This case was last updated from Los Angeles County Superior Courts on 10/04/2020 at 01:58:37 (UTC).

MYRNA KAWAKITA VS GEORGE TASHJIAN MD ET AL

Case Summary

On 01/05/2018 MYRNA KAWAKITA filed a Personal Injury - Medical Malpractice lawsuit against GEORGE TASHJIAN MD. This case was filed in Los Angeles County Superior Courts, Pomona Courthouse South located in Los Angeles, California. The Judges overseeing this case are OKI, DAN THOMAS, DAN THOMAS OKI, GEORGINA T. RIZK, GLORIA WHITE-BROWN, KRISTIN S. ESCALANTE and MARK A. BORENSTEIN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9234

  • Filing Date:

    01/05/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Pomona Courthouse South

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

OKI, DAN THOMAS

DAN THOMAS OKI

GEORGINA T. RIZK

GLORIA WHITE-BROWN

KRISTIN S. ESCALANTE

MARK A. BORENSTEIN

 

Party Details

Plaintiff and Petitioner

KAWAKITA MYRNA

Defendants and Respondents

BAY CITY SURGERY CENTER

DOES 1 TO 100

TASHJIAN GEORGE MD

TASHJIAN M.D. GEORGE

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

GHERMEZIAN RAYMOND ESQ.

LAW OFFICES OF RAYMOND GHERMEZIAN & ASSOC

FARZAM JOSEPH S. ESQ.

Defendant and Respondent Attorneys

HOFFMAN ESQ. BRIAN L.

LEWIS BRISBOIS BISGAARD & SMITH LLP

HOFFMAN BRIAN LEE

HEDRICK KRISTI KELLY

 

Court Documents

Declaration - DECLARATION DECLARATION IN SUPPORT OF ATTORNEY'S MOTION TO BE RELIEVED AS COUNSEL

7/27/2020: Declaration - DECLARATION DECLARATION IN SUPPORT OF ATTORNEY'S MOTION TO BE RELIEVED AS COUNSEL

Motion to Be Relieved as Counsel

7/27/2020: Motion to Be Relieved as Counsel

Proof of Service by Mail

7/31/2020: Proof of Service by Mail

Notice of Ruling

2/24/2020: Notice of Ruling

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE TRIAL TO JUNE 10,...)

1/10/2020: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE TRIAL TO JUNE 10,...)

Opposition - OPPOSITION BAY CITY'S OPPOSITION TO PLAINTIFF'S EX PARTE TO CONTINUE MSJ, TRIAL AND ALL RELATED DATES

1/13/2020: Opposition - OPPOSITION BAY CITY'S OPPOSITION TO PLAINTIFF'S EX PARTE TO CONTINUE MSJ, TRIAL AND ALL RELATED DATES

Motion for Summary Judgment

12/5/2019: Motion for Summary Judgment

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR TERMINATING SANCTIONS)

4/10/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR TERMINATING SANCTIONS)

Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANT TASHJIAN'S MOTION FOR TERMINATING SANCTIONS, ETC.; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF RAYMOND GHERMEZIAN

3/28/2019: Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANT TASHJIAN'S MOTION FOR TERMINATING SANCTIONS, ETC.; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF RAYMOND GHERMEZIAN

Notice - Notice NOTICE OF NON-OPPOSITION TO DEFENDANT, GEORGE TASHJIAN, M.D. 'S MOTION TO COMPEL

2/11/2019: Notice - Notice NOTICE OF NON-OPPOSITION TO DEFENDANT, GEORGE TASHJIAN, M.D. 'S MOTION TO COMPEL

Minute Order - Minute Order (Hearing on Motion to Compel Further Verified Responses to For...)

2/19/2019: Minute Order - Minute Order (Hearing on Motion to Compel Further Verified Responses to For...)

Minute Order - Minute Order (Hearing on Motion to Compel Further Discovery Responses)

2/20/2019: Minute Order - Minute Order (Hearing on Motion to Compel Further Discovery Responses)

LIEN FOR PROFESSIONAL SERVICES BY FORMER COUNSEL RENDERED TO PLAINTIFF PURSUANT TO AGREEMENT

4/6/2018: LIEN FOR PROFESSIONAL SERVICES BY FORMER COUNSEL RENDERED TO PLAINTIFF PURSUANT TO AGREEMENT

ANSWER OF DEFENDANT BAY CITY SURGERY, INC. CENTER TO PLAINTIFF?S COMPLAINT FOR DAMAGES

2/28/2018: ANSWER OF DEFENDANT BAY CITY SURGERY, INC. CENTER TO PLAINTIFF?S COMPLAINT FOR DAMAGES

JURY DEMAND OF DEFENDANT BAY CITY SURGERY CENTER, INC.

2/28/2018: JURY DEMAND OF DEFENDANT BAY CITY SURGERY CENTER, INC.

PROOF OF SERVICE SUMMONS -

1/31/2018: PROOF OF SERVICE SUMMONS -

ORDER ON COURT FEE WAIVER -

1/5/2018: ORDER ON COURT FEE WAIVER -

SUMMONS -

1/5/2018: SUMMONS -

97 More Documents Available

 

Docket Entries

  • 04/20/2021
  • Hearing04/20/2021 at 08:30 AM in Department J at 400 Civic Center Plaza, Pomona, CA 91766; Jury Trial

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  • 04/12/2021
  • Hearing04/12/2021 at 08:30 AM in Department J at 400 Civic Center Plaza, Pomona, CA 91766; Final Status Conference

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  • 10/02/2020
  • Docketat 10:00 AM in Department J, Gloria White-Brown, Presiding; Hearing on Motion to be Relieved as Counsel - Held - Motion Granted

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  • 10/02/2020
  • DocketMinute Order ( (Hearing on Motion to be Relieved as Counsel)); Filed by Clerk

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  • 10/02/2020
  • DocketCertificate of Mailing for ((Hearing on Motion to be Relieved as Counsel) of 10/02/2020); Filed by Clerk

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  • 10/02/2020
  • DocketOrder (Tentative Ruling); Filed by Clerk

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  • 09/15/2020
  • Docketat 08:30 AM in Department J, Gloria White-Brown, Presiding; Jury Trial - Not Held - Advanced and Continued - by Court

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  • 09/08/2020
  • Docketat 08:30 AM in Department J, Gloria White-Brown, Presiding; Final Status Conference - Not Held - Advanced and Continued - by Court

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  • 08/21/2020
  • Docketat 09:27 AM in Department J, Gloria White-Brown, Presiding; Court Order

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  • 08/21/2020
  • DocketMinute Order ( (Court Order)); Filed by Clerk

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155 More Docket Entries
  • 02/09/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 01/31/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 01/31/2018
  • DocketProof-Service/Summons; Filed by Myrna Kawakita (Plaintiff)

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  • 01/31/2018
  • DocketProof-Service/Summons; Filed by Attorney for Plaintiff/Petitioner

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  • 01/05/2018
  • DocketSummons (on Complaint)

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  • 01/05/2018
  • DocketORDER ON COURT FEE WAIVER

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  • 01/05/2018
  • DocketComplaint; Filed by Myrna Kawakita (Plaintiff)

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  • 01/05/2018
  • DocketSUMMONS

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  • 01/05/2018
  • DocketComplaint

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  • 01/05/2018
  • DocketCOMPLAINT FOR DAMAGES: (1) MEDICAL MALPRACTICE

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Tentative Rulings

Case Number: BC689234    Hearing Date: October 02, 2020    Dept: J

HEARING DATE: Friday, October 2, 2020

NOTICE: OK

RE: Kawakita v. Tashjian, et al. (BC689234; R/T BC598167)

______________________________________________________________________________

 

Counsel for Plaintiff Myrna Kawakita’s (i.e., Raymond Ghermezian, A Professional Law

Corporation) MOTION TO BE RELIEVED AS COUNSEL

Responding Party: None (unopposed, as of 9/21/20, 5:34 p.m.; due 9/21/20)

Tentative Ruling

Counsel for Plaintiff Myrna Kawakita’s (i.e., Raymond Ghermezian, A Professional Law

Corporation) Motion to Be Relieved as Counsel is GRANTED, effective upon the filing of

the proof of service reflecting service of the signed order upon the Client.

Background

Case No. BC598167

Plaintiff Myrna Yumiko Kawakita (“Plaintiff”) alleges that she sustained injuries in a June 13, 2015 slip and fall. On October 19, 2015, Plaintiff filed a complaint, asserting causes of action against Defendants Norms Restaurants (“Norms”), James Fuller (“Fuller”) and Does 1-100 for:

  1. Negligence

  2. Premises Liability

    On December 14, 2015, Plaintiff dismissed Fuller, with prejudice. On December 28, 2017, this action was transferred from Department 92 (personal injury hub) to this instant department. On January 31, 2018, Norms filed a First Amended Cross-complaint, asserting causes of action against Cross-Defendant George Tashjian, M.D. (“Tashjian”) for:

  1. Apportionment of Fault

  2. Indemnification

    On February 21, 2018, the court related this action to Case No. BC689234 and designated this action as the lead case.

    On February 19, 2019, Plaintiff filed an unconditional Notice of Settlement of Entire Case.

    On March 5, 2019, Norms filed a “Notice of Acceptance of Cross-Defendant George Tashjian, M.D.’s Statutory Offer to Compromise.”

    On April 25, 2019, Plaintiff dismissed the entire action of all parties and all causes of action, with prejudice; that day, Norms dismissed its cross-complaint, with prejudice.

    Case No. BC689234

Plaintiff alleges that she suffered severe and permanent injuries as a result of a lap band procedure. On January 5, 2018, Plaintiff filed a complaint, asserting causes of action against Tashjian, Bay City Surgery Center (“Bay City”) and Does 1-100 for:

  1. Medical Malpractice

On February 21, 2018, the court related this action to Case No. BC598167 and designated Case No. BC598167 as the lead case.

On February 24, 2020, an “Order Granting Motion of Defendant Bay City surgery Center, Inc., for Summary Judgment” and a “Judgment by Court Under CCP § 437c” were filed.

The Final Status Conference is set for April 12, 2020. Trial is set for April 20, 2020.

Discussion

Raymond Ghermezian, A Professional Law Corporation, seeks to be relieved as counsel of

record for Plaintiff (“Client”).

The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of justice. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915; People v. Prince (1968) 268 Cal.App.2d 398.)

California Rule of Court (“CRC”) Rule 3.1362 requires (1) a notice of motion and motion directed to the client (made on the Notice of Motion and Motion to Be Relieved as Counsel—Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under CCP § 284(2) is brought instead of filing a consent under CCP § 284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel—Civil form (MC-052)); (3) service of the notice of motion and motion and declaration on all other parties who have appeared in the case; and (4) a proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel—Civil form (MC-053)). The court may delay the effective date of the order

relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court.

Ghermezian states in his declaration that “[t]here has been irreconcilable differences of opinion between Plaintiff and Plaintiff’s counsel leading to a complete breakdown in the attorney-client relationship. Specifically, certain significant issues surfaced related to the prosecution of this case, which to date remain unresolved. Current counsel and plaintiff are at an impasse with respect to these issues. Consequently, a dispute has arisen as to whether plaintiff’s counsel can proceed as attorney of record. The issues in question are fundamental and crucial to the outcome of this case. Therefore it is respectfully submitted that attorneys be relieved as counsel of record due to [j]ustifiable cause. Present counsels has informed Plaintiff of this position and have requested Plaintiff agree to relieve counsel due to [j]ustifiable cause. Plaintiff, however has been unresponsive to this request, thereby requiring the instant motion.”

Ghermezian states that he has served the Client by mail at the Client’s last known address with copies of the motion papers served with his declaration and that he has been able to confirm, within the past 30 days, that the address is current, via mail.

The court determines that the requirements of Rules of Court Rule 3.1362 enumerated above

have been sufficiently met. Accordingly, the motion is GRANTED, effective upon the filing of

the proof of service reflecting service of the signed order upon the Client.

Case Number: BC689234    Hearing Date: July 21, 2020    Dept: J

HEARING DATE: Tuesday, July 21, 2020

NOTICE: OK[1]

RE: Kawakita v. Tashjian, et al. (BC689234; R/T BC598167)

______________________________________________________________________________

 

Counsel for Cross-Defendant George Tashjian, M.D.’s (i.e., Wood Smith Henning &

Berman LLP) MOTION TO BE RELIEVED AS COUNSEL

Responding Party: None (unopposed, as of 7/9/20, 1:53 p.m.; due 7/8/20)

Tentative Ruling

Counsel for Cross-Defendant George Tashjian, M.D.’s (i.e., Wood Smith Henning &

Berman LLP) Motion to Be Relieved as Counsel is GRANTED, effective upon the filing of

the proof of service showing service of the signed order upon the Client.

Background

Case No. BC598167

Plaintiff Myrna Yumiko Kawakita (“Plaintiff”) alleges that she sustained injuries in a June 13, 2015 slip and fall. On October 19, 2015, Plaintiff filed a complaint, asserting causes of action against Defendants Norms Restaurants (“Norms”), James Fuller (“Fuller”) and Does 1-100 for:

  1. Negligence

  2. Premises Liability

    On December 14, 2015, Plaintiff dismissed Fuller, with prejudice. On December 28, 2017, this action was transferred from Department 92 (personal injury hub) to this instant department. On January 31, 2018, Norms filed a First Amended Cross-complaint, asserting causes of action against Cross-Defendant George Tashjian, M.D. (“Tashjian”) for:

  1. Apportionment of Fault

  2. Indemnification

    On February 21, 2018, the court related this action to Case No. BC689234 and designated this action as the lead case.

    On February 19, 2019, Plaintiff filed an unconditional Notice of Settlement of Entire Case.

    On March 5, 2019, Norms filed a “Notice of Acceptance of Cross-Defendant George Tashjian, M.D.’s Statutory Offer to Compromise.”

    On April 25, 2019, Plaintiff dismissed the entire action of all parties and all causes of action, with prejudice; that day, Norms dismissed its cross-complaint, with prejudice.

    Case No. BC689234

Plaintiff alleges that she suffered severe and permanent injuries as a result of a lap band procedure. On January 5, 2018, Plaintiff filed a complaint, asserting causes of action against Tashjian, Bay City Surgery Center (“Bay City”) and Does 1-100 for:

  1. Medical Malpractice

On February 21, 2018, the court related this action to Case No. BC598167 and designated Case No. BC598167 as the lead case.

On February 24, 2020, an “Order Granting Motion of Defendant Bay City surgery Center, Inc., for Summary Judgment” and a “Judgment by Court Under CCP § 437c” were filed.

The Final Status Conference is set for September 8, 2020. Trial is set for September 15, 2020.

Discussion

Brian L. Hoffman and Hany A. Nicola (“Nicola”) of Wood Smith Henning & Berman LLP

(“Firm”) seek to be relieved as counsel of record for Tashjian (“Client”).

The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of justice. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915; People v. Prince (1968) 268 Cal.App.2d 398.)

California Rule of Court (“CRC”) Rule 3.1362 requires (1) a notice of motion and motion directed to the client (made on the Notice of Motion and Motion to Be Relieved as Counsel—Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under CCP § 284(2) is brought instead of filing a consent under CCP § 284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel—Civil form (MC-052)); (3) service of the notice of motion and motion and declaration on all other parties who have appeared in the case; and (4) a proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel—Civil form (MC-053)). The court may delay the effective date of the order

relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court.

Nicola states in her declaration that Firm seeks to be relieved as Client’s counsel on the basis of Client’s insolvency and Client’s insurer’s receivership (bankruptcy) status. Nicola explains that Client’s malpractice insurance carrier, Lancet Indemnity, was placed in permanent receivership (bankruptcy) and that Client is unable to finance his own defense.

Nicola states that she has served the Client by mail at the Client’s last known address with copies of the motion papers served with her declaration and that she has been able to confirm, within the past 30 days, that the address is current, via telephone and email.

The court determines that the requirements of Rules of Court Rule 3.1362 enumerated above

have been sufficiently met. Accordingly, the motion is GRANTED, effective upon the filing of

the proof of service showing service of the signed order upon the Client.


[1] The motion was filed and email served (also mail-served to Client only) on April 16, 2020 and originally set for hearing on May 15, 2020. On April 17, 2020, a “Notice of Continuance Due to COVID-19 State of Emergency Declarations” was filed, therein the court continued the May 15, 2020 hearing, on its own motion, to July 21, 2020 at 10:00 a.m.; notice was given to all counsel. On April 21, 2020, counsel for Tashjian filed a “Notice of the Court’s Rescheduling of Motion to be Relieved as Counsel;” it was email served to all parties and mail/email served to the client that day.

Case Number: BC689234    Hearing Date: February 24, 2020    Dept: J

HEARING DATE: Monday, February 24, 2020

NOTICE: Motion #1: OK[1]

Motion #2: OK[2]

RE: Kawakita v. Tashjian, et al. (BC689234; R/T BC598167) [AMENDED]

______________________________________________________________________________

 

1. Defendant George Tashjian, M.D.’s MOTION TO STAY THE PRESENT CIVIL

MATTER DUE TO DEFENDANT, GEORGE TASHJIAN, M.D.’S INSURER, LANCET

INDEMNITY’S, RECEIVERSHIP (BANKRUPTCY)

Responding Party: Plaintiff Myrna Yumiko Kawakita[3]

2. Defendant Bay City Surgery Center, Inc.’s MOTION FOR SUMMARY JUDGMENT

Responding Party: None (unopposed, as of 2/18/20, 3:02 p.m.; due 2/10/20)

Tentative Ruling

1. See below.

2. Defendant Bay City Surgery Center, Inc.’s Motion for Summary Judgment is GRANTED.

Background

Case No. BC598167

Plaintiff Myrna Yumiko Kawakita (“Plaintiff”) alleges that she sustained injuries in a June 13, 2015 slip and fall. On October 19, 2015, Plaintiff filed a complaint, asserting causes of action against Defendants Norms Restaurants (“Norms”), James Fuller (“Fuller”) and Does 1-100 for:

  1. Negligence

  2. Premises Liability

    On December 14, 2015, Plaintiff dismissed Fuller, with prejudice. On December 28, 2017, this action was transferred from Department 92 (personal injury hub) to this instant department. On January 31, 2018, Norms filed a First Amended Cross-complaint, asserting causes of action against Cross-Defendant George Tashjian, M.D. (“Tashjian”) for:

  1. Apportionment of Fault

  2. Indemnification

    On February 21, 2018, the court related this action to Case No. BC689234 and designated this action as the lead case.

    On February 19, 2019, Plaintiff filed an unconditional Notice of Settlement of Entire Case.

    On March 5, 2019, Norms filed a “Notice of Acceptance of Cross-Defendant George Tashjian, M.D.’s Statutory Offer to Compromise.”

    On April 25, 2019, Plaintiff dismissed the entire action of all parties and all causes of action, with prejudice; that day, Norms dismissed its cross-complaint, with prejudice.

    Case No. BC689234

Plaintiff alleges that she suffered severe and permanent injuries as a result of a lap band procedure. On January 5, 2018, Plaintiff filed a complaint, asserting causes of action against Tashjian, Bay City Surgery Center (“Bay City”) and Does 1-100 for:

  1. Medical Malpractice

On February 21, 2018, the court related this action to Case No. BC598167 and designated Case No. BC598167 as the lead case.

The Final Status Conference is set for September 8, 2020. Trial is set for September 15, 2020.

1. Motion for Stay

Discussion

Tashjian moves the court for an order staying this case due to Tashjian’s insurer, Lancet Indemnity Risk Retention Group (“Lancet”), being placed into a permanent receivership pursuant to Nevada Revised Statute on or about April 12, 2019. Tashjian requests that the stay remain in place as long as the receivership is active. In the alternative, Tashjian requests that the court order a permanent injunction against Plaintiff to permanently bar her from continuing her action against Tashjian due to Lancet’s receivership.

November 5, 2018 General Order

Pursuant to the November 5, 2018 General Order Re Mandatory Electronic Filing for Civil (“General Order”), litigants are required to provide printed courtesy copies of all filings, including pleadings and motions (including attachments such as declarations and exhibits) of 26 pages or more and pleadings and motions that include points and authorities. Here, the court did not receive a courtesy copy of the papers filed by Tashjian. Counsel for Tashjian is admonished. Counsel is instructed to comply with the court’s General Order in future filings.

Merits

On or about March 19, 2019, the Insurance Commissioner for the State of Nevada, through the Attorney General’s Office, filed a “Verified Petition for Appointment of Commissioner as a Receiver and Other Peman[ent] Relief; Request for Temporary Injunction Pursuant to NRS 696B.270(1).” (Nicola Decl., ¶¶2-3, Exhs. A and B.) On April 12, 2019, a “Permanent Injunction and Order Appointing Commissioner as Permanent Receiver of Lancet Indemnity Risk Retention Group Inc.” was filed. (Id., ¶3, Exh. B.)

The court is inclined to DENY the motion. At the outset, it appears to the court that the stay request is not made as to the entire action, but as to Tashjian only.

Lancet is not a party to the instant action. Tashjian has been sued individually and has not filed for bankruptcy. The court does not see how 11 U.S.C. § 362 or Insurance Code § 1020 would apply. Tashjian’s alternative request for a permanent injunction is not supported by In re Daniels (2013) 493 B.R. 740. In that case, after his case was reopened, Chapter 7 debtor, a physician, filed a motion to enforce discharge injunction against putative creditors who had filed a prepetition state-court medical malpractice claim against debtor in connection with physician’s care of one of them during childbirth. The bankruptcy court granted the motion, holding that the discharge injunction prohibited the plaintiffs from continuing their action against debtor, even nominally. There, however, debtor’s professional liability insurance carrier became insolvent and was placed in receivership, which was followed by debtor’s Chapter 7 bankruptcy and discharge. Significantly, plaintiffs did not dispute that debtor’s personal liability on any debt arising out of their state court action was discharged in debtor’s bankruptcy case and that they were barred from seeking to collect from debtor personally. A discharge injunction “protects a debtor from any subsequent action by a creditor whose claim has been discharged in a bankruptcy case.” (Houston v. Edgeworth (In re Edgeworth) (5th Cir. 1993) 993 F.2d 51, 53.) Again, here, Tashjian has not filed for bankruptcy, let alone received any discharge.

2. Motion for Summary Judgment

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119 [emphasis theirs].)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (CCP § 437c(p(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action of a defense thereto.” (CCP § 437(p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at 467; CCP § 437c(c).)

Discussion

Bay City moves the court for an order granting summary judgment in its favor and against

Plaintiff pursuant to CCP § 437c on the ground that no triable issue of material fact exists and

Bay City is therefore entitled to judgment as a matter of law.

On January 6, 2018, Plaintiff filed a complaint against Bay City for Medical Malpractice. Plaintiff’s action arises out of the care and treatment provided to Plaintiff during a lap band procedure performed by Tashjian on or about January 10, 2017. Plaintiff contends that she was wrongly and negligently treated and/or failed to be treated such that she “suffered profound and serious injuries and damages, including, but not limited to: perforation of her aorta which required emergency cardiovascular repair surgery, induced coma, blood transfusions, intubation, blood clots, need to take Coumadin, frequent and regular blood checks, large, unsightly scar which requires scar revision, migraine headaches, disability, discomfort, loss of enjoyment of life, among other injuries, losses and damages.” (Complaint, ¶22.)

The elements of medical malpractice are: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence. (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-702 [citations omitted].)

“The standard of skill, knowledge and care prevailing in a medical community is ordinarily a matter within the knowledge of experts.” (Folk v. Kilk (1975) 53 Cal.App.3d 176, 185.) “Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons.” (Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844.) Additionally, “causation must be proven within a reasonable medical probability based upon competent expert testimony.” (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.) “[T]he issue of proximate cause. . . becomes a question or law when the facts of the case permit only one reasonable conclusion.” (Capolungo v. Bondi (1986) 179 Cal.App.3d 346, 354.)

Bay City submits the following evidence: Bay City is an ambulatory surgery center. (Morris Decl., ¶3.) It does not employ anesthesiologists or Certified Registered Nurse anesthetists; they are independent contractors. (Id.). Tashjian is an independent contractor and is not, and was not, an employee or agent of Bay City at the time of the surgery he performed on Plaintiff. (Id., ¶4.)

Bay City further submits the declaration of registered nurse Margaret A. Morley, DNP, CCNS, ANP-BC (“Morley”). Morley attests that she has reviewed Plaintiff’s medical records from Bay City and Tashjian, as well as Plaintiff’s complaint and Plaintiff’s deposition transcript. (Morley Decl., ¶3.) Morley details the care and treatment rendered to Plaintiff, and states that she has formulated the following opinions: (1) the nursing care rendered to Plaintiff was within the standard of care in the community from the time Plaintiff was admitted to the time Plaintiff was discharged; (2) prior to the procedure the appropriate documentation was in place, along with signed consent forms. The intra-operative nursing care and documentation was appropriate and within the standard of care in the community. The Post Anesthesia Care Unit (“PACU”) Record and Nursing Progress Notes reflect that Plaintiff was closely and appropriately monitored in the PACU department at all times. Pain management post procedure was a cooperative effort between nursing and anesthesia. Nurse A. Bowens appropriately assessed and monitored Plaintiff for pain and communicated Plaintiff’s level of discomfort with anesthesia. Plaintiff’s post-operative pain and vital signs were appropriately communicated to Tashjian and CRNA Stewart. Plaintiff’s pain was managed safely and effectively; (3) post-operative orders were followed. Post-operative orders included: 1) home in 4-6 hours when PACU Criteria is met and 2) 23 hour Observation in Recovery if H/H [hemocrit and hemoglobin] decreased. Plaintiff’s post-procedure H/H were drawn and documented as: 9/5/29.2 and 9.9/30.2. This was reviewed with physician and did not reflect any signs of potential bleeding; (4) Tashjian was advised and aware of Plaintiff’s post-operative condition and lab values. Tashjian was noted to be present at Plaintiff’s bedside along with the anesthesia provider following the procedure. Inclusive discharge instructions were reviewed with and signed by Plaintiff. Plaintiff was discharged in good condition, vital signs were within normal range, H/H was stable, and pain level had decreased. Plaintiff was discharged following Tashjian’s approval; (5) all nursing care rendered to Plaintiff by the nursing staff at Bay City was within the standard of care in the community at all times and (6) to a reasonable degree of probability, nothing Bay City or its staff did or failed to do caused or contributed to any injury sustained and/or claimed by Plaintiff. (Id., ¶4.)

The court finds that this offer of evidence satisfies Bay City’s burden of proof, and thus the burden shifts to Plaintiff to show a triable issue of material fact. The motion is unopposed; accordingly, Plaintiff has not met her burden to show a triable issue of material fact exists as to the cause of action for medical malpractice.

The court therefore finds that there is no triable issue as to any material fact and that Bay City is entitled to a judgment as a matter of law. The motion is GRANTED.


[1] Motion #1 was filed and mail-served on January 15, 2020 and originally set for hearing on April 1, 2020. On January 21, 2020, Tashjian filed an “Ex Parte Application to Hear Defendant, George Tashjian, M.D.’s, Motion to Stay the Present Civil Matter Immediately or, Alternatively, Specially Set It;” on January 22, 2020, the court granted the ex parte application only as to the order shortening time and rescheduled the April 1, 2020 hearing to February 24, 2020. On January 24, 2020, Bay City filed a “Notice of Ruling,” advising therein, inter alia, of the February 24, 2020 hearing date on Motion #1.

[2]Motion #2 was filed on December 5, 2019 (mail-served on November 14, 2019) and originally set for hearing on February 7, 2020. On January 10, 2020, Plaintiff filed an “Ex Parte Application for an Order to Continue Bay City Surgery Center, Inc.’s Motion for Summary Judgment for a Period of Sixty (60) Days, and Trial and All Related Dates for a Period of Sixty (60) Days, or in the Alternative, Order Shortening Time;” on January 14, 2020, the court granted the ex parte in part, as to the order shortening time to hear the Motion to Continue Summary Judgment. At that time, the court scheduled a hearing on Motion to Continue Defendants’ Motion for Summary Judgment for January 27, 2020, extended Plaintiff’s time to file an opposition to Defendants’ Motion for Summary Judgment to January 31, 2020 and ordered Nay City to give notice. On January 16, 2020, Bay City filed and mail served a “Notice of Ruling” regarding the January 14, 2020 hearing. On January 22, 2020, the court, on its own motion, rescheduled the hearing on the motion to February 24, 2020 and ordered the following briefing schedule: Plaintiff to file an opposition by February 10, 2020, Defendant to file any reply by February 18, 2020. On January 24, 2020, Bay City filed a “Notice of Ruling,” advising therein, inter alia, of the February 24, 2020 hearing date on Motion #2 and of the aforesaid briefing schedule.

[3] Plaintiff’s February 13, 2020 (mail-served February 12, 2020) opposition is untimely but is nevertheless considered, based on ¶4 in Ghermezian’s Declaration.