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

  • 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

b"

Case Number: BC643080 Hearing Date: August 22, 2021 Dept: O

TENTATIVE MINUTE ORDER AT FINAL STATUS CONFERENCE:

\r\n\r\n

\r\nThe Court finds the parties are not ready to proceed to trial because they have\r\nfailed to file joint documents in compliance with the Court’s pretrial orders\r\nor otherwise comply with the Court’s pre-trial orders including compliance with\r\nLASC Local Rule 3.25 (f)& (g). The Court, therefore, orders the Final\r\nStatus Conference continued to _______________________, 2021 at 9:30 and the\r\nTrial Date continued to _______________, 2021 at 10:00.

\r\n\r\n

\r\n\r\n

To ensure the parties are ready for trial, the parties are ordered\r\nto meet and confer remotely via phone and/or video to timely complete and file\r\nall trial documents. At least five days prior to the final status conference,\r\ncounsel must file and serve the following:

\r\n\r\n

\r\n\r\n

1. \r\nJoint Exhibit List: A joint list of all pre-marked exhibits to be used at trial\r\nsigned by all counsel. (LR 3.25(g).) The Court recommends counsel use the same\r\nformat for the Joint Exhibit List as required for long cause trials. An example\r\nof the format is available on the court’s website (Long Cause Trial Package\r\nlink.) http://www.lacourt.org/division/civil/pdf/LongCauseTrialPkgGuidelines.pdf).

\r\n\r\n

If the admission of the\r\nexhibit is not stipulated, counsel shall state the grounds of the objection in\r\nthe list. All pages of each exhibit must be consecutively numbered by\r\nexhibit number. (LR 3.52-53.) The specific pages containing any excerpts of\r\ndeposition testimony of any witness a party intends to read to the jury shall\r\nbe included in the exhibit list for identification by page and line number, and\r\ncopies of those excerpts shall be included in the exhibit binder. (LR 3.158)\r\nThe complete transcript of all depositions to be used at trial shall be lodged\r\nwith the department before the final status conference concurrently with filing\r\na notice of lodging of that transcript. Excerpts of any response to\r\nwritten interrogatories or requests for admission a party intends to read to\r\nthe jury shall be listed on the exhibit list for identification only by request\r\nnumber, and copies of the pages containing the caption page of the request, the\r\nverification and the pages of the excerpts shall included in the exhibit\r\nbinder. (LR 3.158.). Generally, the entire set of responses to a written\r\ndiscovery request should not be included in the joint exhibit list or otherwise\r\nlodged with the Court.

\r\n\r\n

A tabbed three ring binder(s)\r\ncontaining the joint exhibit list and complete copies of all properly marked\r\nexhibits are to be delivered to the Department at least two court days before\r\nthe Final Status Conference. All counsel should be prepared to address\r\nall objections to any exhibits at the final status conference. Three sets of\r\nthe final exhibit binders (with updated joint lists filed) are to be delivered\r\nto the Department on the first day of trial (one for clerk, one for judge and\r\none for witness.)

\r\n\r\n

2. \r\nJoint Witness List: A joint list of all witnesses signed by counsel.\r\n(LR. 3.25(g.) The list shall include columns showing the witness’s name,\r\nparty calling, a brief description of the testimony, time estimates for direct\r\nexamination (including redirect), cross examination (including recross) and\r\ntotal time in hours for each witness. Include at the end of the list the\r\ntotal time in hours for all witnesses, including a subtotal for those witnesses\r\nthat are actually expected to testify. Each witness is to be listed only\r\nonce.

\r\n\r\n

Counsel shall be prepared to\r\ndiscuss the daily schedule for duration of the entire trial, the order of\r\nwitness, and any issues regarding any witness's unavailability. Counsel are\r\nadvised to expect the daily schedule for the trial will be 1:30 to 4:25\r\nPM. All matters to be addressed outside the presence of the jury\r\n(including sidebar conferences) will be heard daily at 11:00 am.

\r\n\r\n

3. \r\nJoint Statement of the Case: A joint statement of the case to be read to\r\nthe jury signed by all counsel. Counsel shall be prepared to discuss\r\ngiving a short mini-opening statement (less than five minutes) before jury\r\nselection begins to supplement the joint statement, and consider having a\r\nwritten questionnaire be completed by the jurors before voir dire\r\nbegins.

\r\n\r\n

4. \r\nJoint and Contested Jury Instructions: A list of joint jury instructions\r\nsigned by counsel together with a fully completed set of full-text California\r\nCivil Jury Instructions (CACI) with all blanks, brackets and irrelevant\r\nmaterial removed. All joint special instructions shall be prepared in the\r\nformat ready for submission to the jury, separately paginated and identified by\r\ninstruction number, title and text. Counsel are to meet and confer to\r\nprepare their respective contested proposed instructions, together with the\r\nsupporting and opposing authority. \r\nEach party shall separately file their respective contested proposed\r\ninstructions.. Each set of contested instructions shall include the full text\r\nof the proposed instruction. At the end of each proposed contested instruction\r\nthe parties shall include a brief statement of authority supporting the instruction,\r\na brief statement of the authority supporting the objections to the\r\ninstruction, and the proposed readline modifications to the proposed\r\ninstruction, if any, that would resolve the objections.

\r\n\r\n

5.\r\n Joint\r\nVerdict Form(s): Joint general or special verdict forms (with\r\ninterrogatories) signed by counsel. (LR 3.25(g)(8). If the parties cannot\r\nagree on a joint verdict form, each party must separately file a proposed\r\nverdict form. The Court understands the proposed verdict forms may change based\r\non the Court’s rulings on motions in limine and the evidence admitted during\r\nthe trial. The proposed verdict forms should be completed based on the\r\nassumption all motions in limine are denied and all disputed evidence is\r\nadmitted. The initial proposed verdict forms are submitted without prejudice to\r\nlater modification or objections made before closing arguments based on the\r\nevidence admitted at trial.

\r\n\r\n

6.\r\n Motions\r\nin Limine: Counsel are ordered to meet and confer remotely via phone or\r\nvideo regarding each motions in limine and file a joint meet and confer\r\nstatement five court days before the Final Status Conference listing the number\r\nand title of each motion followed by a column(s) stating it is withdrawn,\r\nstipulated, or opposed. If opposed, the opposing party shall include a brief\r\nstatement in the joint list identifying the specific witness(s) from whom the\r\nopposing party expects to elicit the objected evidence that is the subject of\r\nthe motion. Likewise, the moving party shall include a brief statement in\r\nthe joint statement identifying by exhibit number and page number any exhibit\r\nthat contains the objectionable evidence that is the subject of the motion.

\r\n\r\n

Five court days before the\r\nFinal Status Conference each Party is to submit to the department a three ring\r\nbinder(s) with an index and tabs that includes the joint meet and confer\r\nstatement motions for the motions in limine, the motions in limine, the\r\noppositions, and the replies. Copies of any consolidated oppositions or replies\r\nmust be included behind each tab for each applicable motion.

\r\n\r\n

7. \r\nTrial Rules: All trial counsel are ordered to be familiar with the\r\napplicable California Rules of Court: Conduct of Trial (Rules 2.1030-2.1036),\r\nEvidence of Electronic Recordings (Rule 2.1040) Jury Instructions (Rule\r\n2.1050-2.1058), Examination of Prospective Jurors (Rule 3.1540 and Standard\r\n3.25, Standards of Judicial Administration); and the applicable LASC\r\nLocal Rules: Pretrial Preparation (LR3.48-3.58), Jury Selection, including the\r\nuse of a written questionnaire (LR 3.70-3.81), Trial Decorum and Opening\r\nStatements (LR 3.92-3.99), Witness (LR3.106), Conduct of Counsel and Parties\r\n(LR 3.120-3.137), Exhibits (LR3.148-1.159), and Jury Instructions (LR\r\n3.170). The parties should assume the Court will follow and enforce all\r\nof these rules unless otherwise ordered as reflected on the record, in the\r\nminutes, or by written stipulation and order filed with the Court.

\r\n\r\n

Counsel should be prepared to\r\naddress at the Final Status Conference the modifications to the trial rules\r\nthat will be necessary due to the continuing needs for additional measures to\r\nprotect public safety due to the Covid 19 pandemic, including allowing\r\nwitnesses to appear remotely, and any other trial management issues unique to this\r\ncase.

"

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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