Judge Blaine K. Bowman, Case 37-2021-00041405-CU-PO-CTL 2024-03-29 Tentative Ruling

Judge: Blaine K. Bowman, Case: 37-2021-00041405-CU-PO-CTL, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 28, 2024

03/29/2024 08:30:00 AM C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited PI/PD/WD - Other Motion Hearing (Civil) 37-2021-00041405-CU-PO-CTL DOE VS RADY CHILDRENS HOSPITAL SAN DIEGO [E-FILE] CAUSAL DOCUMENT/DATE FILED:

Plaintiff's motion for leave to file a third amended complaint is GRANTED. CCP § 473(a); CashCall, Inc.

v. Superior Court (2008) 159 Cal.App.4th 273.

'The general principles governing the amendment of a complaint apply to the decision whether to permit an amendment naming a new class representative.' Payton v. CSI Electrical Contractors, Inc. (2018) 27 Cal.App.5th 832, 848. Courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial, absent prejudice to the adverse party. Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761. If the motion 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 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.' Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530. Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence or added costs of preparation, increased burden of discovery, etc. Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.

The court finds Defendants Rady Children's Hospital-San Diego and Rady Children's Hospital Foundation-San Diego fail to demonstrate that any delay by Plaintiff was unreasonable and fail to demonstrate prejudice sufficient to warrant denial of leave to amend. CashCall, Inc. v. Superior Court (2008) 159 Cal.App.4th 273, and the cases cited therein, specifically allows for a plaintiff who lacks standing to seek leave to amend to substitute a new plaintiff who has standing.

Because Kagan and the other cases discussed above recognize the general rule liberally allowing amendments of complaints to substitute new plaintiffs who have standing and, in particular, allowing an original plaintiff without standing to substitute in a new plaintiff with standing (whether in a class action or otherwise), an original plaintiff who lacks standing in a class action should be allowed to file a motion for, and potentially obtain, precertification discovery of the identities of actual class members (i.e., potential plaintiffs with standing who may elect to serve as substitute class representative plaintiffs).

CashCall, 159 Cal.App.4th at 290.

This is precisely the path undertaken by Plaintiff in this case. Recognizing the issue of lack of standing, Plaintiff pursued discovery to ascertain the identities of potential plaintiffs with standing. Such discovery was opposed by Defendants and partially allowed by the court. The appropriate Belaire-West notice procedure was used [Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554] and Plaintiff states that Plaintiff has now ascertained the identities of potential plaintiffs with standing. Of Calendar No.: Event ID: TENTATIVE RULINGS

3099572 10 CASE NUMBER: CASE TITLE: DOE VS RADY CHILDRENS HOSPITAL SAN DIEGO [E-FILE] 37-2021-00041405-CU-PO-CTL course, this process took some time to complete and delayed these proceedings. But, there is no evidence before the court to support a finding that such delay was unreasonable. Although Defendants raise the issue of prejudice, Defendants have known for over a year that Plaintiff intended to pursue discovery to ascertain the identity of potential plaintiffs to serve as class representatives.

The court is not persuaded by Defendants' reliance on federal authorities prohibiting a plaintiff who lacks standing from seeking leave to amend to substitute a plaintiff with standing. CashCall, binding California authority, specifically allows for leave to amend in these circumstances. Nor is the court persuaded by Defendants' reliance on the result in Payton. The circumstances weighing against allowing leave to amend in Payton were that the Plaintiff sought leave to amend after moving for class certification and, on the motion for class certification, the court determined that the plaintiff failed to meet the commonality requirement and failed to proffer a viable trial plan, and that these defects could not be cured by amendment. In contrast, Plaintiff has not yet moved for class certification and Plaintiff's complaint has withstood Defendants' pleading challenges as to the Confidentiality of Medical Information Act cause of action.

Defendants also raise the merits-based issue of whether Defendants transferred information outside the scope allowable under HIPAA. However, on motion to amend the court will not consider the validity of the proposed amendment unless the proposed pleading is deficient as a matter of law and the defect cannot be cured by further amendment. California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280-281, overruled on other grounds in Kransco v. Am. Empire Surplus Lines Ins.

Co. (2000) 23 Cal. 4th 390.

Considering this court's previous ruling overruling Defendants' demurrer on this issue, Defendants have not made such a showing. Defendants' argument that the proposed new plaintiffs are not proper class representatives is more appropriately resolved on a motion for class certification.

Considering these circumstances the court finds leave to amend is appropriate. Accordingly, the court exercises its discretion in favor of allowing leave to amend.

The court orders Plaintiff to file and serve the Third Amended Complaint within 10 days of this ruling.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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