Judge: Richard S. Whitney, Case: 37-2021-00004036-CU-MM-CTL, Date: 2023-09-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 28, 2023

09/29/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Medical Malpractice Motion Hearing (Civil) 37-2021-00004036-CU-MM-CTL SGARLATO VS REGENTS OF THE UNIVERSITY OF CALIFORNIA [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: PLAINTIFF'S MOTION TO VACATE ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS REGENTS OF THE UNIVERSITY OF CALIFORNIA AND DR. DAVID J. DALSTROM is DENIED.

Plaintiff CAMELIA SGARLATO ('Plaintiff') asks the Court to vacate the judgment entered in favor of Defendants THE REGENTS OF THE UNIVERSITY OF CALIFORNIA and DAVID J. DALSTROM, M.D.'s ('DALSTROM') (collectively 'Defendants') following this Court's granting of Defendants' motion for summary judgment, which challenged Plaintiff's causes of action for: (1) medical malpractice, (2) lack of informed consent, (3) battery, and (4) negligent infliction of emotional distress.

While Plaintiff does not provide analysis as to each authority cited, Plaintiff cites in the notice of motion that Plaintiff relies on CCP section 473(d). CCP section 473(d) is inapplicable as it pertains to 'clerical mistakes.' (Code Civ. Proc., § 473(d).) The granting of the motion for summary judgment was not a clerical error. Next, Plaintiff cites CCP section 663(1), which provides a judgment may be vacated based on an '[i]ncorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected.' (Code Civ. Proc., § 663(1.) A motion under CCP section 663 'does not lie to vacate a summary judgment and remit an action for trial, as was here sought.' (Forman v. Knapp Press (1985) 173 Cal.App.3d 200, 203.) Defendants argue Plaintiff's motion is untimely.

(a) A party intending to make a motion to set aside and vacate a judgment, as described in Section 663, shall file with the clerk and serve upon the adverse party a notice of his or her intention, designating the grounds upon which the motion will be made, and specifying the particulars in which the legal basis for the decision is not consistent with or supported by the facts, or in which the judgment or decree is not consistent with the special verdict, either: (1) After the decision is rendered and before the entry of judgment.

(2) Within 15 days of the date of mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest.

(Code Civ. Proc., § 663a(a).) CCP section 663a's deadline is construed 'as a jurisdictional requirement.' (Garibotti v. Hinkle (2015) 243 Cal.App.4th 470, 479.) Calendar No.: Event ID:  TENTATIVE RULINGS

2989937  47 CASE NUMBER: CASE TITLE:  SGARLATO VS REGENTS OF THE UNIVERSITY OF CALIFORNIA  37-2021-00004036-CU-MM-CTL Plaintiff did not file a notice of intention prior to the entry of judgment; therefore, Plaintiff must rely upon CCP section 663a(a)(2). A notice of entry of judgment was served on January 24, 2023. Plaintiff did not file a notice of this motion until June 29, 2023, well beyond the earlier date of 15 days within mailing of notice of entry of judgment. Plaintiff's motion is untimely and must be denied.

However, Plaintiff also apparently relies upon CCP section 657, which permits a new trial when, inter alia, the following 'materially affect[s] the substantial rights' of the moving party: '[n]ewly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial' or there was '[i]nsufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision' because it is against the law. (Code Civ. Proc., § 657(2) and (4).) Plaintiff's substantive arguments fail. The case cited by Plaintiff, Hanson v. Grode (1999) 76 Cal.App.4th 601, does not support Plaintiff's argument. In Hanson the expert declared 'the nerve damage Hanson suffered during surgery was caused by the conduct of defendants....' (Id. at 607.) Here, Bernstein's declaration makes no mention of causation. The motion is denied.

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