JOHN ANTHONY FERRY VS BROTMAN MEDICAL CENTER

Tentative Rulings

Case Number: ****8556 Hearing Date: December 1, 2021 Dept: 32

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged). Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

TENTATIVE RULING

MOTION

Plaintiff John Anthony Ferry sued Defendant Kamal Bijanpour, M.D. (“Bijanpour”) based on injuries Plaintiff alleges he sustained as a patient under the care of Defendant Southern California Healthcare System, Inc., doing business as Southern California Hospital at Culver City (“Hospital”), when another patient attacked Plaintiff while Plaintiff was under four-point restraints, as ordered by Bijanpour. Bijanpour has pleaded guilty in an unrelated federal criminal matter, and now moves for a stay of proceedings pending the completion of his 18-month sentence in a federal penal institution. Hospital joins Bijanpour’s motion to stay the action. Plaintiff opposes the motion.

ANALYSIS

“[W]hen the trial court determines on motion that the in-court testimony of a prisoner defendant – whether indigent or not – is needed to protect the due process of the parties, it may attempt, through the Department of Corrections, to arrange the presence of the prisoner. Except in a few specified circumstances, a court has no statutory authority to command the Department of Corrections to transport a prisoner to a civil courtroom. But judges do a have a constitutional duty to uphold the due process clause. Accordingly, if a court determines that a prisoner’s personal testimony is needed to preserve due process rights, but the Department of Corrections refuses accommodation, the court may order a continuance or employ other alternatives to transporting the prisoner, such as recording his testimony or if feasible holding a portion of the trial at the prison.” (Payne v Superior Court (1976) 17 Cal.3d 908, 924-925.)

In Payne, the California Supreme Court considered various means of upholding a prisoner’s rights under the due process and equal protection clauses of both the state and federal constitutions when the prisoner faces a simultaneous civil suit. (See Payne, supra, 17 Cal.3d at pp. 922-923.) The Payne court found “the dual deprivation of appointed counsel and the right to personal presence in court is unconstitutional, but not that the denial of each of those rights individually is invalid. Indeed, to grant [an indigent prisoner] an absolute right to both appointed counsel and personal appearance would achieve the anomalous result of according him greater privileges than those possessed by an ordinary civil litigant.” (Id. at p. 923.) In such situations, one alternative “is to require trial courts to defer trial of actions against prisoners until their release. When this course of action is not prohibited by law (see, e.g., Code Civ. Proc., ; 1054) and postponement will not substantially prejudice the rights of plaintiffs, trial courts may exercise their discretion in this manner.” (Ibid.)

Here, Bijanpour asserts he must be allowed to testify at trial that he was not present at the hospital on the date of Plaintiff’s injury and his only involvement with Plaintiff was to order medication for Plaintiff and Plaintiff be restrained after throwing items at hospital staff and threatening doctors. Bijanpour represents his incarceration is set to begin on December 1, 2021, and will prevent him from attending trial in this matter until late 2022.

In opposition, Plaintiff argues staying this action for a year or more will significantly prejudice Plaintiff as the case will reach the statutory five-year limit for bringing a case to trial on January 31, 2022.[1] Plaintiff also suggests Bijanpour may attend trial via video conference technology if it is available at the detention facility.

The Court finds Bijanpour has not adequately demonstrated that no feasible alternatives exist to uphold Bijanpour’s due process rights at trial. Bijanpour has not shown that his appearance at trial cannot be arranged either in person or virtually through the Federal Bureau of Prisons especially when it is uncertain where he will be incarcerated, or that a recording of his testimony will not suffice. Further, in light of the pending five-year limit to bring Plaintiff’s case to trial, the Court finds the requested stay will prejudice Plaintiff absent a showing Bijanpour has no reasonable alternatives for presenting his testimony at trial.

CONCLUSION AND ORDER

Therefore, the Court denies Bijanpour’s motion for a stay of proceedings until late 2022. However, in light of the impending trial of December 15, 2021, the Court will grant a short continuance of the trial to permit Bijanpour or any other party to determine whether Bijanpour may appear at trial in person or remotely, despite being incarcerated, through the Federal Bureau of Prisons, or whether Bijanpour’s testimony may be recorded by deposition after he is set to start his federal prison term on December 1, 2021.

As such, the Court continues the trial to March 1, 2022 at 8:30 A.M. in Department 32, and continues the Final Status Conference to February 15, 2022 at 10:00 A.M. in Department 32. All discovery shall remain closed, and the pre-trial motion cut off remains in effect except for any motions to continue the trial or to stay proceedings.

Bijanpour shall provide notice of this order and file a proof of service of such.

Case Number: ****8556    Hearing Date: May 27, 2021    Dept: 32

PLEASE NOTE: Parties who intend to submit on this tentative must send an email to the court at sscdept32@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear in-person or remotely.

TENTATIVE RULING

MOTION

Defendant Kamal Bijanpour (“Defendant”) moves to continue the trial in this matter, which is currently set for July 9, 2021, to September 9, 2021. All parties have stipulated to the continuance.

ANALYSIS

“Continuances are granted only on an affirmative showing of good cause requiring a continuance.”  (In re Marriage of Falcone and Fyke (2008) 164 Cal.App.4th 814, 823.)  A trial court has broad discretion in considering a request for a trial continuance.  (Pham v. Nguyen (1997) 54 Cal.App.4th 11, 13-18.)  California Rules of Court, rule 3.1332 sets forth factors for the Court to consider in ruling on a motion to continue trial.

Defendant seeks a continuance of trial because Defendant’s counsel will be out of state on the current trial date. This is good cause for a trial continuance. (Cal. Rules of Court, rule 3.1332, subd. (c)(3).) The trial date, currently set for July 9, 2021, is advanced to this date, and continued to September 9, 2021 at 8:30 AM. The final status conference, currently set for June 25, 2021, is advanced to this date, and continued to August 26, 2021 at 10:00 AM.

In addition, the Court orders that all of the discovery and motion cut-off dates shall be based upon the July 9, 2021 trial date. Defendant is to give notice of this order, and file a proof of service of such.