This case was last updated from Los Angeles County Superior Courts on 08/01/2019 at 01:56:25 (UTC).

COREEN GONZALEZ VS CITY OF MONTEREY PARK ET AL

Case Summary

On 05/14/2018 a Personal Injury - Medical Malpractice case was filed by COREEN GONZALEZ against CITY OF MONTEREY PARK in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6100

  • Filing Date:

    05/14/2018

  • 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

JON R. TAKASUGI

 

Party Details

Petitioner and Plaintiff

GONZALEZ COREEN HEIR OF RODOLFO

Respondents and Defendants

IBARRA FERNANDO M.D.

FERNANDO IBARRA M.D. INC.

MONTEREY PARK CITY OF

CITY OF MONTEREY PARK DEPARTMENT OF FIRE

DOES 1-100

 

Court Documents

PROOF OF SERVICE SUMMONS

5/23/2018: PROOF OF SERVICE SUMMONS

Opposition

5/29/2018: Opposition

ORDER DENYING PETITION FOR LEAVE TO FILE LATE CLAIM

6/11/2018: ORDER DENYING PETITION FOR LEAVE TO FILE LATE CLAIM

NOTICE OF RULING RE HEARING ON PLAINTIFF'S PETITION FOR RELIEF FROM CLAIM REQUIREMENT

6/26/2018: NOTICE OF RULING RE HEARING ON PLAINTIFF'S PETITION FOR RELIEF FROM CLAIM REQUIREMENT

Petition

12/20/2018: Petition

Substitution of Attorney

1/18/2019: Substitution of Attorney

Objection

2/21/2019: Objection

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

2/22/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Notice of Intent to Move for New Trial

3/13/2019: Notice of Intent to Move for New Trial

Opposition

4/8/2019: Opposition

Reply

4/12/2019: Reply

Minute Order

4/19/2019: Minute Order

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

4/19/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Minute Order

5/7/2019: Minute Order

Request for Entry of Default / Judgment

5/9/2019: Request for Entry of Default / Judgment

Amended Complaint

6/13/2019: Amended Complaint

Ex Parte Application

6/17/2019: Ex Parte Application

Opposition

6/17/2019: Opposition

39 More Documents Available

 

Docket Entries

  • 07/15/2019
  • DECLARATION OF DEMURRING OR MOVING PARTY IN SUPPORT OF AUTOMATIC EXTENSION; Filed by City of Monterey Park (also erroneously sued as City of Monterey Park Department of Fire and Ambulance Erroneously Sued As Monterey Park, City Of (Defendant)

    Read MoreRead Less
  • 07/02/2019
  • Answer (to First Amended Complaint); Filed by Fernando Ibarra M.D., Inc. (Defendant); Fernando M.D. Ibarra (Defendant)

    Read MoreRead Less
  • 06/17/2019
  • at 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Hearing on Ex Parte Application (to Stay this Court's Order of May 9, 2019, and Further Stay and/or Strike Petitioner Coreen Gonzalez's Request for Default Judgment Served June 7, 2019) - Held - Motion Granted

    Read MoreRead Less
  • 06/17/2019
  • Opposition (to Ex Parte Application for Stay (Amended)); Filed by Coreen Gonzalez (Plaintiff)

    Read MoreRead Less
  • 06/17/2019
  • Minute Order ( (Hearing on Ex Parte Application to Stay this Court's Order of...)); Filed by Clerk

    Read MoreRead Less
  • 06/17/2019
  • Opposition (to Ex Parte Application for Stay (Second Amended)); Filed by Coreen Gonzalez (Plaintiff)

    Read MoreRead Less
  • 06/17/2019
  • Opposition (to Ex Parte Application for Stay); Filed by Coreen Gonzalez (Plaintiff)

    Read MoreRead Less
  • 06/17/2019
  • Ex Parte Application (to Stay this Court's Order of May 9, 2019, and Further Stay and/or Strike Petitioner Coreen Gonzalez's Request for Default Judgment Served June 7, 2019); Filed by City of Monterey Park (also erroneously sued as City of Monterey Park Department of Fire and Ambulance Erroneously Sued As Monterey Park, City Of (Defendant)

    Read MoreRead Less
  • 06/13/2019
  • Complaint (1st); Filed by Coreen Gonzalez (Plaintiff); Gonzalez, Coreen, Heir of Rodolfo (Plaintiff)

    Read MoreRead Less
  • 06/13/2019
  • Stipulation - No Order (Stipulation to Allow Filing of First Amended Complaint); Filed by Coreen Gonzalez (Plaintiff)

    Read MoreRead Less
50 More Docket Entries
  • 05/29/2018
  • Opposition Document; Filed by City of Monterey Park (also erroneously sued as City of Monterey Park Department of Fire and Ambulance Erroneously Sued As Monterey Park, City Of (Defendant)

    Read MoreRead Less
  • 05/23/2018
  • Proof-Service/Summons; Filed by Coreen Gonzalez (Plaintiff); Gonzalez, Coreen, Heir of Rodolfo (Plaintiff)

    Read MoreRead Less
  • 05/23/2018
  • PROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 05/23/2018
  • Proof-Service/Summons; Filed by Coreen Gonzalez (Plaintiff); Gonzalez, Coreen, Heir of Rodolfo (Plaintiff)

    Read MoreRead Less
  • 05/23/2018
  • PROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 05/15/2018
  • Petition; Filed by Coreen Gonzalez (Plaintiff)

    Read MoreRead Less
  • 05/15/2018
  • PETITION FOR RELIEF FROM CLAIMS REQUIREMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF COREEN GONZALEZ

    Read MoreRead Less
  • 05/14/2018
  • COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL

    Read MoreRead Less
  • 05/14/2018
  • SUMMONS

    Read MoreRead Less
  • 05/14/2018
  • Complaint; Filed by Coreen Gonzalez (Plaintiff); Gonzalez, Coreen, Heir of Rodolfo (Plaintiff)

    Read MoreRead Less

Tentative Rulings

Case Number: BC706100    Hearing Date: January 10, 2020    Dept: A

Gonzalez v City of Monterey Park

Demurrer; Motion to Strike

Calendar:

13

Case No.:

BC706100

Hearing Date:

January 10, 2020

Action Filed:

May 14, 2018

Trial Date:

Not Set

MP:

Defendant City of Monterey Park

RP:

Plaintiff Coreen Gonzalez

ALLEGATIONS:

The action arises from the purported failure by Defendants City of Monterey Park (“City”); Fernando Ibarra, M.D. and Fernando Ibarra, M.D., Inc. (together “Ibarra” and with City, the “Defendants”) to save the life of Decedent Rodolfo Gonzalez (“Decedent”), resulting in Decedent’s death on or around May 16, 2017, and injuries to Decedent’s spouse, Plaintiff Coreen Gonzalez (“Plaintiff”).

Plaintiff filed her first Complaint on May 14, 2018, First Amended Complaint (“FAC”) on June 13, 2019, and the operative Second Amended Complaint (“SAC”) on September 25, 2019. The SAC includes a single cause of action against all defendants sounding in Professional Negligence.

PRESENTATION:

City filed its demurrer and motion to strike on November 04, 2019. Plaintiff opposed each on November 22, 2019, and a reply was filed on each on December 02, 2019.

RELIEF REQUESTED:

City demurs to the only cause of action.

City moves to strike various portions of the SAC.

DISCUSSION:

Standard of Review – Demurrer – The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. Code Civ. Proc. §430.30,(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. Concerning the legal sufficiency of a pleading, the sole issue on demurrer is whether the facts pleaded, if true, state a valid cause of action – i.e., if the complaint pleads facts that would entitle the plaintiff to relief. LiMandri v. Judkins (1997) 52 Cal. App. 4th 326, 339.

A general demurrer admits the truth of all factual, material allegations properly pled in the challenged pleading, regardless of possible difficulties of proof. Blank, supra, 39 Cal. 3d at p. 318. Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604. Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates (1995) 36 Cal. App. 4th 698, 709. A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. Blank, supra, 39 Cal. 3d at p. 318.

Pursuant to Code Civ. Proc. §430.10(e) and (f), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082, as modified (Dec. 23, 2003).

Meet and Confer – Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3).

The Court has reviewed the Declaration of Yaron Dunkel, and finds that City has met its meet and confer obligation.

---

First Cause of Action (Professional Negligence) – In any medical malpractice action, the plaintiff must establish: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence. Tortorella v. Castro (2006) 140 Cal. App. 4th 1, 4, fn. 2. Additionally, the parties agree in their moving papers that City may only be subject to liability under Govt. Code §815 upon facts sufficient to establish gross negligence. While the Court notes that Plaintiff incorrectly places the burden on City to find ‘immunity’ under a statute, the Court notes that government entities are always immune unless such immunity is expressly waived by statute. As such, City has identified the statutory basis through which immunity may be waived in Health & Saf. Code §§1799.106 & 1799.107 for acts of gross negligence, and the Court will focus its analysis whether the SAC has adequately set forth gross negligence under the relevant statue.

California recognizes three different legal standards that apply regarding actions that sound in reckless or negligent conduct. First, ordinary negligence, which is “an unintentional tort, a failure to exercise the degree of care in a given situation that a reasonable man under similar circumstances would exercise to protect others from harm.” Donnelly v. Southern Pacific Co. (1941) 18 Cal. 2d 863, 869. Second is gross negligence, which “has been defined in California and other jurisdictions as either a ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct,’” and which is generally a question of fact for the jury. Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal. App. 4th 546, 555. Finally, there is the standard of willful misconduct, which is distinguished even from the standard of gross negligence by “the further intent that the performance be harmful or that it be done with a positive, active and absolute disregard of the consequences.” Hawaiian Pineapple Co. v. Industrial Acci. Com. (1953) 40 Cal. 2d 656, 662.

The first argument made on demurrer by City is that City is entitled to a presumption against gross negligence, and that Plaintiff has failed to overcome the presumption in the facts pled in the SAC. In support of this argument, City cites to Helth & Saf. Code §§1799.106 & 1799.107, and two cases, Sanchez v. Kern Emergency Medical Transportation Corp. (2017) 8 Cal. App. 5th 146; and Decker v. City of Imperial Beach (1989) 209 Cal. App. 3d 349. The Health and Safety Code provides that emergency personnel are not liable for regular negligence, and that there is presumption against finding gross negligence affecting the burden of proof. Further, City contends that sustaining a demurrer on the grounds of an insufficient factual basis for gross negligence is permissible under Devito v. Cal. (1988) 202 Cal. App. 3d 264.

In Devito, the court sustained a demurrer without leave to amend primarily on the grounds that plaintiff engaged in a hazardous recreational activity. The facts of Devito were that the plaintiff was hiking in a California State Park, encountered a fire hose hung from a tree, decided to swing from the fire hose, fell, and severely injured herself from the fall. Devito v. Cal. (1988) 202 Cal. App. 3d 264, 267. The court reasoned that the complaint stated that the hose hung over a steep cliff that was open and obvious to plaintiff, making the fall plaintiff sustained an inherent risk of plaintiff’s decision to use the hose as a swing. Devito v. Cal. (1988) 202 Cal. App. 3d 264, 271-72. Following its analysis on this point, the court additionally noted that “the complaint alleges no facts showing ‘an extreme departure from the ordinary standard of care.’” Id. at 272 (quoting Gore v. Board of Medical Quality Assurance (1980) 110 Cal. App. 3d 184, 198). The case cited by the Devito court, Gore, is more closely on point that the Devito case itself, in that the Gore court upheld an administrative finding of a physician’s gross negligence – but the Gore case was an appeal from a complete evidentiary record, rather than a demurrer, as is the case here.

Other cases cited but not substantively discussed by City, but which are closely aligned with the facts alleged in the instant action, are Eastburn v. Regional Fire Protection Authority (2003) 31 Cal. 4th 1175, where the California Supreme Court held that placing a 911 call on hold, ultimately causing delayed treatment for a 3-year-old electrocution victim did not constitute gross negligence; and Decker v. City of Imperial Beach (1989) 209 Cal. App. 3d 349, where a surfer caught in a lobster trap failed to be rescued by emergency personnel, in part, because of the antiquated rescue methods used, did not constitute gross negligence.

The Court considers the facts alleged in the instant action to most closely align with the facts in Decker v. City of Imperial Beach (1989) 209 Cal. App. 3d 349, as the SAC alleges that Decedent received attention from emergency services, but that their delay in certain treatments, and general failure to provide information to the treating physician in a timely manner resulted in Decedent’s death. As such, the Court does not consider the facts, as presently alleged, to be sufficient to support an inference of an extreme departure from the ordinary standard of care necessary to attach liability to City.

Further, even if the Court were to consider the facts sufficient to support an inference for gross negligence, Plaintiff has insufficiently alleged facts related to the other elements of the cause of action, namely: What the general duties of an emergency technician are under the circumstances, and how the purportedly grossly negligent breach of any duty owed to Decedent was a proximate cause of his death.

Accordingly, the Court will sustain the demurrer, with leave to amend.

---

Motion to Strike – As the Court is inclined to grant leave to amend, the motion to strike is moot.

---

RULING: below,

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant City of Monterey Park’s Demurrer and Motion to Strike came on regularly for hearing on January 10, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE DEMURRER IS SUSTAINED WITH 20 DAYS LEAVE TO AMEND; AND

THE MOTION TO STRIKE IS MOOT.

DATE: _______________ _______________________________

JUDGE

Case Number: BC706100    Hearing Date: December 09, 2019    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

COREEN GONZALEZ,

Plaintiff,

v.

CITY OF MONTEREY PARK , et al.,

Defendants.

Case No.: BC706100

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

After review of the court file, the Court makes the following order:

Department 3 of the Personal Injury Court has determined that the above entitled action is complicated based upon the number of pretrial hearings and/or the complexity of the issues presented.

AT THE DIRECTION OF DEPARTMENT 1:

This case is hereby transferred and reassigned to the following Independent Calendar Court in THE NORTH CENTRAL DISTRICT, JUDGE WILLIAM D. STEWART presiding in DEPT. A of the BURBANK Courthouse, for all purposes except trial. Department 1 hereby delegates to the Independent Calendar Court the authority to assign the cause for trial to that Independent Calendar Court.

The Order is signed and filed this date, and incorporated herein by reference. Any pending motions or hearings, including trial and status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar court.

Upon receipt of this notice, counsel for Plaintiff shall give notice to all parties of record.

DATED: December 9, 2019 ___________________________

Hon. Jon Takasugi

Judge of the Superior Court