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Ruling
SEDIGHEH HAji*zADEH VS MAGIC MOUNTAIN, LLC
Aug 07, 2024 |21STCV19791
Case Number: 21STCV19791 Hearing Date: August 7, 2024 Dept: 28 Having considered the moving, opposition, and reply papers, the Court rules as follows. BACKGROUND On May 26, 2021, Plaintiff Sedigheh Haji*zadeh (Plaintiff) filed this action against Defendants Magic Mountain, LLC (Defendant) and Does 1-50 for general negligence and premises liability. On June 21, 2021, Defendant filed an answer. On January 30, 2024, the Court granted Plaintiffs motion for summary adjudication of Defendants statute of limitations affirmative defense (fourth affirmative defense) and denied Plaintiffs motion for summary adjudication of four other affirmative defenses. On March 11, 2024, Defendant filed a motion for leave to amend its answer. The motion was set for hearing on April 5, 2024. On March 22, 2024, Plaintiff filed an opposition and a request for judicial notice. On March 28, 2024, Defendant filed a reply. The Court continued the hearing to August 7, 2024. No trial date is currently scheduled. PARTIES REQUESTS Defendant asks the Court to grant leave to file an amended answer that includes new affirmative defenses. Plaintiff asks the Court to deny the motion. PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE Granted. (Evid. Code, § 452, subd. (d).) 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; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (Code Civ. Proc., § 473, subd. (a)(1).) Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order. (Code Civ. Proc., § 576; see Cal. Rules of Court, rule 3.1324.) While a motion to permit an amendment to a pleading to be filed is one addressed to the discretion of the court, the exercise of this discretion must be sound and reasonable and not arbitrary or capricious. [Citations.] And it is a rare case in which a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case. [Citations.] If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion. [Citations.] (Redevelopment Agency v. Herrold (1978) 86 Cal.App.3d 1024, 1031, quoting Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.) Courts usually display great liberality in allowing amendments to answers because a defendant denied leave to amend is permanently deprived of a defense. (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 6:643, p. 6-189 (Cal. Practice Guide), quoting Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159.) Ordinarily, the judge will not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend. . . . After leave to amend is granted, the opposing party will have the opportunity to attack the validity of the amended pleading. (Cal. Practice Guide, supra, ¶ 6:644, pp. 6-189 to 6-190.) DISCUSSION A. The complaint The complaint alleges the following: Defendants negligently, carelessly, and recklessly and with disregard for the rights of the Plaintiff, managed, maintained, supervised, entrusted, repaired, authorized, approved, leased, loaned, bailed, controlled, and operated a facility located at 26101 Magic Mountain Parkway, Valencia, CA 91355 (the premises). On August 19, 2019, Defendants failed to maintain, design, inspect, control, supervise, attend to, and care for the premises. Defendants breached their duty of care to Plaintiff when they failed to properly maintain, manage, and control the premises, failing to alert or warn Plaintiff of an inherently unsafe condition. As a proximate result of Defendants negligence, Plaintiff sustained severe injuries. B. The answer Defendants answer filed on June 21, 2021, denies the complaints allegations and asserts affirmative defenses. C. Motion for leave to amend answer Defendant asks for leave to amend its answer to add the following affirmative defenses: estoppel (tenth affirmative defense), res judicata and collateral estoppel (eleventh affirmative defense), and waiver (twelfth affirmative defense). According to Defendant, it discovered the facts supporting these affirmative defenses in January 2024 in Plaintiffs motion for summary adjudication. Defendants motion includes a supporting declaration explaining why Defendant did not file the motion sooner. (Makorow Dec. ¶ 5.) The proposed amendments are based on what Defendant contends is Plaintiffs previous dismissal with prejudice of another action with the same parties and same subject matter as this case. Plaintiff opposes the motion, contending that Defendant did not act diligently because it knew about the previous lawsuit long before January 2024. (Defendant responds that it did not know until January 2024 that the previous lawsuit was dismissed with prejudice.) But even assuming Defendant unreasonably delayed in filing the motion to amend, it is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) Prejudice exists where the amendment would result in a delay of trial, along with loss of critical evidence, added costs of preparation, increased burden of discovery, etc. (Cal. Practice Guide, supra, ¶ 6:656, p. 6-193.) Plaintiff has not shown that allowing the amendment will prejudice her. No trial date is currently scheduled. A trial setting conference is set for August 15, 2024. Counsel may address any need for discovery based on the amendments and other scheduling issues at the trial setting conference. Plaintiff also argues that the premise of Defendants motion for leave to amend the answer to include the new affirmative defenses is incorrect. The Court does not evaluate the truth or strength of pleadings when deciding whether to grant leave to amend. The Court grants the motion. CONCLUSION The Court GRANTS Defendant Magic Mountain, LLCs motion for leave to file an amended answer. The Court orders Defendant Magic Mountain, LLC, to file and serve the first amended answer within 30 days of the hearing on this motion. Moving party is ordered to give notice of this ruling. Moving party is ordered to file the proof of service of this ruling with the Court within five days.
Ruling
VANESSA COATS VS MICHAEL V. JENKINS
Aug 08, 2024 |22STCV01951
Case Number: 22STCV01951 Hearing Date: August 8, 2024 Dept: 28 Having considered the moving, opposition, and reply papers, the Court rules as follows. BACKGROUND A. Prior proceedings On January 18, 2022, Plaintiff Vanessa Coats (Plaintiff) filed this action against Defendants Michael V. Jenkins (Jenkins) and Does 1-50 for general negligence and premises liability. On March 29, 2022, Jenkins filed an answer and a cross-complaint against Cross-Defendants Norma Burks (Burks) and Roes 1-25 for declaratory relief, implied indemnity and equitable apportionment. On December 22, 2022, Plaintiff amended the complaint to include Defendant Emotional Health Association (EHA) as Doe 1. (EHA later clarified that its correct name was Emotional Health Association Corporation dba Share!) On June 8, 2023, Plaintiff filed a first amended complaint. On July 12, 2023, Jenkins filed an answer. On September 7, 2023, the Court sustained EHAs demurrer with leave to amend. On October 3, 2023, Plaintiff filed a second amended complaint against Jenkins, EHA, and Does 1-50 for general negligence and premises liability. On November 6, 2023, Jenkins filed an answer. On December 12, 2023, the Court sustained EHAs demurrer to the second amended complaint with leave to amend. On January 10, 2024, Plaintiff filed a third amended complaint against Jenkins, EHA, and Does 1-50 for general negligence and premises liability. On January 10, 2024, Jenkins filed an answer. On January 18, 2024, EHA filed an answer and a cross-complaint against Cross-Defendant Norma Burkes (Burkes) and Moes 1-25 for indemnification, apportionment of fault, and declaratory relief. On May 14, 2024, the Court granted Jenkinss motion for summary judgment. On June 7, 2024, the Court entered judgment for Jenkins. B. These motions On May 31, 2024, Plaintiff filed a motion to compel EHAs further responses to request for production of documents, set one. The motion was set for hearing on July 5, 2024. On June 21, 2024, EHA filed an opposition. On June 7, 2024, Plaintiff filed a motion to compel EHAs further responses to Plaintiffs first set of interrogatories. The motion was set for hearing on July 3, 2024. On June 20, 2024, EHA filed an opposition. The Court continued the hearings to August 8, 2024. PROCEDURAL REQUIREMENTS A. Informal Discovery Conference The Eighth Amended Standing Order for Procedures in the Personal Injury Hub Courts Effective October 10, 2022 (Filed September 20, 2022), ¶ 9E, provides: PI Hub Courts will not hear Motions to Compel Further Discovery Responses to Discovery until the parties have engaged in an Informal Discovery Conference (IDC). PI Hub Courts may deny or continue a Motion to Compel Further Responses to Discovery if parties fail to schedule and complete an IDC before the scheduled hearing on a Motion to Compel Further Responses to Discovery. The parties participated in IDCs on April 5, 2024, May 15, 2024, and June 27, 2024. B. Timeliness of motions A notice of motion to compel further responses must be given within 45 days of the service of the verified responses, or any supplemental verified responses, or on or before any later date to which the parties have agreed in writing. (Code Civ. Proc., § 2031.310, subd. (c) [demand for inspection]; Code Civ. Proc., § 2030.300, subd. (c) [interrogatories].) Failure to file a motion by this deadline constitutes a waiver of any right to compel further responses. EHA does not dispute the timeliness of Plaintiffs motions. C. Meet and confer A motion to compel further responses to a demand for inspection or interrogatories must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040. (See Code Civ. Proc., § 2031.310, subd (b)(2) [demand for inspection]; Code Civ. Proc., § 2030.300, subd. (b)(1) [interrogatories].) A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (Code Civ. Proc., § 2016.040.) Plaintiff has provided meet and confer declarations. D. Separate Statement With exceptions that do not apply here, California Rules of Court, rule 3.1345, requires that any motion involving the content of discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for why an order compelling further responses is warranted. Plaintiff has filed separate statements. APPLICABLE LAW A. Demand for inspection Code of Civil Procedure section 2031.310 provides in part: (a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete. (2) A representation of inability to comply is inadequate, incomplete, or evasive. (3) An objection in the response is without merit or too general. (b) A motion under subdivision (a) shall comply with each of the following: (1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand. (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (3) In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute. (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand. * * * (h) Except as provided in subdivision (j), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. . . . (Code Civ. Proc., § 1031.310, subds. (a), (b), (c), (h).) B. Interrogatories Code of Civil Procedure section 2030.300 provides in part: (a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. (3) An objection to an interrogatory is without merit or too general. (b) (1) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. (2) In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute. (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories. (d) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. . . . (Code Civ. Proc., § 2030.300, subds. (a), (b), (c), (d).) DISCUSSION A. Plaintiffs motion to compel EHAs further responses to request for production of documents, set one Served: November 13, 2023 Responses: January 26, 2024 Further responses: April 26, 2024 Motion filed: June 7, 2024 EHA has not carried its burden of establishing the preliminary facts that are essential to its claims of attorney-client privilege and work product protection. (See L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2024) ¶ 8:192, p. 8C-61 (Cal. Practice Guide).) In addition, EHA has not carried its burden of establishing the extent and seriousness of the prospective invasion of the privacy rights it asserts. (See Cal. Practice Guide, supra, ¶ 8:294, p. 8C-98.) In responding that it cannot provide a response, EHA has not complied with the requirements of Code of Civil Procedure section 2031.230. In responding that Plaintiff should review certain documents, EHA has not complied with the requirements of Code of Civil Procedure section 2031.220. EHA has not verified the non-objection portions of its responses. Granted: All B. Plaintiffs motion to compel EHAs further responses to special interrogatories, set one, and form interrogatories, set one Served: November 13, 2023Responses: January 26, 2024Further responses: April 26, 2024 and May 29, 2024Motion filed: June 7, 2024 EHA has not carried its burden of establishing the preliminary facts that are essential to its claims of attorney-client privilege and work product protection. (See Cal. Practice Guide, supra, ¶ 8:192, p. 8C-61.) EHA has provided a declaration stating that EHAs counsels paralegal served a corrected copy of the special interrogatories on June 17, 2024. (Benedict Dec. ¶ 17.) EHAs responsive separate statement contains EHAs further responses. Granted: Form interrogatory 15.1, Special interrogatories 12, 19, 21, 23, 24 Denied: 8, 9, 13, 14, 15, 16, 17, 18, 22 C. Sanctions The Court denies Plaintiffs requests for sanctions. CONCLUSION The Court GRANTS Plaintiff Vanessa Coatss motion to compel Defendant Emotional Health Association's further responses to request for production of documents, set one. The Court orders Defendant Emotional Health Association to provide further verified, code-compliant responses to the request for production of documents and to produce the further documents, electronically stored information, and/or other things requested by September 6, 2024. The Court GRANTS in part and DENIES in part Plaintiff Vanessa Coatss motion to compel Defendant Emotional Health Association's further responses to special interrogatories, set one, and form interrogatories, set one. The Court orders Defendant Emotional Health Association to provide further verified, code-compliant responses to Form interrogatory 15.1 and Special interrogatories 12, 19, 21, 23, and 24 by September 6, 2024. In all other respects, the Court DENIES the motion. The Court DENIES Plaintiff Vanessa Coatss requests for sanctions. Moving party is ordered to give notice of this ruling. Moving party is ordered to file the proof of service of this ruling with the Court within five days.
Ruling
NICOLAS LACAN VS SAMANTHA DELGADO
Aug 06, 2024 |22STCV23837
Case Number: 22STCV23837 Hearing Date: August 6, 2024 Dept: 32 PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that partys intention to submit. The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. TENTATIVE RULING DEPT: 32 HEARING DATE: August 6, 2024 CASE NUMBER: 22STCV23837 MOTIONS: (1) Motion to Order Deeming Admitted the Truth of Matters (2) Motion to Compel Form Interrogatory Responses (3) Motion to Compel Special Interrogatory Responses (4) Motion to Compel Responses to Demand for Production MOVING PARTY: Defendant Samantha Delgado OPPOSING PARTY: Plaintiff Nicolas Lacan BACKGROUND Defendant Samantha Delgado (Defendant) now moves for an order to deem admitted Requests for Admission, Set One and to compel verified responses to Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production, Set One propounded on Plaintiff Nicolas Lacan (Plaintiff). Plaintiff opposes. No reply has been filed. LEGAL STANDARD Requests for Admission Where there has been no timely response to a request for admission under Code of Civil Procedure section 2033.010, the propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction.¿ (Code of Civ. Proc., § 2033.280, subd. (b).)¿ The party who failed to respond waives any objections to the demand, unless the court grants that party relief from the waiver, upon a showing that the party (1) has subsequently served a substantially compliant response, and (2) that the partys failure to respond was the result of mistake, inadvertence, or excusable neglect.¿ (Code of Civ. Proc., § 2033.280, subds. (a)(1)-(2).)¿ The court shall grant a motion to deem admitted requests for admissions, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.¿ (Code of Civ. Proc., § 2033.280, subd. (c).)¿ Where a party fails to provide a timely response to requests for admission, [i]t is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.¿ (Code Civ. Proc., § 2033.280, subd. (c).) Interrogatories If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses. (Code Civ. Proc. § 2030.290 (b).) Failure to timely respond waives all objections, including privilege and work product, unless [t]he party has subsequently served a response that is in substantial compliance and [t]he partys failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., § 2030.290 (a)(1), (a)(2).) The statute contains no time limit for a motion to compel where no responses have been served and no meet and confer is required when a party does not respond to discovery requests. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.) If a motion to compel responses is filed, the Court shall impose a monetary sanction against the losing party unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc., §§ 2030.290 (c).) Further, [t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348(a). Requests for Production Under Code of Civil Procedure Section 2031.300, if a party fails to serve a timely response to a demand for inspection, the party making the demand may move for an order compelling response to the demand. (Code Civ. Pro § 2031.300 (b).) The party who fails to serve a timely response to a demand for inspection waives any objection to the demand unless the court finds that the party has subsequently served a response that is in substantial compliance or partys failure was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc. § 2031.300 (a)(1)- (2).) Courts shall impose a monetary sanction against any party who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection unless the party acted with substantial justification or other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc. § 2031.300 (c).) Further, [t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348(a).) DISCUSSION Here, Defendant asserts that she served Requests for Admission, Set One, Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production, Set One on Plaintiff on March 8, 2024. (Chowdhury Decl. ¶ 2, Exh. A.) The responses were due April 10, 2024. (Id.) When these motions were filed on May 7, 2024, no responses had been served. In opposition, Plaintiff asserts that discovery responses were served on May 17, 2024. Plaintiff also attaches a copy of the verified response to the Request for Admissions, Set One. (Panah Decl., Exh. 1.) The Court finds the responses to be in substantial compliance. As a result, because Plaintiff asserts that responses have been served, the motion to deem admitted and motions to compel are denied as moot. Monetary sanctions are mandatory for the motion to deem admitted. Plaintiff does not dispute that the responses were untimely. Defendant requests $960 in monetary sanctions representing a $300 hourly rate and the $60 filing fee. (Chowdhury Decl. ¶ 6.) The Court finds the amount requested is excessive given the type of motion, lack of reply, and the fact counsel can appear at the hearing remotely. Therefore, the Court awards sanctions in the amount of $510 for each motion (1.5 hours of attorney time plus the filing fee). CONCLUSION AND ORDER Accordingly, Defendants Motion to deem admitted Request for Admissions, Set One is DENIED as moot. Defendants Motions to Compel Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production, Set One are DENIED as moot. The Court further GRANTS Defendants request for monetary sanctions against Plaintiff and his attorney of record, jointly and severally, in the reduced amount of $2,040.00. Said monetary sanctions are to be paid to counsel for Defendant within 30 days of the date of this order. Defendant shall provide notice of the Courts order and file a proof of service of such.
Ruling
MARIA CARRILLO, ET AL. VS PROVIDENCE HOLY CROSS MEDICAL CENTER, ET AL.
Aug 06, 2024 |22CHCV01133
Case Number: 22CHCV01133 Hearing Date: August 6, 2024 Dept: F51 AUGUST 5, 2024 MOTION FOR SUMMARY JUDGMENT Los Angeles Superior Court Case # 22CHCV01133 Motion Filed: 5/17/24 NON-JURY TRIAL: 2/3/25 MOVING PARTY: Defendant Providence Health System Southern California dba Providence Holy Cross Medical Center (erroneously sued as Providence Holy Cross) (Moving Defendant) RESPONDING PARTY: Plaintiff Ceasar Carrillo, an individual, by and through his mother, Maria G. Carrillo in her capacity as his guardian ad litem (Plaintiff) NOTICE: OK RELIEF REQUESTED: An order granting summary judgment in favor of Moving Defendant and against Plaintiff on Plaintiffs complaint. TENTATIVE RULING: The motion is granted. Plaintiff is reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing documents, parties must comply with the TECHNICAL REQUIREMENTS which are set forth at page 4, line 4 through page 5, line 12 of the Courts 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil (particularly bookmarking declarations and exhibits). (CRC 3.1110(f)(4).) Failure to comply with these requirements in the future may result in papers being rejected, matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions. BACKGROUND This is a medical malpractice action in which Plaintiff alleges that in 2016, at Moving Defendants hospital, nonmoving defendant medical providers negligently treated his mother, Maria Carillo (Ms. Carillo), who was 34 weeks pregnant with Plaintiff, resulting in Ms. Carillos appendix bursting and Plaintiff being born several weeks premature, with numerous and significant complications, including but not limited to respiratory distress, neonatal sepsis, right sided intraventricular brain hemorrhage and grade IV left sided intraventricular brain hemorrhage, subdural hematoma, and subarachnoid hemorrhage resulting in hydrocephalus that has required the implantation of a ventriculoperitoneal shunt in Ceasar Carrillos brain. (Compl. ¶¶ 1215.) On 11/10/22, Plaintiff filed his complaint, alleging against five named defendants the sole cause of action for Medical Malpractice. On 4/11/23, Moving Defendant filed its answer. On 5/17/24, Moving Defendant filed the instant motion for summary judgment. On 7/25/24, Plaintiff filed his opposition. On 8/1/24, Moving Defendant filed its reply. ANALYSIS The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (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.) The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 65, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381382.) As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 15191520.) 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 that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.) A. Medical Malpractice Plaintiffs first cause of action alleges against all Defendants Medical Malpractice Professional Negligence. The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage. (Chakalis v. Elevator Solutions, Inc. (2012) 205 Cal.App.4th 1557, 1571.) Here, Plaintiff alleges an agency theory of liability against Moving Defendant. An agency is either actual or ostensible. (Civ. Code § 2298.) 1. Actual Agency An agency is actual when the agent is really employed by the principal. (Civ. Code § 2299.) Here, Moving Defendant argues that Ms. Carillos treating physicians were not Moving Defendants employees/agents, but independent contractors. (MSJ 5:2627.) In support of this argument, Moving Defendant proffers the sworn declaration of its Chief Medical Officer attesting as such. (Ex. F to Decl. of Megan P. Best, ¶ 3.) Based on the foregoing, the Court finds that Moving Defendant has satisfied its initial burden to negate an element of Plaintiffs Medical Malpractice cause of action. As Plaintiff does not dispute these facts, the Court finds that no triable issue exists as to whether the treating physicians were actual agents of Moving Defendant. 2. Ostensible Agency Under some circ*mstances, a hospital or other institution, under the doctrine of ostensible agency, may become directly liable to the patient for the malpractice of health care providers, including those in independent, non-salaried practices. (Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 103104.) An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him. (Civ. Code § 2300.) The elements required for a finding of ostensible agency are: (1) the patient dealing with the ostensible agent must do so with the reasonable belief in the agents authority; (2) such belief must be generated by some act or neglect of the principal (i.e., the hospital) sought to be charged; and (3) the patient, in relying on the agents apparent authority, must not be negligent in doing so. (J.L. v. Children's Institute, Inc. (2009) 177 Cal.App.4th 388, 403404; Stanhope v. Los Angeles College of Chiropractic (1942) 54 Cal.App.2d 141, 146.) An ostensible agency may be found when the hospital holds itself out to the public as a provider of care. (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1453.) A hospital is generally deemed to have held itself out as the provider of care, unless it gave the patient contrary notice. (Id. at 1454 [emphasis added].) Prior notice may not be sufficient to avoid liability in an emergency room context, where an injured patient in need of immediate medical care cannot be expected to understand or act upon that information. (Ibid.) Thus, unless the patient had some reason to know of the true relationship between the hospital and the physiciani.e., because the hospital gave the patient actual notice or because the patient was treated by his or her personal physicianostensible agency is readily inferred. (Id. at 14541455 [emphasis added].) Here, Moving Defendant argues that Plaintiff was given a Conditions and Admissions form each time she visited the hospital for care, which she signed on three of the four instances. (MSJ 1:133:11.) The form contains a provision titled PHYSICIANS ARE INDEPENDENT CONTRACTORS, and stating that the undersigned recognizes that all physicians, physician assistants, and surgeons furnishing service to the patient, including the radiologist, pathologist, anesthesiologist, emergency room physician, physician assistants, and the like, are independent contractors and are not employees or agents of the hospital. (Ex. A to Best Decl., ¶ 14.) Moving Defendant argues that any allegations that conduct by Providence Holy Cross would have caused a reasonable person to believe the defendant physicians were agents or employees of the hospital are rebutted by the four written notices of the lack of an agency or employment relationship that were received and reviewed by Ms. Carrillo. (MSJ 8:610.) In support of its argument, Moving Defendant proffers copies of the four separate Conditions and Admissions forms, three of which are signed and initialed by Ms. Carillo, including her initials next to the subject provision, with the fourth form signed and initialed by her mother. (Exs. A, CE to Best Decl.) Moving Defendant also proffers Ms. Carillos deposition testimony, wherein she states that she was alert and able to communicate and understand her nurses and physicians at the time she was given the forms. (Ex. B to Best Decl., 197:13208:13.) Based on the foregoing, the Court finds that Moving Defendant has met its initial burden to negate an element of Plaintiffs Medical Malpractice cause of action. The burden thus shifts to Plaintiff to produce substantial evidence showing that a triable issue remains. Plaintiff argues in opposition that a triable issue remains because for her part, undoubtedly due to the emergent circ*mstances of her admission to Providence Holy Cross, coupled with extreme pain, and justifiable concern about her baby, Ms. Carrillo never obtained an understanding of the legal relationship between Providence Holy Cross and the physicians treating her there, assuming that they were all employees of the hospital. (Pl.s Opp. 7:611, citing Ex. 2 to Decl. of Kenneth J. Melrose, ¶¶ 35.) Even with respect to the forms signed earlier on February 27, 2016, Ms. Carrillo did not remember reviewing them, thought [sic] she did not dispute they bore her signature. (Id. at 7:1921, citing Ex. B to Best Decl., 199:21200:15.) Plaintiff therefore argues that it is a clear question of fact whether at any time, Ms. Carrillo knew that the physicians providing care at Providence Holy Cross were independent contractors and Plaintiff has adduced clear evidence that she did not. (Id. at 7:258:1.) Moving Defendant argues that Plaintiffs anticipated argument regarding Ms. Carrillos capacity to understand the document on March 16, 2016, is belied by Ms. Carrillos repeated receipt of the Conditions of Admission forms, repeated signatures and initials on the forms, and her capacity of reading and understanding (she testified she was alert and oriented) the Conditions of Admission forms, all of which were confirmed during the course of her deposition. (MSJ 10:2711:4.) The general rule is that when a person with the capacity of reading and understanding an instrument signs it, he is, in the absence of fraud and imposition, bound by its contents, and is estopped from saying that its provisions are contrary to his intentions or understanding. (Jefferson v. California Department of Youth Authority (2002) 28 Cal.4th 299, 303.) Here, the Court finds that Moving Defendant has proffered evidence that Ms. Carillo had the capacity to read and understand each Conditions and Admissions form before she signed it, and further notes that Plaintiff does not allege any fraud or imposition in Ms. Carillos assent to the terms. As Moving Defendant argues in reply, the undisputed facts do not show the existence of an ostensible agency relationship between Holy Cross and the co-defendant physicians, and do not overcome the presumption that Ms. Carrillo had actual notice of the lack of any employment or agency relationship. (Def.s Reply 7:811.) Ms. Carrillo repeatedly received actual notice of the lack of agency or employment relationship and repeatedly signed and initialed forms indicating she read and understood the lack of agency and employment relationship. (Id. at 8:24.) It is uncontested that Ms. Carrillo was alert, able to communicate, and able to comprehend each time she received and signed the Conditions of Admission forms. (Id. at 9:35.) Based on the foregoing, the Court finds that Plaintiff, by way of Ms. Carillos declaration, has failed to create an issue of material fact regarding Ms. Carillos treating physicians being ostensible agents of Moving Defendant. Accordingly, the motion for summary judgment is granted. CONCLUSION The motion is granted. Defendant to submit proposed Judgment within 10 days.
Ruling
KASANDRA CORDOVA, ET AL. VS CITY OF LANCASTER, ET AL.
Aug 06, 2024 |24AVCV00221
Case Number: 24AVCV00221 Hearing Date: August 6, 2024 Dept: A14 Background This is a motor vehicle personal injury action. Plaintiffs Kasandra Cordova (Kasandra[1]); Jasmine Cordova (Jasmine); Samantha Cordova (Samantha); Priscilla Cordova, by and through her Guardian ad Litem, Kasandra Cordova (Priscilla); Anaie Cordova, a minor by and through her Guardian ad Litem, Kasandra Cordova (Anaie); and the Estate of Juan Cordova (The Estate and collectively Plaintiffs) allege that (1) on or about February 25, 20234 at approximately 8:45 pm, Juan Cordova (Decedent) was driving his vehicle with a passenger northbound on Division Street, north of Avenue G-12 approaching Division Street in the City of Lancaster, County of Los Angeles, California in the general area of Avenue G12 (Subject Property) where water was pooling from the western dirt embankment over an asphalt shoulder and covered the southbound lane and, (2) simultaneously, Defendant Giovanni Antonacci (Antonacci) was proceeding southbound on Division Street approaching the Subject Property in his vehicle when (3) Antonaccis vehicle hydroplaned due to the accumulation of water, causing the vehicle to cross over the center line, enter the northbound lane, and collide with Decedents vehicle. Plaintiffs further allege that this incident proximately and legally caused personal injury, and ultimately the wrongful death, of Decedent. On February 23, 2024, Plaintiffs filed their Complaint alleging four causes of action for: (1) Statutory Liability/Dangerous Condition of Public Property against Defendants City of Lancaster (Lancaster), County of Los Angeles (COLA), and State of California (California); (2) Negligence against Defendants Antonacci, 46205 Division Realty LLC (Division Realty), and Michael Avila; (3) Premises Liability against Division Realty; and (4) Survival Action against all defendants. On May 06, 2024, (1) The People of the State of California, acting by and through the Department of Transportation, erroneously sued as the State of California filed their Answer; (2) COLA filed its Answer; (3) COLA filed its Cross-Complaint for Implied Indemnity, Contribution, and Declaratory Relief. On May 08, 2024, Lancaster filed its Answer. On June 14, 2024, Division Realty filed its Answer. On June 17, 2024, Division Realty filed this Application of Paul D. Root to Appear as Counsel Pro Hac Vice. On June 15, 2024, Division Realty filed a document titled Notice of Approval by State of Pro Hac Vice Application of Paul D. Root. No Opposition has been filed. ----- Analysis Standard for Pro Hac Vice Application An attorney who is a member in good standing of the bar of another state, who has been retained to appear in a particular cause pending before a court of this state may, in the discretion of such court be permitted to appear as counsel pro hac vice. (Cal. Rules of Court, rule 9.40(a).) No person is eligible to appear pro hac vice if the person is a California resident, regularly employed in California, or regularly engaged in substantial business in California. (Ibid.) The attorney seeking to appear pro hac vice must then file an application with the Court indicating: (1) the applicant's residence and office address; (2) the courts to which the applicant has been admitted to practice and the dates of admission; (3) that the applicant is a licensee in good standing in those courts; (4) that the applicant is not currently suspended or disbarred in any court; (5) the title of each court and cause in which the applicant has filed an application to appear as counsel pro hac vice in this state in the preceding two years, the date of each application, and whether or not it was granted; and (6) the name, address, and telephone number of the active licensee of the State Bar of California who is attorney of record. (Cal. Rules of Court, Rule 9.40(d).) Lastly, in addition to serving the application and notice of hearing on the State Bar (see Cal. Code Civ. Proc. § 9.40(c)), the applicant must remit an application fee to the State Bar. (Cal. Rules of Court, Rule 9.40(e).) ----- Discussion Application As an initial matter, it appears that Division Realty is presenting to the Court that The State Bar of California approved Paul D. Roots pro hac vice application. This presentation is not accurate. For clarity, the Court takes judicial notice of The State Bar of Californias information provided on pro hac vice applications under Cal. Evid. Code § 452(h) as [f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. The Court provides each party sufficient notice of the request through its tentative to enable the parties to prepare and meet the request. (See Cal. Evid. Code § 453.) The State Bar of California provides an FAQ page to attorneys such as Paul D. Root (Root) which reads, in relevant part: Who approves my application for PHV? The court must approve your application in order for you to appear as PHV in a case. While the State Bar's Applicant Portal may show that your PHV case is "approved," this refers to the internal processing of your application and should not be taken as the court's approval of your appearance as PHV. (The State Bar of California, Pro Hac Vice FAQs (2023) < https://www.calbar.ca.gov/Portals/0/documents/admissions/PHV-FAQ.pdf> [as of Jun. 26 2024].) From the filing presented by Division Realty, the State Bar of California did not approve Roots application, but rather the internal processes of Roots pro hac vice application only. The Court must approve Roots pro hac vice application. Root has filed an application with a declaration that includes his residence address; office address; courts to which he has been admitted to practice and the dates of admission (see Exh. A); a statement that she is in good standing in the aforementioned courts (Decl. Root ¶ 5); a statement that he is not currently disbarred or suspended in the aforementioned courts (see ibid.) and a statement that he is neither regularly employed nor regularly engaged in substantial business, professional, or other activities in the State of California (id. at ¶ 10). Root states that in the last two years, he has not appeared as counsel pro hac vice in California. (Id. at ¶ 7.) Root has listed the name, address, and telephone number of the active licensee of the State Bar of California who is attorney of record. (Id. at ¶ 1.) The application includes a declaration from counsel of record, Christopher C. McNatt, Jr. (McNatt, Jr.) in which he states that he supports Roots application, served the State Bar of California with this application, and paid the sum of $50.00 to the State Bar of California as required by California Rule of Court 9.40(e) upon filing this application. The Court notes that Root himself states that he paid the $50.00 to the State Bar with a copy of this Application. The Court inquires for clarity as to who paid the fee. (See Cal. Rules of Court, Rule 9.40(e) [An applicant for permission to appear as counsel pro hac vice under this rule must pay a reasonable fee not exceeding $50 to the State Bar of California with the copy of the application and the notice of hearing that is served on the State Bar.] Based on the presentation to the Court, the Court is inclined to GRANT the application. ----- Conclusion Defendant 46205 Division Realty LLCs Application of Paul D. Root to Appear as Counsel Pro Hac Vice is GRANTED. [1] Each individual plaintiff shares the same surname. The Court addresses each respective plaintiff by their first name for the purpose of clarity. No disrespect is intended.
Ruling
DAVID WILLIAMS vs JOHNATHAN WEBER, et al
Aug 09, 2024 |24CV00661
24CV00661WILLIAMS v. WEBER MOTION TO BE RELIEVED AS COUNSEL The unopposed motion to be relieved as counsel filed by Alivia Abreu is granted as itcomplies with California Rules of Court, Rule, 3.1362. Ms. Abreu is directed to submit anupdated proposed order for the court to sign with the correct upcoming hearing dates. Theproposed order before the court indicates a future date of July 5, 2024.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed.
Ruling
Short, et al. vs. Rawls, et al.
Aug 08, 2024 |23CV-0202446
SHORT, ET AL. VS. RAWLS, ET AL.Case Number: 23CV-0202446This matter is on calendar for review regarding status and setting. The Court notes all Defendantsfiled an Answer on March 4, 2024. The matter is at issue. The Court designates this matter a PlanII case and intends to set the matter for trial no later than December 10, 2024. Defendant hasposted jury fees but Plaintiff has not. Plaintiff is granted 10 days leave to post jury fees. A failureto post jury fees in that time will be deemed a waiver of the right to a jury. The parties areordered to appear to provide the Court with available trial dates.THE PEOPLE OF THE STATE OF CALIFORNIA VS. $3100.00
Ruling
Aug 06, 2024 |CVRI2300028
LEACH VS MISSION ORAL &CVRI2300028 MOTION RELIEF BY EASTON LEACHMAXILLOFACIAL SURGERYTentative Ruling: Plaintiff’s Motion for Relief from Dismissal is granted. Order to Show Causere: Dismissal After Conditional Settlement Pursuant to CRC 3.1385(c) is set for 11/11/24.4.MOTION TO COMPEL THEDEPOSITION OF DEFENDANTLITTLE VS GENERALCVRI2306482 GENERAL MOTORS LLC'S PERSONMOTORS LLCMOST QUALIFIED AND TO PRODUCEDOCUMENTS BY JERMAINE LITTLETentative Ruling: The Hearing is continued to 10/7/24. The parties are ordered to further meetand confer regarding the categories of examination, document requests, and agree to a PMKdeposition date. At least 10 days prior to the continued hearing, the parties are ordered to file ajoint declaration identifying any remaining issues to be resolved by the Court.CCP §§ 2025.210 and 2025.230 authorize the deposition of a person most qualified for acorporation and provides that the party seeking the deposition of a deponent that is not a naturalperson. “[T]he deposition notice shall describe with reasonable particularity the matters on whichexamination is requested. In that event, the deponent shall designate and produce at thedeposition those of its officers, directors, managing agents, employees, or agents who are mostqualified to testify on its behalf as to those matters to the extent of any information known orreasonably available to the deponent.” (Id.) A request for documents can be made in connectionwith the PMK deposition and when such a request for documents is made, “the witness orsomeone in authority is expected to make an inquiry of everyone who might be holding responsivedocuments or everyone who knows where such documents might be held.” (Maldonado v.Superior Court (2002) 94 Cal.App.4th 1390, 1396.)Any motion to compel deposition must be accompanied by a meet and confer declaration underCCP § 2016.040, or when the deponent fails to attend the deposition, by a declaration stating thatthe moving party has contacted the deponent to inquire about the nonappearance. (CCP §2025.450(b)(2).) Implicit in the requirement is that counsel make a good faith attempt to resolvethe issue by rescheduling the deposition. (Leko v. Cornerstone Building Inspection Serv. (2001)86 Cal.App.4th 1109, 1124.)In this case, there has not been a sincere effort to find mutually agreeable date for the PMKdeposition and discuss Defendant’s objections to certain categories of documents. It appearsPlaintiff has unilaterally set the PMK deposition with Defendant sending objections. There is noindication that the parties ever discussed the matter in person or by phone regarding a mutuallyagreeable date or specific categories. Based on the record, neither party made any effort toresolve their disputes regarding the scope and subject matter of the deposition to whichDefendant objects.5.DEMURRER ON 1ST AMENDEDCOMPLAINT FOR PROFESSIONALKARAS VS KPC GLOBALCVSW2308928 NEGLIGENCE (OVER $25,000) OFMEDICAL CENTERS, INC.JOHN KARAS BY WEILEE YEH, M.D.,CHRISTIAN SMITH, M.D.MOTION TO STRIKE COMPLAINT ON1ST AMENDED COMPLAINT FORKARAS VS KPC GLOBAL PROFESSIONAL NEGLIGENCECVSW2308928MEDICAL CENTERS, INC. (OVER $25,000) OF JOHN KARAS BYWEILEE YEH, M.D., CHRISTIANSMITH, M.D.Tentative Ruling: Defendants Demurrer as to the 1 , 2nd, and 10th Causes of Action is overruled;stas to the 4th and 6th Causes of Action, it is sustained with leave to amend within 20 days; as tothe 3rd, 5ht, 7th, 9th, and 11th Causes of action, it is sustained without leave to amend.In evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it asa whole and all of its parts in their context. (Moore v. Regents of University of California (1990)51 Cal. 3d 120, 125). The court assumes the truth of all material facts which have been properlypleaded, of facts which may be inferred from those expressly pleaded, and of any material factsof which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8Cal. 4th 666, 672). However, a demurrer does not admit contentions, deductions or conclusionsof fact or law. (Daar v. Yellow Cab Company (1967) 67 Cal. 2d 695, 713). Facts appearing inexhibits attached to the complaint will also be accepted as true and, if contrary allegations appearin the complaint, will be given precedence. (Del E. Webb Corp. v. Structural Materials Co. (1981)123 Cal. App. 3d 593, 606). If the complaint fails to state a cause of action, the court must grantthe plaintiff leave to amend if there is a reasonable possibility that the defect can be cured byamendment. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318).In pleading, the facts that must be alleged “are those upon which liability depends – i.e., “the factsconstituting the cause of action.” These are commonly referred to as “ultimate facts.”’ (Weil &Brown, CPG: Civ. Proc. Before Trial (TRG 2024) § 6.123 citing Doe v. City of Los Angeles (2007)42 Cal.4th 531, 550.) “The distinction between “ultimate facts” and “evidentiary” matters is ofdiminishing importance because a complaint will be upheld if it provides the defendant with “noticeof the issues sufficient to enable preparation of a defense.” (Id. at § 6:128 citing Doe, supra. at549-550.) The plaintiff only needs to plead facts that are “necessary “to acquaint a defendant withthe nature, source and extent of his claims.”” (Id. citing Doe, supra. at 550.) (Emphasis added.)Moreover, “[o]rdinarily, negligence may be alleged in general terms, without stating the actsconstituting negligence or detailing the particular manner in which plaintiff’s injury occurred.” (Id.at § 6:129.) But, a bare allegation that “defendant’s negligence caused plaintiff’s injury” isinsufficient. (Id. citing Guilliams v. Hollywood Hosp. (1941) 18 Cal.2d 101, 114.) In a medicalmalpractice action, the alleged facts are required to describe actions “necessary or otherwiseintegrally related to the medical treatment and diagnosis” to qualify as professional medicalservices. (Id. at § 6.129.3.) Certainly, the FAC alleges more than a bare negligence allegation.1ST CAUSE OF ACTION FOR PROFESSIONAL NEGLIGENCEWhile the demurrer asserts that the 1st and 2nd causes of action are duplicative, it does not actuallychallenge the 1st cause of action. Rather, Defendants argue that the 2nd cause of action forinformed consent is duplicative of the 1st cause of action. Therefore, the demurrer to the 1st causeof action is overruled.2ND CAUSE OF ACTION FOR LACK OF INFORMED CONSENTA physician has a duty to disclose the potential of death, serious harm and other complicationsassociated with a proposed procedure and any additional information a skilled practitioner of goodstanding would provide under similar circ*mstances. (See Wilson v. Merritt (2006) 142Cal.App.4th 1125, 1133-34.) “A claim based on lack of informed consent – which sounds innegligence – arises when the doctor performs a procedure without first adequately disclosing therisks and alternatives.” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324.)Defendants argue that this cause of action cannot be maintained because it is based on the sameprimary right as the professional negligence cause of action, and is therefore duplicative. Underthe primary right theory of pleading, a cause of action is comprised of a primary right of the plaintiffand primary duty of the defendant, which give rise to a single cause of action. (Crowley v.Katleman (1994) 8 Cal.4th 666, 681.) “Even where there are multiple legal theories upon whichrecovery might be predicated, one injury gives rise to only one claim for relief. (Id. at 681-682.)This rule has a narrow application and is generally only invoked when a plaintiff attempts to splita cause of action between two lawsuits. (Id. at 682.)Defendants argue that this cause of action is duplicative of the 1st cause of action for professionalnegligence. A demurrer may be sustained on grounds that a cause of action is duplicative wherethe second cause of action adds nothing to the complaint by way of fact or theory of recovery.(Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)Here, the lack of informed consent cause of action is not based entirely on the same facts as theprofessional negligence cause of action. While it incorporates the facts alleged in the professionalnegligence claim, that claim does not address the duty to disclose risks, and complications ofLovenox and Warfarin when used independently and/or together. (FAC ¶¶ 23-24.) It also allegesthat a reasonable person in Plaintiff’s position would not have agreed to the use of thosemedications if adequately informed of the risks and complications. (Id. ¶ 25.) And, that the failureto inform was a substantial factor in Plaintiff’s harm, causing damage. (Id. ¶ 26.) This is not asituation where the 2nd cause of action adds nothing to the 1st cause of action. Therefore, thedemurrer is overruled.3RD CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY“The elements of a cause of action for breach of fiduciary duty are: (1) the existence of a fiduciaryduty, (2) the breach of that duty, and (3) damage proximately caused by that breach.” (Mosier v.S. Cal. Physicians Ins. Exch. (1998) 63 Cal.App.4th 1022, 1044.) A fiduciary relationship exists“when confidence is reposed by persons in the integrity of others”, who “voluntarily accept orassume to accept the confidence, they cannot act so as to take advantage of the others' interestswithout their knowledge or consent.” (Tri-Growth Centre City Ltd. v. Silldorf, Burdman, Duingnan& Eisenberg (1989) 216 Cal.App.3d 1139, 1150.) (Citations omitted.) “The doctor-patientrelationship is a fiduciary one and it is incumbent on the doctor to reveal all pertinent informationto his patient.” (Wohlgemuth v. Meyer (1956) 139 Cal.App.2d 326, 331.) “A physician has afiduciary duty to disclose all information material to the patient’s decision when soliciting apatient’s consent to a medical procedure.” (Jameson v. Desta (2013) 215 Cal.App.4th 1144,1164.) A breach of this fiduciary duty may alternatively be referred to as lack of informed consent.(Ibid.)Here, Defendants argue that there are no facts alleged to support a lack of informed consent, orthat Defendants disclosed Plaintiff’s medical information and that this cause of action isinapplicable because there is already a claim for medical negligence. First, as indicatedimmediately above, a lack of informed consent is alternatively a breach of fiduciary duty. Thiscause of action adds nothing to either the 1st or 2nd causes of action discussed above. Thus,considering the incorporated factual allegations, it is duplicative. Notably, breach of a fiduciaryduty is a tort distinct from professional negligence. (Stanley v. Richmond (1995) 35 Cal.App.4th1070, 1086.) And, a plaintiff may plead alternative theories of liability at the pleading stage.(Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402.)The 1st and 2nd causes of action have already covered both breach of fiduciary duty/lack ofinformed consent and professional negligence. Second, this claim is not based on anunauthorized disclosure of Plaintiff’s medical information; no such facts are alleged. Therefore,the demurrer to this cause of action is sustained.4TH CAUSE OF ACTION FOR FRAUDThe elements of fraud are (a) misrepresentation (false representation, concealment, ornondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e., to induce reliance;(d) justifiable reliance; and (e) resulting damage." (Lazar v. Superior Court (1996) 12 Cal.4th 631,638.) Fraud must be pled with particularity; general and conclusory allegations are not sufficient.(Id. at 645.) Under the particularity requirement, plaintiff must plead facts which 'show how, when,where, to whom, and by what means the representations were tendered.' " (Stansfield v. Starkey(1990) 220 Cal.App.3d 59, 73.)In addition, the elements of an action for fraud based on concealment are: (1) the defendantconcealed a material fact; (2) the defendant had a duty to disclose the fact to the plaintiff; (3) thedefendant intentionally concealed the fact with intent to defraud; (4) the plaintiff was unaware ofthe fact and would not have acted had she or he had knowledge of the concealed fact; and (5)the plaintiff sustained damages as a result of the concealment. (Blickman Turkus, LP v. MFDowntown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 868.)Here, the FAC alleges both intentional misrepresentation and concealment, but in conclusoryfashion. The alleged misrepresentations were that Plaintiff would receive the highest level ofmedical care and treatment regarding the seriousness and life-threatening nature of his DVT andPE while he was a patient at HGMC. (FAC ¶ 32.) However, it is not alleged with particularity –facts showing how, when, where, to whom, and by what means the representations weretendered. (Stansfield, supra.) Nor are the specifically concealed material facts alleged. (Blickman,supra.) The FAC merely states “material information” regarding his care and treatment and thecause of his “new symptoms.” (Id. ¶ 38.)Drs. Yeh and Smith also argue that the FAC is essentially uncertain as it fails to attribute anyfraudulent allegations to them as opposed to all “Defendants.” While the fraud claim specificallynames Drs. Yeh and Smith, because it lacks particularity, it is uncertain what misrepresentationsor concealed material facts are attributed to them. Thus, the demurrer is sustained, with leave toamend.5TH CAUSE OF ACTION FOR MEDICAL BATTERY“A battery is a violation of an individual’s interest in freedom from intentional unlawful, harmful oroffensive unconsented contacts with his or her person. (Citations omitted.) (Rains v. Sup. Ct.(1984) 150 Cal.App.3d 933, 938.) “Where a doctor obtains consent of the patient to perform onetype of treatment and subsequently performs a substantially different treatment for which consentwas not obtained, there is a clear case of battery.” (Citations omitted.) (Cobbs v. Grant (1972) 8Cal.3d 229, 239.) “In contrast, “when a patient consents to certain treatment and the doctorperforms that treatment but an undisclosed inherent complication with a low probability occurs,no intentional deviation from the consent given appears; rather, the doctor in obtaining consentmay have failed to meet his due care duty to disclose pertinent information. In that situation theaction should be pleaded in negligence.” (Citations omitted.) (So v. Shin (2103) 212 Cal.App.4th652, 669.) “If the patient consents to a procedure without being informed of all the known risks,the doctor's failure to disclose those risks is negligence.” (Conte v. Girard Orthopaedic SurgeonsMedical Group, Inc. (2003) 107 Cal.App.4th 1260, 1267.) “The battery theory should be reservedfor those circ*mstances when a doctor performs an operation to which the patient has notconsented.” (Cobbs, supra. at 240.) In such cases, “the requisite element of deliberate intent todeviate from the consent given is present.” (Ibid.)Defendants correctly argue that Plaintiff has not alleged facts that they intentionally performed asubstantially different medical procedure that what Plaintiff consented to. While there is a generalallegation that “[t]he scope of medical care an treatment given by defendants to Plaintiff wassubstantially different than previously provided”, the facts indicate only a lack of informed consent(negligence.) (FAC ¶ 46.) There is no nexus between Plaintiff’s injury and an allegation that Drs.Yeh and Smith provided medical care and treatment that was substantially different from what heconsented to. The demurrer is sustained.6TH CAUSE OF ACTION FOR WILLFUL MISCONDUCTWillful misconduct is not a separate tort from negligence. (Berkley v. Dowds (1007) 152Cal.App.4th 518, 526.) It is an aggravated form of negligence where the defendant hasintentionally done an act of unreasonable character in disregard of known or obvious risk. (Morganv. Southern Pacific Trans. (1974) 37 Cal.App.3d 1006, 1011.) The elements of willful misconductare: (1) actual or constructive knowledge of the peril to be apprehended; (2) actual or constructiveknowledge that injury is a probable, as opposed to possible, result of the danger; and (3)conscious failure to act to avoid the peril. (Id. at 1012.) “[W]illful misconduct is not marked by amere absence of care. Rather, “it involves a more positive intent actually to harm another or to doan act with a positive, active and absolute disregard of its consequences.”” (Citations omitted.)(Doe v. United States Youth Soccer Assn. (2017) 8 Cal.App.5th 1118, 1140.) The pleadingrequirements for willful misconduct are similar to negligence but stricter. (Berkley, supra, at 526.)The plaintiff must plead a specific act or omission that caused the injury. (Snider v. Whitson (1960)184 Cal.App.2d 211, 214-215.)Defendants argue that there are no specific acts or omissions by them to constitute willfulness;the FAC only shows negligence. The elements are alleged in conclusory fashion and do notdemonstrate any conduct beyond negligence. (FAC ¶¶ 49-52.) Thus, there are no facts to supportwillfulness by moving Defendants. Thus, the demurrer is sustained, with leave to amend.7TH CAUSE OF ACTION FOR NEGLIGENCE PER SENegligence per se is an evidentiary presumption and not an independent cause of action or rightof action. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285-86.) The negligenceper se doctrine, as codified in Evidence Code, § 669, creates a presumption of negligence if fourelements are established: (1) the defendant violated a statute, ordinance, or regulation of a publicentity; (2) the violation proximately caused death or injury to person or property; (3) the death orinjury resulted from an occurrence of the nature of which the statute, ordinance, or regulation wasdesigned to prevent; and (4) the person suffering the death or the injury to his person or propertywas one of the class of persons for whose protection the statute, ordinance, or regulation wasadopted.” (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420.)Defendants argue that this cause of action is impermissibly duplicative, and that there is nostatutory basis alleged. While they cite to general authority indicating that only professionalnegligence can be alleged on the same facts, this cause of action is so conclusory and lacking infactual allegations, that it cannot be said to be duplicative of the 1st cause of action. Nonetheless,Defendants are correct that there are no specific statutes, ordinances, or regulations alleged.9TH CAUSE OF ACTION FOR FAILURE TO REFER TO SPECIALISTThere is no independent cause of action for failure to refer to a specialist. As alleged in the FAC,the claim sounds in negligence. The factual allegations are the same as those asserted in the 1stand 2nd causes of action except for a purported duty of care to make such a referral. Withoutauthority to support such a duty outside of professional negligence, this “cause of action” isduplicative of the professional negligence cause of action. The demurrer is sustained. Unless10TH CAUSE OF ACTION FOR PATIENT ABANDONMENTDefendants argue that a physician cannot simply walk away from a patient, and that suchabandonment is a different tort than conventional professional negligence. Here, there are somefactual allegations stating a duty of care in providing appropriate medical care and treatment, likethe 1st cause of action. (FAC ¶¶ 65-66.) But, Plaintiff also alleges he was prematurely dischargedby HGMC, without bringing in a specialist or providing any referrals to a specialist, whichconstitutes abandonment. This cause of action makes factual allegations that are different fromthe 1st cause of action. Thus, on its face, it is not duplicative. The demurrer is overruled.11TH CAUSE OF ACTION FOR ELDER ABUSEIn the Opposition, Plaintiff has withdrawn his elder abuse claim. Importantly, the FAC alleges nofacts to support custodial care as opposed to medical care by any of the Defendants.MOTION TO STRIKECCP §435 and §436 authorize a motion to strike, and permit the court to strike out irrelevant, falseor improper matter, or “any part of any pleading not drawn or filed in conformity with the laws ofthis state, a court rule, or an order of the court.” (CCP §436.)PUNITIVE DAMAGESTo support a demand for punitive damages under Civ. Code §3294, a plaintiff must plead andprove facts demonstrating malice, oppression or fraud as defined in Civ. Code §3294(c). Themere allegation that an intentional tort was committed is not sufficient to warrant an award ofpunitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) “There must becirc*mstances of aggravation or outrage, such as spite or malice or a fraudulent or evil motive onthe part of defendant, or such conscious and deliberate disregard for the interests of others thathis conduct may be called willful or wonton.” (Id. at 894-95 (citation and internal quotation marksomitted).)As discussed above, the fraud claim has not been sufficiently alleged. And, Plaintiff is not pursuingthe elder abuse claim. Thus, the motion to strike punitive damages is moot.ATTORNEYS’ FEESThe general rule is that pursuant to CCP §1032 and §1033.5(a)(10)(A), attorneys’ fees arerecoverable by the prevailing party where specifically provided for by statute, by contract, or bylaw. Here, attorneys’ fees are sought in connection with the elder abuse cause of action. But,Plaintiff has withdrawn this claim. Thus, the motion to strike granted.
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