Judge Holly J. Fujie, Case 20STCV19545 2022-12-22 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

MOVING PARTY: Defendant Marcel Adrian Solero Filart, M.D. (“Moving Defendant”)

This action arises out of the death of Vincent Paul Martin (“Mr. Martin”). Plaintiffs allege that Mr. Martin died from COVID-19 at the onset of the COVID-19 pandemic while admitted as a patient at a nursing facility. The currently operative fourth amended complaint (the “4AC”), filed on March 21, 2022, alleges: (1) violations of the Elder and Dependent Adult Civil Protection Act; (2) negligence; (3) wrongful death; (4) fraudulent concealment; and (5) fraudulent misrepresentation.

On September 9, 2022, Moving Defendant filed a motion to withdraw admissions (the “Motion”). The Motion requests that the Court permit Moving Defendant to withdraw two of his responses to Plaintiffs’ Requests for Admission (“RFAs”), Set One.

Under California Code of Civil Procedure (“CCP”) section 2033.300, a party may withdraw or amend an admission made in response to a request for admission on a noticed motion if the court determines that: (1) the admission was the result of mistake, inadvertence, or excusable neglect; and (2) the party who obtained the admission will not be substantially prejudiced in maintaining that party's action or defense on the merits. (CCP § 2033.300, subds. (a)-(b).) Because the law strongly favors trial and disposition on the merits, any doubts in applying section 2033.300 must be resolved in favor of the party seeking relief. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1420.) Accordingly, the court's discretion to deny a motion under the statute is limited to circumstances where it is clear that the mistake, inadvertence, or neglect was inexcusable, or where it is clear that the withdrawal or amendment would substantially prejudice the party who obtained the admission in maintaining that party's action or defense on the merits. (Id. at 1420-21.) The court may impose any just conditions on the granting of the motion. (CCP § 2033.300, subd. (c).)

Moving Defendant served his responses to Plaintiffs’ RFAs on September 3, 2021. (See Declaration of Patrick W. Mayer (“Mayer Decl.”) ¶ 19, Exhibit A.) Moving Defendant’s responses admit RFAs numbers 1 and 13.

RFA 1 states: “ADMIT YOU were DECEDENT’S primary attending physician in April of 2020.” (Mayer Decl., Exhibit A at 3.)

RFA 13 states: “ADMIT YOU were under a statutory duty as DECEDENT’S primary attending physician to comply with all applicable laws and regulations governing nursing homes in California.” (Id. at 5.)

Moving Defendant seeks to withdraw his responses to RFAs 1 and 13 on the grounds that he mistakenly identified himself as Mr. Martin’s primary attending physician in the responses. Moving Defendant’s counsel declares that the mistaken admissions were discovered in early April 2022 while preparing for Moving Defendant’s scheduled April 13, 2022 deposition. (See Mayer Decl. ¶ 25.) This error was discovered upon a detailed review of Mr. Martin’s medical records that was not readily apparent when the admissions were originally served. (See id.) On April 8, 2022, Moving Defendant’s counsel informed Plaintiffs’ counsel of the discovery of the error and of the contemporaneous discovery that Mr. Martin’s primary care physician was instead Dr. Dhia Alsarraf (“Dr. Alsarraf”). (Mayer Decl. ¶ 26.) The Motion provides that the erroneous admissions were not discovered earlier due to the constraints on Moving Defendant’s time caused by being his work a frontline worker during the COVID-19 pandemic and because before the filing of the 4AC, the pleadings in this case were not finalized and litigation was focused on challenges to the sufficiency of Plaintiffs’ allegations, disputes over trial preference, and attempts to remove the case to federal court. (See Mayer Decl. ¶¶ 3-24, 33.)

Plaintiffs’ opposition (the “Opposition”) argues that the bulk of the evidence demonstrates that Moving Defendant was in fact Mr. Martin’s primary care physician. The Opposition further argues that Plaintiffs would be prejudiced by the withdrawal of RFAs 1 and 13 because Dr. Alsarraf is unavailable as a witness due to his disability caused by advanced Alzheimer’s dementia.[1]

Construing CCP section 2033.300 in favor of the party seeking relief, the Court finds that the Motion adequately demonstrates that the identified admissions were a result of mistake, inadvertence, or excusable neglect on the part of Moving Defendant and his counsel. Although Plaintiffs are unable to depose Dr. Alsaraff, the Opposition does not demonstrate that they would have been able to properly conduct his deposition had Moving Defendant provided different RFA responses.[2] Plaintiffs have also been able to depose Joel Manilay (“Manilay”), the physician’s assistant who signed several notes in Mr. Martin’s medical chart. (See Mayer Decl., Exhibit E; Declaration of Hannah Brown (“Brown Decl.”) ¶ 14, Exhibit K.)

While the Court is inclined to grant Moving Defendant relief from his mistaken admissions, the Court notes that Moving Defendant’s proposed amended responses to the RFAs contain changes to RFAs aside from RFAs 1 and 13. The Motion does not discuss these other changes and Moving Defendant’s reply papers do not address Plaintiffs’ arguments on this issue. The Court further finds it appropriate to allow Plaintiffs to further depose Moving Defendant at Moving Defendant’s cost. The deposition may be conducted remotely via Zoom and may take a maximum of four hours. The Court does not, however, find it appropriate to require Moving Defendant to bear additional costs for other future fees Plaintiffs may incur concerning discovery related to Mr. Martin’s primary care physician.

The Court GRANTS the Motion subject to the conditions described above. Moving Defendant is to serve amended RFA responses within 10 court days of this order. Moving Defendant may only withdraw/amend his responses to RFAs 1 and 13.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative. If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court

[1] On October 24, 2022, the Court granted a motion for protective order filed on Dr. Alsaraff’s behalf on this basis.

[2] The Court additionally notes that although Plaintiffs initiated this action on June 25, 2020, Moving Defendant’s deposition was not scheduled to occur until April 2022.