SCOTT SHORTRIDGE ET AL VS PROMISES RESIDENTIAL TREATMENT CEN

Tentative Rulings

Case Number: ****6186    Hearing Date: December 17, 2020    Dept: M

CASE NAME: Scott Shortridge et al v. Promises Residential Treatment Center

CASE NO.: ****6186

MOTION: Defendants’ Motion for an Order Requiring Plaintiffs to File an Undertaking of Costs and Attorney’s Fees

HEARING DATE: 12/17/2020

BACKGROUND

Elements Behavioral Health, Inc. and SBAR2, Inc. filed a motion requesting an order that Plaintiffs file an undertaking for attorney’s fees and costs in this action. The second amended complaint contains causes of action for negligence and wrongful death stemming from Connor Shortridge’s death.

Legal Standard

Under Code of Civil Procedure section 1030, “[w]hen the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney’s fees which may be awarded in the action or special proceeding. For the purposes of this section, ‘attorney’s fees’ means reasonable attorney’s fees a party may be authorized to recover by a statute apart from this section or by contract.” (Code Civ. Proc., ; 1030(a) [emphasis added].)

In order to prevail on a motion for undertaking under this code section, the moving party must file an affidavit and show “plaintiff resides out of the state or is a foreign corporation and that there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding[.]” (Code Civ. Proc., ; 1030(b).) To fulfill these requirements, a defendant does not need to show its success is certain or even likely, but is only required to present evidence showing that success is reasonably possible. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1430.) “The affidavit shall set forth the nature and amount of the costs and attorney's fees the defendant has incurred and expects to incur by the conclusion of the action or special proceeding.” (Code Civ. Proc., ; 1030(b).)

“If the court, after hearing, determines that the grounds for the motion have been established, the court shall order that the plaintiff file the undertaking in an amount specified in the court's order as security for costs and attorney's fees.” (Code Civ. Proc., ; 1030(c).)

EVIDENTIARY OBJECTIONS

Plaintiffs submit six objections to the evidence submitted by Defendants.

Objection nos. 1 – 6 are sustained.

ANALYSIS

Whether Plaintiffs are out-of-state residents

Defendants have established, and Plaintiffs do not dispute, that they are out-of-state residents.

Whether Defendants have shown a reasonable possibility of success

Defendants argue that there is a reasonable possibility of success on summary judgment based on the defenses of unclean hands, the Drug Dealer Liability Act (“DDLA”), and lack of evidence supporting the elements of negligence. Defendants argue that the causes of action are barred under the DDLA. Defendants cite the purpose of the DDLA, specifically sections 11701 and 11706, and argue that the DDLA provides the only means for which Plaintiffs can recover. Defendants also cite Whittemore v. Owens Healthcare-Retail Pharmacy, Inc.

Section 11701 of the DDLA provides, “The purpose of this division is to provide a civil remedy for damages to persons in a community injured as a result of the use of an illegal controlled substance. These persons include parents . . . and others who pay for drug treatment or employee assistance programs, as well as infants injured as a result of exposure to controlled substances in utero (“drug babies”). This division will enable them to recover damages from those persons in the community who have joined the marketing of illegal controlled substances. . . . ” (Health & Safety Code ; 11701 [emphasis added].) Section 11706 provides, “An individual user of an illegal controlled substance may not bring an action for damages caused by the use of an illegal controlled substance, except as otherwise provided in this section.” (Health & Safety Code, ; 11706(a).) Such an individual can bring an action for damages caused by the use of an illegal controlled substance only if all of the following conditions are met:

(1) The individual personally discloses to narcotics enforcement authorities all of the information known to the individual regarding all that individual's sources of illegal controlled substances.

(2) The individual has not used an illegal controlled substance within the 30 days before filing the action.

(3) The individual continues to remain free of the use of an illegal controlled substance throughout the pendency of the action.

(Health & Safety Code, ; 11706(a)(1)-(3).)

Here, Defendants have failed to show that the DDLA applies. Plaintiffs are not attempting to hold Defendants liable for marketing illegal controlled substances and the DDLA only applies to those who knowingly market illegal controlled substances. (Whittemore, 185 Cal.App.4th at 1196, 1201, fn. 9.) Whittemore is inapplicable. Defendants also cite several out of state cases for the proposition that common law does not support Plaintiffs’ causes of action, relying on cases from Florida and Oklahoma. These cases are only persuasive and not binding on this Court. Defendants have failed to point to California law that shows that Plaintiffs’ claims for wrongful death are barred as a matter of law.

Defendants also argue that there is a reasonable possibility of success on summary judgment based on their unclean hands defense. Here, Defendants have failed to make specific arguments as to the elements of the defense and whether they have evidence to satisfy each element. Plaintiffs argue that Defendants have failed to provide any admissible evidence.

Finally, with respect to negligence, Defendants argue that there is no evidence that Defendants breached a duty owed to the decedent. Defendants argue that there is no evidence Defendants had notice that Conner had the intention of harming himself. In opposition, Plaintiffs argue that Defendants have failed to submit authenticated and admissible evidence. In reply, Defendants rely on Baltayan v. Estate of Getemyan (2001) 90 Cal. App. 4th 1427, 1430-1431, in which the party requesting an undertaking in was able to obtain such an undertaking by relying on inadmissible evidence. The Baltayan court explained that the requesting party “satisfied this burden by directing the court to the arbitration award, the arbitrator's letter, and the police report.  [citation omitted.]” (Baltayan, 90 Cal.App.4th at 1432.). There was no mention in the case whether any objections were raised to the police report. Moreover, in the same opinion, the Court held that the respondents in the case waived an authentication issue by failing to raise the issue below. (Id. at 1435.) Here, Plaintiffs raised the issue of the authentication of the exhibits and the Court sustained the objections. Defendants submit new evidence on reply. “The general rule of motion practice . . . is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) The Court declines to consider this evidence.

Defendants have failed to meet their initial burden in presenting evidence showing that success is reasonably possible on summary judgment. Therefore, Defendants’ motion for an undertaking of attorney’s fees and costs is DENIED.

Case Number: ****6186    Hearing Date: October 15, 2020    Dept: M

Case Name: Scott Shortridge et al v. Promises Residential Treatment Center

CASE NO.: ****6186

MOTION: Leave to File Amended Answer

HEARING DATE: 10/15/2020

Procedural Background

Plaintiffs Scott Shortridge and Reina Wentz filed this action on January 18, 2017 for negligence and wrongful death. Defendants Elements Behavioral Health, Inc. and SBAR2, Inc. seek leave to amend their answer to add two new affirmative defenses. The two new defenses are: (1) the 30th affirmative defense for the express release and waiver of liability and (2) and the 31st affirmative defense for assumption of the risk. Defendants also seek leave to amend their answer to include defendants SBAR2, Inc., and Elements Behavioral Health, a California Corporation.

Defendants filed their answer to the second amended complaint on January 18, 2018. Defendants filed a notice of stay due to bankruptcy on May 29, 2018. The Case Management Statement filed on November 12, 2019 indicates that other motions would come up before trial, including “possible discovery motions, possible motion to amend answer if plaintiffs do not stipulate to same, motion for undertaking, possible motion for summary judgment.” (CMC Statement at item 15.) The court issued an order re: Notice of Bankruptcy on November 9, 2018 and stayed the entire action. On November 20, 2019, the court lifted the stay.

On January 21, 2020, Defendants SBAR2 and Elements Behavioral Health filed the instant motion for leave to amend. On March 3, 2020, the court transferred this case to an independent calendar court and vacated all future dates. (See 3/3/2020 Minute Order.) After the case was transferred, this Court scheduled trial in this case for October 4, 2021. (See 09/09/2020 Minute Order.)

Legal Standard

“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect.” (Code Civ. Proc., ; 473.) California Code of Civil Procedure section 576 also grants the court power to allow a party to amend its pleading.

California courts are required to permit liberal amendment of pleadings in the interest of justice between the parties to an action. (Dieckmann v. Superior Court (1985) 175 Cal.App.3d 345, 352.) Generally, amendment must be permitted unless there is unwarranted delay in requesting leave to amend or undue prejudice to the opposing party. (Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1377.) Even if a good amendment is proposed in proper form, unwarranted delay in presenting it may – of itself—be a valid reason for denial. (Emerald Bay Community Association v. Golden Eagle Ins. Corp. (2005) 130 Cal.App.4th 1078, 1097.)

Analysis

In seeking leave to amend, Defendants argue that their affirmative defenses are clarifications of affirmative defenses raised in the original answer. Defendants state that the new defenses are clarifications of the ninth affirmative defense, which alludes to an assumption of the risk; and the tenth affirmative defense, which is for informed consent and also alludes to an assumption of the risk defense. Defendants seek to amend their answer to include: (1) express release and waiver of liability; and (2) assumption of the risk. Defendants also seek to correct the answer so that the Amended Answer will answer for the proper defendants. Defendants explain that in December 2017, Plaintiffs’ counsel and defense counsel communicated at length regarding the proper defendants and agreed that they were SBAR2, Inc., and Elements Behavioral Health, a California Corporation.

Plaintiffs oppose the motion arguing that Defendants have unreasonably delayed in raising these two defenses. Plaintiff’s position is that Defendants have failed to explain why they did not immediately move for leave to amend in April 2018 when they produced a document containing the alleged written release. Plaintiffs also argue that they will be prejudiced because of the proximity to trial, although trial has been continued until October 2021 along with all discovery deadlines.

Defendants have not delayed in seeking an amendment. While some time has passed since the Answer was filed on January 18, 2018, the action was stayed on May 29, 2018. After the stay was lifted, Defendants sought to obtain a stipulation from Plaintiffs allowing them to amend their complaint. After this case was transferred from Department 31 of the Personal Injury Court, all future dates were vacated, including the trial date. The jury trial is set for October 4, 2021 which is approximately one year from now. The Court finds no prejudice in allowing the proposed amendments. Defendants’ motion for leave to amend the answer is GRANTED. Defendants are ordered to file their amended answer within 2 days.

Case Number: ****6186    Hearing Date: March 03, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

After review of the court file, the Court makes the following order:

Department 31 of the Personal Injury Court has determined that the above entitled action is complicated based upon the number of pretrial hearings and/or the complexity of the issues presented.

AT THE DIRECTION OF DEPARTMENT 1:

This case is hereby transferred and reassigned to the following Independent Calendar Court in THE WEST DISTRICT, JUDGE MARK A. YOUNG presiding in DEPT. M of the SANTA MONICA Courthouse, for all purposes except trial. Department 1 hereby delegates to the Independent Calendar Court the authority to assign the cause for trial to that Independent Calendar Court.

The Order is signed and filed this date, and incorporated herein by reference. Any pending motions or hearings, including trial and status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar court.

Upon receipt of this notice, counsel for Plaintiff shall give notice to all parties of record.

DATED: March 3, 2020 ___________________________

Hon. Jon Takasugi

Judge of the Superior Court