This case was last updated from Los Angeles County Superior Courts on 07/05/2019 at 00:45:26 (UTC).

GARY PATENT ET AL VS OLATUNJI BANDELE D V M ET AL

Case Summary

On 03/13/2018 a Other case was filed by GARY PATENT against OLATUNJI BANDELE D 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:

    ****7534

  • Filing Date:

    03/13/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiffs

ABRENICA DERRICK

PATENT GARY

Petitioner and Plaintiff

PATENT GARY

Respondents and Defendants

LA CENTRAL ANIMAL HOSPITAL

KIM YOUNG JOO D.V.M.

DOES 1-50

BANDELE OLATUNJI D.V.M.

CENTRAL ORANGE COUNTY EMERGENCY ANIMAL

 

Court Documents

DEFENDANTS, OLATUNJI BANDELE, D.VM., AND LA CENTRAL ANIMAL HOSPITAL'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS? COMPLAINT

6/1/2018: DEFENDANTS, OLATUNJI BANDELE, D.VM., AND LA CENTRAL ANIMAL HOSPITAL'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS? COMPLAINT

NOTICE RE: CONTINUANCE OF HEARING

6/18/2018: NOTICE RE: CONTINUANCE OF HEARING

NOTICE RE: CONTINUANCE OF HEARING

6/18/2018: NOTICE RE: CONTINUANCE OF HEARING

CASE MANAGEMENT STATEMENT

6/28/2018: CASE MANAGEMENT STATEMENT

NOTICE OF CHANGE OF ADDRESS

7/9/2018: NOTICE OF CHANGE OF ADDRESS

Minute Order

7/13/2018: Minute Order

NOTICE OF CONTINUED CASE MANAGEMENT CONFERENCE

7/17/2018: NOTICE OF CONTINUED CASE MANAGEMENT CONFERENCE

DEFENDANTS YOUNG JOO KIM, DVM. AND CENTRAL ORANGE COUNTY EMERGENCY ANIMAL HOSPITAL'S REPLY TO OLATUNJI BANDELE, D.V.M. AND LA CENTRAL ANIMAL HOSPITAL'S OPPOSITION TO DEFENDANTS' APPLICATION FOR GOOD F

7/23/2018: DEFENDANTS YOUNG JOO KIM, DVM. AND CENTRAL ORANGE COUNTY EMERGENCY ANIMAL HOSPITAL'S REPLY TO OLATUNJI BANDELE, D.V.M. AND LA CENTRAL ANIMAL HOSPITAL'S OPPOSITION TO DEFENDANTS' APPLICATION FOR GOOD F

NOTICE OF POSTING JURY FEES, ETC

8/10/2018: NOTICE OF POSTING JURY FEES, ETC

PROOF OF SERVICE FOR CASE MANAGEMENT STATEMENT

8/27/2018: PROOF OF SERVICE FOR CASE MANAGEMENT STATEMENT

Legacy Document

10/3/2018: Legacy Document

Minute Order

10/26/2018: Minute Order

Notice of Ruling

10/29/2018: Notice of Ruling

Minute Order

2/14/2019: Minute Order

PROOF OF SERVICE SUMMONS

4/13/2018: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

4/10/2018: PROOF OF SERVICE SUMMONS

NOTICE OF CASE MANAGEMENT CONFERENCE

3/27/2018: NOTICE OF CASE MANAGEMENT CONFERENCE

VERIFIED COMPLAINT FOR DAMAGES 1. NEGLIGENCE ;ETC

3/13/2018: VERIFIED COMPLAINT FOR DAMAGES 1. NEGLIGENCE ;ETC

55 More Documents Available

 

Docket Entries

  • 03/20/2019
  • at 08:30 AM in Department 34; Hearing on Motion to Quash (Subpoena) - Not Held - Taken Off Calendar by Party

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  • 03/18/2019
  • at 08:35 AM in Department 34; Jury Trial - Not Held - Continued - Stipulation

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  • 03/06/2019
  • at 09:00 AM in Department 34; Final Status Conference - Not Held - Continued - Stipulation

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  • 02/21/2019
  • Notice (Notice of Withdrawal of Motion to Quash); Filed by Gary Patent (Plaintiff); Derrick Abrenica (Plaintiff)

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  • 02/20/2019
  • Notice of Ruling; Filed by Olatunji Bandele, D.V.M. (Defendant); LA Central Animal Hospital (Defendant)

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  • 02/14/2019
  • at 08:30 AM in Department 34; Ex-Parte Proceedings (for a protective order to stay limited discovery production) - Held

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  • 02/14/2019
  • Minute Order ( (Ex-Parte Proceedings for a protective order to stay limited d...)); Filed by Clerk

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  • 02/13/2019
  • Motion to Quash (Subpoena Duces Tecum); Filed by Gary Patent (Plaintiff); Derrick Abrenica (Plaintiff)

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  • 01/24/2019
  • Stipulation and Order (Stipulation and Proposed Order to Continue Trial and Related Deadlines); Filed by Olatunji Bandele, D.V.M. (Defendant); LA Central Animal Hospital (Defendant)

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  • 11/28/2018
  • Order (Granting Defendants Young Joo Kim, DVM. and Central Orange County Emergency Animal Hospital's Motion for Good Faith Settlement Pursuant to Code of Civil Procedure Section 877.6)

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116 More Docket Entries
  • 04/10/2018
  • Proof-Service/Summons

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  • 04/10/2018
  • PROOF OF SERVICE SUMMONS

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  • 04/10/2018
  • Proof-Service/Summons

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  • 04/10/2018
  • PROOF OF SERVICE SUMMONS

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  • 04/10/2018
  • Proof-Service/Summons

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  • 03/27/2018
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 03/27/2018
  • Notice of Case Management Conference; Filed by Clerk

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  • 03/13/2018
  • VERIFIED COMPLAINT FOR DAMAGES 1. NEGLIGENCE ;ETC

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  • 03/13/2018
  • Complaint; Filed by Gary Patent (Plaintiff); Derrick Abrenica (Plaintiff)

    Read MoreRead Less
  • 03/13/2018
  • SUMMONS

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Tentative Rulings

Case Number: BC697534    Hearing Date: March 02, 2020    Dept: 34

SUBJECT: Motion for Summary Adjudication

Moving Party: Defendants Olatunji Bandele, D.V.M and LA Central Animal Hospital

Resp. Party: Plaintiffs Gary Patent and Derrick Abrenica

TENTATIVE RULING:

Defendants’ motion for summary adjudication is DENIED.

Defendants’ request for judicial notice is DENIED as superfluous.

BACKGROUND:

Plaintiffs Gary Patent and Derrick Abrenica commenced this action on March 13, 2018 against Defendants Olatunji Bandele, Young Joo Kim, LA Central Animal Hospital, and Central Orange County Emergency Animal Hospital. The operative first amended complaint, filed August 10, 2018, asserts causes of action for: (1) Negligence; (2) Trespass to Chattel; (3) Negligent Breach of Bailment; (4) Intentional Infliction of Emotional Distress; (5) Fraud; (6) Misrepresentation; and (7) Deceptive Practices (Civ. Code § 1770).

This action arises out of injuries sustained by Plaintiffs’ dog, Laika, and allegedly exacerbated by Defendants’ failure to provide adequate veterinary care. On September 04, 2017, Laika was hit by a car. (FAC ¶ 11.) Plaintiffs brought Laika to Defendant LA Central Animal Hospital where he was examined by Defendant Bandele. (Id.) Bandele diagnosed Laika with a broken back and put Laika’s chances of making a full recovery at 70/30. (Id.) Bandele then recommended that Laika be taken to see Defendant Kim, a veterinary spinal surgeon at Defendant Central Orange County Emergency Animal Hospital. (Id. at ¶ 12.) Despite Bandele’s assurances that Kim would be able to perform the surgery almost immediately, Laika did not receive surgery for nearly 12 hours. (Id. at ¶¶ 13-25.) Plaintiffs allege that as a result of the long delay in beginning the surgery, Laika is now permanently paralyzed in his rear half. (Id. at ¶ 31.)

On September 12, 2018, the Court granted the application of Kim and Central Orange County Emergency Animal Hospital to approve their good faith settlement with Plaintiffs. Those Defendants were subsequently dismissed on October 3, 2018.

On October 26, 2018, the Court sustained Defendants’ demurrer, with leave to amend, as to the seventh cause of action, sustained, without leave to amend, as to Count Three of the first cause of action, the third, fourth, and sixth causes of action, and overruled the demurrer as to Count One and Count Two of the first cause of action, second cause of action, and fifth cause of action.

On October 26, 2018, the Court deemed Defendants’ motion to strike moot as to Nos. 4, 5, 7, 13, and 15; granted their motion to strike as to Nos. 1, 6, 8, and 9 (punitive damages); and denied their motion to strike as to Nos. 2, 3, 10, 11, 12, and 14 (exemplary damages).

On October 10, 2019, the Court granted Defendants Olatunji Bandele, D.V.M. and LA Central Animal Hospital’s motion for summary adjudication as to the veterinarian malpractice/negligence and fraud claims and denied their motion for summary adjudication as to the negligence per se, trespass to chattels, and punitive damages claims.

On October 10, 2019, the Court denied Plaintiffs’ amended motion to vacate settlement agreement.

On November 20, 2019, the Court denied Plaintiffs’ motions to reconsider the Court’s decision regarding (1) the motion for summary judgment/adjudication and (2) the amended motion to vacate settlement agreement.

On January 9, 2020, the Court granted Defendants’ motion for leave to file a first amended answer.

Before the Court is Defendants’ motion for summary adjudication.

ANALYSIS:

A. Request for Judicial Notice

Defendants request that the Court take judicial notice of:

· Exhibit A: Plaintiffs’ FAC, filed on August 10, 2018.

· Exhibit B: Notice of Ruling on Defendants’ Demurrer and Motion to strike, dated October 29, 2018.

· Exhibit C: Stipulation and Order to Continue Trial and Related Deadlines, dated January 15, 2019.

The Court recognizes that “[s]uperfluity does not vitiate.” (Civ. Code § 3537.) Nonetheless, the Court DENIES Defendants’ request as superfluous. (Cal. Rules of Court, rule 3.110(d).) Any party that wishes to draw the Court’s attention to a matter filed in this action may simply cite directly to the document by execution and filing date. (See Cal. Rules of Court, rule 3.1110(d).)

B. Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code of Civ. Proc. § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

C. Discussion

Defendants move for summary adjudication of the following sole issue:

“Plaintiffs are barred as a matter of law from obtaining an award of exemplary/punitive damages against Defendants because Plaintiffs did not comply with California Code of Civil Procedure § 425.13 by timely obtaining a Court order authorizing them to do seek punitive damages.” (Motion, p. 2:10-13.)

Code of Civil procedure section 425.13, subdivision (a) states:

“In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code. The court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed within two years after the complaint or initial pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier.”

Civil Code section 3340 states, “For wrongful injuries to animals being subjects of property, committed willfully or by gross negligence, in disregard of humanity, exemplary damages may be given.”

Defendants assert that with this present motion, they “set forth the case law which the Court found lacking with respect to the Motion to Strike, establishing that punitive damages are the same as exemplary damages.” (Id. at p. 4:20-22.) Defendants argue that because “Plaintiffs’ damages allegations are legally improper (as this Court has already ruled), the same must hold true with respect to Plaintiffs’ exemplary damages allegations.” (Id. at p. 4:22-24.) Therefore, Defendants argue, they “are entitled to summary adjudication as a matter of law with respect to Plaintiffs’ claims for exemplary/punitive damages.” (Id. at p. 4:24-25.)

Defendants cite to several federal court and out-of-state court cases for the general proposition that punitive damages are the same as exemplary damages. (See generally id. at pp. 7:12-8:10, citing Smith v. Wade (1983) 461 U.S. 30, 41; Bonesteel v. Nash (Ohio 2016) 65 N.E.3d 326, 329; Uhle v. Sachs Electric (Mo. 1992) 831 S.W.2d 774, 777 fn.1; Brown v. MHN Government Svcs. (Wash 2013) 306 P.3d 258, 277; Manor Care, Inc. v. Douglas (W.Va. 2014) 763 S.E.2d 73, 79; Harty v. Cantor Fitzgerald and Co. (Conn. 2005) 881 A.2d 139, 153; Pettengill v. Booth Newspapers, Inc. (Mich. 1979) 278 N.W.2d 682, 595, fn. 2; Madison v. Wigal (Ill. 1958) 153 N.E.2d 90, 94; Alabama Power Co. v. Dunlap (Ala. 1941) 200 So.2d 617, 621; Hofer v. Lavender (Tex. 1984) 679 S.W.2d 470, 477; Sexton v. Sewell (Ga. 2019) 830 S.E.2d 605, 611, fn. 29.)

Defendants also cite to California state court cases for the proposition that the courts have generally used the terms “punitive damages” and “exemplary damages” interchangeably. (Id. at p. 8:11-10:7, citing White v. Ultramar (1999) 21 Cal.4th 563, 568, 572; Bertero v. National General Corp. (1974) 13 Cal.3d 43, 66 fn. 13; Mother Cobb’s Chicken Turnovers, Inc. v. Fox (1937) 10 Cal.2d 203, 205; Plotnick v. Meihaus (2012) 208 Cal.App.4th 1590, 1607; Dreyer v. Cyriaks (1931) 112 Cal.App. 279, 281, 284; Covenant Care, Inc. v. Superior Ct. (2004) 32 Cal.4th 771, 776.)

In opposition, Plaintiffs argue that: (1) “Civ. Code § 425.13 specifically refers to Civ. Code § 3294 and makes no mention of Civ. Code § 3340[;]” (2) “Civ. Code § 3294 is specifically written to address health care providers, who treat humans; Civ. Code § 3340 is specifically written to address those who treat animals under property laws[;]” and (3) Defendants have not provided case law which the Court found previously lacking because “citing case law that links ‘exemplary’ and ‘punitive’ as synonymous terms is not the same as citing case law that shows Civ. Code § 425.13 applies to Civ. Code § 3340.” (Opp., pp. 3:4-4:3.)

Defendants still have not cited to any case law demonstrating a court order must be sought before seeking exemplary damages under Civil Code section 3340. CCP §425.13 explicitly cross-refers to Civil Code §3294, but not to Civil Code §3340. Defendants have not cited to case law or legislative history that demonstrates that Civil Code section 425.13 applies to Civil Code section 3340. Therefore, Defendants have not met their burden to show that Plaintiffs are barred as a matter of law from obtaining an award of exemplary damages against Defendants.

Accordingly, the Court DENIES Defendants’ motion for summary adjudication.

Case Number: BC697534    Hearing Date: January 09, 2020    Dept: 34

SUBJECT: Motion for Leave to File a First Amended Answer

Moving Party: Defendants Olatunji Bandele, D.V.M and LA Central Animal Hospital

Resp. Party: Plaintiffs Gary Patent and Derrick Abrenica

Defendants’ motion for leave to file a first amended answer is GRANTED.

PRELIMINARY COMMENTS:

This is the type of motion that can be kindly characterized as a waste of time for all parties concerned. Even though the Court will grant the motion, it will not affect the trial or resolution of this matter at all.

Plaintiffs are certainly correct that at least a good part of the motion is superfluous. “[I]t is a waste of time and judicial resources to entertain a motion challenging part of a pleading on the sole ground of repetitiveness. (See Civ.Code, § 3537 [“Superfluity does not vitiate”].) This is the sort of defect that, if it justifies any judicial intervention at all, is ordinarily dealt with most economically at trial, or on a dispositive motion such as summary judgment.” (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 890.) The above statement applies equally to a motion to amend a pleading.

The Court is not sure why Defendants felt it necessary to file this motion, or why Plaintiffs felt it necessary to oppose the motion.

BACKGROUND:

Plaintiffs Gary Patent and Derrick Abrenica commenced this action on March 13, 2018 against Defendants Olatunji Bandele, Young Joo Kim, LA Central Animal Hospital, and Central Orange County Emergency Animal Hospital. The operative first amended complaint, filed August 10, 2018, asserts causes of action for: (1) Negligence; (2) Trespass to Chattel; (3) Negligent Breach of Bailment; (4) Intentional Infliction of Emotional Distress; (5) Fraud; (6) Misrepresentation; and (7) Deceptive Practices (Civ. Code § 1770).

This action arises out of injuries sustained by Plaintiffs’ dog, Laika, and allegedly exacerbated by Defendants’ failure to provide adequate veterinary care. On September 04, 2017, Laika was hit by a car. (FAC ¶ 11.) Plaintiffs brought Laika to Defendant LA Central Animal Hospital where he was examined by Defendant Bandele. (Id.) Bandele diagnosed Laika with a broken back and put Laika’s chances of making a full recovery at 70/30. (Id.) Bandele then recommended that Laika be taken to see Defendant Kim, a veterinary spinal surgeon at Defendant Central Orange County Emergency Animal Hospital. (Id. at ¶ 12.) Despite Bandele’s assurances that Kim would be able to perform the surgery almost immediately, Laika did not receive surgery for nearly 12 hours. (Id. at ¶¶ 13-25.) Plaintiffs allege that as a result of the long delay in beginning the surgery, Laika is now permanently paralyzed in his rear half. (Id. at ¶ 31.)

On September 12, 2018, the Court granted the application of Kim and Central Orange County Emergency Animal Hospital to approve their good faith settlement with Plaintiffs. Those Defendants were subsequently dismissed on October 3, 2018.

On October 26, 2018, the Court sustained Defendants’ demurrer, with leave to amend, as to the seventh cause of action, sustained, without leave to amend, as to Count Three of the first cause of action, the third, fourth, and sixth causes of action, and overruled the demurrer as to Count One and Count Two of the first cause of action, second cause of action, and fifth cause of action.

On October 26, 2018, the Court deemed Defendants’ motion to strike moot as to Nos. 4, 5, 7, 13, and 15; granted their motion to strike as to Nos. 1, 6, 8, and 9; and denied their motion to strike as to Nos. 2, 3, 10, 11, 12, and 14.

On October 10, 2019, the Court granted Defendants Olatunji Bandele, D.V.M. and LA Central Animal Hospital’s motion for summary adjudication as to the veterinarian malpractice/negligence and fraud claims and denied their motion for summary adjudication as to the negligence per se, trespass to chattels, and punitive damages claims.

On October 10, 2019, the Court denied Plaintiffs’ amended motion to vacate settlement agreement.

On November 20, 2019, the Court denied Plaintiffs’ motions to reconsider the Court’s decision regarding (1) the motion for summary judgment/adjudication and (2) the amended motion to vacate settlement agreement.

On December 10, 2019, Defendants filed the instant motion for leave to file a first amended answer.

ANALYSIS:

A. Legal Standard

The court may, in furtherance of justice and on any proper terms, allow a party to amend any pleading. (Code Civ. Proc., § 473, subd. (a)(1); Branick v. Downey Savings & Loan Association (2006) 39 Cal.4th 235, 242.) The court may also, in its discretion and after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (Code Civ. Proc., § 473, subd. (a); Branick, supra, 39 Cal.4th at 242.) “This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) Leave to amend is thus liberally granted, provided there is no statute of limitations concern. (Kolani v. Gluska (1998) 64 Cal.App.4th 402, 411.) The court may deny the plaintiff’s leave to amend if there is prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation. (Id.)

Under California Rules of Court, rule 3.1324, a motion to amend a pleading before trial must (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. (Cal. Rules of Court, rule 3.1324(a).) A separate supporting declaration specifying (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reason why the request for amendment was not made earlier must accompany the motion. (Id., rule 3.1324(b).)

B. Discussion

Defendants’ proposed amendment, to supersede the existing operative answer, is as follows:

1. Omitting the following allegations:

· Answering Paragraph[s] 39, 41 of Plaintiffs’ First Amended Complaint, Defendants lack sufficient information and belief to respond to the allegations in Paragraph 39 of Plaintiffs’ First Amended Complaint and, on that basis, deny each and every allegation in Paragraph 39 of Plaintiffs’ First Amended Complaint. (Answer, ¶ 36, p. 7:6-9, ¶ 38, p. 7:15-18.)

· Paragraph[s] 40, 42-51, 112-120 of Plaintiffs’ First Amended Complaint calls for a legal conclusion for which no response is required. To the extent a response is required, Defendants deny each and every allegation of Paragraph 40 that calls for a legal conclusion. To the extent a response is required; Defendants lack sufficient information and belief, in part due to ambiguities therein and, on that basis, deny each and every allegation in Paragraph 40 of Plaintiffs’ First Amended Complaint. (Answer, ¶ 37, p. 7:10-14; ¶39, p. 7:19-23; ¶ 40, p. 7:24-28; ¶ 41, p. 8:1-5; ¶42, p. 8:6-10; ¶43, p. 8:11-15; ¶44, p. 8:16-20; ¶45, p. 8:21-25; ¶ 46, p. 8:26-9:2; ¶ 47, p. 9:3-7; ¶48, p. 9:8-12; ¶ 83, p. 14:20-24; ¶ 84, p. 14:25-15:1; ¶85, p. 15:2-6; ¶ 86, p. 15:7-11; ¶87, p. 15:12-16; ¶88, p. 15:17-21; ¶89, p. 15:22-26; ¶ 90, p. 15:27-16:3; ¶ 91, p. 16:4-8.)

2. Adding the following allegations:

· As to Paragraphs 39 through 51 of Plaintiffs’ First Amended Complaint, Defendants’ Motion for Summary Adjudication as to Count One of Plaintiffs’ First Cause of Action for Negligence/Veterinary Malpractice was granted. Therefore, no response is required. (Answer, ¶ 36, p. 7:6-8.)

· As to Paragraphs 112 through 120 of Plaintiffs’ First Amended Complaint, Defendants’ Motion for Summary Adjudication as to Plaintiffs’ Fifth Cause of Action for Fraud was granted. Therefore, no response is required. (Answer, ¶ 71, p. 12:16-18.)

· TWENTY-THIRD AFFIRMATIVE DEFENSE [FAILURE TO COMPLY WITH MICRA] 23. These answering Defendants allege that Plaintiffs are barred and precluded from any recovery in this action including any recovery of punitive damages and/or that Plaintiffs’ recovery is limited, due to Plaintiffs’ failure to comply with the Medical Injury Compensation Reform Act (MICRA). TWENTY-FOUTH AFFIRMATIVE DEFENSE [DAMAGES SPECULATIVE] 24. These answering Defendants allege that Plaintiffs are barred and precluded. from any recovery in this action and/or that Plaintiffs’ recovery is limited because some or all of Plaintiffs’ alleged damages are speculative. (Answer, p. 18:11-21.) (See Platt Decl., ¶ 4.)

Defendants move for an order granting leave to file their first amended answer on the grounds that (1) their “answer is verified, such that each paragraph of the Answer is responsive to a specific allegation in Plaintiffs’ First Amended Complaint” and “the Court’s ruling on Defendants’ Motion for Summary Judgment/Adjudication has changed the applicability of some of Defendants’ allegations[;]” and (2) they “have determined that two additional affirmative defenses should be asserted, which are appropriate and warranted based on facts and circumstances to this litigation.” (Motion, p. 16:10-17.) Defendants maintain that “there is no prejudice to Plaintiffs by permitting Defendants to file an amended answer” and “Plaintiffs are free to conduct discovery regarding the two new affirmative defenses, should they feel such discovery is necessary.” (Id. at p. 16:17-20.) Defendants note that “trial has been continued to April 20, 20[20], leaving Plaintiffs adequate time to conduct any additional discovery they may require on these affirmative defenses.” (Id. at p. 16:20-22.)

In opposition, Plaintiffs argue that “Defendants attempt to add an affirmative defense that does not apply to this present case, and was already rejected by this honorable court when it ruled on Defendants’ Motion to Strike.” (Opp., p. 1:18-21.) Plaintiffs also argue that the Court should deny this motion because Defendants “further attempt to add an affirmative defense that is superfluous.” (Id. at p. 1:21-22.) Plaintiffs note that they “are not opposed to removal of answers that are responsive ONLY to the causes of action that are no longer in the case, but are opposed to removal of answers that are relevant to, or responsive to, the remaining causes.” (Id. at p. 3:3-5.)

Defendants’ motion complies with the requirements of California Rules of Court, rule 3.1324 and there exists good cause for allowing the amendment. The declaration submitted in support of the motion satisfies the requirements of California Rules of Court, rule 3.1324 because there is a clear explanation for why this amendment is sought now. Defendants’ counsel, Anthony D. Platt, declares that “the Court’s ruling on Defendants’ Motion for Summary Judgment/Adjudication has changed the applicability of some of Defendants’ allegations, since said ruling eliminated two of Plaintiffs’ causes of action” and “in the course of preparing this motion, Defendants have determined that two additional affirmative defenses should be asserted, which are appropriate and warranted based upon the facts and circumstances of this litigation.” (Platt Decl., ¶ 9.) The declaration identifies (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) why the request for amendment was not made earlier. (See Cal. Rules of Court, Rule 3.1324(b); see also Lackey Decl., ¶¶ 4, 5.) Despite opposing this motion, Plaintiffs have not identified how they will be prejudiced by this amendment.

The only substantive amendment is adding the MICRA affirmative defense. However, even if Defendants are correct that MICRA applies, such an issue could have been raised through a Motion in Limine or a post-trial motion – both of which would have been more economical than this motion.

Nonetheless, the Court must exercise its discretion liberally to permit amendment of the pleadings. (See Kittredge Sports Co., 213 Cal.App.3d at 1047.)

The Court GRANTS Defendants’ motion for leave to amend the answer.

Case Number: BC697534    Hearing Date: November 20, 2019    Dept: 34

SUBJECT: (1) Motion for Reconsideration of Motion for Summary Judgment/Adjudication

Moving Party: Plaintiffs Gary Patent and Derrick Abrenica

Resp. Party: Defendants Olatunji Bandele, D.V.M and LA Central Animal Hospital

(2) Motion for Reconsideration of Amended Motion to Vacate Settlement Agreement

Moving Party: Plaintiffs Gary Patent and Derrick Abrenica

Resp. Party: Previous Defendants Young Joo Jim, DVM and Central Orange County Emergency Animal Hospital

The motion for reconsideration of the order granting Defendants’ motion for summary adjudication as to the first and fifth causes of action is DENIED.

The motion for reconsideration of the order denying Plaintiff’s motion to vacate settlement agreement is DENIED.

BACKGROUND:

Plaintiffs Gary Patent and Derrick Abrenica commenced this action on March 13, 2018 against Defendants Olatunji Bandele, Young Joo Kim, LA Central Animal Hospital, and Central Orange County Emergency Animal Hospital. The operative first amended complaint, filed August 10, 2018, asserts causes of action for: (1) Negligence; (2) Trespass to Chattel; (3) Negligent Breach of Bailment; (4) Intentional Infliction of Emotional Distress; (5) Fraud; (6) Misrepresentation; and (7) Deceptive Practices (Civ. Code § 1770).

This action arises out of injuries sustained by Plaintiffs’ dog, Laika, and allegedly exacerbated by Defendants’ failure to provide adequate veterinary care. On September 04, 2017, Laika was hit by a car. (FAC ¶ 11.) Plaintiffs brought Laika to Defendant LA Central Animal Hospital where he was examined by Defendant Bandele. (Id.) Bandele diagnosed Laika with a broken back and put Laika’s chances of making a full recovery at 70/30. (Id.) Bandele then recommended that Laika be taken to see Defendant Kim, a veterinary spinal surgeon at Defendant Central Orange County Emergency Animal Hospital. (Id. at ¶ 12.) Despite Bandele’s assurances that Kim would be able to perform the surgery almost immediately, Laika did not receive surgery for nearly 12 hours. (Id. at ¶¶ 13-25.) Plaintiffs allege that as a result of the long delay in beginning the surgery, Laika is now permanently paralyzed in his rear half. (Id. at ¶ 31.)

On September 12, 2018, the Court granted the application of Kim and Central Orange County Emergency Animal Hospital to approve their good faith settlement with Plaintiffs. Those Defendants were subsequently dismissed on October 3, 2018.

On October 26, 2018, the Court sustained Defendants’ demurrer, with leave to amend, as to the seventh cause of action, sustained, without leave to amend, as to Count Three of the first cause of action, the third, fourth, and sixth causes of action, and overruled the demurrer as to Count One and Count Two of the first cause of action, second cause of action, and fifth cause of action.

On October 26, 2018, the Court deemed Defendants’ motion to strike moot as to Nos. 4, 5, 7, 13, and 15; granted their motion to strike as to Nos. 1, 6, 8, and 9; and denied their motion to strike as to Nos. 2, 3, 10, 11, 12, and 14.

On October 10, 2019, the Court granted Defendants Olatunji Bandele, D.V.M. and LA Central Animal Hospital’s motion for summary adjudication as to the veterinarian malpractice/negligence and fraud claims and denied their motion for summary adjudication as to the negligence per se, trespass to chattels, and punitive damages claims.

On October 10, 2019, the Court denied Plaintiffs’ amended motion to vacate settlement agreement.

On October 21, 2019, Plaintiffs filed motions to reconsider the Court’s decision regarding (1) the motion for summary judgment/adjudication and (2) the amended motion to vacate settlement agreement.

ANALYSIS:

A. Legal Standard

Pursuant to Code of Civil Procedure Section 1008(a):

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code of Civ. Proc., §1008(a).)

As stated by the court in Gilberd v. AC Transit (1995) 32 Cal. App. 4th 1494, 1499, a court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon “new or different facts, circumstances or law.” There is a strict requirement of diligence, meaning the moving party must present a satisfactory explanation for failing to provide the evidence or different facts earlier. (Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 690.)

B. Discussion

1. Motion for Summary Judgment/Adjudication

Plaintiffs request that this Court reconsider its ruling on the first and fifth causes of action in the motion for summary judgment/adjudication. (Motion for Reconsideration of MSA, p. 7:4-9.) Plaintiffs bring this motion on the following grounds:

· The newly discovered circumstance that Plaintiffs had a disappearing expert witness and had to secure a new expert witness just weeks before trial and while their Opposition to the Motion was due.

· The newly discovered facts that Dr. Kim was actually listed as a staff member at Defendant LA Central Animal Hospital, has been employed at LA Central since 2012, and regularly performs surgery at LA Central. Plaintiffs discovered these facts on September 18, 2019, just one week before Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment was filed.

· The inadvertence/mistake of their counsel, Jill Ryther, who failed to confirm that the voicemails provided as evidence were received by the Court and who failed to authenticate other evidence, such as the current and archived website pages. (Id. at p. 7:10-24.)

In opposition, Defendants Olatunji Bandele, D.V.M. and LA Central Animal Hospital (“Defendants”) argue that none of the asserted facts regarding Dr. Kim are newly discovered, especially because “Plaintiffs actually immediately concede that ‘Plaintiffs discovered these alleged facts on September 18, 2019, just one week before Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment/Adjudication was filed.’” (Opp. to Motion to Reconsider MSA, p. 4:1-4 [citing Motion to Reconsider MSA, p. 7:17-19].) Defendants assert that “therefore, these are – by definition – not newly discovered facts” and “not only did Plaintiffs know of these alleged facts, Plaintiffs put so much emphasis on the alleged fact that Dr. Kim was listed as a staff member at LA Central that they mentioned it eight times in their Opposition to the Motion for Summary Judgment/Adjudication and six times in their Separate Statement.” (Id.at p. 4:4-9 [citing Plaintiffs’ Opposition to MSJ at 6:16; 11:19; 14: 18; 14:24; 14:26; 15:21; 17:15; 24:25; Plaintiffs’ Separate Statement as UMF Nos. 21, 45, 55, 67, 78, 94].) Defendants maintain that “since Plaintiffs concede that they knew of the asserted grounds for their Motion to Reconsider relating to Dr. Kim not only ‘at the time of the original ruling’ but, in fact, a week before they filed their Opposition, Plaintiffs’ contention that this evidence is ‘new’ is utterly frivolous.” (Id. at p. 4:13-16.)

Next, Defendants argue that “none of the asserted facts upon which Plaintiffs’ ‘new expert witness’ bases her opinions are newly discovered.” (Id. at p. 4:17-18.) Defendants maintain that “Plaintiffs provide no evidence whatsoever with respect to their alleged ‘disappearing expert witness’” because they “do not provide any declaration and/or documentary evidence in support of this claim, let alone any details as to when their expert witness supposedly ‘disappeared,’ and/or what efforts – if any – Plaintiffs made to contact and/or locate their expert, etc.” (Id. at pp. 4:21-5:2.)

Defendants explain that “Plaintiffs served their expert witness designation on January 28, 2019” and “designated Dr. Karen M. Vernau, D.V.M, M.A.S, D.A.C.V.I.M. as an expert witness” as well as “eight other individuals as to whom they “reserve the right to present . . . expert testimony,” including Veronique Sammut DVM.” (Id. at p. 5:8-12 [citing Platt Decl., ¶ 4, Ex. A, p. 3:5-7].) Defendants assert that they “served their Motion for Summary Judgment/Adjudication on July 2, 2019” and “Plaintiffs served their Opposition to the Motion for Summary Judgment/Adjudication on September 26, 2019.” (Id. at p. 5:12-15 [citing Platt Decl., ¶¶4-5, Exs. B, C].) Therefore, Defendants argue, “Plaintiffs had eighty-six (86) days in which to obtain an expert declaration from either Dr. Vernau or Dr. Sammut (or another expert)” but failed to do so only until after October 1, 2019, when Dr. Varnau “disappeared,” which was five days after Plaintiffs served their opposition. (Id. at p. 5:23-25.)

Defendants also argue that “the declaration which Plaintiffs have now obtained from Dr. Sammut is not based upon any new or different facts” as it is “a post-hearing expert declaration based upon facts which were available pre-hearing does not render those facts new or different.” (Id. at p. 6:14-16.) Defendants assert that the declaration is not based on new or different facts because “Dr. Sammut states in her declaration that her opinions are based upon her review of ‘several deposition transcripts, including the depositions of Derrick Abrenica, Young Joo Kim, DVM, Olatunji Bandele, DVM, medical records including the records from LA Central Animal Hospital and Orange County Animal Hospital, the declaration of Jeffrey Pollard, DVM, and other pertinent material” that Plaintiffs had access to before the Court’s ruling on the motion for summary judgment/adjudication. (Id. at pp. 6:22-7:2 [citing Sammut Decl., at 2:10-15].)

As to the asserted inadvertence/mistake of Plaintiffs’ counsel, Defendants argue that “Plaintiffs not only do not submit any evidence of new or different facts or circumstances with respect to the asserted ‘inadvertence/mistake of [Plaintiffs’] Counsel;’ they do not submit any evidence at all on this point.” (Id. at p. 7:20-24.) Defendants acknowledge that the motion to reconsider is supported by Ms. Ryther’s declaration, however, Defendants argue that “Ms. Ryther says nothing whatsoever in her declaration about her asserted inadvertence and/or mistake” but instead “Ms. Ryther’s declaration consists only of paragraphs stating that she is attaching true and correct copies of documents.” (Id. at p. 8:2-5.) Defendants also assert that “neither the Declaration of Gary Patent nor the Declaration of Derrick Abrenica include anything at all relating to Ms. Ryther’s asserted inadvertence and/or mistake concerning the Motion for Summary Judgment/Adjudication.” (Id. at p. 8:5-8.)

Plaintiffs have not satisfied the requirement of diligence for this motion for reconsideration of the Court’s order granting summary adjudication of the first and fifth causes of action because Plaintiffs have not provided the Court with a satisfactory explanation for failing to provide the evidence or different facts earlier. (See Garcia, 58 Cal. App. 4th at 690.) Plaintiffs have not demonstrated that there were new facts or circumstances that warrant vacating the Court’s October 10, 2019 order.

The Court DENIES the motion for reconsideration of the Motion for Summary Judgment/Adjudication.

2. Amended Motion to Vacate Settlement Agreement

Plaintiffs move for reconsideration of the Court’s October 10, 2019 order denying the amended motion to vacate settlement agreement. (Motion for Reconsideration of Amended Motion to Vacate Settlement Agreement, pp. 1:26-2:2.) Plaintiffs move for reconsideration “based on two points: (1) newly discovered facts that showed a much closer working and financial relationship between Dr. Bandele and Dr. Kim than Defendants had ever acknowledged—in fact, actively covered up— and Plaintiffs had not previously realized; and (2) newly discovered circumstances that caused mistake, surprise, and/or excusable neglect on the part of Plaintiffs’ counsel (hereinafter, ‘Ms. Ryther’) and led to the extended delay in filing the Motion to Vacate.” (Id. at p. 5:10-17.)

Plaintiffs argue that “it was not until September 18, 2019—six days after the filing of the original Motion to Vacate, and one day after the Amended Motion to Vacate—that Plaintiffs discovered Dr. Kim had actually been a staff member of Defendant LA Central Animal Hospital at the time of the incident, had been so since at least 2012, and remains on staff today.” (Id. at p. 5:18-23.) Plaintiffs assert that “they only learned, on September 19, 2019, at the deposition of Doris Bandele, that Dr. Bandele and Dr. Kim had a long-time and questionable financial relationship in addition to their staff relationship.” (Id. at p. 5:23-25.)

Plaintiffs also assert that “Dr. Kim gave blatantly different statements in his deposition than he had stated during settlement negotiations” and “once that was clear, Plaintiffs began asking Ms. Ryther to file a Motion to Vacate.” (Id. at pp. 5:28-6:2.) Plaintiffs maintain that “Ms. Ryther, however, was in what she believed to be good faith discussions with OC Defendants’ Counsel, Alfonso Ortega (hereinafter, ‘Mr. Ortega’) who instead was intentionally misleading her into believing that Dr. Kim was going to correct his perjury and inconsistencies by way of a declaration or additional deposition.” (Id. at p. 6:2-5.) Plaintiffs explain that their counsel “granted Mr. Ortega’s multiple requests for extensions (and for Ms. Ryther to postpone filings) to give him time to get his client to make the corrections” therefore, “the untimeliness of the Motion is the product of Ms. Ryther’s excusable neglect in believing the issue could be resolved without court intervention.” (Id. at p. 6:5-10.) Plaintiffs argue that their counsel filed immediately after realizing that the “negotiations were not in good faith, and the strategy was simply to delay in order to create an argument of untimeliness.” (Id. at p. 6:13-15.)

In opposition, Former Defendants Young Joo Kim, DVM and Central Orange County Emergency Animal Hospital (“Former Defendants”) argue that “Plaintiffs failed to present any ‘new or different facts, circumstances, or law’ in support of their motion.” (Opp. to Motion for Reconsideration of Amended Motion to Vacate Settlement Agreement, p. 1:6-9.) Former Defendants argue that “Plaintiffs’ purported ‘new facts’ and ‘new circumstances’ were previously raised by Plaintiffs in their Reply to the underlying Motion to Vacate Settlement, and during oral arguments.” (Id. at p. 1:9-11.)

Former Defendants argue that the alleged fact regarding Dr. Young Joo Kim being a staff member at LA Central Animal Hospital, is not a “new fact” because “undisputed evidence shows that Plaintiffs were aware of the ‘new facts’ prior to their deadline to file a Reply, and prior to the October 10, 2019 hearing on the underlying Motion.” (Id. at p. 2:11-13.) Former Defendants assert that “as evidenced by Exhibits B, E, F, and G to Plaintiffs’ Reply to Motion to Vacate Settlement, [and Plaintiffs’ counsel’s oral arguments], the ‘new facts’ were already presented to this Court.” (Id. at p. 2:13-15.)

Former Defendants maintain that “Plaintiffs’ purported ‘new circumstances’ [regarding Plaintiffs’ counsel’s excusable neglect] is a regurgitation of the underlying motion to vacate” and “the Court already considered this argument – raised in Plaintiffs’ reply and during oral arguments, and ruled on the same.” (Id. at p. 3:9-23.)

The Court finds that Plaintiffs have not satisfied the requirement of diligence for this motion for reconsideration of the Court’s order denying the amended motion to vacate settlement agreement because Plaintiffs have not provided the Court with a satisfactory explanation for failing to provide the evidence or different facts earlier, but rather reassert their arguments in the underlying amended motion to vacate. (See Garcia, 58 Cal. App. 4th at 690.) Plaintiffs have not demonstrated that there were new facts or circumstances that warrant vacating the Court’s October 10, 2019 order.

The Court DENIES the motion for reconsideration of the motion to vacate the settlement.