Judge: Michelle Williams Court, Case: 20STCV36767, Date: 2023-09-21 Tentative Ruling

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Case Number: 20STCV36767    Hearing Date: February 8, 2024    Dept: 1

20STCV36767           DJAMILEH MAHJOBI vs DAVID E FERMELIA, MD

Plaintiff’s Renewed Motion to Transfer Case to Another Department; Request for Immediate Stay of Proceedings

TENTATIVE RULING:  Plaintiff Mahjoubi’s Renewed Motion to Transfer Case to Another Department; Request for Immediate Stay of Proceedings is DENIED in its entirety. Counsel for Defendant to give notice.

On September 25, 2020, Plaintiff Djamileh Mahjoubi (also spelled Mahjobi by Plaintiff) filed this action against David E. Fermelia and Cedars Sinai Medical Center arising out of surgery to remove a hyperactive parathyroid. On September 27, 2021, Plaintiff filed the First Amended Complaint asserting causes of action for: (1) negligence; (2) battery; (3) intentional and negligent infliction of mental and emotional distress; (4) misrepresentation; (5) fraud; (6) breach of fiduciary duty; (7) alteration of medical records; (8) failure to supervise; and (9) obstruction and defamation.

On February 25, 2023, the court issued an order sustaining Defendant’s demurrer as to the causes of action for defamation and alteration of medical records and granting Defendant’s motion to strike as to the requests for punitive damages and attorney’s fees. Plaintiff did not file a second amended complaint.

On August 28, 2023, Plaintiff filed a motion to transfer case to another department and request for immediate stay of proceedings. On September 21, 2023, Department 1 issued an order denying the motion.

On December 14, 2023, Plaintiff filed a “Motion and Statement to Recuse Judge Thomas D. Long for Cause; Concurrent Request to Suspend All Proceedings,” which was stricken on December 19, 2023.

On January 12, 2024. Plaintiff filed a “Second Motion and Statement to Recuse Judge Thomas D. Long for Cause; Concurrent Request to Suspend All Proceedings and Discovery Orders,” which was stricken on January 19, 2024.

Motion to Transfer Between Districts

The Local Rules of the Los Angeles Superior Court govern the assignment of cases between its districts and departments. (Code Civ. Proc. § 402.) LASC Local Rule 2.3(b)(2) authorizes Department 1 to transfer civil cases from one judicial district to another via a noticed motion on three enumerated grounds: (1) when the case was filed in an improper district; (2) for the convenience of witnesses; or (3) to promote the ends of justice. (LASC Local Rule 2.3(b)(2).) A transfer under the Local Rules is discretionary.

Discussion

Department 1 denied Plaintiff’s prior motion to transfer on September 21, 2023. In that order, Department 1 noted Plaintiff’s grievances against Judge Thomas Long were not properly before Court on a motion to transfer and “Plaintiff [did] not cite any authority supporting the proposition that a litigant may, via a motion to transfer, avoid the statutory procedures for disqualifying a judicial officer. (Code Civ. Proc. §§ 170 et seq.)” The Court also noted “Plaintiff’s case is not assigned to Department 1 and the Local Rules do not designate Department 1 as the proper department to consider Plaintiff’s stay request.”

In the renewed motion, Plaintiff summarily invokes the rights of due process, equal protection of laws and the constitutional right to an impartial tribunal, seeking to transfer this case away from Judge Long. Plaintiff states “In lieu of further argument, the motions to recuse are hereto attached as EXHIBITS A and B for the court’s review and consideration.” (Mot. at 2:16-17.)

Plaintiff continues to assert Judge Long should not preside over the case and this Court should exercise its “inherent discretion” to transfer the case to a different department. (Mot. at 3:12-25.) As this Court previously noted the Code of Civil Procedure provides the proper procedural mechanisms to request disqualification of a judicial officer and seek review of any denial thereof. (Code Civ. Proc. § 170 et seq. See also People v. Panah (2005) 35 Cal.4th 395, 444 (“As we have repeatedly held, the statute means what it says: Code of Civil Procedure section 170.3, subdivision (d) provides the exclusive means for seeking review of a ruling on a challenge to a judge, whether the challenge is for cause or peremptory.”).) A motion to transfer is not a valid substitute for this procedure and Department 1 does not review requests to disqualify a judicial officer for cause.

In reply, Plaintiff cites the ABA Model Code of Judicial Conduct and federal statutes, which are inapplicable. Plaintiff also cites a Committee on Judicial Ethics opinion, which does not involve transfers or disqualification. Rather, the opinion answered the question: “When may a supervising judge ethically disclose to a trial judge an ex parte communication made in connection with a complaint against the trial judge?” (CJEO Formal Opinion 2020-015 at p. 1 [https://www.judicialethicsopinions.ca.gov/wp-content/uploads/CJEO-Formal-Opinion-2020-015.pdf].) The reasoning stated in Department 1’s September 21, 2023 order applies equally to Plaintiff’s renewed motion.

Plaintiff, as the moving party, failed to demonstrate any factual or legal basis for Department 1 to transfer the action. Accordingly, the motion is DENIED.