENTHAL ELAN H. M.D.

KAISER FOUNDATIOIN HEALTH PLAN INC.

HOLLYWOOD HEALTH CENTER INC.

DENNIS SCOTT DASHER M.D.

SOUTHERN CALIFORNIA PERMANENTE MEDICAL

Minor

SNOW DONTE JR.

Attorney/Law Firm Details

Plaintiff, Petitioner and Minor Attorneys

HENRIKS YANA

MCMURRAY RANDY HUE

MCMURRAY HENRIKS LLP

Defendant and Respondent Attorneys

BRANDMAYER KENT T. ESQ.

DE HAAS LOUIS H. ESQ.

BRANDMEYER KENT THOMAS

LAW & BRANDMEYER LLP

EVANS ELIZABETH ANN

LA FOLLETTE JOHNSON DE HAAS & AMES

OZERAN DAVID JAY

DEHAAS LOUIS HENRY JR

COOPER SEAN LAURENCE

KIM SILVER LISA

PLUMA GILLIAN N

 

Court Documents

OPPOSITION TO PLAINTIFF'S MOTION FOR AN ORDER IMPOSING MONETARY SANCTIONS ON DEFENDANTS

3/20/2018: OPPOSITION TO PLAINTIFF'S MOTION FOR AN ORDER IMPOSING MONETARY SANCTIONS ON DEFENDANTS

PLAINTIFF DONTE SNOW, JR.'S REPLY TO KAISER DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR AN ORDER IMPOSING MONETARY SANCTIONS ON DEFENDANTS; SUPPLEMENTAL DECLARATION OF YANA G. HENRIKS

3/26/2018: PLAINTIFF DONTE SNOW, JR.'S REPLY TO KAISER DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR AN ORDER IMPOSING MONETARY SANCTIONS ON DEFENDANTS; SUPPLEMENTAL DECLARATION OF YANA G. HENRIKS

Reply

11/30/2018: Reply

Answer

12/24/2018: Answer

NOTICE OF CASE MANAGEMENT CONFERENCE

6/8/2016: NOTICE OF CASE MANAGEMENT CONFERENCE

CIVIL DEPOSIT

8/16/2016: CIVIL DEPOSIT

DEFENDANTS DENNIS SCOTT DASHER, M.D. AND HOLLYWOOD HEALTH CENTER, INC., A MEDICAL CORPORATION?S NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFFS' SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUT

10/6/2016: DEFENDANTS DENNIS SCOTT DASHER, M.D. AND HOLLYWOOD HEALTH CENTER, INC., A MEDICAL CORPORATION?S NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFFS' SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUT

ANSWER TO SECOND ANENDED COMPLAINT

12/20/2016: ANSWER TO SECOND ANENDED COMPLAINT

MOTION IN LIMINE NO.5 OF DEFENDANTS DENNIS SCOTT DASHER, M.D. AND HOLLYWOOD HEALTH CENTER, INC. LIMITING TESTIMONY OF UNDESIGNATED EXPERTS; DECLARATION OF ELIZABETH A. EVANS, ESQ.; [PROPOSED] ORDER

7/14/2017: MOTION IN LIMINE NO.5 OF DEFENDANTS DENNIS SCOTT DASHER, M.D. AND HOLLYWOOD HEALTH CENTER, INC. LIMITING TESTIMONY OF UNDESIGNATED EXPERTS; DECLARATION OF ELIZABETH A. EVANS, ESQ.; [PROPOSED] ORDER

PLAINTIFF'S NON-OPPOSITION TO DEFENDANTS KAISER FOUNDATION HEALTH PLAN, INC. AND KAISER FOUNDATION HOSPITALS' MOTION IN LIMINE NO. 5 RE: MALPRACTICE CLAIMS AGAINST DEFENDANTS

7/24/2017: PLAINTIFF'S NON-OPPOSITION TO DEFENDANTS KAISER FOUNDATION HEALTH PLAN, INC. AND KAISER FOUNDATION HOSPITALS' MOTION IN LIMINE NO. 5 RE: MALPRACTICE CLAIMS AGAINST DEFENDANTS

NOTICE OF NON-OPPOSITION TO DEFENDANTS DENNIS SCOTT DASHER, M.D. AND HOLLYWOOD. HEALTH CENTER, INC. IN SUPPORT OF DEFENDANTS' MOTION IN LIMINE NO. 8 PRECLUDING MENTION OF DEFENDANTS', OR THEIR EXPERTS

7/28/2017: NOTICE OF NON-OPPOSITION TO DEFENDANTS DENNIS SCOTT DASHER, M.D. AND HOLLYWOOD. HEALTH CENTER, INC. IN SUPPORT OF DEFENDANTS' MOTION IN LIMINE NO. 8 PRECLUDING MENTION OF DEFENDANTS', OR THEIR EXPERTS

REPLY OF DEFENDANTS DENNIS SCOTT DASHER, M.D. AND HOLLYWOOD HEALTH CENTER, INC. IN SUPPORT OF DEFEN1ANTS' MOTION IN LIMINE NO. 10 TO PRECLUDE PRE-CONDITIONING OF THE JURY DURING VOIR DIRE

7/28/2017: REPLY OF DEFENDANTS DENNIS SCOTT DASHER, M.D. AND HOLLYWOOD HEALTH CENTER, INC. IN SUPPORT OF DEFEN1ANTS' MOTION IN LIMINE NO. 10 TO PRECLUDE PRE-CONDITIONING OF THE JURY DURING VOIR DIRE

[PROPOSED] JOINT EXHIBIT LIST

7/28/2017: [PROPOSED] JOINT EXHIBIT LIST

TRIAL BRIEF OF DEFENDANTS DENNIS SCOTT DASHER, M.D. AND HOLLYWOOD HEALTH CENTER, INC.

7/28/2017: TRIAL BRIEF OF DEFENDANTS DENNIS SCOTT DASHER, M.D. AND HOLLYWOOD HEALTH CENTER, INC.

DEFENDANTS, KAISER FOUNDATION HEALTH PLAN, INC. AND KAISER FOUNDATION HOSPITAL'S TRIAL BRIEF

7/31/2017: DEFENDANTS, KAISER FOUNDATION HEALTH PLAN, INC. AND KAISER FOUNDATION HOSPITAL'S TRIAL BRIEF

DEFENDANTS, KAISER FOUNDATION HEALTH PLAN, INC. AND KAISER FOUNDATION HOSPITALS' OPPOSITION TO PLAINTIFF'S EX PARTE TO EXCLUDE EXPERT WITNESSES AND TO CONTINUE THE TRIAL DATE; ETC

8/1/2017: DEFENDANTS, KAISER FOUNDATION HEALTH PLAN, INC. AND KAISER FOUNDATION HOSPITALS' OPPOSITION TO PLAINTIFF'S EX PARTE TO EXCLUDE EXPERT WITNESSES AND TO CONTINUE THE TRIAL DATE; ETC

PROPOSED AMENDED JOINT WITNESS LIST

8/4/2017: PROPOSED AMENDED JOINT WITNESS LIST

PLAINTIFF'S MOTION IN LIMINE NO. 3 TO PRECLUDE DR. FISEIBEIN FROM TESTIFYING AT TRIAL AND EXCLUDE ANY EVIDENCE IMPROPERLY OBTAINED BY DR. FISHBEIN; DECLARATION OF ERIN MELODY-ROSENFELD

8/18/2017: PLAINTIFF'S MOTION IN LIMINE NO. 3 TO PRECLUDE DR. FISEIBEIN FROM TESTIFYING AT TRIAL AND EXCLUDE ANY EVIDENCE IMPROPERLY OBTAINED BY DR. FISHBEIN; DECLARATION OF ERIN MELODY-ROSENFELD

255 More Documents Available

 

Docket Entries

  • 06/25/2019
  • Opposition (TO PLAINTIFF'S MOTION TO CONTINUE THE TRIAL DATE; DECLARATION OF LOUIS H. DEHAAS); Filed by Kaiser Foundatioin Health Plan, Inc. (Defendant); Kaiser Foundation Hospitals (Defendant); Harminder S. M.D. Brar (Defendant) et al.

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  • 05/29/2019
  • Declaration (of Yana G. Henriks (1 exhibit)); Filed by Donte, Jr. Snow (Legacy Party)

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  • 05/29/2019
  • Motion to Continue Trial Date; Filed by JR. DONTE SNOW (Plaintiff)

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  • 03/08/2019
  • at 09:00 AM in Department 39; Hearing on Motion to Continue Trial - Held - Motion Denied

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  • 03/08/2019
  • Minute Order ( (Hearing on Motion to Continue Trial)); Filed by Clerk

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  • 03/08/2019
  • Stipulation and Order to use Certified Shorthand Reporter; Filed by Hollywood Health Center, Inc., A Medical (Defendant)

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  • 03/06/2019
  • Order (To Strike Language From The Second Amended Complaint); Filed by Kaiser Foundatioin Health Plan, Inc. (Defendant); Kaiser Foundation Hospitals (Defendant); Harminder S. M.D. Brar (Defendant) et al.

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  • 03/06/2019
  • Stipulation Between Plaintiff Melissa Corral As Guardian Ad Litem For Donte Snow, Jr.,And Kaiser Foundation Hospital Health Plan, Inc. Kaiser Foundation Hospitals, Et Al To Strike Language From Second Amended Complaint; And Order; Filed by Kaiser Foundatioin Health Plan, Inc. (Defendant); Kaiser Foundation Hospitals (Defendant)

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  • 03/01/2019
  • Reply (DEFENDANTS KAISER FOUNDATION HEALTH PLAN, INC., KAISER FOUNDATION HOSPITALS, HARMINDER BRAR, M.D. AND ELAN ROSENTHAL, M.D. 'S REPLY BRIEF TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO CONTINUE THE TRIAL DATE); Filed by Kaiser Foundatioin Health Plan, Inc. (Defendant); Kaiser Foundation Hospitals (Defendant); Harminder S. M.D. Brar (Defendant) et al.

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  • 02/19/2019
  • Declaration (of Yana G. Henriks); Filed by Melissa Corral (Legacy Party)

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570 More Docket Entries
  • 11/18/2015
  • Proof of Service (not Summons and Complaint); Filed by Kim D. Middleton (Plaintiff)

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  • 11/10/2015
  • Summons Issued; Filed by Kim D. Middleton (Plaintiff)

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  • 11/10/2015
  • SUMMONS

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  • 10/09/2015
  • FIRST AMENDED COMPLAINT 1. PROFESSIONAL NEGLIGENCE (MEDICAL MALPRACTICE) 2. WRONGFUL DEATH 3. FRAUD 4 BREACH OF FIDUCIARY DUTY DEMAND FOR JURY TRIAL

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  • 10/09/2015
  • Ord Apptng Guardian Ad Litem; Filed by Plaintiff/Petitioner

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  • 10/09/2015
  • First Amended Complaint; Filed by Kim D. Middleton (Plaintiff); Donte, Jr. Snow (Legacy Party)

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  • 10/06/2015
  • APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

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  • 10/06/2015
  • Application ; Filed by Plaintiff/Petitioner

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  • 09/25/2015
  • Complaint; Filed by Kim D. Middleton (Plaintiff); MCMURRAY & HENRIKS, LLP (Plaintiff); MELISSA CORRAL (Plaintiff) et al.

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  • 09/25/2015
  • COMPLAINT FOR DAMAGES 1. PROFESSIONAL NEGLIGENCE (MEDICAL MALPRACTICE); ETC

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Tentative Rulings

Case Number: BC595760    Hearing Date: September 18, 2020    Dept: 39

[TENTATIVE] RULING:

The court DENIES the motion.

The court CORRECTS its August 4, 2017 minute order to reflect that the court denied Plaintiff’s request to substitute proposed defendant SCPMG for Doe Defendant 1, pursuant to the court’s authority to correct clerical mistakes in orders pursuant to Code of Civil Procedure section 473(d).

Defendants are ordered to give notice.

Background

This case arises out of allegations that Defendants Hollywood Health Center, Inc. (“Hollywood Health”), Dennis Scott Dasher, M.D. (“Dasher”), Kaiser Foundation Health Plan, Inc. and Kaiser Foundation Hospitals (collectively “Kaiser”), Harminder S. Brar, M.D. (“Brar”), and Elan H. Rosenthal, M.D. (“Rosenthal”) (collectively “Defendants”) failed to provide adequate medical care to Donte M. Snow (“Decedent”) by failing to: (1) see a clear infiltration to Decedent’s lungs that was visible on Decedent’s x-ray films; and (2) diagnose Decedent’s pneumonia. Plaintiff Melissa Corral (“Corral” or “Plaintiff”) asserts claims as the guardian ad litem for Donte Snow, Jr., Decedent’s son, who is a minor (“Snow”).

Plaintiff filed the Second Amended Complaint (“SAC”) on September 8, 2016, alleging four causes of action for: (1) professional negligence (medical malpractice); (2) wrongful death; (3) fraud; and (4) breach of fiduciary duty. Plaintiff asserts the first and second causes of action against all Defendants and asserts the third cause of action against Brar, Rosenthal, and the Doe Defendants.

On December 16, 2016, the court sustained the Kaiser Defendants’ demurrer to the fourth cause of action without leave to amend. Plaintiff Corral filed a request for dismissal on December 19, 2018, dismissing the fourth cause of action without prejudice. Plaintiff Kim D. Middleton (“Middleton”) previously asserted claims in this action but was dismissed from the action on January 10, 2017, after the court sustained Defendants’ demurrer to Middleton’s causes of action, without leave to amend, for lack of standing.

On August 2, 2017, Plaintiff filed an Amendment to Complaint naming proposed defendant Southern California Permanente Medical Group (“SCPMG”) as Doe Defendant 1. At the Final Status Conference on August 4, 2017, the Honorable Elizabeth R. Feffer stated she would not sign the Doe Amendment after lengthy discussion with the parties. 8/20/20 Henricks Decl. Ex. 5 (“Pl. Doe Amend. Trial Br.”), at 3-4; 8/21/17 Hendricks Decl. at ¶ 5.

On August 21, 2017, Plaintiff filed a document titled: “Plaintiff’s Trial Brief Regarding Doe Amendment Adding Southern California Permanente Medical Group; Request for Relief Pursuant to CCP §473(b)” (the “Doe Amendment Trial Brief”). 8/20/20 Hendricks Decl. Ex. 5. The action was subsequently assigned to the Honorable Patrick T. Madden for trial, who ruled on various pretrial motions in September 2017. Plaintiff did not raise the request to add SCPMG as a Doe Defendant with the trial court before the case was transferred back to this department, on April 3, 2018, for supervision of additional pre-trial matters. See 8/20/20 Hendricks Decl. Exs. 5, 8-10. Since then, Plaintiff has not requested a hearing on the issues raised in the Doe Amendment Trial Brief or otherwise renewed her request before Judge Feffer.

On August 20, 2020, Plaintiff filed the subject Motion for an Order Confirming Plaintiff’s Doe Amendment. Plaintiff now moves for the court to confirm and sign, or deem signed, Plaintiff’s August 2, 2017 amendment to the SAC, substituting the name of proposed Defendant SCPMG in place of the fictitious Defendant “Doe 1.” Defendants Kaiser, Brar, and Rosenthal oppose the motion.

Request for Judicial Notice

Defendants request the court take judicial notice of two federal court opinions. Requests for judicial notice are governed by the Evidence Code and relate to judicial notice of evidence that is presented to the court. The matters of which Defendants request the court take judicial notice are court opinions that Defendants cite as persuasive legal authority. See Opp. at 4. Defendants do not submit these documents as evidence in this matter, and these opinions, therefore, are not appropriately the subject of a request for judicial notice. Accordingly, the court DENIES the request.

Discussion

I. Legal Standard

Code of Civil Procedure section 474 states, in relevant part: “When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly….” Code Civ. Proc. § 474. All subsequent statutory references will be to the Code of Civil Procedure unless otherwise specified.

“‘The phrase ‘ignorant of the name of a defendant’ is broadly interpreted to mean not only ignorant of the defendant's identity, but also ignorant of the facts giving rise to a cause of action against that defendant.’ [Citations.] ‘[T]he relevant inquiry when the plaintiff seeks to substitute a real defendant for one sued fictitiously is what facts the plaintiff actually knew at the time the original complaint was filed.’ [Citation.]” San Diego Navy Broadway Complex Coal. v. Cal. Coastal Comm’n, 40 Cal. App. 5th 563, 579 (2019). For a defendant to be added as a Doe defendant, the plaintiff must have been genuinely ignorant of the proposed defendant’s identity and the facts that give rise to the cause of action against the proposed defendant. Id. at 580-81.

Although section 474 does not specify how and in what manner an amendment to a complaint to substitute a fictitiously named defendant’s true name may be made, California courts have recognized that the amendment may be made of course within the time prescribed in section 472 or, otherwise, by leave of court under section 473. Gutierrez v. Superior Court, 243 Cal. App. 2d 710, 723 (1966) (superseded on other grounds as recognized in Rosas v. Superior Court, 25 Cal. App. 4th 671, 674 (1994)).

Plaintiff did not file the Amendment to Complaint within the times set forth under section 472. As such, this amendment is subject to the applicable standards for an amendment under section 473(a). Section 473(a)(1) states: “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…. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars….” Code Civ. Proc. § 473(a)(1).

Under California law, leave to amend is to be granted liberally, to accomplish substantial justice for both parties. Code Civ. Proc. § 473(a); Hirsa v. Superior Court, 118 Cal. App. 3d 486, 488-89 (1981). “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….” Morgan v. Superior Court, 172 Cal. App. 2d 527, 530 (1959). Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” Solit v. Tokai Bank, Ltd. New York Branch, 68 Cal. App. 4th 1435, 1448 (1999).

“Assuming proper notice, the trial court has wide discretion in determining whether to allow the amendment, but the appropriate exercise of that discretion requires the trial court to consider a number of factors: ‘including the conduct of the moving party and the belated presentation of the amendment. The law is well settled that a long-deferred presentation of the proposed amendment without a showing of excuse for the delay is itself a significant factor to uphold the trial court’s denial of the amendment. [Citation.]’” Leader v. Health Ind. of America, Inc., 89 Cal. App. 4th 603, 613 (2001). “The power to permit amendments is interpreted very liberally as long as the plaintiff does not attempt to state facts which give rise to a wholly distinct and different legal obligation against the defendant.” Herrera v. Superior Court, 158 Cal. App. 3d 255, 259 (1984).

II. Analysis

A. The Court’s August 4, 2017 Denial of the Doe Amendment

Plaintiff filed the document titled Amendment to Complaint on form LACIV 105 (“the Doe Amendment”) on August 2, 2017. This request constituted a motion. See Code Civ. Proc. § 1003 (“Every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion.”). Plaintiff admits her request for an amendment was discussed at the August 4, 2017 Final Status Conference (“FSC”) and that Judge Feffer stated she would not sign the Doe Amendment after lengthy discussion. 8/20/20 Henriks Decl. Ex. E at 3-4. This refusal to enter the requested order constituted a rejection of Plaintiff’s motion for the requested order. See Code Civ. Proc. § 1008(b).

Plaintiff argues Judge Feffer’s refusal to sign the Doe Amendment did not constitute a ruling because it is not reflected in the minute order. Mot. at 3, citing 8/4/17 Minute Order; 8/20/20 Henriks Decl. ¶ 7. However, both Plaintiff and her attorney, Yana G. Henriks (“Henriks”), admitted in August 2017 that Judge Feffer refused to sign the Doe Amendment in open court. Henriks Decl. Ex. 5 at 3-4; 8/21/20 Henriks Decl. ¶ 5. Although Plaintiff now characterizes that refusal as a decision to defer ruling on the amendment to the court that would try the matter, Plaintiff does not present the transcript of the August 4, 2017 proceeding or present any evidence to demonstrate Judge Feffer intended to leave this application for a different judge to determine. The parties’ contemporaneous papers indicate otherwise.

In her August 21, 2017 Doe Amendment Trial Brief, Plaintiff requested relief from Judge Feffer’s refusal to issue an order granting the Doe Amendment under Code of Civil Procedure section 437(b). 8/21/20 Henriks Decl. Ex. 5 at 4-5. That subdivision only applies where a judgment, dismissal, order, or other proceeding was taken against a party. See Code Civ. Proc. § 473(b). Had Judge Feffer only declined to rule on the matter and deferred the decision to the trial judge, Plaintiff would have submitted a request to the trial court in the first instance, rather than requesting relief under section 473(b). Although Plaintiff now characterizes this request as a request for relief “in the event the Court finds that there was unreasonable delay in the filing of the amendment” (Mot. at 1), Plaintiff’s Doe Amendment Trial Brief makes clear that Plaintiff’s request was for relief from Judge Feffer’s refusal to grant the motion. See 8/21/20 Henricks Decl. Ex. 5 at 3-5. It is also telling that Plaintiff’s attorney has not attested, under penalty of perjury, that Judge Feffer deferred this ruling and that counsel instead has admitted Judge Feffer refused to sign the requested order. See 8/21/17 Henriks Decl. at ¶ 5.

Accordingly, the court finds that Judge Feffer’s refusal to sign the Doe Amendment constituted a denial of Plaintiff’s motion to name SCPMG as a Doe defendant, on its merits.

The court, in turn, CORRECTS its August 4, 2017 minute order to reflect that Judge Feffer denied Plaintiff’s request to substitute proposed defendant SCPMG for Doe Defendant 1, pursuant to its authority to correct clerical mistakes in orders under Code of Civil Procedure section 473(d).

B. Reconsideration Under Code of Civil Procedure § 1008(b)

“A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.” Code Civ. Proc. § 1008(b). A party moving for reconsideration under section 1008(b) must give a satisfactory explanation for the previous failure to present the allegedly new or different evidence or legal authority offered in the second application. Kerns v. CSE Ins. Group., 106 Cal. App. 4th 368, 383 (2003).

Plaintiff does not identify any new or different facts, circumstances, or law that warrant reconsideration of the court’s August 4, 2017 denial of her request. The court therefore DENIES the motion as an improper motion for reconsideration of Judge Feffer’s August 4, 2017 ruling.

C. Request for Relief Under Code of Civil Procedure § 473(b)

Plaintiff alternatively requests relief from the court’s ruling under section 473(b).

Code of Civil Procedure section 473(b) provides for two distinct types of relief — commonly differentiated as “discretionary” and “mandatory” — from certain prior actions or proceedings in the trial court. Luri v. Greenwald, 107 Cal. App. 4th 1119, 1124 (2003).

The discretionary portion of section 473(b) provides, in relevant part: “The court may, upon 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.” Code Civ. Proc. § 473(b).

The mandatory portion of section 473(b) states: “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.” Code Civ. Proc. § 473(b).

Plaintiff contends she is entitled to relief under the mandatory portion of section 473(b). Mot. Mot. 7; Reply 3. The court disagrees.

Unlike the discretionary portion of this section, the mandatory portion only applies to requests for relief from default, dismissal, or entry of judgment and does not apply to requests for relief from orders or other proceedings taken against a party. Code Civ. Proc. § 473(b). As the subject motion does not involve entry of default, default judgment, or dismissal against a party, Plaintiff may only seek relief under the discretionary portion of section 473(b).

Plaintiff filed the Doe Amendment Trial Brief on August 21, 2017. 8/20/20 Henriks Decl. Ex. 5. This document was filed within 6 months of the court’s August 4, 2017 order and the request was timely. See Code Civ. Proc. § 473(b). This brief does not appear to have been signed by Plaintiff’s counsel, as is required under Code of Civil Procedure section 128.7(a). Nevertheless, as Defendants have not objected on this ground and do not appear to have called this omission to the attention of Plaintiff’s counsel, the court will not strike this brief on this basis. See Code Civ. Proc. § 128.7(a). Plaintiff’s attorney signed the moving papers that were filed on August 20, 2020, and the court will deem Plaintiff to have substantially complied with the requirements of section 128.7(a), for purposes of considering Plaintiff’s request for relief.

For a party to be entitled to relief under the discretionary portion of section 473(b), “‘the acts which brought about the default must have been the acts of a reasonably prudent person under the same circumstances.’” Jackson v. Bank of America, 141 Cal. App. 3d 55, 58 (1983). “‘Neither mistake, inadvertence, or neglect will warrant relief unless upon consideration of all the evidence it is found to be of the excusable variety.’” Id.

Plaintiff contends her attorney did not file the Doe Amendment at an earlier time, in December 2016, because an associate attorney who worked for her attorney erroneously failed to file and serve the Doe Amendment when Plaintiff first became aware that SCPMG was a necessary party to this litigation. Mot. 7; 8/20/20 Henriks Decl. ¶ 5. According to Plaintiff’s attorney, she did not learn the Doe Amendment had not been filed until the parties came together to meet and confer regarding the Special Verdict Form for use at trial. 8/20/20 Henriks Decl. ¶ 6.

Plaintiff, however, does not offer any explanation at to why her attorney did not make any attempts to serve the SAC on SCPMG or to propound discovery, as her attorney would have been expected to do had counsel actually believed SCPMG had been added as a defendant in December 2016. See Code Civ. Proc. § 471.5(a) (requiring service of an amended complaint on the defendants affected thereby); see also 9/4/20 Pluma Decl. ¶ 3. Due process and California law require a plaintiff to serve a defendant with a copy of the summons and operative complaint to prosecute her claims against the defendant. See, e.g., Code Civ. Proc. § 413.10, et seq. Similarly, a newly added defendant must be granted the right to fully defend itself including through challenges to the pleadings, discovery, and dispositive motions. E.g., Code Civ. Proc. §§ 430.10, et seq., 437c, 2017.010; see also A.N. v. County of Los Angeles, 171 Cal. App. 4th 1058, 1060, 1067-68 (2009) (recognizing that Doe defendants may challenge a plaintiff’s use of the Doe amendment procedure authorized by section 474 “by way of an evidence-based motion, which argues that the plaintiff ‘unreasonably delayed’ his or her filing of the challenged amendment.”).

A reasonably prudent attorney who filed an application to add a proposed defendant as a Doe defendant would have followed-up on the status of the application more than one week prior to the Final Status Conference and before engaging in meet and confer regarding the Special Verdict Form for use at trial, if only to ensure there was sufficient time to effect service and for the parties to complete all pretrial motions and discovery. Plaintiff’s failure to follow-up or attempt service before the parties met to discuss the special verdict form for use at trial constitutes inexcusable neglect separate from any mistake her attorneys may have made in failing to file the Doe Amendment in December 2016. See Jackson, 141 Cal. App. 3d at 58.

On reply, Plaintiff argues she could not have served SCPMG before the court signed the proposed amendment. Reply at 2. Plaintiff does not, however, offer any explanation for why her attorneys did not engage in any follow-up to determine if the Doe Amendment had been signed between December 2016 and August 2, 2017. Plaintiff, thus, fails to demonstrate the court refused to allow her amendment due to her counsel’s “mistake, inadvertence, surprise, or excusable neglect.” See Code Civ. Proc. § 473(b).

In sum, the court finds that Plaintiff’s explanation for her failure to file the Doe Amendment at an earlier date is not credible, and that Plaintiff is not entitled to discretionary relief under section 473(b). The court, therefore, DENIES Plaintiff’s request for relief under section 473(b). For the sake of completeness, the court will address the substance of Plaintiff’s request on its merits.

D. Request for a Doe Amendment Under Code of Civil Procedure § 474

Leave to amend may be denied for unreasonable delay after a plaintiff ascertains a Doe defendant’s identity that results in prejudice to the defendant. A.N., 171 Cal. App. 4th at 1068-69. The Court of Appeal has recognized that “a party who is drawn into litigation on the eve of trial will face difficulties in preparing a defense in such short order,” sufficient to establish prejudice. Id.

Plaintiff originally filed the Doe Amendment on August 2, 2017 – two days prior to the Final Status Conference and less than one month before the scheduled trial. Plaintiff’s attorney admitted she became aware that SCPMG was a necessary party to the litigation in December 2016, but argues she did not learn the Doe Amendment had not been filed until the parties met and conferred regarding the Special Verdict Form for use at trial. 8/21/17 Henriks Decl. ¶ 5.

Plaintiff argued, at that time, that SCPMG would not be prejudiced by being added as a defendant since SCPMG could step into the case without the need for any additional discovery, substantive work, or delay of trial. 8/20/20 Henriks Decl. Ex. 5 at 4-5; see also Mot. at 8. According to Plaintiff, “[t]he sole theory of liability against SCPMG is under agency/vicarious liability, as principals/employers of Dr. Brar and Dr. Rosenthal, and therefore any defenses, discovery, expert testimony, and trial planning efforts to establish a lack of liability by the doctors would apply to SCPMG in the same manner as the current Kaiser entity defendants.” 8/20/20 Henriks Decl. Ex. 5 at 8.

Plaintiff does not cite any legal authority for the proposition that a defendant can be denied the right and opportunity to conduct its own defense in an action because it is being sued under the same theory of liability as another defendant. Plaintiff’s argument is contrary to due process and California law. See, e.g., Code Civ. Proc. §§ 430.10 (recognizing that each defendant has a right to object by demurrer or by answer), 437c (recognizing that all parties have a right to move for summary judgment), 2017.010 (recognizing that all parties have a right to obtain discovery). To the contrary, the Court of Appeal has recognized that a Doe defendant must be given a right to conduct its own defense, regardless of whether it had been involved in discovery as a non-party. A.N., 171 Cal. App. 4th at 1069 (finding disqualifying prejudice because “allowing the Doe amendments would have resulted in bringing in entirely new parties who would have had to prepare to defend against a case in short order; and, although they may have been involved in discovery, they had no advance notice they were being sued”).

Here, as in A.N., allowing the Doe Amendment in August 2017, on the eve of trial, would have resulted in bringing SCPMG into this action as an entirely new party which would have had to prepared to defend against Plaintiff’s claims in short order. As such, SCPMG would have been prejudiced by the grant of the proposed amendment. See A.N., 171 Cal. App. 4th at 1068 (holding that the trial court implicitly found prejudice where Doe defendants were brought into the case less than one month before the case was set to begin trial). Judge Feffer, therefore, properly refused to sign the requested order on August 4, 2017.

The trial in this action was subsequently continued and the case was returned to this department on April 3, 2018, to allow Plaintiff to retain and designate a pathologist as a newly retained expert for trial. 8/20/20 Henriks Decl. Ex. 9 at 2. This case was subsequently reset for trial, which is now scheduled to begin on January 19, 2021. Although Plaintiff made a request for the trial court to allow it to name SCPMG as a Doe defendant on August 21, 2017, Plaintiff did not request a hearing on the arguments raised in the Doe Amendment Trial Brief after the case was returned to this department on April 3, 2018, and Plaintiff did not file the subject motion until August 20, 2020. This case is nearing the initial 5-year deadline to bring a matter to trial—a deadline that has only been extended by six months due to the ongoing corona virus pandemic. See Em. Cal. R. Ct. 10(a).

If SCPMG were brought into this action at this late date, it would not reasonably be able to conduct discovery, file demurrers and other dispositive motions, or fully defend itself within the time remaining for Plaintiff to bring this action to trial. SCPMG would be further prejudiced by the fact that over six years have passed since the events that are the subject of Plaintiff’s claims, which has likely led to the loss of evidence and the deterioration of witness’ memories. See Solit, 68 Cal. App. 4th at 1448 (Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.”).

Plaintiff does not offer any explanation for her failure to request a hearing on her Doe Amendment Trial Brief during the September 2017 trial, or file the subject motion soon after the matter was returned to this court for supervision of pretrial matters on April 3, 2018, but instead waited until August 20, 2020 before filing the subject motion. Although Plaintiff reasserts her arguments that SCPMG will not suffer prejudice because other Defendants have already conducted discovery and prepared a defense (Mot. 8), Plaintiff’s arguments fail for the reasons discussed above.

In sum, the court finds that Judge Feffer properly denied Plaintiff’s request to name SCPMG a Doe defendant on August 4, 2017, and that Plaintiff’s renewed request must similarly fail on the subject motion because SCPMG would be prejudiced if it were to be added as a new party to this action on the eve of trial. The court, therefore, denies the motion on its merits.

III. Conclusion

For these reasons, the court DENIES Plaintiff’s motion. Having denied the motion on these grounds, the court need not address the parties’ remaining arguments, including Defendants’ arguments regarding timeliness under Code of Civil Procedure § 583.250.

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