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This case was last updated from Los Angeles County Superior Courts on 07/10/2019 at 01:17:42 (UTC).

JASON STEGER VS CSJ PROVIDENCE ST JOSEPH MEDICAL CENTER ET A

Case Summary

On 01/22/2018 JASON STEGER filed a Personal Injury - Medical Malpractice lawsuit against CSJ PROVIDENCE ST JOSEPH MEDICAL CENTER ET A. 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:

    ****1050

  • Filing Date:

    01/22/2018

  • 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

Presiding Judge

GEORGINA T. RIZK

 

Party Details

Plaintiff and Petitioner

STEGER JASON

Defendants and Respondents

KAO JAMES DR.

SIMIC PETER JOHN JR. M.D.

KASHER JOHN A. M.D.

CSJ PROVIDENCE ST. JOSEPH MEDICAL CENTER

PROVIDENCE HEALTH & SERVICES FOUNDATION/

MAKAREWICSZ KATHLEEN M. M.D.

DOES 1 - 100

ASSAI JILBERT M.D.

PROVIDENCE ST. JOSEPH MEDICAL CENTER

PROVIDENCE HEALTH SYSTEM-SOUTHERN CALIFOR

PROVIDENCE HEALTH & SERVICES FOUNDATION

MAKAREWICSZ M.D. KATHLEEN M.

SIMIC JR. M.D. PETER JOHN

KAO DR. JAMES

PROVIDENCE HEALTH SYSTEM-SOUTHERN

KASHER M.D. JOHN A.

ASSAI M.D. JILBERT

12 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LINDEMANN BLAKE J.

LINDEMANN LAW FIRM APC

LINDEMANN BLAKE JOSEPH

Defendant and Respondent Attorneys

LA FOLLETTE JOHNSON DE HAAS FESLER

FRASER STEPHEN C. ESQ.

KJAR MCKENNA & STOCKALPER LLP

DUMMIT CRAIG STEPHEN ESQ.

LA FOLLETTE JOHNSON DEHAAS FESLER & AMES

MCKENNA ROBERT LOWELL III

FRASER STEPHEN CLARK ESQ.

STAPLETON CHRISTOPHER ALAN

CASEY EMILY ROSE

FRASER WATSON & CROUTCH LLP

DUMMIT BUCHHOLZ & TRAPP

DUMMIT CRAIG S. ESQ.

Other Attorneys

MKRTCHYAN KARINE

5 More Attorneys Available

 

Court Documents

Legacy Document

7/11/2018: Legacy Document

NOTICE OF TENTATIVE RULING PURSUANT TO DEFENDANTS DEMURRER FINDING THIS MATTER TO BE COMPLICATED AND NOTICE OF TRANSER

7/11/2018: NOTICE OF TENTATIVE RULING PURSUANT TO DEFENDANTS DEMURRER FINDING THIS MATTER TO BE COMPLICATED AND NOTICE OF TRANSER

Separate Statement

8/10/2018: Separate Statement

Separate Statement

8/16/2018: Separate Statement

Certificate of Mailing for

11/2/2018: Certificate of Mailing for

Case Management Statement

11/5/2018: Case Management Statement

Notice

11/19/2018: Notice

Declaration

1/29/2019: Declaration

Notice of Joinder

4/11/2019: Notice of Joinder

Motion to Deem RFA's Admitted

4/19/2019: Motion to Deem RFA's Admitted

Separate Statement

4/25/2019: Separate Statement

Opposition

5/6/2019: Opposition

Declaration

6/7/2019: Declaration

Declaration

6/14/2019: Declaration

Declaration

6/28/2019: Declaration

Notice

7/3/2019: Notice

DEFENDANT KATHLEEN M.MAKAREWICZ M.D.S ANSWER TO COMPLAINT

4/25/2018: DEFENDANT KATHLEEN M.MAKAREWICZ M.D.S ANSWER TO COMPLAINT

SUMMONS

1/22/2018: SUMMONS

151 More Documents Available

 

Docket Entries

  • 07/08/2019
  • at 08:30 AM in Department D; Status Conference (reMediation and Discovery) - Not Held - Advanced and Continued - by Court

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  • 07/05/2019
  • at 09:00 AM in Department D; Hearing on Motion for Summary Judgment (previously set on 4/19/19, on behalf of Defendant Providence St. Joseph Medical Cnter) - Not Held - Rescheduled by Party

    Read MoreRead Less
  • 07/05/2019
  • at 08:30 AM in Department D; Hearing on Motion to Compel (Motion to Compel Deposition of Plaintiff's CPA) - Not Held - Rescheduled by Party

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  • 07/03/2019
  • Reply (To Opposition); Filed by JOHN A. KASHER M.D. (Defendant); DR. JAMES KAO (Defendant)

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  • 07/03/2019
  • Notice (of Continuance); Filed by JOHN A. KASHER M.D. (Defendant); DR. JAMES KAO (Defendant)

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  • 07/03/2019
  • Objection (To Declarations In Support); Filed by JOHN A. KASHER M.D. (Defendant); DR. JAMES KAO (Defendant)

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  • 07/02/2019
  • at 08:30 AM in Department D; Non-Appearance Case Review (NON-APPEARANCE CASE MANAGEMENT ORDER CONTINUING CASE SET ON A ?DARK? DATE;) - Held

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  • 07/02/2019
  • Certificate of Mailing for (Minute Order (Non-Appearance Case Review NON-APPEARANCE CASE MANAGEMENT ORD...) of 07/02/2019); Filed by Clerk

    Read MoreRead Less
  • 07/02/2019
  • Minute Order ( (Non-Appearance Case Review NON-APPEARANCE CASE MANAGEMENT ORD...)); Filed by Clerk

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  • 07/02/2019
  • Notice (of Entry of Judgment); Filed by KATHLEEN M. MAKAREWICSZ M.D. (Defendant)

    Read MoreRead Less
227 More Docket Entries
  • 04/02/2018
  • DEMAND FOR JURY TRIAL

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  • 02/22/2018
  • CIVIL DEPOSIT

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  • 02/22/2018
  • Receipt; Filed by Plaintiff/Petitioner

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  • 02/22/2018
  • Receipt (CIVIL DEPOSIT RE JURY FEES $150.00 ); Filed by Attorney for Plaintiff/Petitioner

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  • 01/22/2018
  • PLAINTIFF'S COMPLAINT FOR DAMAGES: (1) MEDICAL MALPRACTICE

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  • 01/22/2018
  • Summons (on Complaint)

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  • 01/22/2018
  • Complaint; Filed by JASON STEGER (Plaintiff)

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  • 01/22/2018
  • SUMMONS

    Read MoreRead Less
  • 01/22/2018
  • Complaint

    Read MoreRead Less
  • 01/22/2018
  • Civil Case Cover Sheet; Filed by JASON STEGER (Plaintiff)

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Tentative Rulings

Case Number: BC691050    Hearing Date: December 11, 2020    Dept: D

 

TENTATIVE RULING

Calendar: 13

Date: 12/11/2020

Case No: BC 691050 Trial Date: February 8, 2021

Case Name: Steger v. CSJ Providence St. Joseph Medical Center, et al.

DEMURRER

[CCP §430.10 et. seq.]

Moving Party: Defendant Olympus America, Inc.

Responding Party: Plaintiff Jason Steger

RELIEF REQUESTED:

Sustain demurrer to second through seventh causes of action of First Amended Complaint

CAUSES OF ACTION: from First Amended Complaint

1) Medical Malpractice

2) Negligence- Design, Manufacture and Sale

3) Strict Products Liability—Failure to Warn

4) Negligence—Failure to Warne

5) Negligence

6) Fraud—Intentional Misrepresentation

7) Fraud—Negligent Misrepresentation

SUMMARY OF FACTS:

Plaintiff Jason Steger alleges that in October of 2016, plaintiff was admitted to defendant CSJ Providence St. Joseph Medical Center with abdominal pain, and that defendants, various medical providers, negligently performed a colonoscopy procedure on plaintiff which perforated his colon in multiple areas. Plaintiff alleges that after the procedure, his pain worsened and he went into septic shock. Plaintiff alleges that he ultimately underwent a total colectomy with ileostomy and other procedures, and his entire colon was removed.

On September 6, 2019, the court heard a motion for summary judgment brought by defendant Providence St. Joseph Medical Center, which was granted on the ground that in opposition to the motion, plaintiff had failed to submit expert medical testimony to raise a triable issue of material fact. The court denied a motion for new trial on October 25, 2019, and on January 17, 2020, heard a motion for relief under CCP § 473 (b), which was denied.

The file shows that on February 4, 2020 plaintiff filed a Notice of Appeal, giving notice plaintiff is appealing the court’s orders of September 6, 2019, October 25, 2019, and January 17, 2020.

On July 6, 2020, plaintiff filed an Amendment to Complaint, substituting moving defendant Olympus America, Inc. as the true name of the defendant designated in the complaint as Doe 1.

Moving defendant filed a demurrer in response to the original complaint, along with a motion for sanctions under CCP section 128.7. The motions were heard on November 6, 2020. The demurrer was taken off calendar as moot in light of the filing of the First Amended Complaint prior to the hearing, and the motion for sanctions was denied.

The First Amended Complaint alleges that moving defendant Olympus America sells, markets and services medical products, including endoscopes such as the specific endoscopes involved in the subject incident, that the endoscopes were defective, that the Olympus defendants performed inadequate evaluation and testing of the scopes, including failing to properly determine the scope’s reprocessing protocol adequately disinfected the device for safe subsequent use in multiple endoscopic patients, and fraudulently marketed the scopes, as a result of which plaintiff suffered injuries.

ANALYSIS:

Procedural

Meet and Confer

Plaintiff argues in the opposition that defendant failed to sufficiently meet and confer prior to filing the demurrer.

The court in its previous minute order deeming the previous demurrer moot, expressly stated:

“The parties are also reminded of their obligations under CCP § 430.41 (a) in connection with any further challenge to the amended pleading (“If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.”).”

The meet and confer declaration here states:

“In an effort to meet and confer with Plaintiff’s counsel prior to filing this Demurrer, I called Plaintiff’s counsel Blake Lindemann and spoke with his receptionist. I also left Mr. Lindemann a voicemail and asked him to call back. I have not heard back from Mr. Lindemann as of the time of this filing.”

[Hoffman Decl., para. 6].

Plaintiff argues that this declaration is insufficient, as defendant does not show that defendant identified specific causes of action and identify with legal support the deficiencies.

However, under CCP § 430.41 (a)(3)

“(3) The demurring party shall file and serve with the demurrer a declaration stating

either of the following:    (A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer.    (B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.”

The declaration sufficiently states that party who filed the pleading failed to respond to a meet and confer request. While the court does not find this situation ideal, it is incumbent on both parties to engage in meet and confer, and the court will not require further meet and confer at this time.

Substantive

Defendant Olympus America, Inc. demurs to all six of the causes of action asserted against it, arguing that these new causes of action do not relate back to the filing of the initial complaint, as they are directed toward the theory that, separate and apart from the theory in the initial complaint that plaintiff suffered a perforation and resulting complications, there was a patient to patient transmission of bacteria from a defective Olympus colonoscope.

Defendant argues that the statutes of limitations have accordingly run on all claims plaintiff asserts against Olympus, as the First Amended Complaint was not submitted to the court until more than four years after plaintiff’s injury, and more than three years after he gave statutory notice to healthcare providers.

Defendant argues that the initial complaint alleged only that defendants incorrectly diagnosed plaintiff, failed to refer plaintiff to an expert, failed to obtain informed consent, improperly recommended removal of the entire colon, performed unnecessary surgery, and fell below the standard of care in perforating plaintiff’s colon in multiple places during the colonoscopy. [Complaint, paras. 19, 20]. Defendant argues that the initial complaint does not include any charging allegations against the Does, and does not mention any facts related to any alleged defect in the colonoscope.

The moving defendant was added to this action pursuant to Amendment to the Complaint substituting its name as the true name for fictitiously named defendants Doe 1, pursuant to CCP § 474:

“When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly…”

This statutory procedure effectively extends the statute of limitations until expiration of the time for service of summon, in effect, to three years after the filing of the complaint. CCP § 583.210(a); Sobeck & Associates, Inc. v. B & R Investments No. 24 (1989) 215 Cal.App.3d 861, 869-870.

Ordinarily, “a defendant sued by a fictitious name and later brought into the case by an amendment substituting his true name is considered a party to the action from its commencement for purposes of the statute of limitations.” Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 Cal.2d 596, 602.

In general, a Doe amendment will be held appropriate and relation back effect will be given even where a person’s identity was known to plaintiff when the action was filed, if plaintiff was unaware of that person’s true relationship to the injuries upon which the action is based. Miller v. Thomas (1981, 2nd Dist.) 121 Cal.App.3d 440, 445-446. The test is actual knowledge, and the relation back effect will apply regardless of whether plaintiff should have known of the identity or facts, even where plaintiff’s lack of actual knowledge is attributable to his own negligence. Grinnell Fire Protection Systems Co., Inc. v. American Savings & Loan Assn. (1986) 183 Cal.App.3d 352, 359. Plaintiff may be held genuinely ignorant of a defendant’s identity even where plaintiff was at all times aware of the name of the defendant, provided plaintiff lacks knowledge of that person’s connection with the case or with his injuries. General Motors Corp v. Superior Court (1996, 2nd Dist.) 48 Cal.App.4th 580, 593-594. (plaintiff permitted to add auto manufacturer as Doe defendant, although plaintiff was at all times aware of the manufacturer’s identity, where she did not discover until after running of statute of limitations facts showing defect in seatbelt).

Defendant argues that the original pleading pleads nothing against the moving party, containing no theory that an endoscope was involved or caused the injuries complained of.

The argument is that if the FAC and the Doe Amendment do not operate to relate back to the filing of the original complaint, their dates of filing would be outside the statute of limitations, and this action would be barred as to moving defendant.

Defendant relies on Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 409, in which the Second District affirmed the trial court’s order sustaining demurers without leave to amend, and dismissing actions, where plaintiffs had filed complaints against their insurers for losses caused by the January 17, 1994 Northridge earthquake, within the revival period permitted by a statute reviving certain time barred claims, filing their complaints on the last day, December 31, 2001.

The original complaints alleged causes of action for breach of contract and bad faith against defendant State Farm for damage to plaintiffs’ properties caused by the Northridge earthquake, but did not mention the revival statute or allege that their claims satisfied the requirements for revival, and did not mention the parties by name other than in the caption, referring to them as plaintiff or plaintiffs and defendants, did not provide the addresses of the properties involved, did not set forth any facts about the policy or attach a copy of the policy, and made general allegations against defendants regarding the failure to pay policy benefits caused by the earthquake, without any specifics being given with respect to any claim for policy benefits made by plaintiffs or any action taken by State Farm in response to such claims. Davaloo, at 412.

State Farm filed demurrers to the complaints, contending they were uncertain and failed to allege facts sufficient to state a cause of action for breach of contract or bad faith. Id.

On June 2, 2003, before the hearing on the demurrers, plaintiffs filed first amended complaints against State Farm, again alleging causes of action for breach of contract and bad faith. The bodies of the pleadings identified the plaintiff or plaintiffs and State Farm as defendant, and provided the addresses of the properties, as well as the insurance policy number, again did not mention the revival statute, but alleged that plaintiffs suffered insured losses as a result of the earthquake and its aftershocks and had made timely claims to or had contact with defendants in regard to their damages within one year immediately following the earthquake. Again, no details regarding claims for policy benefits made by plaintiffs were provided. Davaloo, at 413.

State Farm filed demurrers to FACs, contending they were time barred because they were filed after the revival period, and did not relate back to the filing of the original complaints, characterizing the original complaints as “sham” pleadings, lacking specific factual allegations. State Farm argued that the amended pleadings were accordingly not based on the same set of operative facts as the original complaints, so did not satisfy the requirements for application of the relation-back doctrine. The trial court sustained the demurrers, finding in each case that the original complaint was “a sham pleading not containing specific information. The first amended complaint does not relate back and is time-barred.” Davaloo, at 413.

The Second District reviewed the general pleading requirements and relation-back doctrine, as follows:

“A complaint must contain “[a] statement of the facts constituting the cause of action, in ordinary and concise language.” (§ 425.10, subd. (a)(1).) This fact-pleading requirement obligates the plaintiff to allege ultimate facts that “as a whole apprise[ ] the adversary of the factual basis of the claim. [Citations.]” (Estate of Archer (1987) 193 Cal.App.3d 238, 245, 239 Cal.Rptr. 137; see also Lim v. The.TV Corp. Internat. (2002) 99 Cal.App.4th 684, 689–690, 121 Cal.Rptr.2d 333.) When a complaint complies with the fact-pleading requirement of section 425.10, subdivision (a)(1), “ ‘ “[t]he existence of a legal right in an abstract form is never alleged by the plaintiff; but, instead thereof, the facts from which that right arises are set forth, and the right itself is inferred therefrom. The cause of action, as it appears in the complaint when properly pleaded, will therefore always be the facts from which the plaintiff's primary right and the defendant's corresponding primary duty have arisen, together with the facts which constitute the defendant's delict or act of wrong.” ’ [Citation.]” (Lodi v. Lodi (1985) 173 Cal.App.3d 628, 631, 219 Cal.Rptr. 116.)

The requirement that the complaint allege ultimate facts forming the basis for the plaintiff's cause of action is central to the relation-back doctrine and the determination whether an amended complaint should be deemed filed as of the date of the original pleading. (See Bartalo v. Superior Court (1975) 51 Cal.App.3d 526, 533, 124 Cal.Rptr. 370 [explaining essential role of fact-pleading requirement in application of relation-back doctrine].) An amended complaint relates back to a timely filed original complaint, and thus avoids the bar of the statute of limitations, only if it rests on the same general set of facts and refers to the same “offending instrumentalities,” accident and injuries as the original complaint. (Barrington v. A.H. Robins Co. (1985) 39 Cal.3d 146, 151, 216 Cal.Rptr. 405, 702 P.2d 563; Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 600, 15 Cal.Rptr. 817, 364 P.2d 681 [“where an amendment is sought after the statute of limitations has run, the amended complaint will be deemed filed as of the date of the original complaint provided recovery is sought in both pleadings on the same general set of facts”].)

Davaloo, at 415.

The Second District then noted that the relation-back doctrine analysis requires a comparison of the original and amended complaints:

“The relation-back doctrine, therefore, requires courts to compare the factual allegations in the original and amended complaints. For example, a third amended complaint alleging a cause of action for age discrimination under the Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.) did not relate back to the filing of the original complaint because the wrongful conduct described in the discrimination claim did not arise out of the same set of facts alleged in the original complaint to support claims of breach of contract and Labor Code violations. (Kim v. Regents of the University of California (2000) 80 Cal.App.4th 160, 168–169, 95 Cal.Rptr.2d 10.) And an amended complaint alleging the decedent was electrocuted by a lamp socket and switch manufactured by one entity did not relate back to an original complaint alleging the electrocution was caused by a defective hair dryer with a different manufacturer because, although the pleadings related to a single death at a single location, they alleged different accidents and instrumentalities. (Coronet Manufacturing Co. v. Superior Court (1979) 90 Cal.App.3d 342, 347, 153 Cal.Rptr. 366.) On the other hand, an amended complaint substituting a party for a fictitiously named defendant and alleging the same accident and injuries but a different cause of action and legal theory from the original complaint related back to the filing of the original complaint, and thus was not barred by the statute of limitations, because the two complaints referred to the same general set of facts. (Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 939–940, 136 Cal.Rptr. 269, 559 P.2d 624.)

Davaloo, at 416.

The Second District went on to explain why an original pleading lacking in facts can fail to support relation-back:

“Just as a plaintiff who changes the essential facts upon which recovery is sought is not entitled to the benefits of the relation-back doctrine, so too a plaintiff who files a complaint containing no operative facts at all cannot subsequently amend the pleading to allege facts and a theory of recovery for the first time and claim the amended complaint should be deemed filed as of the date of the original, wholly defective complaint: Going from nothing to something is as much at odds with the rationale for allowing an amended pleading to relate back to the filing of the original documents as changing from one set of facts to a different set. (See Austin v. Massachusetts Bonding & Insurance Co., supra, 56 Cal.2d at pp. 601–602 & fn. 2, 15 Cal.Rptr. 817, 364 P.2d 681 [explaining similarity between notice aspect of “modern” rule permitting relation back of an amendment if “recovery is sought on the same general set of facts as those alleged in the original complaint” and Fed. Rules of Civ. Proc., rule 15(c) [now rule 15(c)(2) ], which permits relation back when the claim or defense asserted in the amended pleading “ ‘arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading’ ”]; Lamont v. Wolfe (1983) 142 Cal.App.3d 375, 379, 381, 190 Cal.Rptr. 874 noting examination of operative facts central to analysis of relation-back doctrine under both California law and Fed. Rules of Civ. Proc., rule 15(c), and holding doctrine properly applied when “ ‘a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct,’ ” quoting Justice Holmes in N.Y. Cent. R.R. v. Kinney (1922) 260 U.S. 340, 346] [43 S.Ct. 122, 67 L.Ed. 294].)

Davaloo, at 416-417

The Second District then evaluated the facts before it as follows:

“In the instant cases the original complaints are so devoid of factual allegations they fail to meet section 425.10, subdivision (a)'s minimal fact-pleading requirement and are the functional equivalent of no complaint at all. Other than in the caption, the original complaints do not name either of the plaintiffs or the defendant; do not identify the property at issue by address or otherwise, merely averring it is within California (not even Southern California); and do not provide the number of the applicable insurance policy, let alone describe its terms. The complaints contain a number of generic allegations describing the full range of improper actions any insurer theoretically could have taken in response to a claim for policy benefits for damages caused by the Northridge earthquake but give no specifics of any kind as to a dispute between the plaintiff(s) specified in the caption and State Farm. Under the most liberal construction of the pleadings (§ 452), the body of each of the original complaints at bottom alleges nothing more than the Northridge earthquake caused harm to a resident or residents of Los Angeles County. Such an allegation falls far short of apprising State Farm of the factual basis of the claim. (Lim v. The.TV Corp. Internat., supra, 99 Cal.App.4th at pp. 689–690, 121 Cal.Rptr.2d 333; Estate of Archer, supra, 193 Cal.App.3d at p. 245, 239 Cal.Rptr. 137.) Because of the complete lack of factual allegations in the original complaints, it is impossible to conclude the first amended complaints are based on the same general set of facts as the original complaints.

In holding the amended complaints do not relate back, we are relying on the totality of the deficiencies in the original complaints, rather than any single defect alone, or even a combination of several such defects: It is not simply that the original complaints do not identify the parties (except in the caption), property or insurance policy or that they fail to allege any specifics of Davaloo's or the Abdel–Messihs' dispute with State Farm. Rather, the totality of these material deficiencies leaves nothing to which the first amended complaints can be compared or to which they can relate back. (McCauley v. Howard Jarvis Taxpayers Assn. (1998) 68 Cal.App.4th 1255, 1262, 80 Cal.Rptr.2d 900 [relation-back doctrine cannot be used based on the assumption the defendant is a “bad egg” and “it is irrelevant that the act sued on wasn't mentioned in the earlier complaint because it is the ‘sort of mischief’ the defendant was inclined to get up to anyway”].) Although there can be no bright-line rule as to when a complaint is so deficient to preclude relation back (any more than there is a bright-line rule when an amended set of facts is too dissimilar to the originally pleaded set), the original complaints here—with all their deficiencies—are plainly insufficient.

Davaloo, at 417-418, footnote omitted.

The argument is then that the pleading here, containing substantially fewer facts than those alleged in the Davaloo complaint with respect to the moving defendant, is similarly so devoid of factual allegations it fails to meet section 425.10, subdivision (a)'s minimal fact-pleading requirement, and the court should find that the original pleading contains nothing to relate back to with respect to moving defendant. It would appear that a comparison of the original complaint and the FAC confirms that the initial complaint does not directly allege any facts suggesting that a defective endoscope caused plaintiff’s injuries.

However, the initial pleading does allege that plaintiff suffered unspecified infections following the surgery, alleging:

“As a proximate result of the negligence of Defendants, and each of them, Plaintiff went into septic shock and had to have his entire colon removed. The Plaintiff suffered post- surgical complications of hypovolemic shock, infection, sepsis and extreme pain exacerbations.”

[Complaint, para. 23].

Plaintiff argues that the new allegations arise out of the same injury and circumstances as initially alleged, and is sufficiently broad to support relation back where the complaint in fact alleges that plaintiff suffered infection.

Plaintiff relies on Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, in which the California Supreme Court found the trial court erred in finding a claim did not relate back to the original complaint and was time barred, when the original complaint alleged injuries caused by the employers’ failure to provide plaintiff with a safe place to work, and the amended complaint added a cause of action alleging that plaintiff’s injuries resulted from a defective machine manufactured by defendant Nicholson Manufacturing Company. The trial court sustained a demurrer by Nicholson without leave to amend. Plaintiff relies on the language the Court relied on from its previous decision, Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 Cal.2d 596:

““The modern rule,” we explained, “is that ... where an amendment is sought after the statute of limitations has run, the amended complaint will be deemed filed as of the date of the original complaint provided recovery is sought in both pleadings on the same general set of facts.” (56 Cal.2d at p. 600.) (Italics added.)”

Smeltzley, at 936, italics in the original.

The Court further explained:

“The foregoing precedents rest on the fundamental philosophy that “cases should be decided on their merits.” ( Grudt v. City of Los Angeles, supra, 2 Cal.3d 575, 585; Austin v. Massachusetts Bonding & Insurance Co., supra, 56 Cal.2d 596, 600.) In conformity with that policy, we conclude in the present case that plaintiff's amended complaint relates back to the filing of the original complaint. Both complaints issue from the same injuries and the same accident. The original complaint asserts that the injuries were caused by a dangerous condition of the employers' premises; the amended complaint identifies that condition as a defective machine manufactured by Nicholson. Thus, within the rule of Austin v. Massachusetts Bonding & Insurance Co., supra, 56 Cal.2d 596, the two complaints relate to the “same general set of facts.”

Smeltzley, at 939.

Plaintiff argues that in this case, the general facts from the initial complaint involve the same locus of injury and general surrounding facts and instrumentalities.

More importantly, plaintiff argues that the court need not determine at this juncture whether relation back applies, a generally factual question, as this is a situation where plaintiff has suffered injuries at a later date than that relied upon by defendant, indicating that, although not expressly pled, plaintiff has sustained and been diagnosed with infections and MRSA infections on May 24, 2018, March 21, 2019 and September 21, 2020, among other dates, as a result of defendant Olympus’ alleged conduct. Plaintiff argues that even applying the shortest statute of limitations, the 2020 filing of the Doe Amendment and/or the FAC would then fall within the statute. Plaintiff concedes that these facts are not alleged in the current pleading, and requests leave to amend, if necessary, to address such claims.

Plaintiff also argues that this is a case in which belated discovery of the product liability basis for plaintiff’s claimed injuries delays the accrual of the causes of action for purposes of the statute of limitations, arguing that this delay is typical of product liability claims such as the one at issue. Plaintiff relies on Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, however, in which the California Supreme Court required that a plaintiff relying on the delayed discovery rule plead facts concerning the discovery:

“In order to rely on the discovery rule for delayed accrual of a cause of action, a plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery, and (2) the inability to have made earlier discovery despite reasonable diligence. In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to show diligence; conclusory allegations will not withstand demurrer.”

Fox, at 808 (internal quotations, citations omitted).

No such facts are alleged here. The demurrer accordingly is sustained with leave to amend to permit plaintiff to more clearly state a delay in the injuries occasioned by the alleged conduct of the moving defendant, and any delay in discovering plaintiff’s claims.

RULING:

Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED WITH LEAVE TO AMEND to permit plaintiff to more clearly allege facts pertinent to the applicable statutes of limitation, including facts supporting plaintiff’s argument that there was a delay in discovery and the more recent occurrence or manifestation of plaintiff’s claimed injuries.

Ten days leave to amend.

Both parties are ordered to meet and confer in full compliance with CCP § 430.41 before any further demurrer may be filed.

GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance. Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court. Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff. If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative.

Case Number: BC691050    Hearing Date: November 06, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 19

Date: 11/6/2020

Case No: BC 691050 Trial Date: February 8, 2021

Case Name: Steger v. CSJ Providence St. Joseph Medical Center, et al.

DEMURRER

MOTION FOR SANCTIONS

Moving Party: Defendant Olympus America, Inc.

Responding Party: Plaintiff Jason Steger

FACTUAL AND PROCEDURAL BACKGROUND:

Plaintiff Jason Steger alleges that in October of 2016, plaintiff was admitted to defendant CSJ Providence St. Joseph Medical Center with abdominal pain, and that defendants, various medical providers, negligently performed a colonoscopy procedure on plaintiff which perforated his colon in multiple areas. Plaintiff alleges that after the procedure, his pain worsened and he went into septic shock. Plaintiff alleges that he ultimately underwent a total colectomy with ileostomy and other procedures, and his entire colon was removed.

On September 6, 2019, the court heard a motion for summary judgment brought by defendant Providence St. Joseph Medical Center, which was granted on the ground that in opposition to the motion, plaintiff had failed to submit expert medical testimony to raise a triable issue of material fact. The court denied a motion for new trial on October 25, 2019, and on January 17, 2020, heard a motion for relief under CCP § 473 (b), which was denied.

The file shows that on February 4, 2020 plaintiff filed a Notice of Appeal, giving notice plaintiff is appealing the court’s orders of September 6, 2019, October 25, 2019, and January 17, 2020.

On July 6, 2020, plaintiff filed an Amendment to Complaint, substituting moving defendant Olympus America, Inc. as the true name of the defendant designated in the complaint as Doe 1.

ANALYSIS:

Demurrer

Plaintiff filed a First Amended Complaint in this action on February 1, 2019, after the filing of the demurrer, but on the date opposition was due in connection with the demurrer.

Under CCP § 472:

“(a) A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation of the parties….”

The pleading appears to have been appropriately amended once without leave of the court, and the demurrer will be taken off calendar as moot.

Although other parties have in fact answered the operative complaint, the court notes that nevertheless, since the pleading was the initial pleading in this matter, the court would likely have been obligated to permit at least one opportunity to amend in response to the demurrer, and construes the filing of the amended pleading as an admission that the demurrer has merit, but any shortfalls identified may be cured by amendment.

Motion for Sanctions

Defendant Olympus America argues that plaintiff has improperly named Olympus America as a party to the complaint, when the operative complaint states only a single cause of action for medical malpractice, and alleges facts based solely on alleged medical negligence in the provision of care or services to plaintiff, or an incorrect diagnosis, and Olympus America solely sells medical devices and performed no medical care or treatment on plaintiff. Defendant argues that it is not a healthcare provider and cannot be liable for medical malpractice.

Defendant requests that the court impose sanctions against plaintiff for continuing to advocate a medical malpractice claim against the seller of medical devices, arguing that such advocacy is frivolous and indicative of bad faith. Defendant seeks an order striking the Doe Amendment and dismissing plaintiff’s claim against moving defendant, and assessing reasonable costs and legal fees against plaintiff and his counsel.

Defendant relies on CCP § 128.7, which provides for the recovery of sanctions against a party or attorney who violates specified conditions. Subdivision (b) provides, in pertinent part:

"(b) By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading...an attorney... is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all the following conditions are met:

(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery."

The section requires that a separate motion be filed, and that the motion be served, but not filed, until 21 days later to permit the challenged paper to be withdrawn. CCP § 128.7 (d). This procedure has been followed here.

Under CCP §128.7(c), where the court determines that subdivision (b) has been violated, it “may…impose an appropriate sanction…” on the violators, making the section discretionary.

In determining whether this section has been violated and sanctions are appropriate, the trial court is to apply an “actual belief” standard, and to “measure the truth-finding inquiry’s reasonableness under an objective standard….” Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 82, citation omitted.

With respect to a lack of legal merit, the applicable standard has been stated as follows: “courts should apply an objective test of reasonableness, including whether ‘any reasonable attorney would agree that [the claim] is totally and completely without merit.’” Peake v. Underwood (2014) 227 Cal.App.4th 428, 448, quoting In re Marriage Flaherty (1982) 31 Cal.3d 637, 650.

Here, the addition of the moving party by using the Doe Amendment procedure may have been a questionable procedural choice, given that the operative complaint asserted only one cause of action for medical malpractice, and the opposition concedes that plaintiff does not intend to assert that moving defendant was a medical professional which engaged in medical negligence, but that Olympus provided medical equipment which was negligently manufactured or supplied. The opposition indicates that there has been investigation into the equipment used in the surgery, but that attempts to obtain information from defendants has been stymied. [Lindeman Decl., paras. 2-4]. Plaintiff refers to ongoing litigation in the area in which it is alleged that the use of devices similar to those manufactured by defendant have led to infections in surgical operations.

Evidently, during meet and confer, it was conceded that plaintiff did not intend to pursue a medical malpractice claim against defendant Olympus and counsel indicated that plaintiff would be amending the complaint. [Lindeman Decl., para. 6]. This does not appear to be the type of situation where it has been established that a claim against this defendant lacks all factual merit, or that any reasonable attorney would agree it lacks merit, but where the claim was arguably made in an incorrect procedural posture, a Doe Amendment may have been improper under the circumstances, and ordinarily plaintiff would be expected to seek leave of court to amend the pleading to add this party, or the new causes of action. The situation is made murkier by the recent amendments to CCP section 472, permitting leave to amend a pleading on or before the date opposition to a demurrer is due.

This type of possible procedural error does not appear to support a finding that the claims against this defendant rise to the level of claims which are not warranted by existing law, or that any reasonable attorney would find them totally and completely without merit.

The opposition relies on Guillemin v. Stein (2002) 104 Cal.App.4th 156, in which the court of appeal vacated an award of sanctions made by the trial court based on a finding that a motion to tax costs was a legally frivolous motion. The court of appeal noted that Section 128.7 was worded almost identically to Federal Rule 11, so that federal case law is persuasive authority with regard to the meaning of the section. The court of appeal then quoted with approval the Ninth Circuit, writing in Operating Engineers Pension Trust v. A-C. Co. (9th Cir. 1988) 859 F.2d 1336:

“’Rule 11 must not be construed so as to conflict with the primary duty of an attorney to represent his or her client zealously. Forceful representation often requires that an attorney attempt to read a case or an agreement in an innovative though sensible way. Our law is constantly evolving, and effective representation sometimes compels attorneys to take the lead in that evolution. Rule 11 must not be turned into a bar to legal progress.’ We find that these principles are equally applicable to Code of Civil Procedure section 128.7.”

Guillemin, at 167-168.

The court in Guillemin found that in that case, the attorney’s position had been “arguable” although it had lacked “persuasive force,” suggesting that the standard for legal frivolity is much higher than merely having not prevailed on a motion, or made some procedural misstep. Guillemin, at 168. It would appear that here, any error does not go to the overall merits of asserting a claim against the moving defendant, and would not in any case warrant the imposition of a dismissal of the complaint against the moving defendant, which would essentially constitute a terminating sanction, and be disproportionate to any claimed error.

Also as argued in the opposition, if plaintiff is concerned here that the Doe Amendment procedure was improper, or that the addition of this defendant does not relate back to the filing of the original complaint for purposes of the statute of limitations, those arguments can be raised in connection with a challenge to the First Amended Complaint.

Finally, it would appear that while plaintiff did not technically withdraw the complaint within the safe harbor period, plaintiff did during that period agree that plaintiff was not advocating that the medical malpractice claim was appropriate against the moving defendant, and indicate the complaint would be amended to correct the complained of error, and plaintiff arguably effectively withdrew the offending part of the pleading here by filing an amended pleading which does not assert medical malpractice claims against the moving defendant, arguably satisfying at least the spirit of the statute.

The motion accordingly is denied.

RULING:

Demurrer to Plaintiff’s Complaint is taken off calendar as MOOT in light of the filing on October 23, 2020 of Plaintiff’s First Amended Complaint.

The parties are also reminded of their obligations under CCP § 430.41 (a) in connection with any further challenge to the amended pleading (“If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.”).

Motion for Sanctions Under California Civil Procedure Code Section 128.7 is DENIED.

GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance. Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court. Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff. If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative.

Case Number: BC691050    Hearing Date: January 17, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 12

Date: 1/17/20

Case No: BC 691050 Trial Date: March 16, 2020

Case Name: Steger v. CSJ Providence St. Joseph Medical Center, et al.

MOTION TO PARTIALLY SET ASIDE JUDGMENT

[CCP § 473]

Moving Party: Plaintiff Jason Steger

Responding Party: Defendant Providence St. Joseph Medical Center

RELIEF REQUESTED:

Set aside judgment and enter an order vacating order granting summary judgment as to defendant CSJ Providence St. Joseph Medical Center

SUMMARY OF FACTS:

Plaintiff Jason Steger alleges that in October of 2016, plaintiff was admitted to defendant CSJ Providence St. Joseph Medical Center with abdominal pain, and that defendants, various medical providers, negligently performed a colonoscopy procedure on plaintiff which perforated his colon in multiple areas. Plaintiff alleges that after the procedure, his pain worsened, and he went into septic shock. Plaintiff alleges that he ultimately underwent a total colectomy with ileostomy and other procedures, and his entire colon was removed.

On September 6, 2019, the court heard a motion for summary judgment brought by defendant Providence St. Joseph Medical Center. The motion was granted in a detailed minute order. The court found that the expert declaration submitted by moving defendant sufficiently established that the conduct of the hospital fell within the applicable standard of care, and nothing the hospital did caused or contributed to injury to plaintiff Steger, shifting the burden to plaintiff to raise triable issues of material fact. The court noted that in opposition to the motion, plaintiff had failed to submit any expert medical testimony at all, and that, although plaintiff had made argument in support of finding vicarious liability on the part of the hospital for the conduct of Dr. Kasher and Dr. Kao, plaintiff had failed to offer expert medical evidence establishing that these physicians fell below the standard of care or engaged in acts or omissions which were the medical cause of plaintiff’s injuries. The court ruled that defendant had submitted evidence sufficient to meet its initial burden on the lack of a breach and the absence of medical causation, and further ruled:

“This evidence is not disputed by plaintiff, who instead argues that moving defendants is [sic] responsible for the medical negligence of other defendants, without submitting any expert evidence on that alleged medical negligence. Without any competent expert evidence of negligence or medical causation, plaintiff will be unable to establish his only cause of action against the moving defendant.”

On October 25, 2019, the court heard a Motion for New Trial brought by plaintiff seeking a new trial of the matter, or, in the alternative, an order vacating the court’s order granting summary judgment. The motion was denied in a detailed minute order, including to the extent relief was sought under CCP § 473. After argument, the court denied the motion, “except that Denial of the Plaintiff Jason Steger’s Motion under Section 473(b) of the Code of Civil Procedure is DENIED without prejudice.”

Plaintiff now brings a motion under CCP § 473 (b).

ANALYSIS:

Plaintiff seeks relief under CCP § 473(b), specifically the following provision:

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”

The court had previously denied relief sought under this section in connection with the motion for new trial under CCP § 473 (b) as follows:

“Regardless of under what statutory theory relief is sought, the Amended Declaration of Blake J. Lindeman submitted with the moving papers does not include a sworn affidavit attesting to and accepting responsibility for any mistake, inadvertence, surprise or neglect, and the declaration does not set forth any facts which would support a finding that the failure to previously submit the subject declaration was a due to excusable neglect. The Second District in Generale Bank Nederland v. Eyes of the Beholder Ltd (1998) 61 Cal.App.4th 1384, 1402 reviewed the “reasonably prudent person standard” governing a determination of “excusable neglect” and concluded with respect to attorney conduct:

“Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.”

Generale Bank, at 1400, quoting Garcia v. Hejmadi (1997, 2nd Dist.) 58 Cal.App.4th 674, 682-683.

The argument, unsupported by any evidence, appears to be that counsel did not believe an expert declaration was necessary under the circumstances, or any evidence establishing that the conduct of the purported ostensible agents would support the cause of action for medical malpractice against the moving defendant hospital. This evidence was required at the summary judgment motion because the Defendant Hospital’s expert witness declaration shifted the burden of proof as to professional negligence to the plaintiff. The hospital is entitled to a factual recitation of its alleged negligence and as to the other doctors who may have treated plaintiff that day. See Bushling, Jennings v. Palomer Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108. This contention is effectively an argument that counsel failed to properly advance an argument at the previous hearing, and, even if supported by evidence, would be insufficient to establish excusable neglect.”

Plaintiff now argues that relief is appropriate based on mistake, inadvertence, surprise or excusable neglect because plaintiff’s counsel’s firm mistakenly did not electronically file the Gazi Declaration with the other papers filed in opposition to the motion for summary judgment, as when the documents were uploaded on OneLegal by the firm, the prepared and ready to be filed Gazi Declaration was not included with one of the pdfs to be filed with the court. [Lindemann Decl. ¶ 4].

The opposition argues that the transcript of the previous hearing shows that the court permitted plaintiff to make this motion but required that a showing of something other than plaintiff making a strategic decision to “leapfrog” the expert declaration of the hospital and go right to ostensible agency, so any re-argument of such an error is improper. As noted above, the court has already determined that the argument that counsel believed and contends he did not need an expert declaration addressed to the physicians would not support a finding of “excusable” neglect, as it has been repeatedly conceded this was a strategic decision on the part of counsel.

This leaves the issue of whether the current showing with respect to the failure of the firm to transmit the declaration for filing constitutes the requisite “mistake, inadvertence, surprise, or excusable neglect,” to give rise to discretionary relief under the statute. Relief is not sought under the mandatory attorney fault provision.

The trial court’s granting or denial of relief under the discretionary provision is reviewed for abuse of discretion. State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610. It is noted that appellate courts are traditionally “favorably disposed toward such action on the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies on their merits.” Mercantile Collection Bureau v. Pinheiro (1948) 84 Cal.App.2d 606, 608, citing Benjamin v. Dalmo Mfg. Co. (1947) 31 Cal.2d 523.

A party seeking relief under section 473 on the ground of excusable neglect bears the burden of demonstrating that the neglect was excusable in order to secure relief. Cochran v. Linn (1984) 159 Cal.App.3d 245, 252.

The declaration here states:

“3. The declaration of Dr. Tawid R. Gazi (Gazi Decl) was meant to be filed with the ruling finding there was a dispute of fact as to Kasher and Kao’s conduct, but it was inadvertently not filed.

4. The judgment was entered without the presentation of evidence by Plaintiff Steger as

a direct and causal result of mistake, inadvertence, excusable neglect, surprise. My firm mistakenly did not electronically file the Gazi decl. As a clerical/secretarial error with OneLegal, even though it was ready to submit on the date the opposition was due to the motion, and even though other filings were made on that same date in opposition to the motion for summary judgment. When documents were uploaded on OneLegal by my firm, the prepared and ready to be filed Gazi decl. was not included with one of the pdf’s to be filed with the court. Thus, it was not filed in opposition to CSJ’s motion for summary judgment and was not considered. Later, a mistake of law was made as well. I determined at the hearing that the expert declaration was not necessary. However, the court found an expert declaration was necessary to address the Van Dam declaration. The mistake of law is that no declaration was required because Dr. Van Dam opined as to very limited matters, and I believed as a matter of law, this was not necessary to rebut when he did not even speak of the errors and omissions of Dr. Kasher and Dr. Kao.”

[Lindemann Decl. ¶¶ 3, 4].

The mistake now urged here appears to be a combination of the failure to transmit for filing an expert declaration and counsel’s later determination that the expert declaration was not necessary. As discussed above, the court has already determined that counsel taking the position that an expert declaration concerning the conduct of Dr. Kao and Dr. Kasher was not necessary is not excusable neglect. While it might ordinarily appear transmission failures with respect to the filing of documents in connection with a motion for summary judgment could constitute mistake or excusable neglect, it is not clear why after months of litigating this issue, counsel is now for the first time claiming that the declaration was intended to be filed. In addition, the moving papers do not submit the declaration that was intended to be filed, but mistakenly omitted, but a declaration of Dr. Gazi dated November 5, 2019, when the motion was in fact heard on September 6, 2019. This leaves the court without the declaration which was purportedly meant to be filed but mistakenly not filed to review and consider. The opposition indicates that the court has considered a previous declaration, which is alluded to in the submitted transcript of the October 25, 2019 hearing. [See Ex. B, pp. 6-7].

It appears from the file that on the date of the hearing on the summary judgment motion, on September 6, 2019, the declaration of Dr. Gazi which was submitted in support of the opposition to the motion of Dr. Kasher and Kao in July of 2019 was submitted to the court, along with a “Request” that the court consider the declaration. That declaration is not resubmitted here, likely because the court has reviewed it several times, and found that it did not directly address any conduct of those physicians in connection with the hospital stay for which the hospital is alleged to be responsible. The new declaration, dated November 5, 2019, would have been extremely untimely. This failure to submit the declaration which was meant to have been filed calls into question the credibility of the argument that there was a mistake in not transmitting that document for filing with the opposition.

The “Request” to consider the Gazi Declaration filed September 6, 2019, includes a declaration of counsel Lindemann in which he states:

“Defendants CSJ has not provided any expert declaration concerning the level of care provided by Dr. John Kasher and Dr. James Kao. Thus, we did not re-file the Gazi Declaration in connection with the CSJ motion for summary judgment, and inadvertently did not include it in the Opposition.”

[Request, filed 9/6/19, Lindemann Decl. ¶2, emphasis in original].

This declaration represents that “Thus,” a decision was made to “not re-file the Gazi Declaration,” which is consistent with the position plaintiff has asserted all along.

The file also shows that the papers which were filed in opposition to the motion for summary judgment did not refer to the Gazi Declaration at all, making it unlikely that it was in fact intended to be filed but inadvertently not filed. It does not appear that the declaration was ever intended to be relied upon as direct evidence.

In addition, if the court views the July 2019 declaration as the declaration which was inadvertently not transmitted to the court with the opposition, that declaration, as previously noted by the court, does not include reference to any specific conduct by the physicians which occurred during the hospitalization at issue which is sought to be imputed to the hospital.

The basis for relief now pursued, that the declaration was intended to be filed, but was inadvertently not filed, is not credible, and, even if the court finds the story credible, plaintiff has not submitted the declaration which was not filed for the court’s consideration as to its sufficiency. The motion accordingly is denied.

RULING:

Plaintiff Jason Steger’s Motion and Renewed Motion to Partially Set Aside Judgment is DENIED.

The court has reviewed the materials submitted, as well as the file in this matter, and finds that the representation that the Dr. Gazi Declaration was intended to be filed but inadvertently was not filed with the papers filed in opposition to the motion for summary judgment is not credible, in light of the representations made to this court previously and again in the moving papers concerning the deliberate decision to rely on other evidence and argument, and of the failure to reference that declaration in the previous opposition papers. The court cannot find that plaintiff has met his burden of establishing that the failure to submit the declaration was due to mistake, inadvertence, surprise, or excusable neglect.

Even if the court were to find that plaintiff had established that the failure to submit the declaration was due to mistake, inadvertence, surprise, or excusable neglect, plaintiff has not submitted with this motion a copy of the declaration which was purportedly intended to be but was not filed, as the Gazi Declaration submitted is dated November 5, 2019, long after the hearing on the motion for summary judgment. The court accordingly cannot evaluate if any declaration intended to have been filed includes material which raises triable issues of material fact.

Case Number: BC691050    Hearing Date: October 25, 2019    Dept: NCD

TENTATIVE RULING

Calendar: 21

Date: 10/25/19

Case No: BC 691050 Trial Date: March 16, 2020

Case Name: Steger v. CSJ Providence St. Joseph Medical Center, et al.

MOTION FOR NEW TRIAL

[CCP § 657]

Moving Party: Plaintiff Jason Steger

Responding Party: Defendant Providence St. Joseph Medical Center

RELIEF REQUESTED:

New trial or in the alternative an order vacating the court’s order granting summary judgment

SUMMARY OF FACTS:

Plaintiff Jason Steger alleges that in October of 2016, plaintiff was admitted to defendant CSJ Providence St. Joseph Medical Center with abdominal pain, and that defendants, various medical providers, negligently performed a colonoscopy procedure on plaintiff which perforated his colon in multiple areas. Plaintiff alleges that after the procedure, his pain worsened and he went into septic shock. Plaintiff alleges that he ultimately underwent a total colectomy with ileostomy and other procedures, and his entire colon was removed.

On September 6, 2019, the court heard a motion for summary judgment brought by defendant Providence St. Joseph Medical Center. The motion was granted in a detailed minute order. The court found that the expert declaration submitted by moving defendant sufficiently established that the conduct of the hospital fell within the applicable standard of care, and nothing the hospital did caused or contributed to injury to plaintiff Steger, shifting the burden to plaintiff to raise triable issues of material fact. The court noted that in opposition to the motion, plaintiff had failed to submit any expert medical testimony at all, and that, although plaintiff had made argument in support of finding vicarious liability on the part of the hospital for the conduct of Dr. Kasher and Dr. Kao, plaintiff had failed to offer expert medical evidence establishing that these physicians fell below the standard of care or engaged in acts or omissions which were the medical cause of plaintiff’s injuries. The court ruled that defendant had submitted evidence sufficient to meet its initial burden on the lack of a breach and the absence of medical causation, and further ruled:

“This evidence is not disputed by plaintiff, who instead argues that moving defendants is [sic] responsible for the medical negligence of other defendants, without submitting any expert evidence on that alleged medical negligence. Without any competent expert evidence of negligence or medical causation, plaintiff will be unable to establish his only cause of action against the moving defendant.”

RULING:

Plaintiff Jason Steger’s Motion for New Trial is DENIED.

CCP section 657 provides that a verdict may be vacated, and any other decision may be modified or vacated, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved for various causes. It is not clear from the moving papers on what specific statutory ground of the many listed in the notice of intention relief is actually sought. The motion appears to seek that the court find that the evidence submitted at the previous hearing was insufficient to support the court’s order, or that there was an error in law. The motion essentially argues that the court did not make a separate analysis and finding with respect to the issue of whether triable issues of fact had been raised with respect to whether Dr. Kasher and Dr. Kao were the ostensible agents of the moving defendant, so that the Hospital would be vicariously responsible for their conduct in connection with plaintiff’s sole cause of action for medical negligence.

As an initial matter, the court agrees with plaintiff that the court has the authority to consider a motion for a new trial in connection with the granting by the court of summary judgment:

“Aguilar moved the superior court for a new trial following its order granting the petroleum companies summary judgment. A motion for a new trial is appropriate following an order granting summary judgment. (Kohan v. Cohan (1988) 204 Cal.App.3d 915, 919, fn. 4, 251 Cal.Rptr. 570; Scott v. Farrar (1983) 139 Cal.App.3d 462, 467, 188 Cal.Rptr. 823; Green v. Del–Camp Investments, Inc. (1961) 193 Cal.App.2d 479, 481, 14 Cal.Rptr. 420; see Waschek v. Department of Motor Vehicles (1997) 59 Cal.App.4th 640, 643–644, fn. 4, 69 Cal.Rptr.2d 296; Malo v. Willis (1981) 126 Cal.App.3d 543, 546, fn. 2, 178 Cal.Rptr. 774; cf. Carney v. Simmonds (1957) 49 Cal.2d 84, 87–91, 315 P.2d 305 [holding that a motion for a new trial is appropriate following an order granting judgment on the pleadings].) This is so, even though, strictly speaking, “summary judgment ... is a determination that there shall be no trial at all.” (Green v. Del–Camp Investments, Inc., supra, 193 Cal.App.2d at p. 481, 14 Cal.Rptr. 420.).”

Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 858.

The court does not find that grounds have been established warranting a new trial here.

To establish plaintiff’s cause of action for medical negligence against the moving defendant hospital, plaintiff must plead and prove:

1) Defendant’s duty to insure the competency of its medical staff

2) Duty to evaluate the quality of medical treatment rendered on its premises

3) Breach of defendant hospital’s duty in that hospital agent negligently cared for hospital patient

4) The breach as the proximate or legal cause of plaintiff’s injuries; and

5) Damages.

Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 347.

At the previous hearing, an expert declaration was submitted by defendant which established based on a detailed showing the opinion of the medical expert that, “the care and treatment rendered to Jason Steger by Providence Saint Joseph Medical Center, and its employees, complied with the standard of care in the community.” [Ex. C, Van Dam Decl. ¶ 5]. The expert declaration also expressed the expert’s opinion, “that, to a reasonable degree of medical probability, nothing Providence Saint Joseph Medical Center, or its employees, did or failed to do caused or contributed to injury to Mr. Steger.” [Ex. C, Van Dam Decl. ¶ 9].

The court found this sufficient to establish that plaintiff would be unable to establish the essential elements of breach of the standard of care or medical causation.

Plaintiff in opposition, while raising the issue of ostensible agency with respect to the physician defendants, did not meet the burden of establishing that the conduct of those parties, regardless of their status as employees or ostensible agents, and even if the conduct were imputed to the hospital, fell below the standard of care or was a medical cause of plaintiff’s alleged harm. The court under such circumstances, was not obligated to make a ruling on the issue of the existence of an agency. Consequently, the Court made no ruling on ostensible agency and makes no such ruling now.

Defendant relies on Burbank v. National Casualty Company (1941) 43 Cal.App.2d 773, in which the court of appeal held, “Agency is a fact, the burden of proving which rests upon the party affirming its existence." (2 C. J., p. 923, sec. 662.).” Burbank, at 781. The court views this burden, particularly where the burden has shifted on summary judgment, to extend in this medical malpractice action to raising triable issues of material fact with respect to whether the conduct of those purported agents constituted medical malpractice based on competent medical evidence. That burden was not met by plaintiff here and summary judgment was appropriately granted.

The motion appears to seek to now submit an expert declaration for the court’s consideration, pursuant to CCP § 473. However, it is not clear under what theory this declaration, not offered at the previous hearing, can now be considered by the court. Moreover, it does not appear that plaintiff submitted any new doctor expert witness declaration for the motion for new trial, but plaintiff is instead relying on plaintiff’s prior expert declaration signed June 18, 2019. There is no clear reference in this declaration to what happened on the day in question at the emergency room of Providence St. Joseph’s Medical Center. The moving papers do not make clear under what provision of CCP § 473 relief is sought, and on what basis.

CCP § 473(b) provides, in pertinent part:

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect….

Nothwithstanding any other requirement of this section, the court shall, whenever an application is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect, vacate any (1) resulting default entered by the clerk against his or her client and which will result in entry of default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not, in fact, caused by the attorney’s mistake, inadvertence, surprise or neglect.”

Regardless of under what statutory theory relief is sought, the Amended Declaration of Blake J. Lindeman submitted with the moving papers does not include a sworn affidavit attesting to and accepting responsibility for any mistake, inadvertence, surprise or neglect, and the declaration does not set forth any facts which would support a finding that the failure to previously submit the subject declaration was a due to excusable neglect. The Second District in Generale Bank Nederland v. Eyes of the Beholder Ltd (1998) 61 Cal.App.4th 1384, 1402 reviewed the “reasonably prudent person standard” governing a determination of “excusable neglect” and concluded with respect to attorney conduct:

“Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.”

Generale Bank, at 1400, quoting Garcia v. Hejmadi (1997, 2nd Dist.) 58 Cal.App.4th 674, 682-683.

The argument, unsupported by any evidence, appears to be that plaintiff’s counsel did not believe an expert declaration was necessary under the circumstances to oppose the hospital’s Motion for Summary Judgment, or that any evidence establishing that the conduct of the purported ostensible agents would be required to support the cause of action for medical malpractice against the moving defendant hospital. This evidence was required at the summary judgment motion because the Defendant Hospital’s expert witness declaration shifted the burden of proof as to professional negligence to the plaintiff. The hospital is entitled to a factual recitation of its alleged negligence and as to the other doctors who may have treated the plaintiff that day. See Bushling, Jennings v. Palomer Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117-1118. This contention is effectively an argument that counsel failed to properly advance an argument at the previous hearing, and, even if supported by evidence, would be insufficient to establish excusable neglect.

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