Disposed - Judgment Entered
Personal Injury - Other Personal Injury
HOLLY J. FUJIE
MARC D. GROSS
RICHARD J. BURDGE JR.
JAMES R. DUNN
PRO DOC MANAGEMENT INC
ST MARY MEDICAL CENTER LONG BEACH
HUANG LING-JEN R.N.
ADVANCES HOSPICE INC
DIGNITY HEALTH INC
PACIFIC ALLIANCE MEDICAL CENTER
WILKES NATHAN M.D.
RAMOS NEIL D. M.D.
NAYYER ALI M.D.
VICTORINO RICHARD ALLEN
MA GEORGE M.D.
ST MARY MEDICAL CENTER
ADVANCE HOME HEALTH SERVICES INC. SERVED AS DOE 3
NATHAN WILKES M.D A.P.C
DIGNITY HEALTH INC DBA ST. MARY MEDICAL CENTER - LONG BEACH
EMPLOYEE HEALTH SYSTEMS MEDICAL GROUP INC .
LEAGO GINA A. ESQ.
LEAGO REGINA ANN ESQ.
SCHNEIDER ANN CHRISTINE
TROTTER MICHAEL J. ESQ.
DOYLE SCHAFER MCCMAHON
LAW OFFICE OF ERIC G. ANDERSON
BLESSEY RAYMOND L. ESQ
DUMMIT CRAIG S. ESQ.
SCHMID & VOILES
MCCMAHON DOYLE SCHAFER
MAEDER VINCENT A
BLESSEY RAYMOND LESLIE
KLEHM DAVID SCHAFER
DUMMIT CRAIG STEPHEN ESQ.
MARTIN SIDNEY JERALD
TROTTER MICHAEL JOHN ESQ.
DUCAR SEAN PHILLIP
HUGHES TRACY D
MAEDER VINCENT A ESQ.
6/21/2022: Request for Dismissal
5/20/2022: Appeal - Notice of Appeal/Cross Appeal Filed
5/31/2022: Notice of Change of Address or Other Contact Information
6/7/2022: Appeal - Notice of Filing of Notice of Appeal
6/7/2022: Request for Dismissal
4/28/2022: Motion to Tax Costs
4/12/2022: Memorandum of Costs (Summary)
4/12/2022: Declaration - DECLARATION OF TRACY D. HUGHES AND EXHIBITS IN SUPPORT OF GEORGE MA, MD.S MEMORANDUM OF COSTS
3/28/2022: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 03/28/2022
3/28/2022: Minute Order - MINUTE ORDER (COURT ORDER)
3/28/2022: Notice of Entry of Judgment / Dismissal / Other Order
3/28/2022: Judgment - JUDGMENT AFTER JURY TRIAL
3/30/2022: Notice - NOTICE OF ENTRY OF JUDGMENT
1/3/2022: Notice of Trial
1/4/2022: Motion in Limine - MOTION IN LIMINE NO 2
1/4/2022: Motion in Limine - MOTION IN LIMINE #8
1/4/2022: Motion in Limine - MOTION IN LIMINE #2
1/4/2022: Motion in Limine - MOTION IN LIMINE NO 3
Hearing10/26/2022 at 08:30 AM in Department 40 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Tax Costs[+] Read More [-] Read Less
DocketRequest for Dismissal (With prejudice, As to defendant, Pacific Alliance Medical Center, a California Corporation.); Filed by LYNDA MCMORRIES (Plaintiff)[+] Read More [-] Read Less
DocketAppeal - Notice of Filing of Notice of Appeal; Filed by Clerk[+] Read More [-] Read Less
DocketRequest for Dismissal (REJECTED-Please check your 4th Amended complaint and make sure the names being dismissed match that of our records.); Filed by LYNDA MCMORRIES (Plaintiff)[+] Read More [-] Read Less
DocketNotice of Change of Address or Other Contact Information; Filed by Regina Ann Leago, Esq. (Attorney)[+] Read More [-] Read Less
DocketAppeal - Notice of Appeal/Cross Appeal Filed; Filed by LYNDA MCMORRIES (Appellant); LYNDA MCMORRIES (Appellant)[+] Read More [-] Read Less
Docketat 09:30 AM in Department 40; Jury Trial (/Mandatory Settlement Conference pursuant to California Rules of Court 3.1380) - Not Held - Advanced and Continued - by Court[+] Read More [-] Read Less
DocketMotion to Tax Costs; Filed by LYNDA MCMORRIES (Plaintiff); LYNDA MCMORRIES (Plaintiff)[+] Read More [-] Read Less
DocketMemorandum of Costs (Summary); Filed by George Ma, M.D. Erroneously Sued As GEORGE, MA, M.D. (Defendant)[+] Read More [-] Read Less
DocketDeclaration (of Tracy D. Hughes and Exhibits in Support of George Ma, MD.?s Memorandum of Costs); Filed by George Ma, M.D. Erroneously Sued As GEORGE, MA, M.D. (Defendant)[+] Read More [-] Read Less
DocketPROOF OF SERVICE SUMMONS[+] Read More [-] Read Less
DocketAMENDMENT TO COMPLAINT[+] Read More [-] Read Less
DocketFIRST AMENDED SUMMONS- FIRST AMENDED COMPLAINT[+] Read More [-] Read Less
DocketSummons Issued; Filed by LYNDA MCMORRIES (Plaintiff)[+] Read More [-] Read Less
DocketFirst Amended Complaint; Filed by Plaintiff/Petitioner[+] Read More [-] Read Less
DocketAmendment to Complaint; Filed by Plaintiff/Petitioner[+] Read More [-] Read Less
DocketFIRST AMENDED COMPLAINT FOR DAMAGES: 1. DEPENDENT ADULT ABUSE, ETC[+] Read More [-] Read Less
DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)[+] Read More [-] Read Less
DocketComplaint; Filed by LYNDA MCMORRIES (Plaintiff)[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
Case Number: ****2954 Hearing Date: June 23, 2020 Dept: 40
MOVING PARTY: Defendant George Ma, M.D.
OPPOSITION: None Submitted
Plaintiff Lynda McMorries brings suit on behalf of her deceased son, Gerald Allen Victorino (“Decedent”), whom Plaintiff alleges died because of medical malpractice and dependent adult abuse. She alleges that on May 2, 2016, Decedent went to St. Mary’s Medical Center of Long Beach for a urinary tract infection. Employee Health Systems Medical Group, Inc. ("EHS"), is an independent physician association, that managed the health care of Medi-Cal beneficiaries who were members of LA Care, which included Decedent. Later that evening EHS ordered Decedent transferred to Defendant Pacific Alliance Medical Center (“PAMC”). When he arrived at PAMC, Decedent was made to wait hours before medical staff attended to him.
By that time, Decedent had developed sepsis. Decedent spent three weeks in PAMC intensive care unit.
On May 25, 2016, George Ma, M.D. ("Ma") recorded that Decedent’s condition had sufficiently improved such that he could be discharged. Ma’s discharge plan included a pre-discharge evaluation by a medical health provider and in-home hospital care. For the in-home care, Ma recommended Advance Hospice Services, Inc. ("Hospice"), an entity in which he had a financial interest. On May 27, 2016, Decedent was discharged but he was not evaluated for hospice care and an unnecessary PICC line, a catheter used to administer antibiotics, was left inside him. After his release, Hospice evaluated him and refused to treat him because of Decedent’s history of seizures. Plaintiff asked PAMC about removing the PICC line and they failed to inform her of the urgency of the matter. On June 1, 2016, Decedent went to his main medical provider, Dr. Neill Ramos (“Ramos”). Dr. Ramos recommended that Decedent go to the emergency room at St. Mary’s, which Plaintiff proceeded to do. On June 1, 2016, Decedent died allegedly as a result of complications from having the PICC line in him.
Plaintiff filed the operative Fourth Amended Complaint (“FAC”) alleges:
1) Dependent Adult Abuse;
2) Professional Negligence;
3) Wrongful Death.
On August 16, 2019, Ma filed this demurrer as to the First cause of action only.
First Cause of Action: Dependent Adult Abuse
Ma alleges that Plaintiff fails to allege the claim with specificity required, fails to allege any facts demonstrating that he acted with the requisite level of recklessness or with malice, fraud, or oppression, and fails to allege that he established a caretaking or custodial relationship with the decedent.
The elements of a cause of action under the Elder Abuse and Dependent Adults Act “are statutory, and reflect the Legislature’s intent to provide enhanced remedies to encourage private, civil enforcement of laws against elder abuse and neglect.” Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82. “[S]tatutory causes of action must be pleaded with particularity.” Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.
The Act provides that, “[w]here it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, neglect as defined in Section 15610.57, or abandonment as defined in Section 15610.05, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse,” the plaintiff may recover the enhanced remedies under the Act. (Welf. & Inst. Code ; 15657.)
Neglect is defined as follows:
“(a) ‘Neglect’ means either of the following:
(1) The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.
(2) The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise.
(b) Neglect includes, but is not limited to, all of the following:
(1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.
(2) Failure to provide medical care for physical and mental health needs. No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.
(3) Failure to protect from health and safety hazards.
(4) Failure to prevent malnutrition or dehydration.
(5) Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4), inclusive, for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.”
(Welf. & Inst. Code ; 15610.57.)
Abandonment is the desertion or willful forsaking of an elder or a dependent adult by anyone having care or custody of that person under circumstances in which a reasonable person would continue to provide care and custody. (Welf. & Inst. Code ; 15610.05.)
To state a claim under the Act, a plaintiff must allege facts “establishing that the defendant: (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene, or medical care [citations]; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs [citations]; and (3) denied or withheld goods or services necessary to meet the elder or dependent adult’s basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness) [citations].” Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407.
The Court finds that Plaintiff has sufficiently alleged the claim. Plaintiff alleges that Ma prematurely discharged Decedent because Medi-Cal would not pay PAMC for any further services. (FAC, ¶ 38.) Plaintiff alleges that Ma had a financial interest in PAMC and EHS. (FAC, ¶ 142.) Plaintiff alleges that Ma has a pattern of defrauding Medi-Cal. (FAC, ¶ 138.) Prematurely discharging a patient for financial gain is distinguishable from negligence and demonstrates a greater culpability. Plaintiff also sufficiently alleges the existence of a custodial relationship between Decedent and Ma, as the latter was Decedent’s attending physician. (FAC, ¶¶ 44, 105.)
Conclusion: The demurrer to the first cause of action is OVERRULED.
MOVING PARTY: Defendants Pacific Alliance Medical Center, Inc., and PAMC LTD dba Pacific
OPPOSITION: Plaintiff Lynda McMorries
On January 14, 2020, Plaintiff served a notice of taking deposition of the Person Most Qualified (“PMQ”) for PAMC, the person is Gloria Ruiz (“Ruiz”). On February 3, 2020, Defendants filed a motion for a protective order requesting $1,160.00 in sanctions against Plaintiff and her counsel. On April 9, 2020, Plaintiff filed an opposition. On April 16, 2020, Defendants filed a reply.
On January 16, 2020, Plaintiff served a deposition subpoena on Ruiz and on March 4, 2020, and she served a deposition subpoena on Digna Talavera (“Talavera”). On March 26, 2020, Plaintiff filed the instant motion to compel the depositions of Ruiz and Talavera. Plaintiff requests that Ruiz and Talavera each pay $500.00 in sanctions and that Defendants pay $5,060.00 in sanctions for opposing the motion. On April 10, 2020, Defendants filed an opposition requesting that Plaintiff pay them $1,110 in sanctions and $1 million to a local COVID-19 charity.
On February 28, 2020, Plaintiff served a deposition on PAMC’s Custodian of Records. On April 8, 2020, Plaintiff filed a motion to compel the deposition of the custodian of records, who is also Ruiz, and a request for $4,560 in sanctions. On June 10, 2020, Defendants filed an opposition requesting that Plaintiff pay $1,160.00 in sanctions and $4,560 to a local COVID-19 charity.
The Court considered the moving papers, oppositions, and replies and rules as follows.
Protective Order for the Deposition of PAMC’s PMQ
Standard: “The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (CCP ; 2031.060(b).) This includes preventing trade secrets or other confidential or commercial information from being disclosed or disclosed only to specified persons. (CCP ;2031.060(b)(5).) “Where a party must resort to the courts, ‘the burden is on the party seeking the protective order to show good cause for whatever order is sought.’ [citation omitted].” Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 318.
Analysis: The Court notes that Defendants allege that Plaintiff personally served Ruiz despite knowing she was PAMC’s Custodian of Records and was therefore represented by counsel. PAMC has been closed since 2017 and Ruiz is one of the few remaining employees and she works on a per diem basis. Plaintiff alleges that Defendants routinely state that they have no control over their former employees but once they are subpoenaed, they allege that they represent them. Although aware of these competing claims, they did not influence the ruling.
Defendants argue that the protective order should be granted because Plaintiff had over seven months to notice the deposition of PAMC's PMQ, which she contends is necessary to oppose PAMC’s pending motion for summary judgment. The Court does not find this argument to be persuasive because although Plaintiff did not promptly depose the parties there is nothing to indicate that the current motion is untimely.
Defendants argue that the Plaintiff’s deposition subpoena violates Local Rule 3.26 which provides: “The guidelines adopted by the Los Angeles County Bar Association are adopted as civility in litigation recommendations to members of the bar, and are contained in Appendix 3.A.” (Super. Ct. L.A. County, Local Rules, rule 3.26.) Appendix 3.A provides: “When a deposition is noticed by another party in the reasonably near future, counsel should ordinarily not notice another deposition for an earlier date without the agreement of opposing counsel.” (Appendix 3.A, ; (e)(3).) Defendants argue that Plaintiff unilaterally notice the deposition. Although parties are encouraged to work together to set deposition dates, a violation of the Local Rule is not ground for granting a protective order.
Defendants also argue that the PMQ would have to be deposed twice because they would testify about EHS, Inc., another party. EHS would then want to depose PAMC’s PMQ. However, as EHS is no longer a party to the action, the issue is moot.
Finally, Defendants argue that the protective order should be granted or the PMQ topics should be substantially reduced. Plaintiff has listed 100 PMQ topics and 100 documents which Defendants argue should be narrowed to 20 or 25 topics. Defendants also argue that Plaintiff has obtained all the discovery it needs from prior requests. The Court rejects this argument because Defendants fail to articulate why any particular topic and document is impermissible in the current discovery set.
Accordingly, the motion for a protective order is DENIED. Since Defendants’ motion was denied, their request for sanctions is also DENIED.
Motion to Compel Depositions of Ruiz and Talavera
Analysis: On January 16, 2020, Ruiz was personally served with a deposition subpoena calling for her to appear for deposition on February 10, 2020. Defendants objected to the deposition of Ruiz on the ground that she could not be deposed as an individual but must be deposed as a PMQ.
On March 5, 2020, Plaintiff served a notice of deposition on Talavera. The deposition was to occur on March 23, 2020. However, Talavera could not attend the deposition because she was self-quarantining because of the coronavirus. The parties were unable to agree on a date to reschedule the deposition. Defendants’ position is that Ruiz would not be deposed until the Court rules on the protective order.
The Court finds that the depositions should take place. The depositions are likely to lead the discovery of admissible evidence as Ruiz was an Executive Director for PAMC in May-June 2016 while Talavera was the Director of Case Management during the time that decedent was hospitalized at PAMC. Based on the information Plaintiff expects Ruiz to possess: “PAMC’s transfer policies; discharge policies, PICC policies, case management policies, staffing, nursing policies, overtime policy and medical billing”, the Court finds that she should be deposed.
Finally, Defendants are correct that because of the current pandemic it is unwise to conduct the depositions in person. The Court urges all counsel during this time to explore alternatives such as remote depositions via telephone or videoconferencing.
Plaintiff’s Motion to Compel the Deposition of PAMC’s Custodian of Records
Defendants object to this motion on the ground that the documents requested from Ruiz, the Custodian of Records, are the same as those requested in Plaintiff’s motion to compel deposition of PAMC’s PMQ. Defendants also argue that there is an excessive number of document requests. However, Defendants fail to present an argument about which document requests should not be permitted and on what grounds. Accordingly, the Court will GRANT the motion.
Sanctions: The Court also finds that sanctions are not warranted because of the unique circumstances created by the pandemic. (Also, there is a substantial amount of consolidation that can be done since Plaintiff seeks to depose the same person individually, as a PMQ, and as the Custodian of Records. For example, deposing Ruiz as a PMQ would be sufficient considering the document requests are so similar. It does not seem like she has much personal knowledge about the case.
Conclusion: Plaintiff’s Motions to Compel Depositions of Ruiz and Talavera are GRANTED. Plaintiff’s Motion to Compel the Deposition of PAMC’s Custodian of Records is GRANTED. Because of the pandemic—unless counsel agree otherwise--the depositions are to occur remotely.
Defendants’ Motion for a Protective Order is DENIED and both parties’ requests for sanctions are DENIED.
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