Superior Court of California

County of Los Angeles

North Central District

Department B

jasper rose,

Plaintiff,

raymond g. tatevossian, et al.,

Defendants.

Case No.: 20STCV31521

Hearing Date: March 24, 2023

[TENTATIVE] order RE:

motion for leave to file fifth amended complaint

BACKGROUND

A. Allegations

Plaintiff Jasper Rose (“Plaintiff”) alleges that in 2013 to 2019, he was being treated for back pain by Defendant Raymond G. Tatevossian, M.D., stemming from a degenerative compression of the thorax spinal discs in his back. Plaintiff alleges that Dr. Tatevossian prescribed opioids to lessen the pain and represented that Plaintiff could get off the pain medication if he utilized a neurostimulator, and that the neurostimulator from Defendant Nevro Corporation (“Nevro”) was safe and approved by the FDA. On September 17, 2017, based on the representations of Dr. Tatevossian and Defendant Greg Khouganian, M.D., Plaintiff went forward with surgery to surgically implant into his back the Nevro neurostimulator model NIPG1500 (serial no. 47909). From September 17, 2017 to December 2019, Dr. Tatevossian and Dr. Khouganian stated that the intensity of the device signal had to be adjusted and that the reason the device did not work was because programming of the device had changed. Plaintiff alleges that unbeknownst to him, Defendants had negligently or wrongfully implanted the device in the thorax area of his back instead of the upper buttock and that Nevro was aware that the device was not giving the desired result.

The fourth amended complaint (“4AC”), filed January 10, 2023, alleges causes of action for: (1) negligent misrepresentation against Dr. Khouganian; (2) negligent misrepresentation against Nevro; and (3) failure to obtain informed consent against Dr. Khouganian.

B. Relevant Background

Plaintiff previously filed a motion for leave to file the 4AC on October 17, 2022. On November 4, 2022, the Court denied this motion on the grounds that Plaintiff did not comply with CRC Rule 3.1324. Moreover, the Court declined to vacate the dismissal of Dr. Tatevossian. The illness of Plaintiff and his counsel were not sufficient grounds to grant leave, Plaintiff’s request to “supplement” facts was improper, and Plaintiff had multiple opportunities to amend the complaint against Dr. Tatevossian.

On September 15, 2022, Dr. Khouganian demurred to the cause of action for failure to obtain informed consent in the TAC. On December 9, 2022, the Court sustained the demurrer with leave to amend.

On November 18, 2022, Nevro filed a demurrer to the TAC. On December 30, 2022, the Court sustained with leave to amend the cause of action for negligent misrepresentation. The Court ordered Plaintiff to file the 4AC by January 8, 2023, which was the due date for the amended pleading following Dr. Khouganian demurrer to the TAC.

As noted above, the 4AC was filed on January 10, 2023.

C. Motion on Calendar

On March 6, 2023, Plaintiff filed a motion for leave to file the Fifth Amended Complaint (“5AC”).

On March 9, 2023, Dr. Khouganian filed an opposition brief.

On March 14, 2023, Plaintiff filed a reply brief.

LEGAL STANDARD

CCP § 473(a) permits the Court to grant leave to a party to amend a pleading. The Court’s discretion regarding granting leave to amend is usually exercised liberally to permit amendment of pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) If a motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend. (Morgan v. Superior Court of Los Angeles County (1959) 172 Cal. App. 2d 527, 530.)

CRC rule 3.1324 requires a motion seeking leave to amend to include a copy of the proposed pleadings, to identify the amendments, and to be accompanied by a declaration including the following facts:

1) The effect of the amendment;

2) Why the amendment is necessary and proper;

3) When the facts giving rise to the amended allegations were discovered; and

4) The reasons why the request for amendment was not made earlier.

“Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.” (CCP § 576.)

DISCUSSION

Plaintiff moves for leave to amend the Third and Fourth Amended Complaints, arguing that the entire complaint has been redrafted and reorganized after taking into consideration the Court’s two prior orders that the failure to warn was preempted by federal law. Plaintiff argues that the 5AC addresses matters in the Third Amended Complaint (“TAC”) because the 4AC was not admitted as a formal pleading by the Court. Plaintiff states that a clean copy of the 5AC as Exhibit 1 and a red-lined version of the 5AC as Exhibit 2 (Mot. at p.3); however, the Court notes that only a red-lined version of the 5AC is provided as Exhibit 1. A clean copy of the 5AC was lodged with the Court separately.

As a preliminary matter, there appears to be some confusion by Plaintiff regarding which complaint is the operative pleading. The 4AC was accepted by the Court as the operative pleading on January 10, 2023. Plaintiff argues that the Court denied Plaintiff’s ex parte application to file the 4AC, such that the 3AC is the operative pleading. (Reply at p.2.) The Court is not aware of an ex parte application to file the 4AC. Rather, Plaintiff filed a motion for leave to file the 4AC (as to Dr. Tatevossian) and set aside the dismissal of Dr. Tatevossian on October 17, 2022, which the Court denied on November 4, 2022. Thereafter, the Court sustained the Dr. Khouganian’s demurrer to the TAC on December 9, 2022 and Nevro’s demurer to the TAC on December 30, 2022, and the Court stated in its December 30, 2022 order that Plaintiff would be required to file the amended pleading (4AC) as against Dr. Khouganian and Nevro by January 8, 2023. On January 10, 2023, Plaintiff untimely filed the 4AC, which has been deemed the operative pleading in this action.

Plaintiff’s counsel, Shirlee L. Bliss, states that the 5AC would eliminate causes of action that the Court previously sustained without leave to amend. (Bliss Decl., ¶3.) She also states that the 5AC would eliminate the medical battery claim against Dr. Khouganian and the failure to warn claim against Nevro. (Id., ¶5.) The redlined 5AC includes 2 causes of action for: (1) misrepresentation against Nevro and (2) failure to obtain “conformed” consent against Dr. Khouganian. (Mot., Ex. 1.)

In opposition, Dr. Khouganian argues that the filing of the 5AC would improperly undermine the demurrer and motion to strike he has filed on February 7, 2023 against the 4AC, which is scheduled for hearing in this department on April 14, 2023. He also argues that Plaintiff was aware of the facts since September 17, 2017 (when he was allegedly injured), which was over 5 years before he sought leave to amend on March 6, 2023.

While Ms. Bliss states that the 5AC would merely clean up the pleadings, the amendments and additions in the proposed 5AC are not modest. For example, the proposed 5AC would include 5 pages (from pages 3 to 8) of new allegations, regarding the background on FDA regulation/approval of medical devices, how the neurostimulator was supposed to work, tests prior to implantation, the components of the neurostimulator, implantation setup, Plaintiff’s complaints, doctors as fiduciary to the patient, false claims by Plaintiff’s doctors and Nevro, and delayed discovery allegations. While the 5AC would reduce the causes of action from three (as alleged in the 4AC) to two causes of action, Plaintiff was aware of the Court’s prior orders on the motion for leave to file the 4AC (as against Dr. Tatevossian) and its rulings on the demurrers of Nevro and Dr. Khouganian. Not only did Plaintiff untimely file the 4AC on January 10, 2023 when the Court expressly ordered Plaintiff to file the 4AC by January 8, 2023 (see Dec. 30, 2022 Minute Order and Written Order), Plaintiff and counsel had the opportunity to make certain changes that would have conformed to the Court’s granting of leave to amend following the demurrers. Thus, the Court declines to allow the filing of the 5AC by way of this motion.

In addition, Ms. Bliss has not fully addressed the CRC Rule 3.1324 factors, such as when the facts giving rise to the amended allegations were discovered and why the request for amendment was not made earlier (or, in this case, why she could not make these allegations when amending the 4AC).

As such, the motion for leave to file the 5AC is denied. Dr. Khouganian’s demurrer and motion to strike portions of the 4AC will remain on calendar on April 14, 2023.

CONCLUSION AND ORDER

Plaintiff Jasper Rose’s motion for leave to file the Fifth Amended Complaint is denied.

Plaintiff shall provide notice of this order.