This case was last updated from Los Angeles County Superior Courts on 05/29/2019 at 18:52:56 (UTC).

LARRY QUISHENBERRY VS BERGER INC ET AL

Case Summary

On 08/19/2016 LARRY QUISHENBERRY filed a Personal Injury - Other Personal Injury lawsuit against BERGER INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is RALPH C. HOFER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1077

  • Filing Date:

    08/19/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

RALPH C. HOFER

 

Party Details

Plaintiffs and Petitioners

QUISHENBERRY LARRY

QUISHENBERRY LARRY AN INDIVIDUAL

Defendants and Respondents

DOES 1-20

ACCREDITED HOME CARE

HEALTHCARE PARTNERS LLC

LEE JAE H. DR

BERGER INC

UNITED HEALTH CARE INC

GEM HEALTHCARE LLC

MERCADO GRACE

HEALTH CARE PARTNES MEDICAL GROUP

UNITED HEALTHGROUP INC.

UNITED HEALTHCARE INSURANCE INC

UHC OF CALIFORNIA

BERGER INC.

UNITED HEALTH CARE - CALIFORNIA INC.

HEALTH CARE PARTNERS MEDICAL GROUP

UNITED HEALTH CARE INC.

HEALTHCARE PARTNERS AFFILIATES MEDICAL GROUP A PARTNERSHIP

LEE DR. JAE H.

14 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LAW OFFICE OF DENISE A. PLATT APC

BALISOK & ASSOCISTS INC

BALISOK ESQ. RUSSELL S.

BALISOK RUSSELL STEVEN

Defendant and Respondent Attorneys

CARROLL KELLY TROTTER FRANZEN MCBRIDE &

LEWIS BRISBOIS BISGAARD & SMITH

WALRAVEN & WESTERFELD LLP

LEWIS BRISBOIS BISGAARD & SMITH LLP

TROTTER MICHAEL J.

WESTERFELD BRYAN S

 

Court Documents

Summons

8/19/2016: Summons

Civil Case Cover Sheet

8/19/2016: Civil Case Cover Sheet

Unknown

12/5/2016: Unknown

Memorandum of Points & Authorities

3/15/2017: Memorandum of Points & Authorities

Opposition

3/24/2017: Opposition

Minute Order

4/7/2017: Minute Order

Notice of Motion

8/2/2018: Notice of Motion

Declaration

8/2/2018: Declaration

Unknown

8/2/2018: Unknown

Unknown

8/6/2018: Unknown

Request for Judicial Notice

2/1/2019: Request for Judicial Notice

Reply

2/8/2019: Reply

Notice of Lodging

2/13/2019: Notice of Lodging

Unknown

3/15/2019: Unknown

Motion to Strike (not initial pleading)

4/22/2019: Motion to Strike (not initial pleading)

Opposition

5/6/2019: Opposition

Objection

5/6/2019: Objection

Minute Order

5/17/2019: Minute Order

131 More Documents Available

 

Docket Entries

  • 05/23/2019
  • Notice (of continuance of hearings); Filed by LARRY, QUISHENBERRY (Plaintiff)

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  • 05/17/2019
  • at 08:30 AM in Department D; Hearing on Motion - Other (on Joinder of Defendants UnitedHealthcare, Inc., et al. to Defendants HealthCare Partners Medical Group, et al.'s Motion to Strike Portions of Second Amended Complaint) - Not Held - Rescheduled by Party

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  • 05/17/2019
  • at 08:30 AM in Department D; Status Conference (Re Mediation and Discovery)

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  • 05/17/2019
  • at 08:30 AM in Department D; Hearing on Demurrer - with Motion to Strike (CCP 430.10) (of Plaintiff's Second Amended Complaint filed on behalf of Defendants HealthCare Partners Medical Group, et al.) - Not Held - Rescheduled by Party

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  • 05/17/2019
  • at 08:30 AM in Department D; Hearing on Demurrer - without Motion to Strike (to Plaintiff's Second Amended Complaint filed on behalf of Defendants UnitedHealthcare, Inc., et al.) - Not Held - Rescheduled by Party

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  • 05/17/2019
  • Minute Order ( (Hearing on Demurrer - without Motion to Strike to Plaintiff's...)); Filed by Clerk

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  • 05/17/2019
  • Minute Order ( (Hearing on Demurrer - without Motion to Strike to Plaintiff's...)); Filed by Clerk

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  • 05/10/2019
  • Reply (DEFENDANT'S REPLY TO OPPOSITION TO DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF); Filed by HEALTH CARE PARTNERS MEDICAL GROUP (Defendant); HEALTHCARE PARTNERS LLC (Defendant); DR. JAE H. LEE (Defendant) et al.

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  • 05/10/2019
  • Reply (REPLY TO OPPOSITION TO MOTION TO STRIKE BY DEFENDANTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF); Filed by HEALTH CARE PARTNERS MEDICAL GROUP (Defendant); HEALTHCARE PARTNERS LLC (Defendant); DR. JAE H. LEE (Defendant) et al.

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  • 05/10/2019
  • Reply (Defendants UnitedHealthcare, Inc., UnitedHealth Group Incorporated, UnitedHealthcare Services, Inc. and UHC of California's Reply in support of Demurrer to Second Amended Complaint); Filed by UHC OF CALIFORNIA (Defendant); United Health Care, Inc (Defendant); United Healthcare Services Inc., Doe 3 (Defendant) et al.

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227 More Docket Entries
  • 08/19/2016
  • Affidavit (RE SUCCESSOR IN INTEREST)

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  • 08/19/2016
  • Civil Case Cover Sheet

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  • 08/19/2016
  • Summons (on Complaint)

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  • 08/19/2016
  • SUMMONS

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  • 08/19/2016
  • AFFIDAVIT RE SUCCESSOR IN INTEREST

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  • 08/19/2016
  • COMPLAINT FOR DAMAGES I. NEGLIGENCE AND RECKLESSNESS ELDER ABUSE; ETC

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  • 08/19/2016
  • CIVIL DEPOSIT

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  • 08/19/2016
  • Complaint; Filed by EUGENE QUISHENBERRY (Plaintiff); Larry Quishenberry (Plaintiff); LARRY, QUISHENBERRY (Plaintiff)

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  • 08/19/2016
  • Notice of Deposit - Jury

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  • 08/19/2016
  • Complaint

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Tentative Rulings

Case Number: BC631077    Hearing Date: October 25, 2019    Dept: NCD

TENTATIVE RULING

Calendar: 20

Date: 10/25/19

Case No: BC 631077 Trial Date: None Set

Case Name: Quishenberry v. Berger, Inc. dba Accredited Home Care, et al.

DEMURRERS (2)

MOTION TO STRIKE

[CCP §430.10 et. seq.]

Moving Party: Defendants Unitedhealthcare, Inc., United Health Group Incorporated

and UHC of California

Defendants Healthcare Partners, LLC and Jae Hoon Lee

(“Joinder” in Motion to Strike filed by Unitedhealthcare Defendants)

Responding Party: Plaintiff Larry Quishenberry

Meet and Confer? Yes

RELIEF REQUESTED:

Sustain demurrer to Second Amended Complaint

Strike immaterial allegations, punitive damages, attorneys’ fees, treble damages

CAUSES OF ACTION: from Second Amended Complaint (from body of pleading, not caption)

  1. Negligence and Recklessness v. All Defendants

  2. Elder Abuse v. Each Defendant

  3. Negligence and Recklessness—special relationship v. HCP and United entities

  4. Bad Faith v. All defendants, except Lee

  5. Wrongful Death v. All defendants

    SUMMARY OF FACTS:

    Plaintiff Larry Quishenberry brings this action individually and as successor in interest to Eugene Quishenberry, alleging that decedent assigned his Medicare benefits to United HealthGroup and its affiliates, and that these defendants have delegated some of their responsibilities to defendant United Healthcare-California, Inc., and these defendants have acted as health care providers and insurers to its enrollees such as decedent.

    Plaintiff alleges that defendant United or defendant Health Care Partners Medical Group (“HCP”) entered into a contract with Huntington Hospital to obtain institutional services or facility services when those services are covered by Medicare and that United entered into an agreement to secure physician services from HCP. In the alternative, United entered into a single agreement with HCP to provide all of the services and protections which federal law requires and requires United to provide.

    Plaintiff alleges that these defendants negligently failed to monitor the amount of care being provided by health care providers such as defendant Dr. Jae H. Lee, HCP, Huntington Hospital and GEM Healthcare, LLC (“GEM”) and failed to insist on adequate care. Specifically, plaintiff alleges that when decedent was transferred from third party Huntington Hospital to defendant GEM in accordance with requirements by the United defendants and HCP decedent developed severe pressure sores as a result of neglect at GEM. The SAC alleges that rather than providing for decedent to participate in physical therapy in a skilled nursing facility center, defendants Dr. Lee and GEM worked together to direct decedent’s discharge to his home by prescribing home health care, depriving him of daily care and treatment of the pressure sores and the needed physical therapy.

    The SAC alleges that decedent was discharged from GEM after twenty-four days, when decedent was entitled under Medicare to another period of 76 days of care at GEM with daily care of his pressure sores and daily physical therapy, and that following Dr. Lee’s direction and pursuant to the business practices of HCP and United Healthcare entities, GEM furnished decedent with a false statement that he was no longer qualified under Medicare for further inpatient care at GEM. Plaintiff alleges that decedent was transferred to his home, where, without adequate nursing care and physical therapy his health declined, he experienced pain and suffering and died.

    The court on January 13, 2017, at a hearing in Case No. BC 615178, deemed this case related to that case, and ordered this matter transferred to this department. Case No. BC 615178 was deemed the lead case. Also on January 13, 2017, the court granted a petition to compel arbitration brought by the GEM defendants in the other case, and ordered the other case stayed pending arbitration. The court on April 7, 2017, also granted a motion to compel arbitration in this action brought by the GEM defendants, and stayed this matter pending arbitration. Plaintiff has settled with the GEM defendants, and the stay has been lifted. On January 17, 2018, plaintiff was permitted leave to file a First Amended Complaint.

    On January 11, 2019, the court heard demurrers and motions to strike brought by defendants as to the First Amended Complaint. The demurrer of defendants United Healthcare, Inc. and the affiliated United Healthcare entities was sustained with leave to amend.

    The demurrer of defendants Healthcare Partners Medical Group and Healthcare Partners, LLC was also sustained with leave to amend the second through fourth causes of action against it. The demurrer by Dr. Lee was overruled as to the second and fourth causes of action.

    The motion to strike by defendants Healthcare Partners Medical Group and Healthcare Partners, LLC was deemed moot in light of the sustaining of the demurrer with leave to amend. The joinder of the United Defendants in the motion to strike was also deemed moot. The motion to strike by Dr. Lee was granted with leave to amend as to the claim for treble damages under Civil Code § 3345 and was otherwise denied.

    RULING:

    Defendants United Healthcare, Inc., UnitedHealth Group Incorporated, UnitedHealtcare Services, Inc. and UHC of California’s Demurrer to Plaintiff’s Second Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND for the reasons stated in the moving and reply papers, and as stated in the court’s previous ruling of January 11, 2019. This court recognizes that where there is more than one appellate court decision on a point of precedent, and such decisions are in conflict, the trial court has discretion to make a choice between conflicting decisions. See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 454. The court in this case is persuaded by the reasoning of the Second District in Roberts v. United Healthcare Services, Inc. (2016) 2 Cal.App.5th 132, as discussed in this court’s previous ruling.

    The court has considered the SAC and all the papers, and specifically the case law cited which was decided since the previous hearing, Gordy v. Caremore Health Plan (USDC C.D. Cal. 2019) 2019 WL 1237421. The federal district court in Gordy for purposes of making a determination on a motion to remand the case back to state court and applying its recognized duty in that matter “to interpret broadly in favor of removal,” expressly found “without deciding, that express exemption to Gordy’s claims is a colorable defense.” Gordy, at 4-5. The federal district court appears to have simply recognized that California federal and state law decisions, taken together, suggest that some, but not all, state law claims are preempted by the MMA, without analyzing the facts of claims before it, or any facts similar to those involved in this matter.

    As set forth in detail in the court’s ruling of January 11, 2019, the United defendant’s claims against them are barred by Health & Safety Code Section 1371.25 which provides that a health care service plan is not vicariously liable for acts or omissions of the actual health care services providers. The United Health Care defendants are also not vicariously liable under a “non-delegable” duty theory. See Martin v. Pacific Care of California (2011) 198 CalApp. 4th 1390. Also Medicare Prescription Drug Improvement and Modernization Act of 2003 (“MMA”) precludes vicarious liability as well. These doctrines encompass all causes of action alleged against the United defendants.

    Defendants’ Untimely Joinder in Motion to Strike Portions of Second Amended Complaint is NOT CONSIDERED BY THE COURT as untimely and improper and in any case would be moot in light of the sustaining of the demurrer without leave to amend.

    Defendants to submit appropriate request for dismissal.

    Demurrer by Defendants Healthcare Partners Medical Group, Healthcare Partners, LLC, Healthcare Partners Affiliates Medical Group and Jae Hoon Lee, M.D.:

    Demurrer by defendants Healthcare Partners Medical Group, Healthcare Partners, LLC, and Healthcare Partners Affiliates Medical Group is SUSTAINED WITHOUT LEAVE TO AMEND for the reasons for the reasons stated in the moving and reply papers, and as stated in the court’s previous ruling of January 11, 2019.

    As set forth in details in the court’s ruling of January 11, 2019, the allegations against the HCP defendants regarding failure to administer properly the health care plan are preempted by the MMA. The MMA prescription covers all causes of action alleged against the HCP defendants.

    Demurrer by defendant Jae Hoon Lee, M.D. is OVERRULED.

    Defendants Healthcare Partners Medical Group, Healthcare Partners, LLC, Healthcare Partners Affiliates Medical Group to submit appropriate request for dismissal.

    Motion by Defendants Healthcare Partners Medical Group, Healthcare Partners, LLC, Healthcare Partners Affiliates Medical Group, and Jae Hoon Lee, M.D. to Strike Portions of First Amended Complaint:

    Motion to strike by defendants Healthcare Partners Medical Group, Healthcare Partners, LLC., and Healthcare Partners Affiliates Medical Group is MOOT in light of the sustaining of the demurrer without leave to amend.

Motion to strike by defendant Jae Hoon Lee, M.D. is GRANTED WITHOUT LEAVE TO AMEND as to the claim for treble damages, but without prejudice to seeking such damages pursuant to a motion pursuant to CCP § 425.13, if appropriate. Motion is otherwise DENIED.

Defendant Jae Hoon Lee, M.D. to answer within ten days.