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This case was last updated from Los Angeles County Superior Courts on 05/23/2019 at 08:01:58 (UTC).

S B VS MARSHAL P FICHMAN MD ET AL

Case Summary

On 12/07/2016 S B filed a Personal Injury - Medical Malpractice lawsuit against MARSHAL P FICHMAN MD. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are LISA HART COLE, NANCY L. NEWMAN and BOBBI TILLMON. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3080

  • Filing Date:

    12/07/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

LISA HART COLE

NANCY L. NEWMAN

BOBBI TILLMON

 

Party Details

Plaintiff and Petitioner

S.B.

Defendants and Respondents

REGAL MEDICAL GROUP INC

FICHMAN MARSHAL P. M.D

PROSPECT HEALTH SOURCE MEDICAL GROUP INC

DOES 1-100

FICHMAN M.D. MARSHAL

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

FRANK P. BARBARO & ASSOCIATES

LECLAIR MALENA RUNETTE

BARBARO FRANK P.

Defendant Attorneys

ENDELICATO CONSTANCE ANN

OBERTO JEFFREY M.

WOOD SMITH HENNING & BERMAN LLP

OUTWATER DAVID E.

AMES LA FOLLETTE JOHNSON DE HAAS FESLER

WOOD SMITH HENNING & BERMAN

 

Court Documents

Notice of Ruling

11/27/2017: Notice of Ruling

Minute Order

1/31/2018: Minute Order

Unknown

2/22/2018: Unknown

Unknown

5/10/2018: Unknown

Unknown

5/10/2018: Unknown

Unknown

5/11/2018: Unknown

Unknown

5/17/2018: Unknown

Minute Order

8/7/2018: Minute Order

Case Management Statement

10/23/2018: Case Management Statement

Motion for Protective Order

10/24/2018: Motion for Protective Order

Case Management Statement

10/25/2018: Case Management Statement

Notice of Case Reassignment and Order for Plaintiff to Give Notice

11/16/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Stipulation and Order

2/15/2019: Stipulation and Order

COMPLAINT FOR DAMAGES 1. MEDICAL NEGLIGENCE;ETC

12/7/2016: COMPLAINT FOR DAMAGES 1. MEDICAL NEGLIGENCE;ETC

PROOF OF SERVICE OF SUMMONS

3/1/2017: PROOF OF SERVICE OF SUMMONS

FIRST AMENDED COMPLAINT FOR DAMAGES

4/28/2017: FIRST AMENDED COMPLAINT FOR DAMAGES

OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE OF COURT TO FILE A SECOND AMENDED COMPLAINT; DECLARATION OF JEFFREY M. OBERTO AND EXHIBITS

11/3/2017: OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE OF COURT TO FILE A SECOND AMENDED COMPLAINT; DECLARATION OF JEFFREY M. OBERTO AND EXHIBITS

ORDER TRANSFERRING COMPLICATED PERSONAL INJURY (PI) CASE TO AN INDEPENDENT CALENDAR (IC) COURT

11/17/2017: ORDER TRANSFERRING COMPLICATED PERSONAL INJURY (PI) CASE TO AN INDEPENDENT CALENDAR (IC) COURT

99 More Documents Available

 

Docket Entries

  • 05/22/2019
  • at 08:30 AM in Department O; Hearing on Ex Parte Application (To Continue Trial Date) - Held - Motion Granted

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  • 05/22/2019
  • Minute Order ( (Hearing on Plaintiff S.B.'s Ex Parte Application To Continue ...)); Filed by Clerk

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  • 05/20/2019
  • Ex Parte Application (Plaintiff's Unopposed Ex Parte Application for an Order to Continue the Trial Date and Continue the Discovery Cut-Off and Set a new mandatory Settlement Conference; memorandum of Points and Authorities; Declaration of Malena R. LeClair-Gibson; Proposed O); Filed by S.B. (Plaintiff)

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  • 04/15/2019
  • at 10:30 AM in Department O; Informal Discovery Conference (IDC) - Not Held - Taken Off Calendar by Party

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  • 04/08/2019
  • Proof of Service (not Summons and Complaint); Filed by PROSPECT HEALTH SOURCE MEDICAL GROUP, INC (Defendant)

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  • 04/08/2019
  • Proof of Service (not Summons and Complaint); Filed by PROSPECT HEALTH SOURCE MEDICAL GROUP, INC (Defendant)

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  • 04/04/2019
  • Declaration (Declaration of David E. Outwater in Support of Motion for Summary Judgment); Filed by PROSPECT HEALTH SOURCE MEDICAL GROUP, INC (Defendant)

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  • 04/04/2019
  • Motion for Summary Judgment; Filed by PROSPECT HEALTH SOURCE MEDICAL GROUP, INC (Defendant)

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  • 04/04/2019
  • Request for Judicial Notice; Filed by PROSPECT HEALTH SOURCE MEDICAL GROUP, INC (Defendant)

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  • 04/04/2019
  • Separate Statement; Filed by PROSPECT HEALTH SOURCE MEDICAL GROUP, INC (Defendant)

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205 More Docket Entries
  • 03/01/2017
  • Proof-Service/Summons

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  • 03/01/2017
  • Proof-Service/Summons; Filed by Plaintiff/Petitioner

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  • 03/01/2017
  • Proof-Service/Summons

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  • 03/01/2017
  • PROOF OF SERVICE OF SUMMONS

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  • 03/01/2017
  • PROOF OF SERVICE OF SUMMONS

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  • 03/01/2017
  • PROOF OF SERVICE OF SUMMONS

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  • 12/07/2016
  • Complaint Filed

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  • 12/07/2016
  • SUMMONS

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  • 12/07/2016
  • COMPLAINT FOR DAMAGES 1. MEDICAL NEGLIGENCE;ETC

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  • 12/07/2016
  • Complaint; Filed by S.B. (Plaintiff)

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Tentative Rulings

Case Number: BC643080    Hearing Date: September 01, 2020    Dept: O

Case Name: S.B. v. Fichman, et al.

Case No: BC643080

Complaint Filed: 12-7-16

Hearing Date: 9-1-20

Discovery C/O: 8-21-20

Calendar No.: 5

Discovery Motion C/O: 9-6-20

Service: OK

Trial Date: 9-21-20

SUBJECT: MOTION FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT

MOVING PARTY: Plaintiff S.B.

RESP. PARTY: Defendant Marshal P. Fichman, M.D. (“Fichman”)

TENTATIVE RULING

Plaintiff S.B.’s Motion for Leave to File a Third Amended Complaint is DENIED.

Plaintiff’s counsel testifies that, following the filing of the Second Amended Complaint, (1) eight key “witnesses” were deposed; (2) additional written discovery was taken; (3) a complaint against Defendant was filed and the decision finalized on 8-30-19; and (4) Defendant’s license was revoked. See Motion, Dec. of W. Light, ¶5. None of these facts explains why Plaintiff waited until this late date to seek leave to add the medical battery claim. All facts required to state such a claim would have been within Plaintiff’s knowledge at the time the complaint was filed, i.e. Defendant’s offer to perform a breast exam, Plaintiff’s refusal of such an exam and Defendant’s performance of the exam despite her refusal.

CRC Rule 3.1324(b)(3) and (4) require the Plaintiff state when the facts giving rise to the amended allegations were discovered and the reasons why the amendment was not made earlier. Plaintiff fails to do so. On this ground alone, Plaintiff’s motion is properly denied for failure to adhere to the procedural requirements under CRC Rule 3.1324(b). “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. [Citation.] ... 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.]’ (Citation.) ‘The law is also clear that even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial.’ (Citation.)’” Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613.

Plaintiff’s motion for leave to amend is also properly denied because of the likely prejudice to Defendant. Plaintiff’s case has been pending for nearly four years. All discovery has been completed. All trial documents have been exchanged and filed. The only reason the trial did not commence last March was because of the Covid-19 pandemic that led to the stay of all trials. The proposed medical battery claim is not based on any new or different facts, and it is instead a new legal theory that could have been pled at the outset of the case. Given these circumstances, Plaintiff’s delay is patently unreasonable given the complete failure to provide any explanation for it. “[E]ven if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial.” P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345 (leave to amend properly denied where plaintiff offered no explanation for one-year delay in seeking leave to amend, amendment was requested after trial readiness conference, amendment would require additional discovery and amendment would likely trigger a demurrer or other pretrial motions).

Allowing the Third Amended Complaint likely will lead to the reopening of discovery that would have to be completed under the strained burdens of doing so while the Covid-19 pandemic restrictions are still in force. And Defendant will have to be allowed the opportunity to attack the new cause of action for medical battery by demurrer and/or MSA. The trial date would then likely need to be continued even beyond the date the Court must order due to the pandemic. See Opposition, Dec. of C. Ednelicato, ¶9. See Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 488 (leave to amend properly denied where proposed amendment presented on the eve of trial, nearly two years after complaint was originally filed, no explanation was provided for leaving the claim out of the original complaint or bringing the amendment so late and only way to avoid prejudice was to continue trial date); Estate of Murphy (1978) 82 Cal.App.3d 304, 311 (“Where inexcusable delay and probable prejudice to the opposing party is indicated, the trial court's exercise of discretion in denying a proposed amendment should not be disturbed”)(leave to amend properly denied where trial had started and “proposed amendment opened up an entirely new field of inquiry without any satisfactory explanation as to why this major change in point of attack had not been made long before trial”).

Under these circumstances, leave to amend is properly denied based on unreasonable delay and undue prejudice. Plaintiff’s Motion for Leave to Amend is DENIED.

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