This case was last updated from Los Angeles County Superior Courts on 07/21/2019 at 02:39:09 (UTC).

SONJA DOMAZET ET AL VS WEST HILLS HOSPITAL & MEDICAL CENTER

Case Summary

On 01/31/2018 SONJA DOMAZET filed a Personal Injury - Medical Malpractice lawsuit against WEST HILLS HOSPITAL MEDICAL CENTER. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is STEPHEN I. GOORVITCH. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1696

  • Filing Date:

    01/31/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

STEPHEN I. GOORVITCH

 

Party Details

Petitioners and Plaintiffs

ESTATE OF ISAAC STINY THE

DOMAZET SONJA

STINY ELIJAH

Defendants and Respondents

WEST HILLS HOSPITAL & MEDICAL CENTER

LAUREN HYMAN M.D. APC

HYMAN LAUREN M.D.

IMELDA TIO M.D. APC

REGENTS OF THE UNIVERSITY OF CALIFORNIA

TIO IMELDA M.D.

WALEED DOANY M.D. INC.

DOANY WALEED M.D.

DOES 1 TO 100

AMERICAN RED CROSS

HOSPITAL CORPORATION OF AMERICA

MEHDIZADEH BAHMAN M.D.

MANSANO ROY M.D.

COMPREHENSIVE MATERNAL-FETAL MEDICINE

PEDIATRIX MEDICAL GROUP OF CALIFORNIA

PARTNERSHIP FOR WOMEN'S HEALTH THE

ROY MANSANO M.D. APC

1 More Parties Available

Attorney/Law Firm Details

Petitioner and Plaintiff Attorney

HEIMBERG STEVEN A.

 

Court Documents

SUMMONS

1/31/2018: SUMMONS

COMPLAINT FOR DAMAGES FOR: (1) WRONGFUL DEATH ;ETC

1/31/2018: COMPLAINT FOR DAMAGES FOR: (1) WRONGFUL DEATH ;ETC

CIVIL DEPOSIT

1/31/2018: CIVIL DEPOSIT

Minute Order

7/16/2019: Minute Order

Notice

4/19/2019: Notice

Notice

4/12/2019: Notice

Notice

4/12/2019: Notice

Notice

4/12/2019: Notice

Minute Order

4/11/2019: Minute Order

Order Granting Attorney's Motion to Be Relieved as Counsel-Civil

4/11/2019: Order Granting Attorney's Motion to Be Relieved as Counsel-Civil

Order Granting Attorney's Motion to Be Relieved as Counsel-Civil

4/11/2019: Order Granting Attorney's Motion to Be Relieved as Counsel-Civil

Order Granting Attorney's Motion to Be Relieved as Counsel-Civil

4/11/2019: Order Granting Attorney's Motion to Be Relieved as Counsel-Civil

Motion to Be Relieved as Counsel

3/11/2019: Motion to Be Relieved as Counsel

Motion to Be Relieved as Counsel

3/11/2019: Motion to Be Relieved as Counsel

Motion to Be Relieved as Counsel

3/11/2019: Motion to Be Relieved as Counsel

3 More Documents Available

 

Docket Entries

  • 07/16/2019
  • at 10:00 AM in Department 5, Stephen I. Goorvitch, Presiding; Final Status Conference - Not Held - Taken Off Calendar by Court

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  • 07/16/2019
  • Minute Order ( (Final Status Conference)); Filed by Clerk

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  • 04/19/2019
  • Notice (Notice of Filing Proof of Service); Filed by Sonja Domazet (Plaintiff); Elijah Stiny (Plaintiff); Estate of Isaac Stiny, The (Plaintiff)

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  • 04/12/2019
  • Notice (of Entry of Order); Filed by Estate of Isaac Stiny, The (Plaintiff)

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  • 04/12/2019
  • Notice (of Entry of Order); Filed by Estate of Isaac Stiny, The (Plaintiff)

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  • 04/12/2019
  • Notice (of Entry of Order); Filed by Estate of Isaac Stiny, The (Plaintiff)

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  • 04/11/2019
  • at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding; Hearing on Motion to be Relieved as Counsel (Estate of Isaac Stiny) - Held - Motion Granted

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  • 04/11/2019
  • at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding; Hearing on Motion to be Relieved as Counsel (Elijah Stiny) - Held - Motion Granted

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  • 04/11/2019
  • at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding; Hearing on Motion to be Relieved as Counsel (Sonja Domazet) - Held - Motion Granted

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  • 04/11/2019
  • Order Granting Attorney's Motion to Be Relieved as Counsel-Civil; Filed by Sonja Domazet (Plaintiff); Elijah Stiny (Plaintiff); Estate of Isaac Stiny, The (Plaintiff)

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  • 04/11/2019
  • Minute Order ( (Hearing on Motion to be Relieved as Counsel Elijah Stiny; Hea...)); Filed by Clerk

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  • 04/11/2019
  • Order Granting Attorney's Motion to Be Relieved as Counsel-Civil; Filed by Sonja Domazet (Plaintiff); Elijah Stiny (Plaintiff); Estate of Isaac Stiny, The (Plaintiff)

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  • 04/11/2019
  • Order Granting Attorney's Motion to Be Relieved as Counsel-Civil; Filed by Sonja Domazet (Plaintiff); Elijah Stiny (Plaintiff); Estate of Isaac Stiny, The (Plaintiff)

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  • 03/11/2019
  • Motion to Be Relieved as Counsel; Filed by Sonja Domazet (Plaintiff); Elijah Stiny (Plaintiff); Estate of Isaac Stiny, The (Plaintiff)

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  • 03/11/2019
  • Motion to Be Relieved as Counsel; Filed by Sonja Domazet (Plaintiff); Elijah Stiny (Plaintiff); Estate of Isaac Stiny, The (Plaintiff)

    Read MoreRead Less
  • 03/11/2019
  • Motion to Be Relieved as Counsel; Filed by Sonja Domazet (Plaintiff); Elijah Stiny (Plaintiff); Estate of Isaac Stiny, The (Plaintiff)

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  • 01/31/2018
  • Complaint; Filed by Sonja Domazet (Plaintiff); Elijah Stiny (Plaintiff); Estate of Isaac Stiny, The (Plaintiff)

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  • 01/31/2018
  • CIVIL DEPOSIT

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  • 01/31/2018
  • COMPLAINT FOR DAMAGES FOR: (1) WRONGFUL DEATH ;ETC

    Read MoreRead Less
  • 01/31/2018
  • SUMMONS

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Tentative Rulings

b"

Case Number: BC691696 Hearing Date: October 4, 2021 Dept: 32

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

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TENTATIVE\r\nRULING

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DEPARTMENT

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32

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HEARING DATE

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October\r\n 4, 2021

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CASE NUMBER

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BC691696

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MOTIONS

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Demurrer\r\n to First Amended Complaint; Motion to\r\n Strike Portions of First Amended Complaint

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MOVING PARTIES

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Defendants\r\n Pediatrix Medical Group of California, APC and Bahman Mehdizadeh, M.D.

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OPPOSING PARTIES

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Plaintiffs\r\n Sonja Domazet, Elijah Stiny, and the Estate of Isaac Stiny

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MOTION

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Plaintiffs Sonja Domazet, Elijah Stiny, and the Estate of Isaac Stiny (collectively,\r\n“Plaintiffs”) sued Defendants Pediatrix Medical Group of California, APC and Bahman\r\nMehdizadeh, M.D. (collectively, “Defendants”) based on wrongful death. Plaintiffs allege Defendants’ acts or omissions\r\nduring Defendants’ care and treatment of Isaac Stiny caused his death. Defendants demur to second and third causes\r\nof action in Plaintiff’s first amended complaint (“FAC”). Defendants also move to strike portions of the\r\nFAC related to Plaintiffs’ prayer for prejudgment interest. Plaintiffs oppose the motion and demurrer.

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ANALYSIS

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  1. DEMURRER

    “It is black letter law that a demurrer tests the legal sufficiency of\r\nthe allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235\r\nCal.App.4th 385, 388.) In ruling on a demurrer, the court must “liberally\r\nconstrue[]” the allegations of the complaint. (Code Civ. Proc., §\r\n452.) “This rule of liberal construction\r\nmeans that the reviewing court draws inferences favorable to the plaintiff, not\r\nthe defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209\r\nCal.App.4th 1228, 1238.)

    Defendants demur to Plaintiffs’ second cause of action for negligent\r\ninfliction of emotional distress (“NIED”) and the third cause of action for intentional\r\ninfliction of emotional distress (“IIED”). \r\nDefendants argue that the FAC fails to allege facts sufficient to constitute\r\na cause of action for either NIED or IIED. \r\nDefendants also contend Plaintiffs’ NIED claim is improper as it seeks\r\ndouble recovery for the same emotional damages arising from Plaintiffs’ first\r\ncause of action for wrongful death. In\r\nopposition, Plaintiffs assert that the second and third causes of action are\r\nsufficiently pled based on paragraphs 32, 33, 35, 36, 38-43, 61, and 66 of the\r\nFAC.

    “NIED is a tort in negligence,\r\nand the plaintiff must establish the elements of duty, breach of duty, causation,\r\nand damages. The distinction between the\r\n“bystander” and the “direct victim” cases is found in the source of the duty\r\nowed by the defendant to the plaintiff. ‘Bystander’ claims are typically based on\r\nbreach of a duty owed to the public in general, whereas a right to recover for\r\nemotional distress as a ‘direct victim’ arises from the breach of a duty that\r\nis assumed by the defendant or imposed on the defendant as a matter of law, or\r\nthat arises out of the defendant's preexisting relationship with the plaintiff.” (Moon\r\nv. Guardian Postacute Services, Inc. (2002) 95 Cal.App.4th 1005, 1009 [cleaned\r\nup].) “In the absence of physical injury\r\nor impact to the plaintiff himself, damages for emotional distress should be\r\nrecoverable only if the plaintiff: (1) is closely related to the injury victim;\r\n(2) is present at the scene of the injury-producing event at the time it occurs\r\nand is then aware that it is causing injury to the victim and, (3) as a result\r\nsuffers emotional distress beyond that which would be anticipated in a\r\ndisinterested witness.” (Thing v. La Chusa (1989) 48 Cal.3d 644,\r\n647.)

    Here,\r\nPlaintiffs’ NIED claim is premised upon the duty of care owed by Defendants to\r\nPlaintiffs by virtue of the parties’ physician-patient relationship. Accordingly, as the Court has previously\r\nnoted and as Defendants argue, Plaintiffs’ underlying claim in the second cause\r\nof action sounds in professional negligence and is thus the improper vehicle for\r\nPlaintiffs to seek emotional distress. (See\r\nBurgess v. Superior Court (1992) 2 Cal.4th 1064, 1076-78. [finding the\r\nplaintiff’s claim for emotional distress to “simply be viewed as an ordinary professional\r\nmalpractice claim, which seeks as an element of damage compensation for []\r\nserious emotional distress”].)

    To prevail on the IIED cause\r\nof action, Plaintiffs must prove: “(1) extreme and outrageous conduct by\r\nthe defendant with the intention of causing, or reckless disregard of the probability\r\nof causing, emotional distress; (2) the plaintiff’s suffering severe or extreme\r\nemotional distress; and (3) actual and proximate causation of the emotional\r\ndistress by the defendant’s outrageous conduct.” (Hughes v. Pair (2009)\r\n46 Cal.4th 1035, 1050-1051.) A defendant’s conduct is outrageous when “it\r\nis so extreme as to exceed all bounds of that usually tolerated in a civilized\r\ncommunity.” (Ibid. [cleaned up].) Further, the defendant’s conduct must be “intended\r\nto inflict injury or engages in with the realization that injury will result.” (Id. at p. 1051 [cleaned up].)

    Here, the FAC alleges, “Shortly\r\nafter Isaac’s birth, Defendants including Dr. Mehdizadeh acted intentionally\r\nand/or with reckless disregard of the probability of causing Isaac’s death and\r\ncausing [Plaintiffs] emotional distress by withholding blood from Isaac. Dr. Mehdizadeh informed Plaintiffs that O-negative\r\nblood was available in the hospital, but Defendants willfully and/or recklessly\r\nfailed to provide it. In doing so they\r\nknew or should have known that providing it would save Isaac’s life.” (FAC, ¶ 32.) \r\nThe FAC moves on to allege that the hospital had stopped carrying irradiated\r\nblood for babies in their own blood bank earlier that year, and the hospital\r\nhad ordered the prescribed blood from the Red Cross approximately two hours\r\nafter Isaac’s birth. But the Red Cross\r\nfailed to deliver the blood. (See FAC, ¶\r\n34.) Plaintiffs further allege that\r\nDefendants “acted intentionally and/or with reckless disregard of the\r\nprobability of causing Isaac’s death and causing [Plaintiff’s] emotional\r\ndistress” by (1) refusing to procure blood from Isaac’s identical twin brother\r\nto administer to Isaac, and (2) by refusing to timely engage with other health\r\ncare providers and/or facilities in procuring blood for Isaac. (See FAC, ¶¶ 33 and 35.)

    Notwithstanding the contradictions\r\nin Plaintiffs’ allegations – i.e., Defendants’ refusal to administer blood they\r\ndid not have or Defendants’ refusal to engage third-party health care providers\r\nbut also the failure of a third-party health care provider engaged by\r\nDefendants to deliver blood – the Court finds the FAC fails to allege conduct\r\non the part of Defendants so extreme as to exceed all bounds of that usually tolerated\r\nin a civilized community intended to inflict injury upon Plaintiffs or engaged\r\nin with the realization that injury to Plaintiffs will result.

  2. MOTION TO STRIKE

    Any party, within the time allowed to respond to a pleading, may serve\r\nand file a motion to strike the whole pleading or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal.\r\nRules of Court, rule 3.1322, subd. (b).) \r\nOn a motion to strike, the court may: (1) strike out any irrelevant,\r\nfalse, or improper matter inserted in any pleading; or (2) strike out all or\r\nany part of any pleading not drawn or filed in conformity with the laws of\r\nCalifornia, a court rule, or an order of the court. (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767,\r\n782.)

    Here, Defendants move to strike paragraph 52 of the FAC, which reads,

    “The wrongdoing of Defendants,\r\nand each of them, also includes wrongdoing by medical, technical, and administrative\r\nand clerical staff of Defendants by persons not within the definition of ‘health\r\ncare provider’ under California Civil Code §3333.1 [sic.] or the definition of ‘professional\r\nnegligence’ under California Civil Code §3333.1 [sic.]. The only wrongdoing within the scope of MICRA\r\nis ‘professional negligence.’ (Civil Code §3333.2(a).) [sic.] Cases analyzing the breadth of MICRA\r\ngenerally exclude from MICRA-qualifying wrongdoing misconduct that (1) exceeds ‘mere\r\nnegligence’ or (2) is beyond ‘the scope of services for which the provider is licensed.’\r\nEgregious conduct— which includes reckless, oppressive, and malicious\r\nneglect—is beyond the scope of MICRA. (See, e.g., Guardian North Bay, Inc. v.\r\nSup. Ct. (2001) 94 Cal.App.4th 963.) Egregious conduct that is reckless or done\r\nwith oppression, fraud, or malice goes beyond the simple professional\r\nnegligence which is covered by MICRA. (Id. at 967; see also, e.g., Covenant\r\nCare, Inc. v. Sup. Ct. (2004) 32 Cal.4th 771, 790; Delaney v. Baker (1990) 20\r\nCal.4th 23, 31; Mack v. Soung (2000) 80 Cal.App.4th 966, 975.) Intentional\r\nconduct is likewise beyond the scope of MICRA because MICRA is limited to ‘professional\r\nnegligence,’ and intentional conduct obviously exceeds mere negligence. (See,\r\ne.g., Delaney, supra, 20 Cal.4th at 31; Perry v. Shaw (2001) 88 Cal.App.4th\r\n658, 669.) Moreover, intentional wrongdoing rarely is within the wrongdoer’s\r\nlicensed scope of services.”

    (FAC,\r\n¶ 52.) Defendants argue this paragraph\r\nshould be stricken because Plaintiffs fail to allege wrongdoing by Defendants unrelated\r\nto services delivered by a health care provider. In opposition, Plaintiffs contend that the\r\nFAC alleges facts sufficient to demonstrate that Defendants’ conduct\r\nconstituted reckless disregard and intentional conduct that falls outside the scope\r\nof mere negligence and/or services of a health care provider. Plaintiffs also contend that the FAC alleges\r\nDefendants’ conduct exceeded the scope of services for which they were licensed. (See FAC, ¶ 43.) The Court notes that Plaintiffs’ allegation in\r\nparagraph 43 of the FAC is stated as a mere legal conclusion devoid of\r\nsupporting facts.

    As the Court sustains Defendants’ demurrer\r\nto the second and third causes of action, the crux of Plaintiffs’ complaint sounds\r\nin professional negligence, despite Plaintiffs’ piecemeal allegations of\r\nintentional conduct. The Court thus\r\ngrants in part the motion to strike paragraph 52 of the FAC.

    Defendants next move to strike\r\nprayer for prejudgment interest by way of paragraphs 57, 62, 67 and 72 of the\r\nFAC.[1] Defendants argue prayer for prejudgment interest\r\nunder Civil Code section 3287 is faulty because the FAC does not allege “damages\r\ncertain.” In opposition, Plaintiffs assert\r\nthat the FAC explicitly seeks prejudgment interest under Civil Code section\r\n3291, not section 3287, and thus the prayer is proper. The Court agrees.

    Civil Code section 3291 provides, “In\r\nany action brought to recover damages for personal injury sustained by any person\r\nresulting form or occasioned by the tort of any other person, corporation,\r\nassociation, or partnership, whether by negligence or by willful intent of the\r\nother person, corporation, association, or partnership, and whether the injury\r\nwas fatal or otherwise, it is lawful for the plaintiff in the complaint to claim\r\ninterest on the damages alleged as provided in this section.” (Civ. Code, § 3291.) An award of prejudgment interest under\r\nsection 3291 is predicated upon the defendant’s refusal of the plaintiff’s pretrial\r\nsettlement offer pursuant Code of Civil Procedure section 998, and the plaintiff\r\nthereafter obtaining a more favorable judgment. \r\nPlaintiffs do not indicate whether such an offer has been made and\r\nrefused; however, the Court notes that the deadline for Plaintiffs to make the\r\noffer has yet to pass. (See Code Civ.\r\nProc, § 998, subd. (b).) Accordingly,\r\nthe Court denies in part the motion to strike Plaintiffs’ prayer for\r\nprejudgment interest.

  3. LEAVE TO AMEND

    The plaintiff has the burden of showing in what manner the first\r\namended complaint could be amended and how the amendment would change the legal\r\neffect of the complaint, i.e., state a cause of action. (See The\r\nInland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th\r\n771, 779; PGA West Residential Assn.,\r\nInc. v Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) The plaintiff must not only state the legal\r\nbasis for the amendment, but also the factual allegations sufficient to state a\r\ncause of action or claim. (See The Inland Oversight Committee, supra, 14\r\nCal.App.5th at p. 189.) Moreover, a plaintiff\r\ndoes not meet his or her burden by\r\nmerely stating in the opposition to a demurrer or motion to strike that “if the\r\nCourt finds the operative complaint deficient, plaintiff respectfully requests\r\nleave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th\r\n1116, 1133; Graham v Bank of America\r\n(2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not\r\nsatisfy the burden].)

    Here, the burden is on Plaintiffs to\r\nestablish that the FAC can be amended successfully. However, Plaintiffs have failed to meet their\r\nburden. Plaintiffs’ opposition to the\r\ndemurrer does not demonstrate how Plaintiffs may amend the FAC, but rather simply\r\nrequests leave to amend. In Plaintiffs’\r\nopposition to the motion to strike, Plaintiffs assert “allegations can be made\r\nmore specific to the conduct which falls outside” Civil Code section 3333.1. (Opposition, p.5) Without more, Plaintiffs’ request is insufficient\r\nto establish that the FAC can be amended successfully. The Court therefore denies Plaintiffs leave\r\nto amend the FAC.

    CONCLUSION AND ORDER

    Therefore, the Court sustains Defendants’ demurrer to the second and third\r\ncauses of action in the FAC, without leave to amend. The Court grants in part Defendant’s motion\r\nto strike paragraph 52 of the FAC, without leave to amend, and\r\ndenies in part Defendants’ motion to strike Plaintiffs’ prayer for prejudgment interest\r\nin the FAC.

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[1] The\r\nCourt notes that Defendants Notice of Motion and Motion to Strike references\r\nthe incorrect paragraphs in Plaintiffs’ FAC. \r\n

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Case Number: BC691696    Hearing Date: May 11, 2021    Dept: 32

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

NOTE:  THERE ARE TWO TENTATIVE RULINGS

TENTATIVE RULING - NO. 1

DEPARTMENT

32

HEARING DATE

May 11, 2021

CASE NUMBER

BC691696

MOTION

Demurrer to Complaint

MOVING PARTY

Defendant Regents of the University of California

OPPOSING PARTIES

Plaintiffs Sonja Domazet (“Domazet”), Elijah Stiny, and the Estate of Isaac Stiny

MOTIONS

Plaintiffs Sonja Domazet (“Domazet”), Elijah Stiny, and the Estate of Isaac Stiny (collectively, “Plaintiffs”) sued Defendant Regents of the University of California (“Defendant”) for medical malpractice. Plaintiffs allege that Defendant negligently cared for Domazet while she was pregnant with Decedent Isaac Stiny (“Decedent”), which caused Decedent’s death shortly after his birth. Defendant demurs to Plaintiffs’ complaint, or, in the alternative, moves to dismiss Plaintiffs’ complaint. Plaintiffs oppose the demurrer

ANALYSIS

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

Defendant argues that the statute of limitations bars Plaintiffs’ claims. Per Code of Civil Procedure section 340.5, “In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” (Code Civ. Proc., § 340.5.) Under Code of Civil Procedure section 364, “No action based upon the health care provider's professional negligence may be commenced unless the defendant has been given at least 90 days' prior notice of the intention to commence the action.” (Code Civ. Proc., § 364, subd. (a).) “If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.” (Code Civ. Proc., § 364, subd. (d).)

Plaintiffs allege Decedent died on November 3, 2016. (Complaint, ¶ 1.) Plaintiffs allege that they gave notice of their intent to sue Defendant on November 1, 2017. (Complaint, ¶ 18.) Because Plaintiffs served notice of their intent to sue Defendant within 90 days of the expiration of the statute of limitations, Plaintiffs had “a period of one year and ninety days in which to file a lawsuit.” (Russell v. Stanford University Hospital (1997) 15 Cal.4th 783, 788.) Accordingly, Plaintiffs had until February 1, 2018 to file the complaint in this action, and their complaint is timely.

In the alternative, Defendant moves to dismiss under Code of Civil Procedure section 583.410. Under Code of Civil Procedure section 583.410, the court may dismiss an action for delay in prosecution if the plaintiff does not serve the defendant within two years, or bring the action to trial within three years.  (Code Civ. Proc., §§ 583.410, 583.420.) Dismissal is warranted where the plaintiff has failed to prosecute the action with “reasonable diligence.” (Dunsmuir Masonic Temple v. Superior Court (1970) 12 Cal.App.3d 17, 23.)

Here, Plaintiffs filed the complaint on January 31, 2018, but did not serve Defendant until January 28, 2021, nearly three years later. Even if the Court excludes the 188 days during which Plaintiff’s action was dismissed, Plaintiffs failed to serve Defendant in the two years, five months, and 25 days during which this case was pending prior to Plaintiffs’ service of summons on Defendant.

In opposition, Plaintiffs argue that they were unaware that their prior counsel had not served the summons and complaint until their prior counsel moved to withdraw as counsel. Further, Plaintiffs state that the COVID-19 pandemic made it difficult for Plaintiffs to meet with and retain new counsel. Under these circumstances, the Court declines to exercise its discretion to dismiss Plaintiffs’ complaint.

CONCLUSION AND ORDER

Therefore, the Court overrules Defendant’s demurrer and denies Defendant’s motion to dismiss. The Court further orders Defendant to file and serve an answer to the complaint within 10 days of the hearing.

Defendant is ordered to provide notice of this order and file a proof of service of such.

TENTATIVE RULING - NO. 2

DEPARTMENT

32

HEARING DATE

May 11, 2021

CASE NUMBER

BC691696

MOTIONS

Motion to Dismiss

MOVING PARTY

Defendant Pediatrix Medical Group of California, APC

OPPOSING PARTIES

Plaintiffs Sonja Domazet (“Domazet”), Elijah Stiny, and the Estate of Isaac Stiny

MOTION

Plaintiffs Sonja Domazet (“Domazet”), Elijah Stiny, and the Estate of Isaac Stiny (collectively, “Plaintiffs”) sued Defendant Pediatrix Medical Group of California, APC (“Defendant”) for medical malpractice. Plaintiffs allege that Defendant negligently cared for Domazet while she was pregnant with Decedent Isaac Stiny (“Decedent”), which caused Decedent’s death shortly after his birth. Defendant moves to dismiss Plaintiffs’ complaint. Defendants American Red Cross, Imelda Tio, M.D., Imelda Tio, M.D., APC, Lauren Hyman, M.D., Lauren Hyman, M.D., APC, the Partnership for Women’s Health, Roy Mansano, M.D., and Roy Mansano, M.D., APC join the motion. Plaintiffs oppose the motion.

ANALYSIS

Defendant moves to dismiss under Code of Civil Procedure section 583.410. Under Code of Civil Procedure section 583.410, the court may dismiss an action for delay in prosecution if the plaintiff does not serve the defendant within two years, or bring the action to trial within three years.  (Code Civ. Proc., §§ 583.410, 583.420.) Dismissal is warranted where the plaintiff has failed to prosecute the action with “reasonable diligence.” (Dunsmuir Masonic Temple v. Superior Court (1970) 12 Cal.App.3d 17, 23.)

Here, Plaintiffs filed the complaint on January 31, 2018, but did not serve Defendant until January 28, 2021, nearly three years later. Even if the Court excludes the 188 days during which Plaintiff’s action was dismissed, Plaintiffs failed to serve Defendant in the two years, five months, and 25 days during which this case was pending prior to Plaintiffs’ service of summons on Defendant.

In opposition, Plaintiffs argue that they were unaware that their prior counsel had not served the summons and complaint until their prior counsel moved to withdraw as counsel. Further, Plaintiffs state that the COVID-19 pandemic made it difficult for Plaintiffs to meet with and retain new counsel. Under these circumstances, the Court declines to exercise its discretion to dismiss Plaintiffs’ complaint.

Therefore, the Court denies Defendant’s motion to dismiss. Defendant is ordered to provide notice of this order and file a proof of service of such.

Case Number: BC691696    Hearing Date: April 1, 2021    Dept: 32

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

TENTATIVE RULING

DEPARTMENT

32

HEARING DATE

April 1, 2021

CASE NUMBER

BC691696

MOTIONS

Motion to Dismiss

MOVING PARTY

Defendant Pediatrix Medical Group of California, APC

OPPOSING PARTIES

Plaintiffs Sonja Domazet (“Domazet”), Elijah Stiny, and the Estate of Isaac Stiny

MOTION

Plaintiffs Sonja Domazet (“Domazet”), Elijah Stiny, and the Estate of Isaac Stiny (collectively, “Plaintiffs”) sued Defendant Pediatrix Medical Group of California, APC (“Defendant”) for wrongful death, negligent infliction of emotional distress, intentional infliction of emotional distress and survival action. Plaintiffs allege that Defendant negligently cared for Domazet while she was pregnant with Decedent Isaac Stiny (“Decedent”), which caused Decedent’s death shortly after his birth. Defendant moves to dismiss Plaintiffs’ complaint. Defendants American Red Cross, Imelda Tio, M.D., Imelda Tio, M.D., APC, Lauren Hyman, M.D., Lauren Hyman, M.D., APC, the Partnership for Women’s Health, Roy Mansano, M.D., and Roy Mansano, M.D., APC join the motion. Plaintiffs oppose the motion.

ANALYSIS

Defendant moves to dismiss under Code of Civil Procedure section 583.410. Under Code of Civil Procedure section 583.410, the court may dismiss an action for delay in prosecution if the plaintiff does not serve the defendant within two years, or bring the action to trial within three years.  (Code Civ. Proc., §§ 583.410, 583.420.) Dismissal is warranted where the plaintiff has failed to prosecute the action with “reasonable diligence.” (Dunsmuir Masonic Temple v. Superior Court (1970) 12 Cal.App.3d 17, 23.)

Plaintiffs filed the complaint on January 31, 2018, but did not serve Defendant until January 28, 2021, nearly three years later. Even if the Court excludes the 188 days during which Plaintiff’s action was dismissed, Plaintiffs failed to serve Defendant in the two years, five months, and 25 days during which this case was pending prior to Plaintiffs’ service of summons on Defendant. In opposition, Plaintiffs make various arguments regarding why they did not serve Defendant within two years. However, Plaintiffs advance no evidence in support of those arguments.

Notwithstanding, per Code of Civil Procedure section 340.5, “In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” (Code Civ. Proc., § 340.5.) Under Code of Civil Procedure section 364, “No action based upon the health care provider's professional negligence may be commenced unless the defendant has been given at least 90 days' prior notice of the intention to commence the action.” (Code Civ. Proc., § 364, subd. (a).) “If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.” (Code Civ. Proc., § 364, subd. (d), emphasis added.)

Here, Plaintiffs allege Decedent died on November 3, 2016. (Complaint, ¶ 1.) Plaintiffs allege that they gave notice of their intent to sue Defendant on November 1, 2017. (Complaint, ¶ 18.) As such, Plaintiffs had until January 30, 2018 to file the complaint in this action which is 90 days from the November 1, 2017 notice. However, Plaintiffs filed the complaint on January 31, 2018. As such, their complaint may be untimely. Thus, on its own motion, the Court will set a Judgment on the Pleadings hearing and permit the parties to address the statute of limitations issue as outlined by the Court. (See generally Camacho v. Automobile Club of So. Cal. (2006) 142 Cal.App.4th 1394.)

CONCLUSION AND ORDER

Therefore, the Court will set the Judgment on the Pleadings hearing for May 11, 2021 at 1:30 PM in Department 32 for the parties to specifically address the statute of limitations issue based upon the Court’s calculation as to the date when the complaint should have been filed.

Defendant Pediatrix Medical Group of California, APC is ordered to provide notice of this order and file a proof of service of such.

Case Number: BC691696    Hearing Date: March 30, 2021    Dept: 32

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

TENTATIVE RULING

DEPARTMENT

32

HEARING DATE

March 30, 2021

CASE NUMBER

BC691696

MOTIONS

Demurrer to Complaint

MOVING PARTY

Defendant Los Angeles Unified School District

OPPOSING PARTIES

Plaintiffs Sonja Domazet (“Domazet”), Elijah Stiny, and the Estate of Isaac Stiny

MOTION

Plaintiffs Sonja Domazet (“Domazet”), Elijah Stiny, and the Estate of Isaac Stiny (collectively, “Plaintiffs”) sued Defendant Regents of the University of California (“Defendant”) for wrongful death, negligent infliction of emotional distress, intentional infliction of emotional distress and survival action. With respect to Defendant, Plaintiffs allege: “In addition, Dr. Mehdizadeh failed to timely call for emergency transfer. It was not until after 1:15 p.m. that Dr. Mehdizadeh called for emergency transport from UCLA Health's NICU. When UCLA arrived at West Hills Hospital, UCLA did not have necessary supplies and/or equipment to treat Isaac. Thereafter, UCLA spoke with Elijah Stiny about Isaac's condition, and repeatedly told Elijah Stiny that Isaac should not come to UCLA and that Isaac had a better chance of living if he stayed at West Hills Hospital. As a result of Defendants, and each of their, negligent acts and omissions, [Decedent Isaac Stiny (“Decedent”)] died on November 3, 2016 at West Hills Hospital.” (Complaint, ¶¶ 33-34.)

Defendant demurs to Plaintiffs’ complaint including the claims for negligent infliction of emotional distress and intentional infliction of emotional distress.[1] Plaintiffs oppose the motion.

ANALYSIS

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

Defendant argues that the statute of limitations bars Plaintiffs’ claims. Per Code of Civil Procedure section 340.5, “In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” (Code Civ. Proc., § 340.5.) Under Code of Civil Procedure section 364, “No action based upon the health care provider's professional negligence may be commenced unless the defendant has been given at least 90 days' prior notice of the intention to commence the action.” (Code Civ. Proc., § 364, subd. (a).) “If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.” (Code Civ. Proc., § 364, subd. (d), emphasis added.)

Plaintiffs allege Decedent died on November 3, 2016. (Complaint, ¶ 1.) Plaintiffs allege that they gave notice of their intent to sue Defendant on November 1, 2017. (Complaint, ¶ 18.) As such, Plaintiffs had until January 30, 2018 to file the complaint in this action which is 90 days from the November 1, 2017 notice.

However, Plaintiffs filed the complaint on January 31, 2018. As such, their complaint may be untimely. Defendant improperly calculates the statute of limitations in its motion and does not raise this specific argument. The Court therefore cannot sustain the demurrer on this specific basis because Plaintiffs have not had an opportunity to respond.

CONCLUSION AND ORDER

Therefore, the Court will continue the hearing on the demurrer to May 11, 2021 at 1:30 PM in Department 32 for the parties to specifically address the statute of limitations issue based upon the Court’s calculation as to the date when the complaint should have been filed. Plaintiffs may file a supplemental opposition to the demurrer on or before April 20, 2021 and Defendant may file a supplemental reply to the supplemental opposition on or before May 4, 2021.

Defendant is ordered to provide notice of this order and file a proof of service of such.


[1] Defendant also moved to strike portions of the complaint, but the parties resolved the motion to strike via stipulation. The Court therefore places the motion to strike off calendar as moot.

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