Mar 28, 2017

LAW & MOTION TENTATIVE RULINGS              

WEDNESDAY, MARCH 22, 2017, 3:00pm                  

COURTROOM 19 – Judge Allan D. Hardcastle        

3055 Cleveland Avenue, Santa Rosa, CA  95403

Court Call is available for all Law and Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances.

** To set up Court Call- Please call them directly at (888) 882-6878.

 

The following Tentative Rulings will become the ruling of the Court unless a party desires to be heard.  If you desire to appear and present oral argument as to any motion, you must contact the Judicial Assistant by telephone at (707) 521-6730 by 4:00 p.m. on TUESDAY, MARCH 21, 2017.  Any party requesting an appearance must notify all other parties of their intent to appear.

 


1.      SCV-251486 Weiler v. Mattei:

 This matter is on calendar Cross-Complainants’ Motion for Judgment on the Pleadings as to their cross-complaint for indemnity against Cross-Defendants.  Cross-Complainants bring this motion pursuant to Code of Civil Procedure section 438 and on the grounds that Cross-Defendants are collaterally estopped from contesting the Second Amended Cross-Complaint (“SACC”) based on the Appellate Court’s previous decision in this case, as well as the prior jury verdict, both which found that Cross-Complainants’ negligence was “passive.”  Cross-Complainants argue that based on the finding of only “passive” negligence, Cross-Complainants are entitled to a judgment on the pleadings, as a matter of law.

Cross-Defendants oppose the motion on procedural as well as substantive grounds.  With respect to the procedural issues, Cross-Defendants argue that the motion should be denied because Cross-Complainants failed to timely and properly file and serve the operative SACC and because Cross-Complainants’ motion is premature in that it was filed before Cross-Defendants’ responsive pleading was due.  With respect to the substantive issues, Cross-Defendants argue that collateral estoppel is not applicable here because the issue of Cross-Complainants’ right to indemnity was not “actually litigated” and “necessarily decided” in the prior proceeding.

Cross-Complainants’ unopposed Request for Judicial Notice of the Court of Appeal’s prior decision in this case is GRANTED.  Cross-Defendants’ unopposed Request for Judicial Notice of the attached Exhibits A-G is also GRANTED.  Cross-Complainants’ Motion for Judgment on the Pleadings of its SACC is DENIED.

A motion for judgment on the pleadings is analogous to a general demurrer.  (Code Civ. Proc. § 438; see also, Smiley v. Citibank (1995) 11 Cal.4th 138, 145–146; County of Orange v. Association of Orange County Deputy Sheriffs (2011) 192 Cal. App.4th 21, 32; Southern Calif. Edison Co. v. City of Victorville (2013) 217 Cal.App.4th 218, 227.)  A motion for judgment on the pleadings may be made by any party to the action or by the court sua sponte.  (Code Civ. Proc. §438(b)(2); see Camacho v. Automobile Club of Southern Calif. (2006) 142 Cal.App.4th 1394, 1396.)  A plaintiff or cross-complainant may move for judgment on the pleadings on the grounds that the complaint or cross-complaint states facts sufficient to constitute a cause of action against the defendant and “the answer does not state facts sufficient to constitute a defense to the complaint.”  (Code Civ. Proc. §438(c).) 

With respect to Cross-Complainants’ collateral estoppel argument, “[c]ollateral estoppel applies only if all of the following conditions are met: (1) the issue is identical to an issue decided in a prior proceeding; (2) the issue was actually litigated; (3) the issue was necessarily decided; (4) the decision in the prior proceeding is final and on the merits; and (5) the party against whom collateral estoppel is asserted was a party to the prior proceeding or in privity with a party to the prior proceeding.  (Robinson v. U–Haul Co. of California (2016) 4 Cal.App.5th 304, 321, citing Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 82; see also, Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1048–1049.) 

In this case and as the Court explained in its ruling on Cross-Defendants’ motion for summary judgment, collateral estoppel is not applicable to the issue of Cross-Complainants’ entitlement to indemnity under the lease agreement.  While the jury’s finding that Cross-Complainants had acted with “passive” negligence, and the subsequent Court of Appeal opinion reversing the trial court’s JNOV, would likely be sufficient to apply collateral estoppel to the discrete issue of “passive” versus “active” negligence, those prior findings do not equate to a per se finding that Cross-Complainants are entitled to indemnity.  As this Court stated in its ruling denying Cross-Defendants’ motion for summary judgment, “Cross-Complainants fail to offer any evidence or analysis to demonstrate that Cross-Defendants’ indemnity obligation was actually litigated or necessarily decided in the prior action.”  (Ruling After Law and Motion Hearing, March 9, 2017 at 4:16-19.)  The Court continued that “the relevant issue on appeal and the primary issue addressed by the Court [of Appeal] was whether the trial court erred in reversing the jury’s finding that Cross-Complainant had acted with “passive” negligence, as opposed to “active” negligence.”  (Id. at 4:22-24.)  The Court continued that “it was the trial court’s legal conclusion regarding “passive” versus “active” negligence that was actually litigated and necessarily decided in that appeal, not whether Paragraph 9 of the Lease Agreement required Cross-Defendant to indemnify Cross-Complainant, or merely hold them harmless.”  (Id. at 4:24-27.)  For the same reasons that collateral estoppel was not applicable to Cross-Defendants’ motion for summary judgment, it is equally inapplicable to Cross-Complainants’ motion for judgment on the pleadings.

Additionally, as this Court expressly stated in its prior ruling, “the Court finds that there are triable issues of material fact regarding the parties’ intent with respect to Paragraph 9 of the Lease Agreement…”  (Id. at 7:14-15.)  These triable issues of material fact necessarily make this an inappropriate issue to be decided on the pleadings alone. 

Accordingly, Cross-Complainant’s Motion for Judgment on the Pleadings is DENIED.     

Cross-Defendants’ counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312.

 

2.      SCV-252508 Wagner v. City of Santa Rosa:

 The motion in this matter has been dropped by the moving party.

 

3.      SCV-256117 Kennedy v. Emeritus:

This case was originally on the Court’s March 8, 2017 Law and Motion calendar for Plaintiffs’ Motion to Compel Responses to Special Interrogatories, Set One and Requests for Production of Documents, Set One.  Plaintiffs also requested an award of monetary sanctions in the amount of $3,390 against Defendants.  On March 2, 2017, attorney Michael D. Senneff, the court-appointed Discovery Facilitator for this matter, sent his report to the Court stating in-part that “the parties have achieved a stipulation to resolve all issues on the pending discovery dispute on the merits leaving only the need for Court order upon a request by Plaintiffs Kennedy for costs or sanctions from Defendant Emericare, Inc.”  Also on March 2, 2017, the hearing on the remaining portion of the motion was rescheduled to March 22, 2017 at Plaintiff’s request. The Court thanks Mr. Senneff for his fine efforts in this matter.

Plaintiff’s Request for Monetary Sanctions is Denied.

Under Code of Civil Procedure section 2023.030, the Court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process…pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”  (Code Civ. Proc. §2023.030(a).)  Misuses of the discovery process include, but are not limited to: failing to respond or to submit to an authorized method of discovery; making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; [m]aking or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.  (Code Civ. Proc. §2023.010(d)-(h).)  “If a monetary sanction is authorized… the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (Code Civ. Proc. §2023.030(a).)  The Court may also award monetary sanctions against any party who unsuccessfully opposes a motion to compel further discovery responses, “unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (Code Civ. Proc. §§2030.290(c), 2031.310(h).)

Based on the evidence presented, it appears that Defendant timely served its responses to Plaintiffs’ special interrogatories and requests for documents, even though those responses were comprised only of objections.  While these objections may have constituted inadequate responses, warranting a motion to compel further responses, they were sufficient to require a “reasonable and good faith attempt” to resolve the issues prior to filing the motion.  (See, Code Civ. Proc. §§ 2016.040, 2030.300(b) and 2031.310(b)(2).)  Here, a single email from Plaintiff’s counsel’s paralegal sent four days before the motion was filed does not constitute a “reasonable and good faith attempt” to resolve the dispute.  (See, Weil and Brown, Civ. Proc. Before Trial (Rutter 2016) §8:1162, p. 8F-63 [“Instructing one’s paralegal to discuss the matter with opposing counsel, plus incompleted telephone calls, have been held not a “reasonable” attempt to resolve disputed issues.”], citing Volkswagenwerk Aktiengesellschaft v. Superior Court (1981) 122 Cal.App.3d 326, 333-334.)   The “meet and confer” requirement in the discovery statutes “requires that there be a serious effort at negotiation and informal resolution.”  (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1281, citing, Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1438-1439.) 

Additionally, based on the representations that Defendant’s client representative was out of the country and its attorney was in trial, Defendant acted with “substantial justification” such that the imposition sanctions would be unjust in this case.  However, the Court, like Mr. Senneff is concerned that “Defendant Emericare simply did not give the attention necessary to these discovery requests in a timely manner…” (page 2 of Facilitator’s letter dated March 2, 2017). The Court will expect strict, timely compliance with discovery by the Defendant moving forward. However at this time, Plaintiff’s request for sanctions is denied.

Defendant’s counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312.

 

4.      SCV-258830 Romero v. Elie:

Defendants David Elie individually and doing business as Elie Development (“Defendants”) bring this Motion to Dismiss the action filed by plaintiff Frederico Romero (“Plaintiff”) in its entirety.  Defendants bring the motion pursuant to Code of Civil Procedure section 581(c) and on the ground that Plaintiff failed to amend his complaint within the time allowed by the Court in its October 20, 2016 Order granting Defendants’ motion to strike or within the additional time allowed by the Court following the December 8, 2016 Case Management Conference.  Plaintiff has not opposed this motion.

Defendants’ unopposed Request for Judicial Notice of Exhibits 1-4 is GRANTED.  Defendants’ unopposed Motion to Dismiss the Action is also GRANTED.

On May 20, 2016 Plaintiff filed the underlying complaint which asserted causes of action for breach of contract, fraud, and a violation of Business and Professions Code section 17200.  On September 6, 2016, Defendants filed a motion to strike the entire complaint based on a prior ruling and award by the California Labor Commissioner and on the grounds that all three causes of action were barred by res judicata and/or collateral estoppel because all of the claims stated in the complaint were actually litigated and necessarily decided by the Labor Commissioner.  On October 20, 2016, this Court granted Defendants’ motion to strike all three causes of action from the complaint.  In its ruling, the Court granted Plaintiff’s request for leave to amend and stated that “Plaintiff shall file and serve a first amended complaint, if any, within fourteen (14) days of this Order.”  Thereafter, Plaintiff failed to file an amended complaint. 

On December 8, 2016, a Case Management Conference was held and following the conference, the Court ordered Plaintiff to file an amended complaint no later than December 29, 2016.  Again, Plaintiff failed to file an amended complaint.

On February 14, 2017, Defendants filed the present motion to dismiss.  Defendants bring this motion pursuant to Code of Civil Procedure section 581(c).  However, section 581(c) states that “[a] plaintiff may dismiss his or her complaint, or any cause of action asserted in it, in its entirety, or as to any defendant or defendants, with or without prejudice prior to the actual commencement of trial.”  (Code Civ. Proc. §581(c).) (italics added.)  In this matter, Defendants are seeking to dismiss the action and as a result, section 581(c) is not applicable.  The more appropriate grounds for Defendants’ motion is section 581(f)(4), which states that “[t]he court may dismiss the complaint as to that defendant when: [a]fter a motion to strike the whole of a complaint or portion thereof is granted with leave to amend the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.”  (Code Civ. Proc. §581(f)(4).) 

 Here, Plaintiff has failed to file an amended complaint within the time allowed by the Court in its October 20, 2016 Order granting Defendants’ motion to strike and failed to file the amended complaint within the additional time provided by the Court at the December 8, 2016 Case Management Conference.  Therefore, the Court finds that dismissal of the action is warranted under section 581(f)(4) and accordingly, Plaintiff’s motion is granted.  The Court will sign the Proposed Order submitted with the motion. 

5.      SCV-258860 Demil v. Petaluma Valley:

This case comes before the court on Defendants’ Demurrer to the Fourth Cause of Action in Plaintiffs’ First Amended Complaint (“FACC”), which is plaintiff, Paul Demil’s (“Mr. Demil’s”) claim for negligent infliction of emotional distress (“NIED”). 

Defendants’ Demurrer to the Fourth Cause of Action in the FACC is SUSTAINED, without leave to amend, to the extent Mr. Demil’s claim is based on a “direct victim” theory of NIED.  The Demurrer is SUSTAINED, with leave to amend, as to Mr. Demil’s claim under the “bystander” theory of Negligent Infliction of Emotional Distress (NIED).

1.      General Rules Governing Demurrers

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded, i.e., all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law.  (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967.)  Thus, no matter how unlikely or improbable, plaintiff's allegations must be accepted as true for the purpose of ruling on the demurrer.  (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.)  A complaint must be “liberally construed, with a view to substantial justice between the parties” and the court should give the complaint “a reasonable interpretation, reading it as a whole and its parts in their context.”  (Code Civ. Proc. §452; see also, Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238; Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1490.)  Where the defect raised by a demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.  (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) 

2.      Mr. Demil’s Fourth Cause of Action for Negligent Infliction of Emotional Distress

Under California law, there are two theories of recovery for negligent infliction of emotional distress: direct victim and bystander.  (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1071–1072; see also, Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 205–206; Gu v. BMW Of North America, LLC (2005) 132 Cal.App.4th 195, 204.) 

A.    Direct Victim Theory of NIED 

The California Supreme Court has made clear that with respect to the direct victim theory of NIED, “there is no independent tort of negligent infliction of emotional distress” and instead, “direct victim” NIED is an element of damages available in a cause of action for negligence.  (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984; see also, Burgess, supra, 2 Cal.4th at 1072; Christensen v. Superior Court (1991) 54 Cal.3d 868, 884; Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588; Gu v. BMW of N. Am., LLC (2005) 132 Cal.App.4th 195, 204.)  Thus, whether a plaintiff can recover damages for NIED under the “direct victim” theory is dependent upon a traditional tort analysis, and the elements of duty, breach of duty, causation and damages must exist to support the cause of action.  (Id. at 1072; see also, Klein v. Children's Hosp. Med. Ctr. (1996) 46 Cal.App.4th 889, 894.)  However, the law in California is that there is no general duty to avoid negligently causing emotional distress to another and thus, the duty must be one that the defendant has assumed, has been imposed upon the defendant as a matter of law, or arises out of the defendant’s preexisting special relationship with the plaintiff and the existence of a duty is a question of law for the Court.  (Klein, supra, 46 Cal.App.4th at 895, citing Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129–130; Marlene F., supra, 48 Cal.3d at 590.)  Thus, the general rule is that, “unless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by [breach of the independent duty]” and “[e]ven then, with rare exceptions, a breach of the duty must threaten physical injury, not simply damage to property or financial interests.”  (Potter, supra, 6 Cal.4th at 985; see also, Erlich v. Menezes (1999) 21 Cal.4th 543, 555.)

In the present case, Plaintiff’s fourth cause of action for NIED alleges in part that Mr. Demil “entered into a physician-patient relationship with defendants, and each of them, to provide both his wife and child to be born complete and adequate healthcare and attention so as to forestall avoidable injury to his wife and/or child to be born.”  (FAC at ¶26.)  Additionally, Plaintiffs allege that “defendants knew, or should have known, that injury to his wife and/or child to be born due to failure to exercise sufficient care in the provision of medical services would cause [Mr. Demil] severe emotional distress.”  (Ibid.)  Thus, although the parties do not address the issue of the “direct victim” theory of NIED as it relates to Mr. Demil in their papers, in the event that Mr. Demil intends to assert such a claim, the Court addresses it here and finds that the FAC fails to state sufficient facts to support such a cause of action for several reasons.  To start and as stated above, courts have consistently held that there is there is no independent cause of action for “direct victim” NIED and it is an element of damages only.  (Potter, supra, 6 Cal.4th 965, 984; see also, Burgess, supra, 2 Cal.4th at 1072.)  Additionally, courts have held that a father’s participation in prenatal services and the birth process does not create the kind of “special relationship” between the father and physician that would give rise to the duty of care necessary to recover “direct victim” NIED damages.  (See, Burgess, supra, 2 Cal.4th at 1064; see also, Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124; Klein v. Children’s Hospital Medical Center (1996) 46 Cal.App.4th 889, 899.)  Instead, such a duty to the father can arise only upon the doctor's “assumption of a direct duty toward the husband” outside the mother’s doctor-patient relationship.  (Huggins, supra, 6 Cal.4th at 130.)

Therefore, while courts have found in rare cases that a doctor can assume a duty to avoid causing emotional distress to his or her patient’s relatives, Mr. Demil has not alleged sufficient facts to constitute such rare and unusual circumstances in this case.  Therefore, to the extent the FAC seeks to assert a cause of action under the “direct victim” theory of NIED, the demurrer is SUSTAINED, without leave to amend.

 

B.       Bystander Theory of NIED 

In contrast to the “direct victim” theory of NIED, “bystander cases” arise “in the context of physical injury or emotional distress caused by the negligent conduct of a defendant with whom the plaintiff had no preexisting relationship, and to whom the defendant had not previously assumed a duty of care beyond that owed to the public in general.”  (Burgess, supra, 2 Cal.4th at 1072-1073.)  However, Howthe “class of bystanders” who can bring such claims is “circumscribed.”  (Id. at 1073.)  Specifically, the California Supreme Court has established “three requirements that a plaintiff must satisfy to recover on a claim for NIED to a bystander: (1) the plaintiff must be closely related to the injury victim; (2) the plaintiff must have been present at the scene of the injury-producing event at the time it occurred and then aware that it was causing injury to the victim; and (3) as a result, the plaintiff must have suffered serious emotional distress.”  (Keys v. Alta Bates Summit Med. Ctr. (2015) 235 Cal.App.4th 484, 488, citing Thing v. La Chusa (1989) 48 Cal.3d 644, 667–668; see also, Bird v. Saenz (2002) 28 Cal.4th 910.)  “The Thing Court expressly disapproved suggestions in prior cases that a negligent actor is liable to all those ‘who may have suffered emotional distress on viewing or learning about the injurious consequences of his conduct,’ rather than on viewing the injury-producing event itself.”  (Ra v. Superior Court (2007) 154 Cal.App.4th 142, 148, citing Thing, supra, 48 Cal.3d at 668 and Bird, supra, 28 Cal.4th at 915–916.)  “Greater certainty and a more reasonable limit on the exposure to liability for negligent conduct is possible by limiting the right to recover for negligently caused emotional distress to plaintiffs who personally and contemporaneously perceive the injury-producing event and its traumatic consequences.”  (Ibid, citing, Thing, supra, 48 Cal.3d at 666.)

In this case, Defendants have not disputed that Mr. Demil has satisfied the first and third elements for a NIED bystander claim, i.e., that he is “closely related” to the victim and that he has suffered “serious emotional distress.  Instead, Defendants focus their demurrer on the second element, i.e., whether Mr. Demil was “present at the scene of the injury-producing event at the time it occurred” and whether he was “then aware that it was causing injury.”

In their demurrer, Defendants rely upon Bird, supra, 28 Cal.4th 910.  In Bird, the plaintiffs sought to recover damages for NIED based on medical malpractice suffered by their mother.  (Bird, supra, 28 Cal.4th at 912.)  The plaintiffs had brought their mother to the hospital for chemotherapy but during the procedure an artery was pierced, which led to severe internal bleeding.  (Ibid.)  Plaintiffs heard a call for a thoracic surgeon, saw their mother being rushed by medical personnel to another room, heard the doctor’s report of the mother possibly having suffered a nicked artery or vein, and then saw their mother being rushed into surgery.  (Id. at 912-913.)  Plaintiffs conceded they were not present during the actual procedure but they argued that they were aware their mother’s artery or vein “had been injured as a result of Defendants’ conduct ... and that Defendants failed to treat that injury while it was occurring.”  (Id. at 917.)

The Supreme Court identified two potential injury-producing events: (1) the negligent transection of the victim’s artery and (2) defendants’ subsequent negligent failure to diagnose and treat the damaged artery and held that the plaintiffs could not recover for NIED as a bystander for either event.  (Ibid.)   With respect to the negligent transection, the Court found that plaintiffs were not present at, nor did they observe the injury-producing event.  (Ibid.)  With respect to the subsequent negligence in failing to diagnose and treat the victim’s damaged artery, the Court held that plaintiffs had not shown they were contemporaneously aware of the negligence or that it was causing harm to their mother.  (Ibid.)  The court stated:
 

“The problem with defining the injury-producing event as defendants’ failure to diagnose and treat the damaged artery is that plaintiffs could not meaningfully have perceived any such failure.  Except in the most obvious cases, a misdiagnosis is beyond the awareness of lay bystanders.... Even if plaintiffs believed, as they stated in their declarations, that their mother was bleeding to death, they had no reason to know that the care she was receiving to diagnose and correct the cause of the problem was inadequate.  While they eventually became aware that one injury-producing event—the transected artery—had occurred, they had no basis for believing that another, subtler event was occurring in its wake.

(Ibid.)

The Bird Court made clear that that in order to recover damages as a “bystander” for NIED, it is not enough that a plaintiff observe the injured person’s suffering; instead, the plaintiff must observe the injury and “experience a contemporaneous sensory awareness of the causal connection between the negligent conduct and the resulting injury.”  (Id. at p. 918.)  There must be “contemporaneous awareness the defendant’s conduct or lack thereof is causing harm.”  (Id. at 919.)  While the Bird court rejected the notion “that a layperson can never perceive medical negligence,” the court made clear that recovery is possible only in extreme cases (such as observation of the amputation of the wrong limb), “[b]ut the same cannot be assumed of medical malpractice generally.”  (Id. at 918-919.) 

Defendants also rely on Morton v. Thousand Oaks Surgical Hospital (2010) 187 Cal.App.4th 926, in which the court of appeal upheld the trial court’s ruling sustaining the defendant hospital’s demurrer to a cause of action for “bystander” NEID.  In Morton, the plaintiffs’ mother underwent an abdominal surgery during which her bowel was nicked.  (Id. at 929.)  The mother’s condition worsened after the surgery and she fell into a coma, but she later recovered and was released from the hospital.  (Ibid.)  The plaintiffs alleged that although they were not present during the surgery, they observed their mother’s condition deteriorate during the recovery period and understood that the defendants’ failure to respond to her needs was injurious.  (Id. at 929-930.)  They alleged “awareness that their mother was suffering and deteriorating as a result of Defendants’ medical neglect, but were unable to do anything but pleaded with Defendants to respond to their mother’s needs.”  (Ibid.)  The plaintiffs also alleged that they were “experienced in the medical field” and thus were uniquely able to understand “the dangers faced by their mother in the event no curative action was taken.”  (Ibid.)

The court held that the plaintiffs’ allegation that they were “experienced in the medical field” and thus were aware of the medical consequences of the defendants’ alleged failure to react and respond to their mother’s symptoms was not sufficient to allege contemporaneous awareness under Thing: “[A] rule permitting bystanders to sue for NIED on account of unperceived medical errors hidden in a course of treatment cannot be reconciled with Thing’s requirement that the plaintiff be aware of the connection between the injury-producing event and the injury.”  (Id. at 934.)  “To do so would impose nearly strict liability on health care providers for NEID to bystanders who observe emotionally stressful procedures that turn out in retrospect to have involved negligence.  (Ibid.)

In his opposition, Mr. Demil principally relies on two cases: Ochoa v. Superior Court (1985) 39 Cal.3rd 159 and Keys v. Alta Bates (2015) 235 Cal.App.4th 484.  In Ochoa, a case pre-dating Thing, a boy confined in a juvenile detention facility died of pneumonia after authorities ignored his obviously serious symptoms, which included vomiting, coughing up blood, fever, and excruciating pain.  (Ochoa, supra, 39 Cal.3d at 163.)  His parents visited him in the infirmary, saw the child in great pain, repeatedly requested increased medical care, and were finally forced to leave the facility without treatment being delivered and the child later died as a result of the facilities failure to treat him.  (Id. at 163-164.)  The Supreme Court permitted the parents to sue as bystanders for NIED.  (Id. at 177.)  However, in the Supreme Court’s subsequent opinion in Bird, the Court analyzed its holding in Ochoa and explained, “[t]he injury-producing event was the failure of custodial authorities to respond significantly to symptoms obviously requiring immediate medical attention.”  (Bird, supra, 28 Cal.4th at 919–920.)  The Court stated that “[s]uch a failure to provide medical assistance, as opposed to a misdiagnosis, unsuccessful treatment, or treatment that turns out to have been inappropriate only in retrospect, is not necessarily hidden from the understanding awareness of a layperson.”  (Ibid.)  

In Keys v. Alta Bates (2015) 235 Cal.App.4th 484, the court upheld a jury verdict awarding plaintiffs NIED damages related to a family member’s death after complications from thyroid surgery.  After the surgery, plaintiffs observed the patient (their mother and sister) having difficulty breathing and watched the medical professionals’ inadequate treatment of it, resulting in her death.  (Keys, supra, 235 Cal.App.4th 484, 489.)  At trial, their expert noted evidence of a hematoma in her throat (a common risk of thyroid surgery, which can occur without negligence), but he testified that the critical factor in her death was defendants’ failure to realize she had a compromised airway.  (Ibid.)  The court stated that the negligence was not a failure to diagnose the hematoma, but the defendant’s “lack of acuity and response to [the victim’s] inability to breathe, a condition plaintiffs observed and were aware was causing her injury.”  (Ibid.)  In its discussion of Bird, the Keys court noted that Bird did not “categorically bar” NIED claims in the medical malpractice context but merely limited it to extreme cases where plaintiff has meaningful understanding that the negligent acts are causing the injury to the victim.  (Ibid.)    

In the present case and in support of his NIED cause of action as a “bystander,” Mr. Demil alleges that from the time his wife was admitted to the hospital for delivery of their child, Mr. Demil was constantly at her bedside until she was rushed into the operating room for an emergency C-section some five hours later.  (FAC at ¶27.)  Almost immediately after she was admitted, a fetal heart monitor was attached and Mr. Demil was told that it would monitor the cardiac activity of the child to be delivered.  (Ibid.)  Mr. Demil understood that the monitor would “show, in real time, the fetal heart rate and decelerations of the fetal heart during contractions.”  (Ibid.)  Mr. Demil was “constantly aware of the monitor readings.”  (Ibid.)  

In the beginning, Mr. Demil was told that the readings were normal.  (Ibid.)  However, once Mrs. Demil was in active labor, Mr. Demil “observed the fetal heart readings dipping from the 120-130 range into the 80-90 range with longer periods of time associated with a rebound into the normal range.”  (Ibid.)   Mr. Demil was “becoming increasingly concerned that this decreased fetal activity was in indication that his child to be born was being deprived of oxygen.”  (Ibid.)  Mr. Demil expressed his concerns to the nurses and doctor but they assured Mr. Demil that “everything was under control and there was nothing to worry about.”  (Ibid.)  As the labor continued, Mr. Demil “noticed that the fetal heart readings were dropping into the 60 range with longer delays in contraction rebounds.”  (Ibid.)  Mr. Demil “again expressed his concerns regarding the status of the child to be born but again was continually reassured.”  (Ibid.) 

  At approximately 10:30 p.m., after multiple hours of active labor, the doctor told Mr. Demil that “the fetus had been in stress during the labor process” and to avoid further stress and potential damage, he was ordering a C-section.  (Ibid.)  However, about 20 minutes later, “the readings from the heart tone monitor ‘flat-lined’ with heart rates at 50 with no rebound,” at which point an emergency C-section was ordered.  (Ibid.)  “At this point in time, having observed the flat-line coupled with his understanding that delivery was deemed imminent some three hours before, it became apparent to [Mr. Demil] that the negligent failure to order a C-section earlier was resulting in damage to his child to be born.”  (Ibid.)  Although Mr. Demil was not permitted to enter the operating room, “he heard over the hospital loud speaker that a ‘CODE’ had been called in the operating room” and at that point, “he believed that his child to be born was either severely damaged or dead.”  (Ibid.) 

Mr. Demil’s son was born at 10:59 p.m., “with no heartbeat, no respirations, flaccid muscle tone, no reflexes and blue color” and was immediately airlifted to UCSF.  (Ibid.)  The doctor informed Mr. Demil that his son was in “grave condition” and that “the infant had been oxygen deprived during the last phases of labor…”  (Ibid.)     

Based on these allegations, Mr. Demil appears to contend that Defendant’s negligence and the “injury producing event” was the failure to order a C-section earlier in the labor process and that Mr. Demil had an understanding that the repeated drops in the fetal heart rate were causing injury to his son.  However, although the Court sympathizes with the Demil’s and has no doubt that they both have suffered severe emotional distress as a result of these circumstances, the allegations as alleged in the FAC do not demonstrate a “contemporaneous understanding” of the “injury-producing event at the time it occurred” and a present awareness that it was causing injury to the victim, as required by Thing.  Mr. Demil’s allegations that he was “concerned” that the decreased fetal heart rate activity was in indication that his child was being deprived of oxygen and that he expressed these concerns to the doctors and nurses are not sufficient to support a claim for NIED as a “bystander.”  Even though it is certainly clear that Mr. Demil must have been concerned about the repeated drops in the fetal heart rate and believed these drops were causing harm to the fetus, he has not alleged that he had a contemporaneous understanding that the care his wife and their son were receiving at the time was the cause.  In fact, there is nothing to indicate that Defendant’s decision to have Mrs. Demil continue with labor rather than perform a C-Section “was ‘an injury producing event,’ rather than an unsuccessful attempt to correct an already existing injury,” or an “emotionally stressful procedure[ ] that turn[ed] out in retrospect to have [allegedly] involved negligence.”  (Breazeal v. Henry Mayo Newhall Mem’l Hosp. (1991) 234 Cal.App.3d 1329, 1342; see also, Morton supra, 187 Cal.App.4th at 934.)

Furthermore, were the Court to conclude that a claim for bystander NEID could proceed based upon the allegations as they currently exist, “the circle of liability Thing sought to rein in would once again expand,” a consequence the Morton court cautioned against.  (Morton, supra, 187 Cal.App.4th at 934.)

Accordingly, Defendants’ demurrer to the allegations of “bystander” NIED in the FAC is SUSTAINED, with leave to amend.  

Defendants’ counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312.

 

6.      SCV-259021 Madanat v. Shayota:

Plaintiff Anis Madanat (“Plaintiff”) brings this Motion for Terminating Sanctions and Monetary Sanctions against Defendant Khaled Shayota (“Defendant”).  Plaintiff makes this motion under Code of Civil Procedure section 2023.030(a) and (d) and on the grounds that Defendant failed to comply with the Court’s January 19, 2017 Order granting Plaintiff’s motion to compel Defendant to provide discovery responses; produce documents; and pay Plaintiff $1,380.00 in monetary sanctions.  Defendant has not opposed this motion.

For good cause shown, Plaintiff’s Motion for Terminating Sanctions and Monetary Sanctions is GRANTED.

 “California discovery law authorizes a range of penalties for conduct amounting to “misuse of the discovery process,” including terminating sanctions and monetary sanctions.  (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390–391, citing Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991, see also, Code Civ. Proc., §2023.030.)  Misuses of the discovery process include: failing to respond or to submit to an authorized method of discovery and disobeying a court order to provide discovery.  (Code Civ. Proc., §2023.010.)  “The power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious, or whimsical action.”  (Los Defensores, Inc., supra, 223 Cal.App.4th at 390–391, quoting Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 36.)

Specifically with respect to terminating sanctions, the Code provides that “[t]he court may impose a terminating sanction by one of the following orders: (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process[;] (2) An order staying further proceedings by that party until an order for discovery is obeyed[;] (3) An order dismissing the action, or any part of the action, of that party[; or] (4) An order rendering a judgment by default against that party.”  (Code Civ. Proc. 2023.030(d).) 

“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’”  (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.)  Generally, “[a] decision to order terminating sanctions should not be made lightly [b]ut where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.”  (Los Defensores, Inc., supra, 223 Cal.App.4th at 391, quoting Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279–280.)  “Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.”  (Ibid, citing Lang, supra, 77 Cal.App.4th at 1244–1246.)

In the present case, Plaintiff motion for monetary and terminating sanctions is based on Defendant’s failure to comply with this Court’s January 19, 2017 Order compelling Defendant to respond to written discovery, produce documents and pay monetary sanctions to Plaintiff.  Defendant did not oppose the prior motion to compel and has not opposed the present motion for sanctions.  Plaintiff’s attorney claims that he has had no communication with Defendant’s counsel since September 2016.  (Sutherland Dec. at ¶4.)  With respect to this motion, Plaintiff has sufficiently demonstrated that he property filed and served the Court’s January 19, 2017 Order on Defendant’s attorney and that Defendant has failed to comply with all rulings made in that Order.  (Id. at ¶¶3-5.)  Thus, based on the totality of circumstances in this case, including Defendant’s history of failing to respond to discovery; failing to comply with this Court’s Order; and failing to oppose both motions, the Court concludes that a less severe sanction would not be effective.  Accordingly, Plaintiff’s motion is granted.  The Court orders an award of monetary sanctions in the amount of $2,070 against Defendant and his attorney of record, Maureen Reilly Wahl, jointly and severally, to be paid to Plaintiff.  This monetary sanction includes the Court’s prior award of $1,380.00; plus an additional $690 for Plaintiff’s costs to bring the present motion.  Additionally, the Court strikes Defendant’s August 10, 2106 answer; and will enter a default judgment against Defendant and in favor of Plaintiff.

Plaintiff’s counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312.  Plaintiff’s counsel shall also submit a proposed default judgment against Defendant.

 

7.      SCV-258610 Savage v. Roman Catholic Bishop:

           With respect to the Application to appear Pro Hac Vice, the application does not fully comply with the California Rules of Court:

 

·         Rule 9.40(a)(1) states that “[n]o person is eligible to appear as counsel pro hac vice under this rule is the person is: [a] resident of the State of California” and then Rule 9.40(d)(1) states that the application must include “[t]he applicant’s residence and office address…”  Here, the applicant has not stated he is not a resident of CA and has not listed is residence address.

·         Rule 9.40(c)(1) states that a copy of the application and notice of hearing must be served on all parties “and on the State Bar of California at its San Francisco office.”  Here, the POS does not include the State Bar.

·         Rule 9.40(e) requires that the applicant “pay a reasonable fee not exceeding $50 to the State Bar of California with the copy of the application. And notice of hearing…”  Here, the applicant paid the $500 filing fee to the Superior Court but it’s not clear that he paid any fee to the State Bar.

 

Unless the applicant can demonstrate that he has complied with these requirements, the application is denied.

 

© 2017 Superior Court of Sonoma County