LEE ANN MORGAN VS JEFFREY WANG M D ET AL

Tentative Rulings

Case Number: BC452100    Hearing Date: October 13, 2020    Dept: O

Case Name: Morgan v. Wang, et al.

SUBJECT: DEMURRER TO PETITION FOR WRIT OF CORAM NOBIS

MOVING PARTY: Defendants Jeffrey Wang, MD; Rahoul Basho, MD; Joshua Bales, MD; and The Regents of the University of California

RESP. PARTY: Plaintiff Leeann Morgan

TENTATIVE RULING

Defendants’ Demurrer to Plaintiff’s Petition for Writ of Coram Nobis is SUSTAINED WITHOUT LEAVE TO AMEND.

The writ of coram nobis is granted only when three requirements are met: (1) Petitioner must show that some fact existed which, without any fault or negligence on his part, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of the judgment; (2) Petitioner must also show that the newly discovered evidence does not go to the merits of issues tried; issues of fact, once adjudicated, even though incorrectly, cannot be reopened except on motion for new trial. This second requirement applies even though the evidence in question is not discovered until after the time for moving for a new trial has elapsed or the motion has been denied; (3) Petitioner must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion. People v. Kim (2009) 45 Cal.4th 1078, 1093 (citing People v. Shipman (1965) 62 Cal.2d 226, 230).

Plaintiff’s newly discovered evidence are (1) a 2015 letter from UCLA confirming that certain unauthorized devices were implanted in her during the surgery without her consent; (2) a 2016 letter from Blue Shield confirming that Defendants concealed implantation of these devices from her insurance company; and (3) 2019 discovery that Wang’s declaration in support of the summary judgment contained false statements and omissions after comparing it to the 2015 and 2016 letters. Plaintiff’s allegations fail to plead grounds for issuance of a writ of coram nobis.

Plaintiff fails to plead diligence in bringing this petition. Plaintiff cannot establish diligence in bringing this petition. The “new facts” prompting this petition were first discovered in 2015 and merely confirmed by the 2016 letter. Plaintiff did not file her petition until June 2020. See Petition, pp. 25-26. In fact, Plaintiff made a tactical decision to file a new action based on her newly discovered evidence on 10-28-16, Case No. BC624990, rather than file a petition coram nobis in this action. See Defendants’ RJN, Ex. E. Plaintiff admittedly failed to file this petition until four years after discovery the “new facts” she claims justifies a writ of coram nobis.

With regard to Plaintiff’s 2019 “discovery” that Wang lied in his 2012 declaration, Plaintiff fails to explain why she could not have “discovered” the lies earlier. Plaintiff admits that she “discovered” Wang’s alleged lies by comparing his 2012 declaration with the 2015 and 2016 letters from UCLA and Blue Shield. See Petition, p. 26. Plaintiff offers no explanation for why she could not have discovered the alleged lies earlier, given that she possessed all the documents necessary to discover the lies by 2016.

Evidence goes to facts already tried. Plaintiff fails to allege that the newly discovered evidence does not got to the merits of the issues tried and adjudicated in the summary judgment granted on 8-5-12. Plaintiff’s FAC alleged a claim for “medical negligence & absence of informed consent.” See Plaintiff’s Complaint filed on 10-12-11, p. 9. The trial court found in connection with the 8-5-12 MSJ that the undisputed facts demonstrated that Defendants complied with the standard of care and were not a substantial factor in causing Plaintiff’s injury, i.e. there was no negligence or lack of informed consent. See Defendants’ RJN, Ex. 1, p. 5. Plaintiff seeks coram nobis based on “newly discovered” evidence establishing that unapproved devices were implanted in her without her consent during the same surgeries alleged in her FAC. However, this “newly discovered evidence” goes to facts already tried, i.e. whether Defendant performed the surgery on Plaintiff without proper consent.

This analysis is consistent with the outcome in BC624990. The trial court in BC624990 sustained demurrer without leave to amend based on claim preclusion arising from this litigation’s MSJ. See Defendants’ Request for Judicial Notice (RJN), Exs. F and G. The Court of Appeal affirmed that ruling in an unpublished opinion. Id. at Ex. H. “As we have said, plaintiff’s prior action alleged that in September 2009, Dr. Wang performed a transforaminal lumbar interbody fusion, procedure to which plaintiff had not consented…[¶]Plaintiff’s present action contains similar allegations.” Id. at Ex. H, p. 10. “Plaintiff asserts that the present action includes some newly discovered information about Dr. Wang’s surgical technique…the FDA’s approvals…and the source of plaintiff’s pain…But none of this newly discovered information changes the nature of the primary right alleged to have been violated because plaintiff continued to allege the same injury to plaintiff’s lumbar spine and surrounding nerves and tissues.” Id. at Ex. H, p. 11.

Plaintiff fails to allege extrinsic fraud and only alleges intrinsic fraud. “In general, newly discovered evidence is not a basis for writ of error Coram vobis.” Los Angeles Airways, Inc. v. Hughes Tool Co. (“LAA”)(1979) 95 Cal.App.3d 1, 9. “[A]fter a judgment has become final, newly discovered evidence generally is not a ground for reopening that judgment unless the concealment of that evidence prevented a fair adversary hearing, kept the claimant out of court entirely or utterly deprived him of a claim or defense, or precipitated a grave miscarriage of justice such as the conviction of an innocent person.” Id. at 6.

Following the reasoning of LAA, the Court of Appeal in Phillipine Exprt & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1091 denied coram nobis relief where the request was based on newly discovered evidence that the defendant had allegedly deliberately concealed or lied about its existence. “[I]t cannot be said that such fraud amounted to extrinsic fraud preventing [plaintiff] from having its day in court on the issue. To the contrary we deal with intrinsic fraud at most, that fraud which weakens the opponent’s case, as for example by perjury on the witness stand. Such fraud is not ground to reopen a judgment.” Id. at 1091. “The traditional and more manageable test articulated in LAA is the requirement of extrinsic fraud preventing a full and fair hearing on the issue.” Id.

Plaintiff claims Defendants concealed the critical facts contained in the 2015 UCLA Letter and the 2016 Blue Shield Letter, blocking her attempts at deposition and discovery. See Petition, 8:7-13. However, newly discovered evidence material to a plaintiff’s case that was allegedly fraudulently concealed by the defendant, is not grounds to reopen a trial based and issuance of a writ of coram nobis. Such conduct amounts to intrinsic fraud and issuance of a writ of coram nobis requires conduct that amounts to extrinsic fraud. Plaintiff makes the conclusory allegation in her “Preface to Petition” that she was deprived of due process, but the allegations do not support a finding that she was prevented from having her day in court due to Defendants’ alleged “concealment” of the evidence.

Demurrer was not untimely. As noted by Defendants, the demurrer was filed within 35 days of being served with the Petition by mail on 6-20-20. The demurrer was filed and serve don 7-27-20. CCP §430.40(a).

Petition is not a writ of mandate under CCP §§1085 or 1094.5. A petition for writ of coram nobis is not a statutory petition for writ of mandate under either CCP §§1085 or 1094.5. “The writ of error coram nobis is a nonstatutory, common law remedy whose origins trace back to an era in England in which appeals and new trial motions were unknown.” People v. Kim, supra, 45 Cal.4th at 1091.