Judge: Kerry Bensinger, Case: BC698674, Date: 2023-09-13 Tentative Ruling

Case Number: BC698674    Hearing Date: September 13, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     September 13, 2023                           TRIAL DATE:  Vacated

CASE:                         Joyce Sumner v. Golden State Eye Clinic, et al.

CASE NO.:                 BC698674

APPLICATION FOR DEFAULT JUDGMENT

MOVING PARTY:               Plaintiff Joyce Sumner

RESPONDING PARTY:     N/A

On March 19, 2018, Plaintiff, Joyce Sumner, filed this action against Defendants, Golden State Eye Clinic, Khaled A. Tawansy, M.D. (“Defendant”), and Does 1 through 100, arising from medical treatment which resulted in permanent blindness to Plaintiff’s left eye.  Defendant was served by substituted service on July 16, 2019.  At Plaintiff’s request, default was entered against Defendant on November 19, 2020. Golden State Eye Clinic was dismissed on November 24, 2020.  Does 1 through 100 were dismissed on March 4, 2021.

Plaintiff previously submitted two applications for default judgment against Defendant.  The first application was filed on March 3, 2021.  The Court denied the application on April 14, 2021 because the (1) the Statement of Damages on file was not addressed to any defendant and did not name the Plaintiff; (2) Plaintiff did not explain how the MICRA cap of $250,000 in general damages could be disregarded in favor of a general damages award of $15,000,000. Nor was it clear the amount of damages Plaintiff was pursuing because the amounts were inconsistent across counsel’s declaration and the Request For Judgment; (3) Plaintiff’s request for $20,100,000 in special damages was unsubstantiated with any evidence of Plaintiff’s loss of income and future earnings, other than her declaration; (4) there was no proposed judgment submitted on Judicial Council Form JUD-100.

The second application was filed on September 30, 2021.  Plaintiff requested a court judgment against Defendant in the amount of $4,758,485.  Plaintiff’s counsel’s declaration states that the judgment consists of $3,758,050 in special damages, and either $250,000 or $1,000,000 in general damages.  On December 7, 2021, the Court denied the application because (1) Plaintiff did not include a revised Request for Court Judgment on Form CIV-100; (2) Plaintiff improperly sought general damages above the $250,000 MICRA cap because the allegations in the Complaint make clear the sole cause of action for medical negligence is based upon a lack of informed consent theory rather than medical battery; (3) Plaintiff had yet to file a revised Statement of Damages on Form CIV-050 consistent with the Court’s April 14, 2021 order; (4) Plaintiff’s request for $3,758,050 in special damages, consisting of future medical and insurance expenses, was not substantiated by any evidence or documentation.  In particular, the Court found the Declaration of Bruce Fishman, M.D., to be insufficient to establish Plaintiff’s anticipated future medical needs or associated expenses; (5) Plaintiff did not substantiate her claim or the need of a home health aide for 8 hours a day at $25-30 per hour; and (6) Plaintiff did not provide any documentation by which the Court could verify her past employment and the basis for Plaintiff’s request of $1.5 million in loss of earnings.

Since the Court’s December 7, 2021 ruling, Plaintiff has submitted numerous filings requesting more time to file a revised default judgment application due, in part, to counsel’s health issues.  In Plaintiff’s counsel’s most recent filings, on July 31, 2023, and August 15, 2023, respectively, Plaintiff’s counsel argues the Court abused its discretion in refusing to accept Dr. Fishman’s declaration to support Plaintiff’s special damages request for future medical expenses. 

On August 18, 2023, the Court issued a ruling and indicated it would accept Dr. Fishman’s declaration after reviewing the relevant case law.  Further, after reviewing Plaintiff’s previous application, the Court indicated it would be inclined to award general damages n the amount of $250,000 pursuant to MICRA and $2,000,000 based upon the declarations of Plaintiff and Dr. Fishman. 

On August 28, 2023, Plaintiff filed another application for default judgment.  Plaintiff now requests court judgment by default against Defendant in the sum of $2,250,000, consisting of $2,000,000 in special damages and $250,000 in general damages. 

Plaintiff has cured the defects noted in the Court’s previous orders.

Accordingly, the application is GRANTED.

Dated:   September 13, 2023                          ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.