Judge Maren Nelson, Case Number: BC691142, Date: 2023-09-20 Tentative Ruling

Judge: Maren Nelson, Case: BC691142, Date: 2023-09-20 Tentative Ruling

Case Number: BC691142 Hearing Date: September 20, 2023 Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

WAYNE BRENT, et al.

vs.

FAIROOZ KABBINAVAR, et al.

Case No.: BC691142

Hearing Date: September 20, 2023

Defendants’ motion for a judgment on the pleadings is GRANTED, WITHOUT 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 SAC, 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 Aspen Skilled Healthcare, Inc., Berkley West Convalescent Hospital Inc. fdba Berkley West Convalescent Hospital, and Arizona & 21^st Corp. fdba Berkley Ease Convalescent Hospital (collectively, Defendants) move for a judgment on the pleadings as to Plaintiff’s entire SAC.

Discussion

Defendants argue that Plaintiff has not alleged sufficient facts to state a claim.

After review, the Court agrees.

The SAC in the entirety is vague and ambiguous with respect to the specific acts and/or omissions attributable to each of these Defendants. The SAC asserts all causes of action by each Plaintiff against each Defendant and repeatedly refers to the “defendants” summarily, and pleads no facts specific to these Defendants and provides very little information to demonstrate causation or any wrongdoing on the part of these Defendants. As such, there are insufficient facts which could put Defendants on notice of the what exactly each Defendant and/or their employees allegedly did or failed to do with respect to Decedent’s care or death. There are also serious issues of causation and standing.

The Court has identified similar defects with co-Defendants claims, and has dismissed those claims after Plaintiff was unable to articulate any additional facts he could allege to resolve the deficiencies. Here, not only is there no reason to believe the deficiencies here could be resolved, but Plaintiff did not oppose this motion. Accordingly, the Court is persuaded that leave to amend would be futile.

Based on the foregoing, Defendants’ motion for a judgment on the pleadings is granted, without leave to amend.

It is so ordered.

Dated: September , 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. For more information, please contact the court clerk at (213) 633-0517.

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

WAYNE BRENT, et al.

vs.

FAIROOZ KABBINAVAR, et al.

Case No.: BC691142

Hearing Date: September 20, 2023

Defendants’ motion to dismiss is GRANTED. However, the dismissal is without prejudice, as mandated by CCP section 581, subd. (b)(4).

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.

The motion is unopposed.

Discussion

Defendants argue that dismissal of Plaintiff’s Complaint is mandatory based on the five-year rule. Defendants argue that no tolling circumstances apply.

After review, the Court agrees.

Plaintiff filed the original complaint on January 24, 2018, a First Amended Complaint on October 10, 2022, and Second Amended Complaint (SAC) on January 27, 2023.

Plaintiff waited until 2020 to file facially defective Proofs of Service of Summons regarding some of the moving Defendants. Defaults were erroneously entered against Defendants as Plaintiff never properly effectuated service of process on these Defendants. These defaults were vacated on June 8, 2023.

Pursuant to CCP section 583.310 “[a]n action shall be brought to trial within five years after the action is commenced against the defendant.” An action commences when the complaint is filed “[a]s to a defendant either expressly named in the original complaint, or named in the original complaint by a fictitious name.” (Gray v. Firthe (1987) 1984 Cal.App.3d 202, 209; CCP §350.) The only way to extend the time within which an action must be brought to trial is under CCP section 583.330 by written stipulation or by oral agreement made in open court.

During the Covid-19 Pandemic, the Supreme Court of California issued Emergency Orders regarding the tolling of matters and extensions of time in which to bring a civil action to trial. Specifically, on April 6, 2022, Emergency Rule 10 granted a six-month extension for all civil actions filed on or before April 6, 2020. (See Emergency Rule 10, subdivision (a), “[e]xtension of five years in which to bring a civil action to trial Notwithstanding any other law, including Code of Civil Procedure section 583.310, for all civil actions filed on or before April 6, 2020, the time in which to bring the action to trial is extended by six months for a total time of five years and six months.)

Here, Plaintiff filed the original complaint on January 24, 2018. Because this case was filed before April 6, 2020, the total time in which to bring this action to trial was five years and six months. This made the last day to bring this matter to trial July 24, 2023. This date has since past, and no other applicable tolling provision has been identified in this case.

Specific tolling provisions are set forth in CCP section 583.340 and include as follows:

In computing the time within which an action must be brought to trial pursuant to this article, there shall be excluded the time during which any of the following conditions existed:

(a) The jurisdiction of the court to try the action was suspended.

(b) Prosecution or trial of the action was stayed or enjoined.

As the Court of Appeal recognized in Moss v. Stockdale, Peckham & Werner (1996) 47 Cal.App.4th, 494, 502:

Reasonable diligence places on a plaintiff the affirmative duty to make every reasonable effort to bring a case to trial within five years, even during the last month of its statutory life. … Time consumed by the delay caused by ordinary incidents of proceedings, like disposition of demurrer, amendment of pleadings, and the normal time of waiting for a place on the court’s calendar are not within the contemplation of these exceptions.

The Moss Court further highlighted that “reasonable diligence alone is not sufficient to protect a party from an involuntary dismissal; rather, reasonable diligence constitutes a guideline by which to assess the existing exceptions of impossibility, impracticability, or futility.’” (Ibid., quoting Baccus v. Superior Court (1989) 207 Cal.App.3d 1526, 1532.)

Here, there has been no stay, and no impossibility, impracticability, or futility exits. No stipulation for an extension has been entered.

Moreover, service of Defendants was never proper, and thus Plaintiffs failed to served Defendant within three years of filing this action. (See CCP § 583.210(a)(1).) CCP section 583.210(a) requires a plaintiff to serve a defendant within three years of filing the action. Failure to do so results in a procedural end to the plaintiff’s case. (See CCP 583.250(a)(2) [“the action shall be dismissed by the court on … motion of any person interested in the action.”].) CCP 583.250(b) confirms the point: “the requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.”

Because Plaintiff cannot show any reasonable, excusable delay, this Court must also dismiss this action on the ground that Plaintiff’s failure to serve Defendants with the proscribed three year time frame amounts to a failure to prosecute. (See CCP § 583.210(a)(1).) Plaintiff did not oppose this motion, and thus is considered to have conceded to the merits of the motion.

Based on the foregoing, Defendants’ motion to dismiss is granted. However, the dismissal is without prejudice, as mandated by CCP section 581, subd. (b)(4).

It is so ordered.

Dated: September , 2023

Hon. Jon R. Takasugi
Judge of the Superior Court