Judge: Jon R. Takasugi, Case: BC691142, Date: 2023-01-05 Tentative Ruling

Case Number: BC691142    Hearing Date: January 5, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

      Defendants Chinsuk NP Kim’s, Jenny J. Kim’s, Paul Watkins’, and Manuel Esklidsen’s motions to deem the truth of the matters specified in its RFAs (Set One) are GRANTED. Plaintiffs and counsel are sanctioned, jointly and severally, $1,050 per motion.

On 1/24/2018, Wayne Brent by and though his surviving spouse and successor in interest Najila K. Brent and Najila K. Brent individually filed this action asserting 30 causes of action. 

            On 10/10/2022, Plaintiffs filed an FAC, alleging: (1) wrongful death; (2) gross negligence (3) hospital negligence; (4) professional negligence; (5) medical negligence; (6) medical battery; (7) breach of fiduciary duty; (8) fraud; (9) intentional infliction of emotional distress; (10) negligent infliction of emotional distress; (11) survival action; (12) elder abuse; (13) public entity’s liability; and (14) civil conspiracy to commit fraud, deceit, and conceal.

            Now, Defendants Chinsuk NP Kim, Jenny J. Kim, Paul Watkins, and Manuel Esklidsen separately move to have their Requests for Admissions (RFAs) deemed admitted.

Discussion

I.                   Chinsuk NP Kim

Defendant served Plaintiffs with RFAs on 2/25/2022. (Vogt Decl., Exh.A.) After multiple extensions, and in light of the fact that no amended Complaint had been filed, counsel for Defendant agreed to re-issue discovery at a later date. On 7/25/2022, Defendant served the same RFAs on Plaintiffs. Plaintiffs again requested, and received, repeated extensions.

To date, no responses have been received.

            In opposition, Plaintiffs advance a number of arguments including that Defendant voluntarily abandoned discovery, that this motion is frivolous and vexatious, and that the Court lacks jurisdiction to consider this matter. However, Plaintiffs offer no substantive explanation as to why Defendant’s discovery is procedurally or substantively defective, or why Plaintiffs are not obligated to respond to discovery as part of this litigation.

Defendant’s motion is granted to deem the truth of the matters specified in its RFAs (Set One) as admitted. Plaintiffs and counsel are sanctioned, jointly and severally, $1,050. ($350/hr x 3/hr.)

II.               Jenny J. Kim

Defendant served Plaintiffs with RFAs on 2/25/2022. (Vogt Decl., Exh.A.) After multiple extensions, and in light of the fact that no amended Complaint had been filed, counsel for Defendant agreed to re-issue discovery at a later date. On 7/25/2022, Defendant served the same RFAs on Plaintiffs. Plaintiffs again requested, and received, repeated extensions.

To date, no responses have been received.

In opposition, Plaintiffs advance a number of arguments including that Defendant voluntarily abandoned discovery, that this motion is frivolous and vexatious, and that the Court lacks jurisdiction to consider this matter. However, Plaintiffs offer no substantive explanation as to why Defendant’s discovery is procedurally or substantively defective, or why Plaintiffs are not obligated to respond to discovery as part of this litigation.

Defendant’s motion is granted to deem the truth of the matters specified in its RFAs (Set One) as admitted. Plaintiffs and counsel are sanctioned, jointly and severally, $1,050. ($350/hr x 3/hr.)

III.            Paul Watkin

Defendant served Plaintiffs with RFAs on 2/25/2022. (Vogt Decl., Exh.A.) After multiple extensions, and in light of the fact that no amended Complaint had been filed, counsel for Defendant agreed to re-issue discovery at a later date. On 7/25/2022, Defendant served the same RFAs on Plaintiffs. Plaintiffs again requested, and received, repeated extensions.

To date, no responses have been received.

In opposition, Plaintiffs advance a number of arguments including that Defendant voluntarily abandoned discovery, that this motion is frivolous and vexatious, and that the Court lacks jurisdiction to consider this matter. However, Plaintiffs offer no substantive explanation as to why Defendant’s discovery is procedurally or substantively defective, or why Plaintiffs are not obligated to respond to discovery as part of this litigation.

Defendant’s motion is granted to deem the truth of the matters specified in its RFAs (Set One) as admitted. Plaintiffs and counsel are sanctioned, jointly and severally, $1,050. ($350/hr x 3/hr.)

IV.             Manuel Esklidsen

Defendant served Plaintiffs with RFAs on 2/25/2022. (Vogt Decl., Exh.A.) After multiple extensions, and in light of the fact that no amended Complaint had been filed, counsel for Defendant agreed to re-issue discovery at a later date. On 7/25/2022, Defendant served the same RFAs on Plaintiffs. Plaintiffs again requested, and received, repeated extensions.

To date, no responses have been received.

In opposition, Plaintiffs advance a number of arguments including that Defendant voluntarily abandoned discovery, that this motion is frivolous and vexatious, and that the Court lacks jurisdiction to consider this matter. However, Plaintiffs offer no substantive explanation as to why Defendant’s discovery is procedurally or substantively defective, or why Plaintiffs are not obligated to respond to discovery as part of this litigation.

Defendant’s motion is granted to deem the truth of the matters specified in its RFAs (Set One) as admitted. Plaintiffs and counsel are sanctioned, jointly and severally, $1,050. ($350/hr x 3/hr.)

It is so ordered.

Dated:  January    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

            Due to Covid-19, the court is strongly discouraging in-person appearances.  Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk.  The court encourages the parties wishing to argue to appear via L.A. Court Connect.  For more information, please contact the court clerk at (213) 633-0517.  Your understanding during these difficult times is appreciated.

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendants’ demurrer is SUSTAINED, WITH 15 DAYS LEAVE TO AMEND. Defendants’ motion to strike is GRANTED, WITH 15 DAYS LEAVE TO AMEND.

            On 1/24/2018, Wayne Brent by and though his surviving spouse and successor in interest Najila K. Brent and Najila K. Brent individually filed this action asserting 30 causes of action.

            On 10/10/2022, Plaintiffs filed an FAC, alleging: (1) wrongful death; (2) gross negligence (3) hospital negligence; (4) professional negligence; (5) medical negligence; (6) medical battery; (7) breach of fiduciary duty; (8) fraud; (9) intentional infliction of emotional distress; (10) negligent infliction of emotional distress; (11) survival action; (12) elder abuse; (13) public entity’s liability; and (14) civil conspiracy to commit fraud, deceit, and conceal.

            Now, Defendants Fairooz Kabbinavar, MD, Chinsuk Kim, NP, Jenny J. Kim, MD, the Regents of the University of California, Paul Watkins, Administrator, Manuel Eskildsen, M.D., and Jonsson Comprehensive Cancer Center and Foundation/UCLA (collectively, Defendants) demur to Plaintiffs’ Complaint. Defendants also move to strike portions of the Complaint.

            The motion is unopposed.

Discussion

            Defendants argue that the entire FAC remains uncertain, and that Plaintiffs have failed to allege sufficient facts to support each cause of action.

            As a preliminary matter, the Court notes that Plaintiffs used the leave afforded after the last demurrer was sustained to add several additional causes of action. This is improper. After the Court grants leave to amend, the scope of the amendment is limited to the cause of action to which a demurrer was sustained. (People v. Clausen (1967) 248 Cal.App.2d 770, 785- 786.)

Setting that aside, the Court agrees that Plaintiff’s FAC remains uncertain given that it still does not specifically allege any act or omission by any of the Regent Defendants giving rise to this lawsuit. Defendants are entitled to notice as to the claims against them so that they may properly respond and defend against them.

            This uncertainty also means that Plaintiffs’ causes of action are not supported by adequate facts. For example, as to the wrongful death cause of action, there are no facts alleged in the FAC regarding any negligence or other wrongful act by any of the Defendants here and the decedent. Adding to the uncertainty is that Plaintiffs have elected to bring this cause of action on behalf of all plaintiffs against all defendants. This cause of action is available only to the decedent’s heirs, and the damages sought for this cause of action are limited, which excludes damages for grief, sorrow, or mental anguish. Similarly, the lack of specificity as to what is being alleged against each defendants precludes an assessment of whether or not the allegations are sufficient to state a claim for the fiduciary duty cause of action.

            Based on the foregoing, Defendants’ demurrer is sustained, with 15 days leave to amend.

Motion to Strike

Defendant seek to strike portions of Plaintiff’s FAC on the following grounds:  (1) Plaintiffs have added additional named Defendants for which Plaintiffs were not given leave to include; (2) Plaintiffs are not entitled to pain and suffering emotional distress damages, pursuant to California Code of Civil Procedure Section 377.34; (3) Plaintiffs have not complied with California Code of Civil Procedure, Section 425.13 before asserting a claim for punitive damages against these health care provider defendants; and (4) Punitive damages are not available to plaintiffs against these health care provider defendants, pursuant to Government Code Section 818.

            Given the ruling sustaining Defendants’ demurrer with leave to amend, the Court does not evaluate whether the allegations are substantively sufficient to support punitive damages claim. While the Court also notes Government Code section 818, the Court seeks additional support for the contention that section 818 would bar claims against the individual Defendants here as well.

It is so ordered.

Dated:  January    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

            Due to Covid-19, the court is strongly discouraging in-person appearances.  Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk.  The court encourages the parties wishing to argue to appear via L.A. Court Connect.  For more information, please contact the court clerk at (213) 633-0517.  Your understanding during these difficult times is appreciated.