Judge: David Sotelo, Case: BC663434, Date: 2022-09-26 Tentative Ruling
Case Number: BC663434 Hearing Date: September 26, 2022 Dept: 40
MOVING PARTY: Plaintiff
Ernesto Pavel Alvarado.
On May 31,
2017, Plaintiff Ernesto Pavel Alvarado filed a complaint against Defendants
Leon Barkodar, M.D. (“Barkodar”); Veena Sengupta, M.D. (“Sengupta”); Dean
Wilson, P.A. (“Wilson”); Bruce A. Shragg, M.D. (“Shragg”); West Hills Hospital
(“WHH”); West Hills Hospital and Medical Center (“WHHMC”); Andrew M. Chang,
M.D. (“Chang”); and Does 1-100 for (1) medical malpractice; (2) lack of
informed consent; (3) medical battery; (4) corporate negligence; and (5)
medical malpractice. Only Wilson and WHH remain as Defendant, as
the other parties are no longer in the case because they have settled or been
dismissed.
On August
16, 2019, the Court granted Wilson’s motion for summary judgment. On January 2, 2020, Plaintiff appealed the
Court’s August 16 ruling.
On August
11, 2021, the Court granted WHH’s motion to continue trial to January 24, 2022
(from the previous trial date of August 16, 2021), considering the pending
Appeal to avoid the potential necessity for two trials. Plaintiff did not oppose the motion.
On January
10, 2022, the Court granted the Parties joint ex-parte application to continue
trial to April 25, 2022.
On
February 17, 2022, the Court of Appeal issued its decision reversing in part
the Court’s August 16, 2019, motion for summary judgment, as to summary adjudication
to the medical malpractice cause of action against Wilson.
On April
15, 2022, Plaintiff and Defendants stipulated to stay this matter pending the
determination of whether the California Supreme Court would grant the petition
to review the decision of the Court of Appeal.
On May 26, 2022, the Court of Appeal issued Remittitur.
After
review, the Court Plaintiff’s Motion to Set Trial is GRANTED, and DENIED as to
Trial preference.
Code of
Civil Procedure section 36(e) states that, “[n]otwithstanding any other
provision of law, the court may in its discretion grant a motion for preference
that is supported by a showing that satisfies the court that the interests of
justice will be served by granting this preference.” (Code Civ. Proc. sec. 36(e).)
Pursuant
to California Rules of Court, rule 3.1335(b), the court may grant a request to
advance, specially set, or reset the date of trial upon an affirmative showing
by the moving party of good cause based on a declaration served and filed with
the motion or application.
As a
preliminary matter, the Court notes that Defendants’ contention that the
five-year rule to bring a case to trial was extended for Wilson until May 26,
2025 is misguided. (See Code Civ. Proc.
§ 583.320(a)(3) [“If a new trial is granted in the action the action
shall again be brought to trial within the following times . . . If on appeal
an order granting a new trial is affirmed or a judgment is reversed and the
action remanded for a new trial, within three years after the remittitur is
filed by the clerk of the trial court.”]
Here, there was only a reversal of the summary judgment, and the Court
of Appeal did not remand this matter for a new trial, and it could not have as
no trial has been had.
Here, the
Parties agree, and the Court finds that the five-year deadline to bring this
case to action does not run until September 25, 2023 based on the (1)
six-month extension to bring a case to trial (pursuant to Emergency Rule 10),
(2) the 41-day stay (pending the issuance of the Remittitur), (3) and 257 days
during the pendency of the Appeal (from August 11, 2021 to April 25, 2022). (See Code Civ. Proc. § 583.340 (b)-(c) [“In
computing the time within which an action must be brought to trial pursuant to
this article, there shall be excluded the time during which any of the
following conditions existed: . . . Prosecution or trial of the action was
stayed or enjoined. . . . Bringing the action to trial, for any other reason,
was impossible, impracticable, or futile.”])
Here, the Court stayed this matter for 41-days pending the issuance of
the Remittitur, and it would have been impracticable to bring this matter to
trial pending the appeal, as the Court found it was in the best interest of
justice to continue trial and to avoid the potential of having two trials.
Here,
while Plaintiff represents that trial preference is necessary, Plaintiff fails
to provide the Court with any facts or evidence showing that trial preference
is necessary. In fact, Plaintiff
concedes in his Motion that he has “been ready for trial since August 2019,”
and there are no facts showing that Plaintiff will be prevented from bringing
this matter to trial by September 25, 2023.
Accordingly, based on Plaintiff’s representation that he is ready for
trial and the fact that Plaintiff has approximately a year to bring this case
to trial, the court finds that trial preference is not necessary.
Plaintiff’s
Motion to Set Trial is GRANTED and DENIED as to Preference.