This case was last updated from Los Angeles County Superior Courts on 05/29/2019 at 00:53:54 (UTC).

FRANK GALLARD VS BEVERLY HOSPITAL ET AL

Case Summary

On 09/29/2017 FRANK GALLARD filed a Personal Injury - Uninsured Motor Vehicle lawsuit against BEVERLY HOSPITAL. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GEORGINA T. RIZK. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8192

  • Filing Date:

    09/29/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Uninsured Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GEORGINA T. RIZK

 

Party Details

Plaintiff and Petitioner

GALLARDO FRANK

Defendants and Respondents

BEVERLY HOSPITAL

DOES 1 TO 20

GAXIOLA MICHAEL JOSEPH

ALLIEDBARTON SECURITY SERVICES LP

ALLIEDBARTON SECURITY SERVICES LLC

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

STOLL ROBERT J. III ESQ.

DOYLE DANIEL W. ESQ.

STOLL ROBERT J. III

Defendant Attorneys

LEE GREGORY K.

DOYLE DANIEL W.

 

Court Documents

Proof of Service of Summons and Complaint

2/1/2018: Proof of Service of Summons and Complaint

Notice of Motion

10/30/2018: Notice of Motion

Order

11/26/2018: Order

Minute Order

11/26/2018: Minute Order

Motion to Compel

1/10/2019: Motion to Compel

Request for Judicial Notice

1/22/2019: Request for Judicial Notice

Opposition

1/23/2019: Opposition

Opposition

1/28/2019: Opposition

Reply

1/31/2019: Reply

Notice

1/31/2019: Notice

Minute Order

2/5/2019: Minute Order

Minute Order

2/19/2019: Minute Order

Declaration

5/8/2019: Declaration

Exhibit List

5/8/2019: Exhibit List

Opposition

5/20/2019: Opposition

DEMAND FOR JURY TRIAL AND NOTIC OF POSTING JURY FEES

10/27/2017: DEMAND FOR JURY TRIAL AND NOTIC OF POSTING JURY FEES

CoverSheet

9/29/2017: CoverSheet

Complaint

9/29/2017: Complaint

40 More Documents Available

 

Docket Entries

  • 05/23/2019
  • Reply (PLAINTIFF?S REPLY IN FURTHER SUPPORT OF HIS MOTION TO QUASH DEFENDANT?S SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS FROM MONTEBELLO POLICE DEPARTMENT AND REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $810.00; MEMORANDUM OF POINTS AND AUTHORITIES); Filed by Frank Gallardo (Plaintiff)

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  • 05/21/2019
  • at 08:30 AM in Department 34; Hearing on Motion for Summary Judgment - Not Held - Rescheduled by Party

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  • 05/20/2019
  • Opposition ( TO MOTION TO QUASH); Filed by Beverly Hospital (Defendant)

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  • 05/09/2019
  • Separate Statement; Filed by Frank Gallardo (Plaintiff)

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  • 05/09/2019
  • Motion to Compel Further Discovery Responses; Filed by Frank Gallardo (Plaintiff)

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  • 05/08/2019
  • Exhibit List (Appendix of Evidence); Filed by AlliedBarton Security Services, LP (Defendant)

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  • 05/08/2019
  • Motion for Summary Judgment; Filed by AlliedBarton Security Services, LP (Defendant)

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  • 05/08/2019
  • Separate Statement; Filed by AlliedBarton Security Services, LP (Defendant)

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  • 05/08/2019
  • Declaration (of Jose Lima); Filed by AlliedBarton Security Services, LP (Defendant)

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  • 05/08/2019
  • Declaration (of Darren Chavez); Filed by AlliedBarton Security Services, LP (Defendant)

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61 More Docket Entries
  • 10/27/2017
  • Answer; Filed by Beverly Hospital (Defendant)

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  • 10/27/2017
  • Demand for Jury Trial; Filed by Beverly Hospital (Defendant)

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  • 10/27/2017
  • Receipt; Filed by Beverly Hospital (Defendant)

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  • 10/27/2017
  • CIVIL DEPOSIT

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  • 10/27/2017
  • DECLARATION OF TRIAL ATTORNEY

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  • 10/27/2017
  • DEMAND FOR JURY TRIAL AND NOTIC OF POSTING JURY FEES

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  • 10/27/2017
  • ANSWER TO COMPLAINT

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  • 09/29/2017
  • Complaint

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  • 09/29/2017
  • Summons; Filed by Frank Gallardo (Plaintiff)

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  • 09/29/2017
  • Complaint; Filed by Frank Gallardo (Plaintiff)

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Tentative Rulings

Case Number: BC678192    Hearing Date: November 21, 2019    Dept: 34

UBJECT: Motion for Determination of Good Faith Settlement

Moving Party: Defendant AlliedBarton Security Services, LP

Resp. Party: None

The motion for determination of good faith settlement is GRANTED.

BACKGROUND:

Plaintiff Frank Gallardo commenced this action on September 29, 2017, asserting a cause of action for general negligence against Defendants Beverly Hospital and Michael Joseph Gaxiola.

Plaintiff alleges he suffered personal injury when he was assaulted by a patient, Michael Joseph Gaxiola in the lobby of the Emergency Room at Beverly Hospital in Montebello, California. Plaintiff alleges he was injured due to Defendants’ negligent surveillance and guardianship of the Emergency Room at Beverly Hospital, causing Plaintiff to sustain serious injuries that was caused by Defendants’ lack of supervision.

On January 18, 2018, Plaintiff filed amendments to the complaint, substituting AlliedBarton Security Services, LLC for Doe 1 and AlliedBarton Security Services, LP for Doe 2.

On April 3, 2019, AlliedBarton Security Services, LLC was dismissed without prejudice from the complaint.

On October 2, 2019, the Court denied Defendants Beverly Hospital and AlliedBarton’s motions for summary judgment.

On October 28, 2019, the Court denied Defendant Beverly Hospital’s ex parte application for order bifurcating the trial.

On October 29, 2019, Defendant AlliedBarton Security Services, LP filed the instant unopposed motion for determination of good faith settlement.

ANALYSIS:

A. Relevant Law

"(a)(1)Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005. . . .

(b) The issue of good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and any counter-affidavits filed in response, or the court may, in its discretion, receive other evidence at the hearing.

(c) A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasors or co-obligor from any further claims against the settling tortfeasors or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.

(d) The party asserting the lack of good faith shall have the burden of proof on the issue.” (Code Civ. Proc., § 877.6(a)(1), (b)-(d).)

The factors considered in determining good faith include: the rough approximation of plaintiff's total recovery and settlor's proportionate liability; the amount paid in settlement; the allocation of settlement proceeds among the plaintiffs; a recognition that a settlor should pay less in settlement than if found liable after a trial; the settlor's financial condition and insurance limits; and evidence of collusion, fraud, or tortious conduct between the settlor and the plaintiffs aimed at making the nonsettling parties pay more than their fair share. (Tech Bilt, Inc. v. Woodward Clyde & Associates (1985) 38 Cal.3d 488, 499.) "[T]he determination whether the settlement was in good faith must be based on competent, admissible evidence." (Brehm Communities v. Sup. Ct. (2001) 88 Cal.App.4th 730, 736.)

“[O]nly when the good faith nature of a settlement is disputed, it is incumbent upon the trial court to consider and weigh the Tech-Bilt factors. That is to say, when no one objects, the barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.” (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261.)

B. Discussion

Defendant AlliedBarton asserts that the sum it “paid to Plaintiff pursuant to their settlement agreement is a reasonable amount for AlliedBarton to pay for a settlement and release of its proportionate share of potential liability in this case.” (Motion, p. 1:12-14.) Defendant AlliedBarton maintains that “Plaintiff supports this motion and has agreed that the settlement is a good faith settlement within the meaning of Tech-Bilt, Inc. v. Woodward-Clyde & Assoc. (1985) 38 Cal.3d 488.” (Id. at p. 1:15-17.)

Defendant AlliedBarton explains that “on October 14, 2019, AlliedBarton and Plaintiff reached a settlement following good faith settlement negotiations.” (Id. at pp. 1:28-2:2 [citing Tamiry Decl., ¶ 8].) Defendant AlliedBarton asserts that it “has agreed to pay $350,000 in settlement funds to Plaintiff, which is a substantial sum, particularly given the disputed nature of liability.” (Id. at p. 3:17-18 [citing Tamiry Decl., ¶ 11].) Defendant AlliedBarton argues that the settlement was made in good faith and the agreement to pay $350,000.00 to Plaintiff is well within the ballpark of its exposure “given Beverly Hospital's control over security functions and the fact that AlliedBarton performed its duties as it was required to do.” (Id. at p. 5:25-28.)

Defendant AlliedBarton asserts that “there is no issue of collusion or fraud given that the settlement was reached as a result of good faith settlement negotiations between the parties' attorneys of record.” (Id. at p. 6:11-12.) Therefore, Defendant AlliedBarton argues “there is no conduct, tortious or otherwise, aimed at injuring the interests of other defendants or non-settling tortfeasors in this case.” (Id. at p. 6:12-14.)

This application is unopposed. The motion itself sets forth the ground of good faith and is accompanied by a declaration which sets forth a brief background of this case. (See City of Grand Terrace, 192 Cal.App. 4d at 1261; see also Tamiry Decl., ¶¶3-9; see also Motion, pp. 1:3-11, 1:18-2:4.)

The Court GRANTS Defendant’s motion for determination of good faith settlement.

Case Number: BC678192    Hearing Date: October 28, 2019    Dept: 34

SUBJECT: Ex Parte Application for Order Bifurcating the Trial

Moving Party: Plaintiff Frank Gallardo

Responding Party: Defendant Beverly Hospital

Defendant Beverly Hospital’s ex parte application for order bifurcating the trial is DENIED.

PRELIMINARY COMMENTS:

Defendant quotes CCP § 597.5 in its brief. (See Motion, p. 3:25 – p. 4:5.) As Plaintiff notes, this is not an accurate quotation from the statute. The Court does not find that Defendant deliberately tried to mislead the Court; however, in the future, if defense counsel is leaving out certain words from a cited statute, it is incumbent upon counsel to insert ellipses to indicate where words have been omitted.

BACKGROUND:

Plaintiff Frank Gallardo commenced this action on September 29, 2017, asserting a cause of action for general negligence against Defendants Beverly Hospital and Michael Joseph Gaxiola.

Plaintiff alleges he suffered personal injury when he was assaulted by a patient, Michael Joseph Gaxiola in the lobby of the Emergency Room at Beverly Hospital in Montebello, California. Plaintiff alleges he was injured due to Defendants’ negligent surveillance and guardianship of the Emergency Room at Beverly Hospital, causing Plaintiff to sustain serious injuries that was caused by Defendants’ lack of supervision.

On January 18, 2018, Plaintiff filed amendments to the complaint, substituting AlliedBarton Security Services, LLC for Doe 1 and AlliedBarton Security Services, LP for Doe 2.

On April 3, 2019, AlliedBarton Security Services, LLC was dismissed without prejudice from the complaint.

On October 2, 2019, the Court denied Defendants Beverly Hospital and AlliedBarton’s motions for summary judgment.

On October 15, 2019, Defendant Beverly Hospital filed the instant ex parte application for order bifurcating the trial.

ANALYSIS:

A. Legal Standard

California Code of Civil Procedure section 597.5 states:

“In an action against a physician or surgeon, dentist, registered nurse, dispensing optician, optometrist, registered physical therapist, podiatrist, licensed psychologist, osteopathic physician and surgeon, chiropractor, clinical laboratory bioanalyst, clinical laboratory technologist, veterinarian, or a licensed hospital as the employer of any such person, based upon the person's alleged professional negligence, or for rendering professional services without consent, or for error or omission in the person's practice, if the answer pleads that the action is barred by the statute of limitations, and if any party so moves or the court upon its own motion requires, the issues raised thereby must be tried separately and before any other issues in the case are tried. If the issue raised by the statute of limitations is finally determined in favor of the plaintiff, the remaining issues shall then be tried.” (Code of Civ. Proc., §597.5.)

B. Discussion

Defendant Beverly Hospital (“Defendant”) brings this ex parte application for an order bifurcating the trial so that the affirmative defense of statute of limitations may be tried first. (Ex Parte Application, p. 1:26-27.) Defendant makes this application “on the grounds that since this is a medical malpractice case, the defendant is entitled to a separate trial on the statute of limitations defense, and that the interests of justice require that the two phases of the bifurcated trial be before separate juries.” (Id. at p. 2:3-5.)

Defendant argues that “as this is an action against a health care provider based upon alleged professional negligence, section 597.5 is applicable” and “the language of section 597.5 is mandatory.” (Id. at p. 4:6-8.) Defendants asserts that “by way of this motion, Beverly Hospital Dr. Garcia respectfully requests a bifurcation of the trial in this matter as mandated by Code of Civil Procedure Section 597.5.” (Id. at p. 4:13-15.)

In opposition, Plaintiff argues that the trial should not be bifurcated because Code of Civil Procedure section 597.5 does not apply to this case, as “this is not a case for ‘medical negligence’ or ‘medical malpractice.’” (Opp., p. 1:23.) Plaintiff asserts that he “has not filed a lawsuit for medical negligence and “there are no allegations anywhere in the Complaint of medical negligence or any allegation that Mr. Gallardo’s injuries were a result of medical treatment or medical decision making.” (Id. at p. 1:23-26.) Plaintiff maintains that he does not “allege that his injuries were a result of any medical treatment provided to him or Michael Gaxiola[;]” nor does he claim “that his injuries were a result of any medical decision making by Beverly Hospital.” (Id. at pp. 1:27-2:2.)

Plaintiff explains that his “only allegation of negligence against Beverly Hospital is for its failure to keep its public ER waiting room safe for members of the public.” (Id. at p. 2:3-4.) Plaintiff asserts that “the incident occurred in the public waiting room of the ER” and that Plaintiff “had not been admitted and was not being given any medical care.” (Id. at p. 2:6-7.) Plaintiff notes that “Beverly Hospital’s own expert witness, Ryan Klein, M.D., gives the unopposed, uncontradicted opinion that (1) Gaxiola was discharged before the incident, (2) Gaxiola exhibited no outward signs of violence or danger, (3) the medical care and treatment rendered to Gaxiola was reasonable and appropriate, including the decision to discharge him, and (4) Beverly Hopsital was not negligent in its care and treatment of Gaxiola.” (Id. at p. 2:12-17 [citing Opp., Ex. A].) Plaintiff argues that he “does not allege any medical negligence or that the incident was the result of medical decision making, and Beverly Hospital’s own expert in ER standard of care confirms there was no medical negligence in the decision to discharge Michael Gaxiola.” (Id. at p. 2:20-23.) Plaintiff maintains that “this case has always been about Beverly Hospital’s negligent failure to maintain the security and safety of its public waiting room.” (Id. at p. 5:6-7.)

Plaintiff asserts that Defendant misquotes Code of Civil Procedure section 597.5 and “without telling the court, it edits and paraphrases the law to leave out the fatal portion of the statute.” (Id. at p. 7:9-12.) Plaintiff contends that Code of Civil Procedure section 597.5 “provides for bifurcation in an ‘action against a physician . . . or a licensed hospital as the employer of any such person, based upon the person’s alleged professional medical negligence . . . .’” (Id. at p. 7:13-15.) Plaintiff argues that “this case is not an ‘action against a physician’” or based on Defendant’s “status ‘as the employer’ of any physician” but rather “is based solely on its failure to post a security guard in its public ER waiting room” which “is a non-medical duty that has nothing to do with the provision of care to its patients.” (Id. at p. 7:16-19.)

Plaintiff is correct. This case is not based on a physician’s negligence, but rather is an action based on premises liability or negligent security in the public ER waiting room. Because this action is not against a physician, or a licensed hospital as the employer of such person, based upon the person’s alleged professional negligence, Code of Civil Procedure section 597.5 does not apply.

Defendant’s ex parte application for an order bifurcating the trial is DENIED.