Judge Jill Feeney, Case 20STCV36767 2023-03-03 Tentative Ruling

This is an action for negligence and medical malpractice arising from a surgery that occurred in September 2019. Plaintiff Djamileh Mahjoubi filed her Complaint against David Fermelia on September 25, 2020.

On February 3, 2022, Plaintiff filed a request to dismiss Cedars Sinai without prejudice. On February 10, 2022, the Court dismissed Cedars Sinai without prejudice.

Plaintiff moves to reinstate Cedars Sinai as a defendant in this action on the grounds that Cedars Sinai is an integral part of this action and bears full and equal responsibility for Defendant Fermelia’s actions.

Cedars Sinai argues that Plaintiff’s motion is barred by the statute of limitations, Cedars Sinai would be prejudiced if dismissal is set aside, that the motion is unsupported by admissible evidence, and there is no excusable neglect or mistake justifying Plaintiff’s motion.

Plaintiff argues that Cedars Sinai did not dispute the issue of Fermelia’s employment, there is no issue with the statute of limitations, there is no issue with surprise or prejudice, Fermelia was working as an employee of Cedars Sinai, and that Cedars Sinai reinserted itself into this action by aiding and abetting Fermelia to evade this action.

A court has discretionary power to set aside dismissal under Code of Civil Procedure, section 473, subdivision (b). A court may relieve a party or his counsel from a dismissal against him because of his “mistake, inadvertence, or excusable neglect.” (Code of Civil Procedure, section 473, subdivision (b).) A motion to set aside dismissal must be made no more than six months after the dismissal.(Id.)

Code of Civil Procedure Section 474 “’allows a plaintiff in good faith to delay suing particular persons as named defendants until he has knowledge of sufficient facts to cause a reasonable person to believe liability is probable.’” (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 943 (citation omitted).) Whether the plaintiff had knowledge of sufficient facts at the time of filing is generally a question of fact. (See id. at 945.) A plaintiff may add a defendant previously dismissed without prejudice from the action as a fictitious defendant after a statute of limitations period has run if the plaintiff was ignorant of the facts giving rise to a cause of action against the defendant. (Parker v Robert E. McKee, Inc. (1992) 3 Cal.App.4th 512, 514, 516-518.)

Plaintiff requests that the Court take judicial notice of Plaintiff’s Complaint, the pleadings in her Complaint, Plaintiff’s February 2, 2022 voluntary dismissal, the fact that Cedars Sinai had a pending demurrer and motion to strike on calendar at the time it was dismissed, and that the case was set for trial on March 25, 2022. These requests are denied as unnecessary. The Court may always refer to the pleadings and the register of actions in the case at hand.

Plaintiff also requests judicial notice of Code Civ. Proc., sections 340.5 and 425.13. The requests are denied as unnecessary since the Court may always consider the Code of Civil Procedure.

Plaintiff moves to reinstate Cedars Sinai as a defendant in this action. The Court notes that Plaintiff filed a request for dismissal on February 3, 2022. The Court has discretionary authority to set aside a voluntary dismissal under Code Civ. Proc., section 473, subd. (b). However, Plaintiff fails to allege any mistake, inadvertence, or excusable neglect that would justify the granting of such a motion. Additionally, Plaintiff filed the instant motion on February 7, 2023, nearly one year after Cedars Sinai was dismissed. The motion is untimely. Thus, relief under Code Civ. Proc., section 473(b) is unavailable.

Cedars Sinai argues that Plaintiff is now barred from renaming Cedars Sinai as a defendant in this action because the statute of limitations on this matter has run. Plaintiff continues to argue that Cedars Sinai is responsible for Fermelia’s actions under a theory of respondeat superior.

Code of Civil Procedure Section 340.5 provides that a plaintiff must file a professional negligence action within one year of when she discovered or should have discovered the injury or three years after the date of the injury, whichever occurs first.

A dismissal without prejudice does not toll or constitute a waiver of any statute of limitations. (Hill v City of Clovis (1998) 63 Cal.App.4th 434, 445.) When a plaintiff voluntarily dismisses a defendant from an action, “the applicability of the pertinent statute of limitations is restored as if no action had been brought.” (Thomas v. Gilliland (2002) 95 Cal.App.4th 427, 433 (quoting Wood v. Elling Corp. (1977) 20 Cal.3d 353, 359.).)

Plaintiff’s original Complaint alleged she underwent treatment at Cedars Sinai in September 2019. It is now March 2023, well over three years from the time Plaintiff underwent surgery. Plaintiff’s causes of action for professional negligence are now barred against Cedars Sinai.

With respect to other causes of action in which Cedars Sinai is named as a defendant in the First Amended Complaint, fraud, breach of fiduciary duty and alteration of medical records, Generally, the statute of limitations for personal injury claims is two years from the injury or one year from the date the injury was discovered pursuant to Code of Civil Procedure Section 335.1. Thus, the statute of limitations as to these causes of action has run as well.

Plaintiff’s First Amended Complaint Alleges that Defendant Fermelia is a surgeon at Cedars Sinai Medical Center. (FAC, p. 2.) The FAC also alleges Cedars Sinai had a duty to supervise Fermelia. (FAC, ¶¶34-35.) The allegations in the FAC show that Plaintiff knew Fermelia was an employee of Cedars Sinai and that Cedars Sinai had a duty to control his conduct. Thus, Plaintiff was aware of the facts giving rise to her causes of action against Cedars Sinai. Thus, the procedure to reinstate Cedars Sinai as a defendant in the action through an amended pleading under Code of Civil Procedure Section 474 is not available to Plaintiff.

Plaintiff also argues that Cedars Sinai inserted itself back into the litigation by opposing Plaintiff’s motion to compel responses to a subpoena. However, Cedars Sinai had standing to oppose the motion because the subpoena was served on Cedars Sinai.

Plaintiff also alleges that Cedars Sinai aided Defendant Fermelia in evading this action. However, there is no evidence to support this allegation and the allegation is not relevant to the issues being decided here.