Judge: Daniel M. Crowley, Case: 21STCV45265, Date: 2022-10-25 Tentative Ruling

Case Number: 21STCV45265    Hearing Date: October 25, 2022    Dept: 28

Motion for an Order Authorizing Appearance Pro Hac Vice

Having considered the moving papers, the Court rules as follows.  No opposing papers were filed.

BACKGROUND

            On October 7, 2014, Dora Otrambo (“Decedent”) underwent an elective aortic valve replacement at Kaiser Permanente Los Angeles Medical Center (“Kaiser Los Angeles”).  A cardiopulmonary bypass temperature controlling device, known as a “3T HCU”, was used during Decedent’s aortic valve replacement surgical procedure.  The 3T HCU device has been known to cause mycobacteria chimaera, an infection, in patients who employ the device during surgical procedures.  Nearly six (6) years subsequent to the aforementioned surgery, Decedent developed mycobacteria chimaera as a result of Kaiser Los Angeles’ use of the 3T HCU device and, on March 26, 2021, Decedent passed away due to the infection.

            On December 10, 2021, Danae Locatelli, individually and as successor-in-interest to Decedent, Danielle Peckham, Deborah Koch, and Duane Otrambo (Decedent’s four (4) children) (collectively, “Plaintiffs”) commenced the present action by filing a Complaint against Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Inc., and Does 1 through 100 (collectively, “Defendants”).

            On December 29, 2021, Plaintiffs filed the operative First Amended Complaint against Defendants, Livanova Deutschland, GMBH (as Doe 1), Livanova Holding USA, Inc. (as Doe 2), and Does 3 through 100.  Plaintiffs’ operative First Amended Complaint alleges the following causes of action: (1) Strict Products Liability—Design Defect; (2) Strict Products Liability—Manufacturing Defect; (3) Strict Products Liability—Failure to Warn; (4) Negligence—Products Liability; and (5) Medical Negligence.

            On March 15, 2022, Defendants Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, and Southern California Permanente Medical Group, Inc., collectively, filed an Answer.

            On April 25, 2022, Defendants Livanova Deutschland, GMBH and Livanova Holding USA, Inc., collectively, filed an Answer.

            On September 12, 2022, Plaintiffs filed the present Motion for an Order Authorizing Appearance Pro Hac Vice.

            On October 5, 2022, Defendants Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, and Southern California Permanente Medical Group, Inc., collectively, filed a Stipulation to Stay Action Pending Binding Arbitration.

            Subsequently, on October 5, 2022, following review of the parties’ Stipulation to Stay Action, the Court ordered the case stayed pending binding arbitration as to the entire action.  The Court, additionally, ordered that the hearing upon Plaintiff’s Motion for an Order Authorizing Appearance Pro Hac Vice will remain on calendar as scheduled on October 25, 2022.

            A Post-Arbitration Status Conference is scheduled for April 14, 2023.

PARTY’S REQUESTS

            Plaintiffs move for an Order authorizing the appearance of Rachel Howell, Esq. as counsel pro hac vice in this action.

LEGAL STANDARD

            California Rules of Court, Rule 9.40 governs counsel’s ability to appear in a matter as counsel pro hac vice.  (Cal. Rules of Court, Rule 9.40.)  Rule 9.40 states, “A person who is not a licensee of the State Bar of California but who is an attorney in good standing of and eligible to practice before the bar of any United States court or the highest court in any state, territory, or insular possession of the United States, and who has been retained to appear in a particular cause pending in a court of this state, may in the discretion of such court be permitted upon written application to appear as counsel pro hac vice, provided that an active licensee of the State Bar of California is associated as attorney of record.”  (Id., Rule 9.40, subd. (a).)  “No person is eligible to appear as counsel pro hac vice under this rule if the person is: (1) A resident of the State of California; (2) Regularly employed in the State of California; or (3) Regularly engaged in substantial business, professional, or other activities in the State of California.”  (Ibid.) 

            “A person desiring to appear as counsel pro hac vice in a superior court must file with the court a verified application together with proof of service by mail in accordance with Code of Civil Procedure section 1013a of a copy of the application and of the notice of hearing of the application on all parties who have appeared in the cause and on the State Bar of California at its San Francisco office.”  (Cal. Rules of Court, Rule 9.40, subd. (c)(1).)  “The application must state: (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.”  (Id., Rule 9.40, subd. (d).)  Additionally, the applicant must also “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.”  (Id., Rule 9.40, subd. (e).)

DISCUSSION

            Plaintiffs presently moves for an Order admitting Rachel Howell, Esq. (“Ms. Howell”) as counsel in this action pro hac vice.

            Following a review of Ms. Howell’s Verified Application, the Court finds the Application nearly satisfies all requirements outlined within California Rules of Court, Rule 9.40.  (Cal. Rules of Court, Rule 9.40.)  Ms. Howell has submitted a Verified Declaration, which adequately confirms the following information: (a) Ms. Hutton is not a resident of the State of California (Shea Decl., Ex. 1 at p. 2:10); (b) Ms. Hutton’s residence and office address (id., Ex. 1 at p. 2:10-12.); (c) the courts to which Ms. Hutton has been admitted to practice and the dates of admission (id., Ex. 1 at p. 2:13-16); (d) Ms. Hutton has not been suspended or disbarred in any court, and is in good standing in those courts (id., Ex. 1 at p. 2:17-20); (e) Ms. Hutton has not applied for admission to appear as counsel pro hac vice in the State of California in the past two years (id., Ex. 1 at p. 3:6-7); (f) the name, address, and telephone number of the active licensee of the State Bar of California who is attorney of record (id., Ex. 1 at p. 3:8-14); (g) Ms. Hutton’s service of the Verified Application upon the State Bar of California’s San Francisco Office (id., Ex. 1 at p. 3:22-25); and (h) Ms. Hutton’s payment of a fee in the amount of $50 to the State Bar of California (ibid.). 

            However, the Court finds Ms. Hutton’s Verified Application fails to provide the following information which is required by California Rules of Court, Rule 9.40.  (Cal. Rules of Court, Rule 9.40.)  First, while Ms. Hutton she is employed in Philadelphia, Pennsylvania, Ms. Hutton’s Verified Application fails to affirmatively state that Ms. Hutton is not “[r]egularly employed in the State of California” and is not “[r]egularly engaged in substantial business, professional, or other activities in the State of California.”  (Id., Rule 9.40, subd. (a)(2), (a)(3).)  Second, Ms. Hutton has failed to serve the Verified Application on all parties who have appeared in this action, as required by California Rules of Court, Rule 9.40, subdivision (c)(1).  (Cal. Rules of Court, Rule 9.40, subd. (c)(1) [“A person desiring to appear as counsel pro hac vice in a superior court must file with the court a verified application together with proof of service by mail in accordance with Code of Civil Procedure section 1013a of a copy of the application and of the notice of hearing of the application on all parties who have appeared in the cause and on the State Bar of California at its San Francisco office.”].)  While the Proof of Service submitted in conjunction with Ms. Hutton’s Verified Application confirms service upon Defendants Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, and Southern California Permanente Medical Group, Inc., the Proof of Service fails to confirm service of the Verified Application upon Defendants Livanova Deutschland, GMBH and Livanova Holding USA, Inc., who have appeared in this action by filing an Answer on April 25, 2022.

            Based on the foregoing, Plaintiffs’ Motion for an Order Authorizing Appearance Pro Hac Vice is DENIED, without prejudice.  Plaintiffs and Ms. Hutton are permitted to file an amended Verified Application for Admission Pro Hac Vice, ensuring that the above-identified errors are remedied.

CONCLUSION

            Plaintiffs’ Motion for an Order Authorizing Appearance Pro Hac Vice is DENIED, without prejudice. 

            Plaintiffs are ordered to give notice of this ruling.

Plaintiffs are ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.