Judge Ralph C. Hofer, Case Number: 22GDCV00674, Date: 2024-04-19 Tentative Ruling

Plaintiff Valerie Bradford filed this action on October 10, 2022, alleging that while plaintiff was in the care and custody of defendant Allcare Home Health Provider at its facility Allcare Home Health, having presented to the facility for examination, care and treatment for medical complaints and problems, including wound care for her right foot, defendant breached its duty of care to plaintiff by failing to monitor or properly monitor the treatment of plaintiff, and failing to provide adequate training, supervision and medical orders to its personnel and staff, so that plaintiff suffered osteomyelitis, requiring hospitalization, and ultimately resulting in plaintiff having to undergo an amputation of some of her right foot toes.

The file shows that on May 5, 2023, the court granted two unopposed motions to compel responses to discovery brought by defendant All Care Home Health Provider against plaintiff Valerie Bradford. Plaintiff was ordered to serve responses to Form Interrogatories, and to serve responses to Request for Production of Documents, Set One, and to permit inspection and copying, within ten days. Defendant was also awarded monetary sanctions against plaintiff in the sum of $370 for each motion, payable within thirty days.

Evidently plaintiff did not serve responses to the subject discovery as ordered and did not pay the monetary sanctions, and on July 7, 2023, defendant filed a motion for evidentiary or terminating sanctions for plaintiff’s failure to obey the court’s May 5, 2023 order. The motion was noticed for hearing on August 18, 2023.

On July 17, 2023, the case was called for hearing for a Status Conference Re Mediation and Discovery. Counsel for plaintiff informed the court that his client had passed away. After conferring with counsel, the court ordered that an Order to Show Cause Re: Appointment of Successor in Interest was scheduled for October 16, 2023, and that the Motion for Terminating Sanctions was continued to November 17, 2023. Notice was waived.

On October 16, 2023, the matter was called for hearing on the Order to Show Cause Re: Appointment of Successor in Interest. Plaintiff’s counsel informed the court that he had not filed the matter in Probate or filed a Successor-in-Interest Motion and requested additional time to do so.

After conferring with counsel, the court issued a stay as to the entire case retroactively to 09/01/2023. The hearing on the motion for terminating sanctions or evidentiary sanctions was continued to February 16, 2024. Notice was waived.

On February 6, 2024, defendant All Care Home Health Provider filed an ex parte application for an order lifting the stay, indicating that at the October 16, 2023 hearing, the court had directed defendant to apply ex parte to reinstate the matter to the calendar to lift the stay prior to the motion hearing date.

On February 8, 2024, the ex parte application was called for hearing, the court found that notice was proper, and denied the motion. The motion for evidentiary or terminating sanctions was continued to April 19, 2024.

“Plaintiff's counsel is ordered to serve and file a Motion pursuant to CCP 377 by no later than 03/20/2024 to be heard on 04/19/2024. Plaintiff's is ordered to reserve the date of 04/19/2024 in CRS for his motion.

No Motion pursuant to CCP 377 was filed by plaintiff’s counsel by March 20, 2024, as ordered on February 8, 2024, and no such motion has been filed at all.

On April 3, 2024, defendant filed an ex parte application for an order lifting stay, indicating that at the February 8, 2024 hearing, the court had directed defendant to apply ex parte to reinstate the matter to the calendar to lift the stay prior to the motion date on the motion for evidentiary or terminating sanctions.

On April 9, 2023, the ex parte application was called for hearing. There was no appearance for plaintiff. The court continued the ex parte application to April 19, 2024, the same date scheduled for the hearing on the motion for evidentiary or terminating sanctions.

The court also set an Order to Show Cause Re: Dismissal Pursuant to CCP Section 583.410(a) for April 19, 2024. The minute order states, “Stay remains in place.” [Minute Order, 04/09/2024, p. 1]. Moving party was ordered to give notice.

Notice of Ruling was filed and served by electronic service on plaintiff’s counsel of record on April 11, 2024. The Notice of Ruling gives notice that the April 9, 2024 hearing took place, that there was no appearance made on behalf of plaintiff or plaintiff’s estate, and gives notice that at the hearing:

It appears from this timeline that plaintiff passed away sometime before July 17, 2023, and that plaintiff has now had more than nine months to submit the matter to probate or file a motion or otherwise obtain an order appointing a successor in interest to the deceased plaintiff but has failed to do so.

Despite notice having been served on plaintiff’s counsel, there has been no written response filed with the court to the Order to Show Cause Re: Dismissal set for hearing this date.

“(a) The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.”

Order to Show Cause Re: Dismissal Pursuant to CCP Section 583.410 (a): The Court in its discretion on its own motion pursuant to CCP Section 583.410 (a) dismisses this action in its entirety without prejudice for delay in prosecution, it appearing to the court appropriate under the circumstances of the case. Specifically, plaintiff has failed to obtain the appointment of a successor in interest to prosecute this action despite being permitted over nine months to take appropriate action to do so.

Motion for Evidentiary or Terminating Sanctions and for an Award of Monetary Sanctions Against Plaintiff Valerie Bradford and Her Attorney of Record is MOOT in light of the Court’s above order dismissing the action.

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