Judge: Joel L. Lofton, Case: 20BBCV00263, Date: 2022-08-29 Tentative Ruling
Case Number: 20BBCV00263 Hearing Date: August 29, 2022 Dept: X
Tentative Ruling
Judge Joel L. Lofton, Department X
HEARING DATE: August 29, 2022 TRIAL DATE: October 11, 2022
CASE: JOSEPH GERADTS, M.D., an individual, v. CITY OF HOPE, a California nonprofit corporation; BECKMAN RESEARCH INSTITUTE OF THE CITY OF HOPE, a California nonprofit corporation; and DOES 1 through 20.
CASE NO.: 20BBCV00263
MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
MOVING PARTY: Plaintiff Joseph Geradts, M.D.
RESPONDING PARTY: Defendant Beck Research Institute
SERVICE: Filed August 5, 2022
OPPOSITION: Filed August 16, 2022
REPLY: Filed August 22, 2022
RELIEF REQUESTED
Plaintiff seeks leave to file a second amended complaint (“SAC”) to allege a cause of action for concealment against a new Defendant, City of Hope Medical Group, Inc. (“COHMG”).
BACKGROUND
This action arises out of Plaintiff Joseph Geradts’s, M.D., (“Plaintiff”) claim that defendants City of Hope (“COH”) and Beckman Research Institute of the City of Hope (“BRI”) convinced Plaintiff to take a position at Defendants’ research institute based on certain promises and representations that Defendants then failed to uphold. Additionally, Plaintiff alleges that when he complained about Defendants’ failure to keep the promises made, Defendants retaliated by terminating him, withholding his possessions and digital materials, and inflicted emotional distress.
On April 3, 2020, Plaintiff filed this complaint. On January 26, 2021, the parties stipulated to Plaintiff filing a First Amended Complaint (“FAC”) alleging nine causes of action for (1) Breach of Contract, (2) Violation of Labor Code Section 970, (3) Negligence, (4) Negligent Infliction of Emotional Distress, (5) Negligent Misrepresentation, (6) Wrongful Termination in Violation of Public Policy, (7) Conversion, (8) Trespass to Chattel, and (9) Misrepresentation in Violation Labor Code section 1050.
On November 23, 2021, COH’s motion for summary judgment was granted in its entirety, and BRI’s motion for summary adjudication was granted as to each cause of action except for Plaintiff’s breach of contract claim.
TENTATIVE RULING
Plaintiff’s motion for leave to file a second amended complaint is denied.
LEGAL STANDARD
Code of Civil Procedure section 473, subdivision (a)(1), provides in relevant part: “The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” Trial courts have discretion to permit amendments, which should be exercised liberally in favor of amendments to promote the judicial policy to resolve all disputed matters in one lawsuit. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047. “But this policy applies only [w]here no prejudice is shown to the adverse party.” (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 175, quotation marks omitted.)
DISCUSSION
The primary issues addressed by the parties’ papers are whether Plaintiff was diligent in bringing this present motion and whether BRI would be prejudiced.
The parties generally agree that Plaintiff discovered the facts underlying his claim for concealment against COHMG on or around October 15, 2021, through documents produced by BRI in the discovery process. On February 8, 2022, this Court denied Plaintiff’s first motion to file a SAC based on Plaintiff's failure to attach a proposed copy of the proposed amended pleading in compliance with California Rules of Court, Rule 3.1324, subdivision (a). On March 7, 2022, this Court denied Plaintiff’s second motion to file a SAC because Plaintiff’s proposed amendment was futile.
BRI provides that throughout April and May 2022, the parties attempted to stipulate to Plaintiff’s proposed amendment and potential transfer of the case to arbitration. (Urey Decl. ¶ 16.) On June 10, 2022, this Court granted the parties stipulation to continue the trial to October 11, 2022, with a discovery cut-off date of August 12, 2022, or 60 days before trial.
“[U]nwarranted delay in seeking leave to amend may be considered by the trial court when ruling on a motion for leave to amend”. (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1280.) “And the liberal policy favoring leave to amend ‘applies “only [w]here no prejudice is shown to the adverse party.” ’ [Citation.] Prejudice exists where the proposed amendment would require delaying the trial, resulting in added costs of preparation and increased discovery burdens.” (Miles v. City of Los Angeles (2020) 56 Cal.App.5th 728, 739.)
Plaintiff has waited ten months from the date he learned of the underlying facts to bring this claim against a newly added Defendant. Plaintiff also waited five months after this Court denied his second motion for leave to file a SAC to assert the same claim against a new Defendant. Plaintiff also concedes that the parties had reached an agreement for Plaintiff to file a SAC to add COHMG as a defendant with a cause of action for concealment, whereafter the parties would arbitrate the case. (Aune Decl. ¶ 9.) Plaintiff declined to proceed with the stipulation. (Ibid.)
Here, Plaintiff’s motion is set to be heard after the stipulated discovery cut-off and roughly six weeks before the trial date. Plaintiff’s motion would also add a new Defendant with new legal issues that would likely delay the trial and necessitate additional discovery and motion practice which will cause the Defendants to incur additional expenses. Further COHMG may or may not have the ability to compel Plaintiff to arbitrate his claims against it, which would likely add a further delay. BRI would be prejudiced by Plaintiff’s proposed SAC because BRI has operated on the understanding, through stipulation by the parties, that the trial for this case is set for October 11, 2022.
.
CONCLUSION
Plaintiff’s motion for leave to file a second amended complaint is denied.
FOR PROTECTIVE ORDER
MOVING PARTY: Defendant Beckman Research
Institute of the City of Hope
RESPONDING PARTY: Plaintiff Joseph Geradts, M.D.
SERVICE: Filed
August 5, 2022
OPPOSITION: Filed
August 16, 2022
REPLY: Filed August 22, 2022
RELIEF
REQUESTED
BRI seeks a protective order prohibiting Plaintiff from inquiring about
issues related to the number of clinical cases he was afforded and from taking
the depositions of Steven Rosen, M.D., and William J. Boswell, Jr., M.D.
BACKGROUND
This case arises out of Plaintiff
Joseph Geradts’s employment and termination with Defendant Backman Research
Institute (“BRI”).
TENTATIVE RULING
BRI’s
motion for a protective order is denied.
LEGAL STANDARD
“Before, during, or after a
deposition, any party, any deponent, or any other affected natural person or
organization may promptly move for a protective order.” (Code Civ. Proc.
section 2025.420, subd. (a).) “The court, for good cause shown, may make any
order that justice requires to protect any party, deponent, or other natural
person or organization from unwarranted annoyance, embarrassment, or
oppression, or undue burden and expense.” (Code Civ. Proc. section 2025.420,
subd. (b).)
DISCUSSION
Meet and Confer
BRI provides that its counsel has
attempted to meet and confer with Plaintiff’s counsel to resolve the issue
presented by this motion for a protective order by e-mail, letter, and
telephone but that the parties were unable to reach an agreement. (Urey Decl. ¶ 2.)
Motion for Protective Order
BRI first seeks a protective order prohibiting Plaintiff from inquiring
about issues related to the number of clinical cases he was afforded. BRI also moves
for a protective order preventing Plaintiff from taking the depositions of
Steven Rosen, M.D. (“Dr. Rosen”), and William J. Boswell, Jr., M.D (“Dr.
Boswell”).
BRI asserts that Plaintiff should be
prohibited from inquiring about the number of clinic cases provided to him
during his employment at BRI because the issue is not relevant to the remaining
cause of action. Although BRI asserts that the sought-after information is
irrelevant, BRI has not established Plaintiff’s request to be an undue burden.
BRI also does not raise any privilege or other issues necessitating the Court
to act to prevent Plaintiff from inquiring deponents about the number of
clinical cases provided to Plaintiff.
However, there is still the issue of
whether the apex deposition rule justifies a protective order preventing
Plaintiff from depositing Dr. Rosen and Dr. Boswell.
“[W]hen a plaintiff seeks to depose a
corporate president or other official at the highest level of corporate
management, and that official moves for a protective order to prohibit the
deposition, the trial court should first determine whether the plaintiff has
shown good cause that the official has unique or superior personal knowledge of
discoverable information. If not, as will presumably often be the case in the
instance of a large national or international corporation, the trial court
should issue the protective order and first require the plaintiff to obtain the
necessary discovery through less-intrusive methods. These would include
interrogatories directed to the high-level official to explore the state of his
or her knowledge or involvement in plaintiff's case; the deposition of
lower-level employees with appropriate knowledge and involvement in the subject
matter of the litigation; and the organizational deposition of the corporation
itself, which will require the corporation to produce for deposition the most
qualified officer or employee to testify on its behalf as to the specified
matters to be raised at the deposition. [Citation.] Should these avenues be
exhausted, and the plaintiff make a colorable showing of good cause that the
high-level official possesses necessary information to the case, the trial
court may then lift the protective order and allow the deposition to proceed.”
(Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282,
1289 (“Liberty Mutual”.)
BRI provides that Dr. Rosen is the Provost and Chief Scientific Officer
and Director of BRI while Dr. Boswell is the president of City of Hope Medical
Group (“COHMG”). (Urey Decl. ¶ 2.) Dr. Rosen and Dr. Boswell are “apex” potential deponents.
Thus, Plaintiff must establish that they “possess unique or superior personal knowledge
of discoverable information”. (Liberty Mutual, supra, 10 Cal.App.4th at
p. 1289.)
In opposition, Plaintiff asserts that Dr. Rosen has superior
knowledge regarding Plaintiff’s lack of clinical cases and the budget cuts to
Plaintiff’s research funds. Plaintiff asserts that Dr. Rosen was part of an
email chain where Plaintiff’s access to clinical cases was discussed. However,
Plaintiff has not established that Dr. Rosen’s testimony would produce unique
or superior information. The email chain involves several other doctors
discussing the possibility of hiring Plaintiff and providing him with clinical
cases. (Geradts Decl. ¶ 2, Exhibit B.) The email chain included Victoria
Seewaldt and Dennis Wiesenberger, and Plaintiff does not establish how deposing
those individuals would not produce the information sought. Plaintiff also does
not establish how a less intrusive means of discovery would be insufficient to provide
Plaintiff with information regarding why Dr. Rosen made certain comments during
the discussion and why Dr. Rosen did not inform Plaintiff about the relatively
low volume of clinical cases.
The issue of budget cuts presents a more difficult
question. Plaintiff’s employment agreement with BRI provided Plaintiff with a research
budget. (Aun Decl. ¶ 3, Exhibit A ¶ 9.)
Further, the agreement provides that “[a]fter each of the five
years, any unspent startup funds may be carried over on a yearly basis upon
approval of the Director of BRI.”(Ibid.) Plaintiff alleges that BRI
breached his contract by failing to provide the agreed-upon budget. It appears
that Dr. Rosen has unique information regarding the budget cuts Plaintiff
alleges is a breach of contract. Although BRI argues that other deponents can
testify to the issues of budget cuts, Plaintiff’s employment agreement provides
that the director of BRI, in this case Dr. Rosen, would make the decision
involving some issues involving Plaintiff’s research budget.
BRI also
brings this motion on behalf of Dr. Boswell. However, BRI does not establish it
is able to bring such a motion on Dr. Boswell’s behalf. BRI acknowledges that COHMG
is a separate entity. (Motion at p. 6, fn. 2.) It does not appear that BRI is
entitled to bring a motion for a protective order for a witness that is a part
of separate entity.
CONCLUSION
BRI’s
motion for a protective order is denied.
Dated: August 29, 2022 ___________________________________
Joel L. Lofton
Judge of the Superior Court
Parties who intend to submit on this tentative must send an email to the court indicating their
intention to submit. Parties intending to appear are strongly encouraged to appear remotely. alhdeptx@lacourt.org