Judge Barbara M. Scheper, Case 21STCV19115 2023-03-20 Tentative Ruling

Judge: Barbara M. Scheper, Case: 21STCV19115, Date: 2023-03-20 Tentative Ruling

Case Number: 21STCV19115 Hearing Date: March 20, 2023 Dept: 30

Dept. 30

Calendar No.

Blumberger vs. California Hospital Medical Center, et. al., Case No. 21STCV19115

Tentative Ruling re: Defendant’s Motion for Stay of Proceedings

Defendant Ian B. Tilley, M.D. (Defendant) moves to stay proceedings in this action pending his appeal of the U.S. District Court’s November 2, 2022 Order of Remand. The motion is denied.

“Trial courts generally have the inherent power to stay proceedings in the interests of justice and to promote judicial efficiency.” (Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489.) “In ruling on a motion for a stay order, the assigned judge must determine whether the stay will promote the ends of justice, considering the imminence of any trial or other proceeding that might materially affect the status of the action to be stayed, and whether a final judgment in that action would have a res judicata or collateral estoppel effect with regard to any common issue of the included actions.” (Rules of Court, rule 3.515(f).)

Under the traditional standard for a stay, the court considers four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” (Nken v. Holder (2009) 556 U.S. 418, 434.)

Plaintiff commenced this action on May 20, 2021. On July 22, 2021, pursuant to 42 U.S.C. § 233(l)(1), the U.S. Attorney filed a notice in this Court to advise that it was considering whether Defendant was deemed to be an employee of the Public Health Service (PHS) for purposes of 42 U.S.C. § 233. Under 42 U.S.C. § 233(a), an action against the United States is the exclusive remedy “for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions . . . by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment.” On July 21, 2022, the United States Attorney amended its notice to advise that Plaintiff was deemed not to be a PHS employee for purposes of 42 U.S.C. § 233.

On August 26, 2022, Defendant removed this action to federal court, citing 42 U.S.C. § 233(l)(2) and 42 U.S.C. § 1442(a)(1). Plaintiff and the United States both filed motions to remand. The district court granted the motions to remand on November 2, 2022. Defendant now moves for a stay on the basis that he is currently challenging the district court’s decision to remand via appeal to the 9th Circuit.

The Court finds that a stay is not warranted. Defendant has presented no authority supporting his contention that participation in discovery in state court proceedings would jeopardize his federal immunity, assuming that his appeal of the remand is successful and the district court subsequently reverses the U.S. Attorney’s designation under 42 U.S.C. § 233. While Defendant cites 45 C.F.R. § 2.3, which bars any employee or former employee of the Department of Health and Human Services (DHHS) from testifying or producing documents unless authorized by the “Agency head,” this provision has no bearing on waiver of federal immunity. Furthermore, Defendant’s appeal of the Order of Remand does not appear to implicate the question of Defendant’s federal immunity, given that the order expressly declined to rule on Defendant’s dispute of the U.S. Attorney’s designation. Accordingly, there is no indication that Defendant will suffer irreparable harm absent a stay.

Defendant also suggests that this Court would lack jurisdiction if the appeal is granted. Defendant’s appeal of the district court’s remand order does not deprive this Court of jurisdiction, as “[t]he appeal of a remand order does not deprive the state court of jurisdiction unless a stay is obtained from the federal court.” (People v. Bhakta (2006) 135 Cal.App.4th 631, 636.)