This case was last updated from Los Angeles County Superior Courts on 09/10/2021 at 15:57:13 (UTC).

LAKESIDE MEDICAL ORGANIZATION, A MEDICAL GROUP, INC., ET AL. VS JONATHAN NISSANOFF, M.D., ET AL.

Case Summary

On 10/30/2020 LAKESIDE MEDICAL ORGANIZATION, A MEDICAL GROUP, INC filed a Property - Other Property Fraud lawsuit against JONATHAN NISSANOFF, M D . This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are KEVIN C. BRAZILE and DAVID J. COWAN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******1811

  • Filing Date:

    10/30/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Property Fraud

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

KEVIN C. BRAZILE

DAVID J. COWAN

 

Party Details

Plaintiffs

LAKESIDE MEDICAL ORGANIZATION A MEDICAL GROUP INC.

REGAL MEDICAL GROUP INC. A CALIFORNIA CORPORATION

Defendants

NISSANOFF JONATHAN M.D.

ADVANCED ORTHOPEDIC CENTER INC. A CALIFORNIA CORPORATION

Attorney/Law Firm Details

Plaintiff Attorney

GLARUM MARY TESH

Defendant Attorneys

EISENBERG MARK

TOOCH DARON L.

 

Court Documents

Minute Order - MINUTE ORDER (HEARING ON SPECIAL MOTION TO STRIKE UNDER CCP SECTION 425.16 ...)

3/30/2021: Minute Order - MINUTE ORDER (HEARING ON SPECIAL MOTION TO STRIKE UNDER CCP SECTION 425.16 ...)

Complaint

10/30/2020: Complaint

Opposition - OPPOSITION OPPOSITION TO MOTION FOR ATTORNEY'S FEES

6/15/2021: Opposition - OPPOSITION OPPOSITION TO MOTION FOR ATTORNEY'S FEES

Objection - OBJECTION EVIDENTIARY OBJECTIONS

6/15/2021: Objection - OBJECTION EVIDENTIARY OBJECTIONS

Reply - REPLY TO OPPOSITION TO MOTION FOR ATTORNEYS' FEES

6/24/2021: Reply - REPLY TO OPPOSITION TO MOTION FOR ATTORNEYS' FEES

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR ATTORNEY FEES FILED BY PLAINTIFFS)

7/1/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR ATTORNEY FEES FILED BY PLAINTIFFS)

Stipulation and Order - STIPULATION AND ORDER PROPOSED PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS AND INFORMATION

7/30/2021: Stipulation and Order - STIPULATION AND ORDER PROPOSED PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS AND INFORMATION

Notice Re: Continuance of Hearing and Order

3/24/2021: Notice Re: Continuance of Hearing and Order

Objection - OBJECTION DEFENDANTS' EVIDENTIARY OBJECTIONS TO DECLARATION OF DR. DAVID SCHRIGER

3/23/2021: Objection - OBJECTION DEFENDANTS' EVIDENTIARY OBJECTIONS TO DECLARATION OF DR. DAVID SCHRIGER

Notice of Ruling - NOTICE OF RULING RE DEFENDANTS MOTION TO TRANSFER ACTION TO WEST DISTRICT SANTA MONICA COURTHOUSE

1/7/2021: Notice of Ruling - NOTICE OF RULING RE DEFENDANTS MOTION TO TRANSFER ACTION TO WEST DISTRICT SANTA MONICA COURTHOUSE

Motion to Strike (not initial pleading)

1/11/2021: Motion to Strike (not initial pleading)

Notice of Change of Address or Other Contact Information

2/2/2021: Notice of Change of Address or Other Contact Information

Notice - NOTICE OF ADVANCEMENT OF HEARING ON MOTION TO STRIKE

2/2/2021: Notice - NOTICE OF ADVANCEMENT OF HEARING ON MOTION TO STRIKE

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER REGARDING CONTINUANCE OF HEARINGS) OF 02/05/2021

2/5/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER REGARDING CONTINUANCE OF HEARINGS) OF 02/05/2021

Notice of Posting of Jury Fees

3/5/2021: Notice of Posting of Jury Fees

Notice of Posting of Jury Fees

3/11/2021: Notice of Posting of Jury Fees

Declaration - DECLARATION OF MARY COASH ISO PLTFS' OPP TO DEFENDANTS' MTS (ANTI-SLAPP)

3/17/2021: Declaration - DECLARATION OF MARY COASH ISO PLTFS' OPP TO DEFENDANTS' MTS (ANTI-SLAPP)

Notice - NOTICE OF ERRATA

12/14/2020: Notice - NOTICE OF ERRATA

45 More Documents Available

 

Docket Entries

  • 08/29/2022
  • Hearing08/29/2022 at 09:30 AM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 08/25/2022
  • Hearing08/25/2022 at 08:30 AM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 11/08/2021
  • Hearing11/08/2021 at 08:30 AM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Post-Mediation Status Conference

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  • 07/30/2021
  • DocketStipulation and Order (Proposed Protective Order re Confidential Documents and Information); Filed by Lakeside Medical Organization, a Medical Group, Inc. (Plaintiff); Regal Medical Group, Inc., a California corporation (Plaintiff)

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  • 07/01/2021
  • Docketat 08:30 AM in Department 20, Kevin C. Brazile, Presiding; Hearing on Motion for Attorney Fees (Filed by Plaintiffs) - Held - Motion Denied

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  • 07/01/2021
  • DocketRuling: July 1, 2021; Filed by Clerk

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  • 07/01/2021
  • DocketNotice of Ruling; Filed by Jonathan Nissanoff, M.D. (Defendant); Advanced Orthopedic Center, Inc., a California corporation (Defendant)

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  • 07/01/2021
  • DocketMinute Order ( (Hearing on Motion for Attorney Fees Filed by Plaintiffs)); Filed by Clerk

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  • 06/24/2021
  • DocketReply (to Opposition to Motion for Attorneys' Fees); Filed by Lakeside Medical Organization, a Medical Group, Inc. (Plaintiff)

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  • 06/24/2021
  • DocketReply (Plaintiffs' Response to Defendants' Evidentiary Objections to Declaration of Michael M. Amir Filed in Support of Plaintiffs' Motion for Attorneys' Fees); Filed by Lakeside Medical Organization, a Medical Group, Inc. (Plaintiff); Regal Medical Group, Inc., a California corporation (Plaintiff)

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52 More Docket Entries
  • 12/17/2020
  • DocketAnswer; Filed by Jonathan Nissanoff, M.D. (Defendant); Advanced Orthopedic Center, Inc., a California corporation (Defendant)

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  • 12/14/2020
  • DocketNotice (of Errata); Filed by Lakeside Medical Organization, a Medical Group, Inc. (Plaintiff); Regal Medical Group, Inc., a California corporation (Plaintiff)

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  • 12/01/2020
  • DocketProof of Service (not Summons and Complaint); Filed by Lakeside Medical Organization, a Medical Group, Inc. (Plaintiff); Regal Medical Group, Inc., a California corporation (Plaintiff)

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  • 11/25/2020
  • DocketMotion to Transfer; Filed by Jonathan Nissanoff, M.D. (Defendant); Advanced Orthopedic Center, Inc., a California corporation (Defendant)

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  • 11/19/2020
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 11/19/2020
  • DocketOrder to Show Cause Failure to File Proof of Service; Filed by Clerk

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  • 10/30/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 10/30/2020
  • DocketCivil Case Cover Sheet; Filed by Lakeside Medical Organization, a Medical Group, Inc. (Plaintiff); Regal Medical Group, Inc., a California corporation (Plaintiff)

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  • 10/30/2020
  • DocketSummons (on Complaint); Filed by Lakeside Medical Organization, a Medical Group, Inc. (Plaintiff); Regal Medical Group, Inc., a California corporation (Plaintiff)

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  • 10/30/2020
  • DocketComplaint; Filed by Lakeside Medical Organization, a Medical Group, Inc. (Plaintiff); Regal Medical Group, Inc., a California corporation (Plaintiff)

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Tentative Rulings

Case Number: 20STCV41811    Hearing Date: March 30, 2021    Dept: 20

Tentative Ruling

Judge Kevin C. Brazile

Department 1


Hearing Date: Tuesday, March 30, 2021

Case Name: Lakeside Medical Org. et al. v. Jonathan Nissanoff, M.D. et al.

Case No.: 20STCV41811

Motion: Anti-SLAPP

Moving Party: Defendants Nissanoff and AOC

Responding Party: Plaintiffs Lakeside and Regal

Notice: OK


Ruling: The Motion to Strike is DENIED.

Plaintiffs to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear remotely by LA Court Connect rather than in person.


 

BACKGROUND

 

On October 30, 2020, Plaintiffs Lakeside Medical Organization, Inc. and Regal Medical Group, Inc. filed a Complaint against Defendants Jonathan Nissanoff, M.D., Advanced Orthopedic Center, Inc. (“AOC”), and Does 1-25, stating claims for fraud, unjust enrichment, and unfair business practices, seeking declaratory, injunctive, and monetary relief. The action was filed in the Central District Stanley Mosk Courthouse.

On January 11, 2021, Defendants Nissanoff and AOC filed an Anti-SLAPP Motion to Strike under CCP sec. 425.16, arguing the claims asserted lack merit and arose from protected activity.

On March 17, 2021, Plaintiffs filed an Opposition to the Motion to Strike.

On March 23, 2021, Defendants filed a Reply in support of the Motion to Strike.

 

DISCUSSION

Anti-SLAPP Procedure (CCP sec. 425.16)

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) A defendant “meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, [subd.] (e).” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) After Baral, trial courts generally no longer look to the “primary thrust” or “gravamen” of the complaint in addressing the first prong. Instead, courts should “look simply to whether the claims involving protected activity are merely incidental or collateral to the causes of action . . . i.e., whether the allegations are merely background or provide context or whether the allegations support a claim for recovery.” (Sheley v. Harrop (2017) 9 Cal.App.5th 1147, 1170.) The first prong is satisfied where the plaintiff’s allegations “both involve protected activity and purport to support claims for recovery.” (Id.)

If the defendant makes this showing on the first step, “the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral, supra, 1 Cal.5th at 384-85.) The second prong is “a ‘summary-judgment-like procedure’” requiring the Court to assess “whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law.” (Id.) Claims with “minimal merit” will survive the second step because section 425.16 “only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Id.) A denial on the second prong means “the trial court necessarily conclude[d] . . . that the defendant's contrary showing, if any, does not defeat the plaintiff's as a matter of law.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)

First Prong

Plaintiffs allege that Nissanoff “knows that his billed charges are far in excess of the true ‘reasonable’ or ‘fair market value’ of the services rendered and/or in an amount which otherwise fail to reflect Dr. Nissanoff’s deceitful markup of his charges.” (Complaint, para. 6.) Plaintiffs allege that Nissanoff “engage[d] in blatant billing fraud” by “falsely represent[ing] . . . that he has provided services to patients suffering medical emergencies, when in fact there was no medical emergency,” by “bill[ing] for services he has not provided” and “upcod[ing]” for services actually provided, by “routinely bill[ing] for codes . . . deemed non-billable,” and by “submitting fragmented bills in order to manipulate the reimbursement amount.” (Complaint, para. 7.) Plaintiffs identify several patients for which Nissanoff submitted allegedly fraudulent bills. (Complaint, para. 34-37.) Finally, Plaintiffs allege they “have suffered injury in fact and ha[ve] lost money and property” as a result of these practices, alleging “[s]uch injury in fact has been occasioned by unreasonable payments that Plaintiffs have been pressured or deceived into making, and the significant increase in administrative costs necessary to address and respond to the ongoing onslaught of strong-arm tactics . . . in the form of continual baseless correspondence and demands, and baseless small claims lawsuits.” (Complaint, para. 49 (emphasis added).)

Defendants argue that the claims essentially arise from their “pre-litigation demand letters [for payment] and small claims lawsuits” based on those demands, and therefore that the claims arise from protected activity. (Opposition, p. 13.) Further, Defendants contend their small claims lawsuits were not “baseless” as they have prevailed in all three actions that have gone to trial.

In response, Plaintiffs argue the claims arise from Nissanoff’s submission of “inflated and false billing to obtain greater compensation than that to which he is entitled,” his “deceitful markup of his billed charge amounts,” and “improper demands and retention of overpayments garnered by fraudulent billing.” (Opposition, p. 7; Complaint, para. 35, 44-46, 62.) Plaintiffs argue (1) this action is not retaliatory but merely responsive to the small claims actions, citing City of Cotati v. Cashman (2002) 29 Cal.4th 69, 77, and (2) that it is irrelevant whether the action was filed with retaliatory motives, citing Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 924. Further, Plaintiffs argue the reference to “baseless small claims lawsuits” (Complaint, para. 48) was merely “incidental” to the claims asserted and indicated they are “willing to strike” this allegation. (Opposition, p. 9, fn. 1.)

The Court first observes that the subjective intent in filing the lawsuit—e.g. to retaliate or chill speech—is not relevant here. (Cotati, supra, 29 Cal.4th at 74 (“the question of subjective intent is not relevant.”)) Rather, the “anti-SLAPP statute, construed in accordance with its plain language, incorporates no intent-to-chill pleading or proof requirement. [Cite.] Consequently, a defendant who meets its burden under the statute of demonstrating that a targeted cause of action is one ‘arising from’ protected activity . . . faces no additional requirement of proving the plaintiff's subjective intent. (Id.) By extension, proof of subjective retaliatory intent is not a substitute for proving the action objectively “arises from” protected activity. (Kajima, supra, 95 Cal.App.4th at 929 (“Kajima wrongly focuses on the City's filing . . . as a supposed act of retaliation without demonstrating, as it must under the anti-SLAPP statute, that the amended cross-complaint ‘alleges acts in furtherance of [Kajima's] right of petition or free speech in connection with a public issue.’ [Cite.] This error is fatal…”); see ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1002 (rejecting argument that “any claim asserted in an action which arguably was filed in retaliation for the exercise of speech or petitions [falls under section 425.16, whether or not the claim is based on conduct in exercise of those rights.”)) Therefore, the Court does not address the argument that this Complaint was intended to retaliate, as that is not what Defendants must show to prevail on the first prong.[1]

Next, the Court agrees with Plaintiffs that the reference to “baseless small claims lawsuits” is merely collateral or incidental to the claims asserted as the claims are not themselves based on the small claims actions in any meaningful sense. “[T]he mere fact an action was filed after protected activity took place does not mean it arose from that activity.” (Cotati, supra, 29 Cal.4th at 76-77.) “California courts rightly have rejected the notion ‘that a lawsuit is adequately shown to be one ‘arising from’ an act in furtherance of the rights of petition or free speech as long as suit was brought after the defendant engaged in such an act, whether or not the purported basis for the suit is that act itself.’” (Id.) Rather, “a responsive but independent lawsuit [may] arise from the same transaction or occurrence alleged in a preceding lawsuit, without necessarily arising from that earlier lawsuit itself.” (Id. at 78 (emphasis added).) To the extent Defendants argue the claims are based on protected activity insofar as they are based on “pre-litigation demand letters,” this argument is rejected as well. (Motion, p. 13.)  “The submission of contractual claims for payment in the regular course of business before the commencement of litigation simply is not an act in furtherance of the right to petition or free speech within the meaning of the anti-SLAPP statute.” (Kajima, supra, 95 Cal.App.4th at p. 932.)

This case is similar to Kajima, supra, 95 Cal.App.4th 921. In Kajima, the plaintiffs stated nineteen causes of action against Kajima for “1) fraud; (2) violation of the Public Contract Code (two causes of action); (3) unfair business practices; (4) embezzlement; (5) violation of the False Claims Act (ten causes of action); and (6) violation of the Racketeer Influenced and Corrupt Organizations Act (RICO) (four causes of action).” (Id. at 925). The Court of Appeal found the claims asserted arose from “Kajima’s bidding and contracting practices, not from acts in furtherance of its rights of petition or free speech.” (Id. at 929.) The fraud claim was based on Kajima “intentionally underbid[ding] the project knowing it could not complete the work within the price submitted”; further, Kajima “later claimed additional compensation based on false and/or inflated progress payment requests.” (Id.) The other claims asserted arose from allegations that Kajima “improperly identified subcontractors that would work on the project,” “wrongfully collected funds from the City for a security guard when no such security guard was present,” “falsely certified minority and women business enterprise (MBE and WBE) participation in the job,” and other wrongful conduct such as “bid-shopping, . . . front-end loading, and self-serving cost-cutting measures.” (Id. at 930.)

Significantly, in Kajima, “most of the alleged conduct occurred either prior to or at the time of the contract’s execution in 1995.” The actionable conduct consisted entirely of “acts prior to the Cit’s acceptance of [Kajima’s] work on the bridge.” (Id.) For that reason, the Court of Appeal concluded “Kajima was not exercising its right of petition at the time of the alleged acts; it was seeking to secure and working on a construction project,” so the claims arose not “from Kajima’s petitioning activities but rather from its bidding and contracting practices.” (Id; ComputerXpress, supra, 93 Cal.App.4th at 1003 (“‘the act underlying the plaintiff's cause’ or ‘the act which forms the basis for the plaintiff's cause of action’ must itself have been an act in furtherance of the right of petition or free speech.”))

Further, like Defendants in this case, “Kajima relie[d] on several words in [one paragraph] of the City’s general allegations to argue the amended cross-complaint was filed to thwart its right to petition.” (Id.) Specifically, it relied on the allegation that its “pattern and practice was to generate substantial profits from these projects, notwithstanding these underbids, by engaging in self-serving measures which were detrimental to the projects, by bid shopping, by shifting costs, materials and equipment from one project to another, by submitting false and inflated construction claims, and by threatening to file suit if such claims were not paid.” (Id. (emphasis added)) Kajima argued that, “by alleging its threats to file suit were improper, the amended cross-complaint is based on an act in furtherance of the right to petition.” (Id. at 931.) The Court of Appeal rejected this argument as having “no merit” for two reasons. First, the court found this allegation was “simply part of the City’s allegations regarding Kajima’s general pattern and practice of bidding and collecting” across the country rather than specifically the subject project. Second, the court found the threats to sue “plainly [are] not the basis for liability asserted in any of the causes of actions.” (Id.)  

Defendants failed to distinguish Kajima from the facts of this case. Here, Plaintiffs assert causes of action for fraud, unjust enrichment, and unfair business practices based on Nissanoff’s repeated submission of allegedly padded bills and related “claims for payment in the regular course of business,” such as demand letters. Like in Kajima, Defendants seize on Plaintiffs’ brief reference to “baseless small claims actions” but fail to demonstrate that the small claims actions are “the basis for liability asserted in any” claims. (Id.) Further, like in Kajima and Cotati, Defendants attempt to carry their burden to establish that the claims arise from protected activity by showing the new action was likely retaliatory insofar as it explicitly referenced a previous action. This argument misapprehends the moving party’s burden on an anti-SLAPP motion. (Cotati, supra, 29 Cal.4th at 74; Kajima, supra, 95 Cal.App.4th at 929; ComputerXpress, supra, 93 Cal.App.4th 1002 (rejecting argument that “any claim asserted in an action which arguably was filed in retaliation for the exercise of speech or petitions [falls under section 425.16, whether or not the claim is based on conduct in exercise of those rights.”)) For the foregoing reasons, the Court finds Defendants failed to demonstrate the claims asserted arise from protected activity. The billing practices at issue are not protected activity and form the basis of each claim asserted.

Second Prong

On the second prong, “[t]he court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment.” (Baral, supra, 1 Cal.5th at 384.) In making this determination, “the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (CCP § 425.16(b)(2).) A plaintiff “seeking to demonstrate the merit of the claim may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.” (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 941.) “[E]vidence may be considered at the anti-SLAPP motion stage if it is reasonably possible the evidence set out in supporting affidavits, declarations or their equivalent will be admissible at trial.” (Id. at 947.) “[I]f the evidence relied upon cannot be admitted at trial, because it is categorically barred or undisputed factual circumstances show inadmissibility, the court may not consider it in the face of an objection.” (Id. at 949.)

The Court “need not reach this second prong of the analysis if the ‘arising from protected activity’ requirement is not met.” (Wang v. Wal–Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 801.) Defendants failed to show the claims asserted arise from protected activity. The Court therefore does not reach the issue of minimal merit.

CONCLUSION

The Motion is DENIED.

Counsel for Plaintiffs to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear remotely by LA Court Connect rather than in person.


[1] This “holding does not leave parties confronting a meritless, retaliatory countersuit without a remedy. If a [defendant] believes that a [complaint] has been filed ‘for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation,’ or that the claims against it are frivolous or lacking in evidentiary support, then it may move for sanctions, including attorney fees and other expenses, to be awarded in the trial court's discretion. (See § 128.7, subds. (b)-(d).) The anti-SLAPP statute, however, is not the appropriate remedy” under those circumstances. (Kajima, supra, 95 Cal.App.4th at 934.)

Case Number: 20STCV41811    Hearing Date: January 07, 2021    Dept: 1

Tentative Ruling

Judge David J. Cowan

Department 1


Hearing Date: Thursday, January 7, 2021

Case Name: Lakeside Medical Org. et al. v. Jonathan Nissanoff, M.D. et al.

Case No.: 20STCV41811

Motion: Transfer Venue

Moving Party: Defendant Nissanoff

Responding Party: Plaintiffs Lakeside and Regal

Notice: OK


Ruling: The Motion to Transfer is DENIED.

Plaintiffs to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear remotely by LA Court Connect rather than in person.


BACKGROUND

 

On October 30, 2020, Plaintiffs Lakeside Medical Organization, Inc. and Regal Medical Group, Inc. filed a Complaint against Jonathan Nissanoff, M.D., Advanced Orthopedic Center, Inc., and Does 1-25, stating claims for fraud, unjust enrichment, and unfair business practices, seeking declaratory, injunctive, and monetary relief. The action was filed in the Central District Stanley Mosk Courthouse.

On November 25, 2020, Nissanoff and Advanced Orthopedic Center filed a Motion to Transfer Venue. Defendants seek to transfer this action from the Central District Stanley Mosk Courthouse to the West District Santa Monica Courthouse.

On December 23, 2020, Plaintiffs filed an Opposition to the Motion to Transfer.

On December 28, 2020, Defendants filed a Reply.

 

DISCUSSION

 

Defendants seek to transfer this action from the Stanley Mosk Courthouse in the Central District to the West District of the Los Angeles Superior Court. LASC Local Rule 2.3(b)(2) authorizes Department 1 to transfer civil cases from one judicial district to another when the case was filed in an improper district, or for the convenience of witnesses or to promote the ends of justice. A party acting under the authority of LASC Local Rule 2.3(b)(2) bears the burden of proof if it seeks a district transfer out of a presumptively correct forum, as is the case when moving for change of proper venue pursuant to CCP sec. 397(c). (See Lieberman v. Superior Court (1987) 194 Cal.App.3d 396, 401; CCP sec. 397(c) (authorizing venue transfer “[w]hen the convenience of witnesses and the ends of justice would be promoted by the change.”)) The applicable burden of proof requires affidavits that contain more than generalities and conclusions. (See Hamilton v Superior Court (1974) 37 Cal. App.3d 418, 424.)

Defendants argue the case should be transferred because they “reside in the West District,” not the Central District, and Defendant Nissanoff practices medicine at locations in the West District. “Further, the medical staff which assists defendants in rendering in-person care are all similarly located” in the West District. (Motion, p. 5.) Defendants note the medical care at issue was rendered in the West District, and bills for those services are “generated and sent from a location within the West District.” (Id.) In sum, Defendants argue transfer is appropriate because “the defendants reside in the West District, the care that is the subject of plaintiffs' complaint was rendered in the West District, the billings generated by defendants for the care rendered in the West District were similarly generated and sent from a location within the West District,” such that the action arose in the West District and should go there. (Motion, p. 6.)

These arguments are not persuasive for two main reasons. First, and most importantly, the convenience of the Defendants and their medical staff is irrelevant here. “[E]xcept under limited circumstances, the court may not consider the convenience of the parties or of their employees in passing upon the motion” to transfer. (Lieberman v. Superior Court (1987) 194 Cal.App.3d 396, 401.) That being said, “a limited exception has arisen allowing a court to consider the convenience of witnesses who are employees of a party,” and that exception “obtains when the employees are called as witnesses by the adverse party rather than on behalf of their employer.” (Id.) Nissanoff has not identified a member of his medical staff that will be called by Plaintiffs, so the Court “may not consider” their convenience.[1]

Second, the arguments are insufficiently supported by facts. “[A]ffidavits in support of the motion for change of venue on this ground [convenience of witnesses] must set forth the names of the witnesses, the nature of the testimony expected from each, and the reasons why the attendance of each would be inconvenient.” (Peiser v. Mettler (1958) 50 Cal.2d 594, 607.) This was not done—no medical staff are identified, and as noted, inconvenience for Nissanoff himself is not relevant under Lieberman. Defendants fail to identify the residences of any witnesses besides “the parties . . . or their employees,” as is necessary to justify a transfer on the grounds that the ends of justice are promoted by transfer. (See Pearson v. Superior Court (1962) 199 Cal.App.2d 69, 77 (“A conclusion that the ends of justice are promoted can be drawn from the fact that by moving the trial closer to the residence of the witnesses, delay and expense in court proceedings are avoided and savings in the witnesses' time and expenses are effected.”)) Therefore, the Court lacks a basis to conclude the convenience of witnesses would be served or the ends of justice promoted by such a transfer; all that has been shown is that this would be preferable for the Defendants themselves.

Defendants’ Reply argues the case should be transferred in part because Plaintiffs “point to NO prejudice they would suffer as a result of this matter being transferred,” but it is Defendants’ burden to show that transfer is warranted. Transfer is not presumptively warranted merely because the opposing party cannot show prejudice. (See Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836 (“It is the moving defendant's burden to demonstrate that the plaintiff's venue selection is not proper under any of the statutory grounds.”)) For the reasons discussed above, Defendants did not carry their burden on this issue.

Even assuming arguendo that the causes of action arose in the West District (as argued by Defendants), Plaintiffs are still entitled to their choice of a permissible forum for their fraud claims: The Central District. (See Local Rule 2.3(a)(1)(B) (“Except as set forth in subsection (A) above, (Mandatory Filing), or in subsection (C) (Northeast District), or (D) (Northwest District) below, an unlimited civil . . . action may be filed in the Central District or may be filed in a district other than the Central District, as determined by the description of the case below, in the following cases: . . . Tort, where the cause of action arose”)) Local Rule 2.3 therefore permits an unlimited civil action for fraud to be filed in the Central District or where the cause of action arose (here, arguendo the West District). Absent some further basis to transfer, such as convenience of witnesses or ends of justice, Plaintiffs are entitled to their choice of the Central District as a permissible forum for these fraud claims.[2]

CONCLUSION

The Motion is DENIED.

Counsel for Plaintiffs to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear remotely by LA Court Connect rather than in person.


[1] This rule is intended to prevent a party from frustrating the plaintiff’s selection of forum, which is accorded deference when the forum selected is permissible. The Lieberman rule achieves this goal by preventing a defendant from interfering with venue selection by calling its own employees as witnesses despite inconvenience for those employees and then seeking transfer on the basis of that inconvenience. If the plaintiff calls a defendant’s employee as a witness, however, the plaintiff’s choice of forum does not necessarily override inconvenience to that witness. Additionally, the Court notes a further exception stated in Lieberman: The Court may consider the moving party’s convenience ‘when ‘the serious illness of a party will prevent his traveling to attend the trial in the other county and his testimony is material.’” (Id. at 401.) This exception is inapplicable here.

[2] Defendants cite no authority for their argument that the terms of the Civil Case Cover Sheet are controlling here, with or without Plaintiffs’ errata, in determining whether transfer is required. It appears to the Court that if the Central District is a permissible forum, transfer is not required merely because of an error in the cover sheet. Nothing in Local Rule 2.3(a)(1)(E), which requires the cover sheet accompany new filings, attributes substantive weight to the terms of that sheet.

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