VICTORIA RIVERA VS FOOTHILL PRESBYTERIAN HOSPITAL

Tentative Rulings

Case Number: ****0327    Hearing Date: February 11, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background Facts

Plaintiff, Victoria Rivera filed this action against Defendant, Foothill Presbyterian Hospital for damages arising out of alleged medical malpractice.

1. Requested Relief

At this time, Plaintiff moves to amend the complaint to clarify her allegations, correct an error, and add more information.

1. Law Governing Leave to Amend

The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading. CCP ;;473 and 576. Judicial policy favors resolution of all disputed matters between the parties and, therefore, leave to amend is generally liberally granted. The application for leave to amend should be made as soon as the need to amend is discovered. The closer the trial date, the stronger the showing required for leave to amend. If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the Court has the discretion to deny leave to amend. Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.

Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.

1. Analysis

Plaintiff timely and properly served all parties who have appeared in the action with the moving papers, and no party has filed opposition to the motion. In light of the liberal policy in favor of granting leave to amend, and in light of the lack of opposition, the motion is granted.

The Court notes that Defendant has a summary judgment motion pending for hearing on 3/04/20. Typically, a motion for summary judgment must be directed at the operative complaint, and an amended complaint filed while the motion is pending will render the summary judgment motion moot. However, it appears the parties agree that the summary judgment motion addresses the allegations in the proposed FAC, such that the hearing on the MSJ need not be disturbed. The Court will treat the MSJ as though it were directed at the FAC, and Plaintiff may oppose using the allegations in the FAC.

Plaintiff is ordered to file a separate copy of her FAC within ten days.

Plaintiff is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@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.

Case Number: ****0327    Hearing Date: March 12, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

   This tentative was revised 3-12-2020 at 7:30 am subsequent to its posting.

1. Background Facts

Plaintiff, Victoria Rivera filed this action against Defendant, Foothill Presbyterian Hospital for damages arising out of alleged medical malpractice.

1. Requested Relief

At this time, Plaintiff moves to amend the complaint to clarify her allegations, correct an error, and add more information. Specifically, Plaintiff seeks leave to amend ¶¶8 and 10 of her complaint as follows:

Current ¶8: Plaintiff suffered internal leakage of the bile into her abdominal cavity and had drains placed in her abdomen along with high doses of antibiotics.

Proposed ¶8: Plaintiff suffered internal leakage of the bile into her abdominal cavity and had drains placed in her abdomen along with high doses of antibiotics and required additional medical treatment including a Roux-en-y-hepaticojejunostomy (RYHJ) procedure.

Complaint ¶10: At the date and time aforesaid, the Defendants, and each of them, were negligent in failing to insure the competence of their medical staff, including but not limited to Does 1 through 20, through careful selection and review. Said defendants were also negligent in failing to carefully evaluate the quality of the medical treatment being rendered on their premises and/or by their contracting and/or employed physicians and medical or physician groups prior to August of 2016 and thereafter. Such negligence created an unreasonable risk of harm to patients including Timothy Han, thereby causing or contributing to the need for a liver transplant in January 2017.

Proposed ¶10: At the date and time aforesaid, the Defendants, and each of them, were negligent in failing to insure the competence of their medical staff, including but not limited to surgeon Paridel C. Atil, M.D. through careful selection and review. Said defendants were also negligent in failing to carefully evaluate the quality of the medical treatment being rendered on their premises and/or by their contracting and/or employed physicians and medical or physician groups prior to August of 2016 and thereafter. Such negligence created an unreasonable risk of harm to patients including Victoria Rivera, thereby causing or contributing to the need for post-operative drains placed in her abdomen along with high doses of antibiotics and required a subsequent RYHJ procedure 9/17/17 surgery.

1. Law Governing Leave to Amend

The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading. CCP ;;473 and 576. Judicial policy favors resolution of all disputed matters between the parties and, therefore, leave to amend is generally liberally granted. The application for leave to amend should be made as soon as the need to amend is discovered. The closer the trial date, the stronger the showing required for leave to amend. If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the Court has the discretion to deny leave to amend. Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.

Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.

1. Analysis

Defendant opposes the motion, arguing (a) the motion does not comply with the Rules of Court, (b) the changes to ¶8 are irrelevant, and (c) the changes to ¶10 are in violation of the statute of limitations and do not relate back to the original complaint.

1. CRC 3.1324

   CRC 3.1324 provides, in pertinent part:

   (a) Contents of motion

   A motion to amend a pleading before trial must:

   (1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;

   (2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and

   (3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

   (b) Supporting declaration

   A separate declaration must accompany the motion and must specify:

   (1) The effect of the amendment;

   (2) Why the amendment is necessary and proper;

   (3) When the facts giving rise to the amended allegations were discovered; and

   (4) The reasons why the request for amendment was not made earlier.

   Defendant argues the declaration in support of the motion fails to comply with subdivision (b). The attorney declaration in support of the motion explains that Counsel seeks leave to correct various mistakes in the original complaint, that Counsel did not file the original complaint, and is now handling the case, that Defendant’s summary judgment motion has brought to light various errors in the complaint, and that amendment is necessary to correct those errors. The declaration also sets forth the specific changes proposed to the complaint by way of amendment.

   The Court finds the declaration is sufficient to meet the requirements of 3.1324. While the declaration could be more specific in certain regards, 3.1324 is a procedural, not substantive requirement, and the Court finds the declaration sufficient.

2. ¶8

   Plaintiff seeks to add undergoing a RYHJ procedure to her list of specified complications arising out of Defendant’s care and treatment. Defendant argues the changes to ¶8 are not necessary. In light of the liberal standard granting leave to amend, and because even Defendant does not contend the changes would adversely affect Defendant, the motion for leave to amend this paragraph is granted.

3. ¶10

   The more difficult issue is the amendment of ¶10. ¶10 currently alleges Defendant’s contracting and/or employed physicians were negligent in treating Plaintiff. Plaintiff seeks to amend the paragraph to allege surgeon Paridel C. Atil, M.D., a member of Defendant’s staff, was negligent. Defendant argues this allegation is being made past the statute of limitations and does not relate back to the allegations of the original complaint.

   Where an amended complaint, filed after the statute of limitations has run, seeks recovery on the same general set of facts as in the original complaint, it will relate back to and be deemed filed as of the date of the original complaint and a mere change in the legal theory underlying the complaint will not subject the amended complaint to the bar of the statute of limitations. (Weinstock v. Eissler (1964) 224 Cal.App.2d 212, 234; cited by 5 Witkin, California Procedure 4th Ed., at ;1165.) In Weinstock, the plaintiff sued doctors and a hospital for malpractice, alleging negligence in an operation. After the statute had run, the plaintiff amended to add counts for battery (unauthorized operation) and fraud (misrepresenting the nature of the operation). The court held that this was not a change in cause of action, only in legal theory and, thus, the amendment was proper and not barred by the statute of limitations. (Id.)

   In this case, the original complaint alleged Defendant’s contracting and/or employed physicians were negligent. The proposed amended complaint merely names a specific physician/member of Defendant’s staff. This clearly seeks recovery on the same general set of facts as the original complaint, and therefore the allegation relates back to the original complaint.

   Defendant also notes that ¶10 of the current complaint makes reference to Timothy Han and a liver transplant, whereas the proposed amended complaint makes reference to Plaintiff and her own claimed damages. This was clearly a cut-and-paste error in the original complaint, and Defendant cites no authority for the position that such error can and should not be cured by way of amendment. The Court grants conditional (discussed below) leave to amend ¶10 of the complaint as sought.

   The Court notes that ¶11 of the proposed amended complaint continues to make reference to a liver transplant, rather than to the actual procedures Plaintiff alleges she underwent as a result of Defendant’s negligence. The Court gives Plaintiff conditional (conditions discussed below) leave to cure the defect in ¶11 in connection with the amended complaint, in addition to the other leave sought in the moving papers.

4. Other Changes

   Plaintiff seeks leave to make other changes to the complaint, and Defendant does not materially argue against those other minor changes. The motion for leave to make those other changes is therefore granted.

5. Conditions

   Defendant argues it will be prejudiced if the Court grants Plaintiff’s motion for leave to amend, as Defendant has a motion for summary judgment scheduled for 4/03/20. The MSJ is directed at the original complaint, and will be rendered moot if a First Amended Complaint is filed. The Court notes that Defendant bears some culpability as well as Plaintiff in that the defects in the complaint are so obvious it is curious that Defendant did not raise them earlier. Instead, Defendant decided to lie in wait in the hope that Plaintiff might never correct the errors and yet is now complaining that its MSJ was focused on the wrong allegations. Defendant could not reasonably assume that the complaint would not be amended prior to trial given the obvious nature of the defects. To some degree, Defendant is the author of its own misfortune.

   Defendant argues it will be prejudiced because trial is scheduled for 5/07/20, and it does not have time to file another motion for summary judgment with the looming trial date. The Court will therefore condition leave to amend on Plaintiff’s agreement to continue the trial date to a date sufficiently far in the future to permit Defendant to reserve, schedule, and file a new motion for summary judgment.

   If the condition above is met, Plaintiff is ordered to file a separate copy of her FAC, which should also include changes to ¶11 of the complaint, within twenty days.

   Plaintiff is ordered to give notice.

   Parties who intend to submit on this tentative must send an email to the court at sscdept31@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.

   Dated this 12^th day of March, 2020

Dig Deeper

Get Deeper Insights on Court Cases

---

Latest cases where FOOTHILL PRESBYTERIAN HOSPITAL is a litigant

THE ESTATE OF MARY LOU WIEDEMANN ET AL VS CITRUS VALLEY INTE

Los Angeles County Superior Courts | Personal Injury | BC703398 | 2018-04-23

---

GARDENA HOSPITAL LP ET AL VS DEPARTMENT OF HEALTH CARE SERVI

Los Angeles County Superior Courts | Other | BS172638 | 2018-02-27

---

ELLEN M BARKER VS CITRUS VALLEY HEALTH PARTNERS INC ET AL

Los Angeles County Superior Courts | Personal Injury | BC647507 | 2017-01-19

Latest cases where CITRUS VALLEY HEALTH PARTNERS is a litigant

LYNETTE FERRER VS EMANATE HEALTH

Los Angeles County Superior Courts | Small Claim | 22WCSC00487 | 2022-04-05

---

LYNETTE FERRER VS KOK CHYE TAN

Los Angeles County Superior Courts | Small Claim | 21WCSC01654 | 2021-12-29

---

UNIVERSITY OF SOUTHERN CALIFORNIA ON BEHALF OF ITS KECK HOSPITAL OF USC AND ITS USC KENNETH NORRIS JR. CANCER HOSPITAL VS EMANATE HEALTH, A CALIFORNIA CORPORATION

Los Angeles County Superior Courts | Contract | 21STCV35214 | 2021-09-23

Latest cases represented by Lawyer LYNCH GREGORY G.

Johnson, IV et al. v. Cedars-Sinai Medical Center et al.

California Courts Of Appeal | Other | B319667 | 2022-03-16

---

CATHERINE HAMPTON VS COMCARE HOME HEALTH, INC.

Los Angeles County Superior Courts | Other | 22STCV02979 | 2022-01-25

---

Timothy Simms v. Steven Knapik et al.

California Courts Of Appeal | Other | E077831 | 2021-10-01