Judge Ralph C. Hofer, Case Number: 22STCV03082, Date: 2023-11-17 Tentative Ruling

Plaintiff Nate Beltran alleges that while he was a resident or patient with defendant BHC Alhambra Hospital, Inc. (BHC Alhambra), he was a dependent adult. Plaintiff alleges that in September of 2021, plaintiff was brutally attacked by another patient while admitted at BHC Alhambra, when, while plaintiff was sound asleep in his hospital bed, another patient started punching and choking plaintiff. Plaintiff rolled out of bed and was on the ground when the other patient began kicking plaintiff repeatedly, breaking his nose, and plaintiff lost consciousness, requiring transport to another hospital for immediate care.

Plaintiff alleges that the other patient, to the acute knowledge of defendant BHC Alhambra, had exhibited prior violent behavior, and was put on violence-provoking psychotropic drugs, and should have been assessed as being a high risk for violence toward others. Plaintiff alleges that defendant failed to place plaintiff in a safe, secure and nonhazardous environment by failing to properly assess risks and failing to implement adequate security measures to protect other patients from the violent outbursts of the patient who attacked plaintiff.

“All papers opposing a motion…shall be filed with the court and a copy served on each party at least nine court days… before the hearing.”

Under CRC Rule 3.1300(d), “If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.”

On January 10, 2024, plaintiff filed and served a Notice of Non-Opposition to Plaintiff’s Motion, indicating opposition had been due on January 5, 2024, but that no opposition had been filed or served as of January 10, 2024.

On January 11, 2024, defendant filed an untimely Opposition to the motion, arguing that defendant intends to oppose the motion but had no opportunity to do so because counsel was never served with the motion.

What appears to have occurred here is that the proofs of service of the motion and separate statement show that the moving papers were served by email on counsel for defendant and counsel for plaintiff, with emails listed for six different individuals at defendant’s counsel’s law firm.

Each of those individuals has confirmed that there was no email received on December 18, 2023 from plaintiff’s counsel, and the firm’s case files and calendaring program show no record of the motion being saved or the opposition date calendared, as would have been customary had the motion been received. [Kalooky Decl., paras. 4, 5, 6].

Defendant’s counsel first learned of the pending motion when it received plaintiff’s Notice of Non-Opposition on January 10, 2024. [Kalooky Decl. para. 4].

On January 10, 2024, counsel for defendant discussed the issue with plaintiff’s counsel, and requested the original service email and the motion documents that had not been received. [Kalooky Decl., para. 6, Ex. A]. Plaintiff’s counsel indicated that her paralegal attempted to send the motion documents to defendant’s counsel that same date but received a bounce-back or non-deliverable message. The message forwarded to defendant’s counsel stated that delivery had “failed” to defendant’s counsel’s email address, and stated:

Defendant argues that evidently what happened here is that the original email transmitting the moving papers had been similarly not delivered as non-deliverable, and that, as with the rejected email from January 10, 2024, defendant’s counsel’s office did not receive any notification that an incoming email was rejected or non-deliverable due to size. [Kalooky Decl., para. 7]. Defendant indicates that defendant’s counsel accordingly would have had no notice and no manner of knowing that plaintiff’s attempted service had ever occurred. [Kalooky Decl., para. 7].

Defendant’s counsel first received the motion documents on January 11, 2024, through a link provided by plaintiff’s counsel that date. [Kalooky Decl., para. 8]. The opposition reporting the service irregularity was filed with the court the same date.

Defendant argues that the proper remedy here would be to continue the motion to compel at least sixteen court days from January 11, 2024, to provide the statutory time period for notice to defendant and permit defendant to file timely opposition in advance of the continued hearing date. Counsel for defendant indicates that counsel’s office, “will also attempt to informally resolve the dispute in advance of any continued Motion hearing, especially since both sides have already received a Court ruling on the same discovery requests and documents in the related case.” [Kalooky Decl., para. 9].

It appears that defendant’s proposal is reasonable, and the hearing on the motion is continued to permit defendant to further meet and confer and, if necessary, prepare and file and serve opposition to the motion on its merits.

Good cause appearing, motion is CONTINUED to February 16, 2024 (at least sixteen court days from January 11, 2024—after February 5, 2024) to permit the parties to further meet and confer and to permit defendant to file and serve substantive opposition to the motion, if necessary.

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