Judge: Stephen Morgan, Case: 22AVCV00235, Date: 2023-03-07 Tentative Ruling
Case Number: 22AVCV00235 Hearing Date: March 7, 2023 Dept: A14
Background
This is a wrongful death action. Plaintiffs Scott Delaney and Sandy Delaney (collectively “Plaintiffs”) are the parents of Lauren Delaney (“Decedent”), now deceased. Plaintiffs allege that on February 04, 2021, Defendant Ruwanthi Campano, M.D. (“Defendant”), performed an office balloon sinuplasty on Decedent. Plaintiffs further allege that (1) no anesthesiologist was utilized and instead Defendant directly used excessive amounts of Tetracaine and Lidocaine and failed to monitor, and (2) Decedent’s vital signs were not appropriately monitored during the procedure or the recovery period. Decedent died on or about February 07, 2021.On May 05, 2022, Plaintiffs filed their Complaint alleging two causes of action for: (1) Wrongful Death Based on Medical Malpractice (Cal. Code Civ. Proc. § 377.60), and (2) Medical Malpractice Through a Survival Action (Cal. Code Civ. Proc. § 377.20).
On May 05, 2022, Plaintiffs filed their Complaint alleging two causes of action for: (1) Wrongful Death Based on Medical Malpractice (Cal. Code Civ. Proc. § 377.60), and (2) Medical Malpractice Through a Survival Action (Cal. Code Civ. Proc. § 377.20).
On June
01, 2022, Defendant filed her Answer.
On October 05, 2022, Defendant filed this Motion for Undertaking Pursuant to Cal. Code Civ. Proc. § 1030 for Defendant Ruwanthi Campano, M.D. (“Motion for Undertaking”).
On February 22, 2023, Plaintiffs filed their Opposition.
On February 28, 2023, Defendant filed her Reply.
On February 28, 2023, Plaintiffs filed an Objection to New Evidence in the Reply Brief.
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Analysis
Standard for Undertaking – In an action or special proceeding brought by a nonresident plaintiff, the defendant may at any time move for an order requiring the plaintiff to post security. (Cal. Code Civ. Proc. § 1030(a).) The stated grounds for the motion are that the plaintiff resides out of state or is a foreign corporation, and there is a reasonable possibility that the moving defendant will obtain a favorable judgment. (Cal. Code Civ. Proc. § 1030(b).) The motion can be brought at any time. (Cal. Code Civ. Proc. §1030(a).) The trial court has no authority to deny the motion on the ground that it is untimely. (Heffron v. Los Angeles Transit Lines (1959) 170 Cal.App.2d 709.) The motion is required to be noticed. (Cal. Code Civ. Proc. §1030(a).) The notice of motion must be served in accordance with CCP §1005(b). The motion must be accompanied by a supporting affidavit or declaration which establishes the stated grounds for the motion and sets forth the nature and amount of the costs and attorney fees the defendant has incurred and expects to incur until the action is concluded. (Cal. Code Civ. Proc. § 1030(b).) It must also be accompanied by a memorandum of points and authorities. (Cal. Code Civ. Proc. § 1030(b).)
The plaintiff may pursue a number of tactics in opposing a motion for security. These may include:
(1)
proof that the
plaintiff is not a nonresident;
(2)
showing the
plaintiff's indigency (Cal. Code Civ. Proc. § 995.240); and
(3) arguing the defendant's
failure to make an adequate prima facie showing of a reasonable possibility of
success in the action.
In cases where adequate grounds exist for granting the motion for security, the plaintiff can still challenge the amount of the costs and attorney fees requested by the defendant. The security can be ordered only for "reasonable" costs and attorney fees, and the defendant must be otherwise entitled to recover those fees by contract or by another statutory provision. (Cal. Code Civ. Proc. § 1030(a).)
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Discussion
Application – As an initial matter, Plaintiffs request a two-week continuance of the motion to file supplemental briefing regarding the depositions of Cortine Day, medical assistant to Defendant, and Gundappa Neelakanta, MBBS, who conducted an anesthesiology consult in this matter. The Court declines to continue the motion for the reasons presented by Plaintiffs as the burden of such a motion is on the moving party to show that the opposing party resides out of state and that there is a reasonable possibility of obtaining a favorable judgment. In this case, the burden is on Defendant, not Plaintiff.
Defendant moves for a court order requiring Plaintiffs to post an undertaking as (1) Plaintiffs live in Kankakee, Illinois and (2) Defendant has a reasonable possibility of prevailing in this matter.
Defendant has attached as Exh. A Plaintiffs’ form interrogatory responses as proof that Plaintiffs do not live in California. The responses to the propounded form interrogatories state, respectively, that Plaintiffs live in Kankakee, Illinois and have lived there for over 25 years. (Exh. A.) Attached to each Plaintiff’s form interrogatory responses is a verification sheet stating that the responses are declared under the penalty of perjury under the laws of the State of California. (Id.) However, there appears to be an issue with the signatures – both verification forms state they are docusigned, by the text underneath and surrounding the docusigned seal have changed. (Id.) The Court inquires at the hearing. Defendant includes images of Plaintiffs’ drivers licenses she has received as responses to each respective Request for Production, Set One, as further proof that Plaintiffs reside in Illinois. (Exh. B.)
The Court notes that Plaintiffs do not dispute the verification forms.
Next, the Defendant argues that there is a reasonable possibility that she will obtain judgment in her favor. She has retained Board-certified experts with substantial professional experience in otolaryngology, including balloon sinuplasty procedures, anesthesia, and toxicology, who are supportive of Defendant in terms of both standard care and causation and will testify: (1) that Decedent was a young, healthy patient with no known medical issues or history of adverse reactions to anesthesia, so there would be absolutely no reason for Defendant to have taken any preventative or special steps with respect to this patient; (2) there would have been no way of anticipating Defendant’s reaction to the use of tetracaine and/or lidocaine; (3) the standard of care does not require a balloon sinuplasty procedure be performed in a hospital setting, in the presence of an anesthesiologist, under continuous blood pressure monitoring, or with pre-procedure clearance; (4) access to Intralipid is not the standard of care; (5) the anesthetics protocol and amounts of both anesthetics used in the procedure were within the standard of care, and not at a dangerous or toxic level. (Motion 10:4-15.) Defendant also presents that there are no laboratory results, toxicology studies, or any other evidence the Decedent died from tetracaine and/or lidocaine toxicity. (Id. 10:15-16.)
Plaintiffs argue that Defendant has not met her burden. Specifically, Plaintiffs believe that Defendant has not shown any competent evidence in support of her motion. Plaintiff cites to the Autopsy Report (Exh. C); anesthesiology consult from Gundappa Neelakanta MBBS (Exh. B); and their own retained expert, Kevin Mecker, M.D. (Exh. A), and argues that there is no chance of a defense verdict. All three exhibits contain the opinions of each expert. All exhibits opine as to what each individual believes to be the cause of Decedent’s death; however, Exh. A goes further to opine about the standard of care and whether Defendant met it. Plaintiffs emphasize that “[i]n discussing the purpose of section 1030, [c]ourts have emphasized that the purpose of the statute is to protect ‘California residents who are sued by out-of-state plaintiffs when there is no reasonable possibility the out-of-state plaintiff will prevail’ as well as to prevent ‘out of state residents from filing frivolous lawsuits[]’ (Yao v. Superior Court (2002) 104 Cal.App.4th 327, 331, 333-334 (“Yao”) [emphasis added]; Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 428)” and argues that their case is not frivolous. Plaintiffs also seek to distinguish Defendant’s presentation from those in cited cases where the evidence presented to the Court was arbitration related, described as “best evidence available to divine the possible outcome of the trial.” (Shannon v. Sims Service Center, Inc. (1985) 64 Cal.App.3d, 907, 914 (“Shannon”).)
First, Yao states clearly that the only issue it is discussing is “whether section 1030 applies to a nonresident cross-complainant.” Cal. Code Civ. Proc. § 1030 is broad and its purpose is to protect California residents. Plaintiffs’ argument omits the sentence following their quote which reads: “The section protects California residents by requiring the out-of-state plaintiff to post security to ensure payment of costs and attorney fees (if recoverable) in the likely event the plaintiff's action is defeated. (Shannon v. Sims Service Center, Inc., supra, 164 Cal. App. 3d 907, 913.)” Shannon, Yao’s cited case, states: “The reason for the statute in the first instance is articulated in the 1978 California Law Revision Commission Reports, Recommendations and Studies, volume 14, page 323, ‘The statute requiring a nonresident plaintiff to file a cost bond is intended to secure costs in light of the difficulty of enforcing a judgment for costs against a person who is not within the court's jurisdiction.’ ” (Shannon, supra, 64 Cal.App.3d at 913.) The concept of difficulty or impracticability of enforcing judicial mandates against persons not dwelling within jurisdiction of courts has also been established in California case precedent. (See Myers v. Carter (1960) 178 Cal.App.2d 622, 625.) Thus, Cal. Code Civ. Proc. § 1030 is not limited to only frivolous suits.
The burden of Cal. Code Civ. Proc. § 1030 is such that the moving party is not required to show there is no possibility that an out-of-state plaintiff could win at trial. Rather, the moving party is required to show only that it was reasonably possible that they would win. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432.)
Proffering expert testimony on the essential elements of standard of care and causation could indeed be sufficient to a jury finding in favor of Premiere Defendants at trial. Plaintiff’s counsel, Laura Cota (“Cota”), has declared under penalty of perjury under the laws of the state of California that Defendant has experts who will testify on Defendant’s behalf with respect to standard of care and causation in this matter. (Decl. Cota ¶ 4.) Being able to come forth with sufficient expert testimony at trial means that it is reasonably possible that Defendant may be able to prevail at trial. Defendant has met her burden.
Accordingly, the Motion for Undertaking is GRANTED.
Undertaking Amount
Defendant requests $50,000.00 as the amount for undertaking due to the number of retained exerts and the amount of expert discovery that will be required in this case.
Cal. Code Civ. Proc. § 1030 requires an affidavit in support of the motion that sets forth the nature and amount of the costs and attorney’s fees the defendant has incurred and expects to incur by the conclusion of the action or special proceeding. (Cal. Code Civ. Proc. § 1030(b).)
As Plaintiff correctly argues in their Opposition, Defendant has not followed the statutory requirements. Cota’s declaration attests to the authenticity of the exhibits, provides that experts will testify in this case regarding the standard of care, and states that $50,000.00 “is a conservative estimate of the costs Dr. Campano will incur and could be awarded in this action and, as such, respectfully requests the Court order the plaintiffs to post such an undertaking to assure there will be funds available to satisfy any judgment in her favor.” (Decl. Cota ¶ 5.)
Cal. Code Civ. Proc. sets out items allowable as costs. Specific to this motion and Defendant’s arguments, “[f]ees of experts not ordered by the court” are explicitly excluded from costs. (Cal. Code Civ. Proc. § 1033.5(b)(1).)
The Court has also taken into consideration Plaintiffs’ argument that they cannot afford such an undertaking. Plaintiffs state that an undertaking of $50,000.00 would deny their fundamental right of access to the courts as they would “be forced to dismiss this tragic case despite the egregious wrongdoing of Defendant in the death of their daughter.” (Opposition 1:24-25.) Plaintiffs highlight Scott Delaney’s declaration which states, in relevant part:
3. I am financially
unable to pay and/or bond the undertaking costs in this matter in the amount of
$50,000.
4. My employer from
last year, Chellino Cranes, went out of business. They were purchased by Bay
Crane, but they did not provide me with much work. My current employer is
Allied Power. However, Iam paid by the hour and I do not have steady hours. I
am only paid when my employer is contracted to do construction based-work.
5. I operate heavy equipment such as cranes and forklift. Due both to the inclement weather in my area as well as the nature of my business, my work is very inconsistent. Before today, the last time that I worked was on February 10th when I worked only Wednesday through Friday of that week. My work and income are very variable and inconsistent and, accordingly, I do not have savings such that I could come close to paying $50,000.
(Exh. K.)
Sandy Delaney has not submitted a declaration.
“. . .[U]nder proper circumstances California courts do have the power to dispense with bond requirements intended to protect an adversary's financial interest.” (Conover v. Hall (1974) 11 Cal.3d 842, 851 (“Hall”). See also Law Revision Commission Comment on the 1980 Amendment [“Subdivisions (b) and (c) provide for a hearing on noticed motion whereas this section formerly provided for a hearing only when the defendant sought a new or additional undertaking. Although the language of subdivision (c) is mandatory, the court has the common law authority to dispense with the undertaking if the plaintiff is indigent. e.g., Conover v. Hall, 11 Cal.3d 842, 523 P.2d 682, 114 Cal. Rptr. 642 (1974).”].) Hall, in which the California Supreme Court explicitly stated that it did distinguish between the types of bonds (including those of Cal. Code Civ. Proc. §1030 which was described as a “cost bond”), held that a formal in forma pauperis application is not required before relief can be granted. (Hall, supra, 11 Cal.3d at 852.)
Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 435-36 provides:
Because the range of information potentially relevant to the court's inquiry is virtually limitless, depending on the litigant's individual situation, we cannot identify with precision what a plaintiff who has not achieved in forma pauperis status must present to carry his or her burden of proof on this issue. However, there is no obstacle to specifying the basic procedure the court must follow to ensure its discretion in determining whether a plaintiff is entitled to a waiver is “ ‘ “ ‘exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.’” [Citations.]’” (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co., supra, 133 Cal.App.4th at p. 1208.) Just as the plaintiff is well advised to provide the information requested in the mandatory Judicial Council form for applying for in forma pauperis status, to satisfy its obligation under section 995.240 to consider all relevant factors in deciding whether to waive the requirement of an undertaking, the court should follow the procedures set forth in rule 3.53(b)—or generally similar procedures—applicable when a litigant fails to provide the required information when requesting in forma pauperis status or when the information provided generates concerns about the applicant's financial situation. (See new Gov. Code, § 68634, subd. (e)(4), (5), eff. July 1, 2009, added by Stats. 2008, ch. 462, § 2.) That is, to fulfill its statutory duties when exercising its discretion, the court must review the plaintiff's showing, identify deficiencies, if any, and give the plaintiff the opportunity to supply additional information that may be necessary to establish his or her entitlement to a waiver under the circumstances of the particular case. Only by taking such a proactive role can the trial court properly balance the respective rights of the parties while minimizing the circumstances in which a potentially meritorious case is dismissed solely because the plaintiff cannot post an undertaking. (See Baltayan, supra, 90 Cal.App.4th at p. 1435 [“[D]ismissal of appellant's case resulted in a manifest miscarriage of justice. It effectively precluded appellant from litigating his claims simply because he is indigent and respondents proved a reasonable probability of success.”].)
Here, Plaintiffs’ presentation as to their financial status is incomplete. The Court is only presented with Scott Delaney’s current occupational status with broad statements that he cannot afford a $50,000.00 undertaking. Sandy Delaney provides no information on her financial status. The Court cannot make a determination of a waiver at this time.
The Court conditions the granting of this motion upon the filing of an affidavit that complies with the statutory requirements of Cal. Code Civ. Proc. § 1030(b). A determination of the amount of undertaking will be determined after the filing of: (1) a code compliant affidavit by Defendant’s counsel, and (2) financial information from Plaintiffs.
The Court imposes the following timeline:
· The aforementioned documents are due by 04/03/2023;
· Plaintiffs may file an Opposition to amount proposed by Defendant by 04/14/2023;
· Defendant may file a Reply by 04/21/2023;
· A hearing on the amount of the undertaking will be set on 05/02/2023; and
· Should an undertaking be required, Plaintiffs shall file the undertaking not later than 30 days after service of the court’s order following the 05/02/2023 hearing on the amount of undertaking. (See Cal. Code Civ. Proc. § 1030(d).)
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Reply
Defendant’s Reply reiterates (1) Plaintiffs are not residents of California, and (2) the standard of care for an in-office sinuplasty. Defendant argues that she has established a “reasonable possibility” of prevailing in this matter.
Defendant next attacks the Opposition, presenting that (1) Plaintiffs’ understanding of Defendant’s burden is incorrect as she need only establish a “reasonable possibility” and not present “substantial evidence;” (2) that Plaintiffs are not indigent as they present focusing on Plaintiffs’ occupancy and assets; and (3) Plaintiffs have not established they are entitled to relief as “[t]here is nothing in the case law that supports waiving this requirement because the plaintiffs are grieving, or because the plaintiffs’ decedent was in the military, or because the defendant’s insurance carrier has a certain amount of net worth.” (Reply 6:20-23.)
Defendant also presents an argument that the continuance requested by Plaintiffs should be denied. The Court addressed the continuance request, ante.
Plaintiffs have attached new declarations, including one of an expert, Brian H. Weeks, M.D. (“Dr. Weeks”), who opines about the standard of care in California for otolaryngologists.
Plaintiffs object to these declarations. The Court agrees. This evidence should have been presented with the moving papers as it has been well settled in California law that new arguments are not allowed in reply papers. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1542 [“The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.”]; In re Marriage of Khera and Sameer (2012) 206 Cal.App.4th 1467, 1477 [“Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief.”]; Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761 [“[P]oints raised in the reply brief for the first time will not be considered.”]; City of Corona v. Naulls (2008) 166 Cal.App.4th 418, 425 [“Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity counter the argument.”].)
The Court does not consider the new documents. However, the Court believes that the presentation by Defendant that she has retained and will present experts who will opine about the standard of care is sufficient to meet the burden of Cal. Code Civ. Proc. § 1030. The Court notes, however, it would have appreciated the Declaration of Dr. Weeks with the moving papers as it may have acted as evidence of those Defendant has retained.
The Court maintains its timeline.
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Conclusion
Defendant Ruwanthi Campano, M.D.’s Motion for Undertaking Under Cal. Code Civ. Proc. § 1030 is GRANTED, conditioned upon the filing of:
(1) an affidavit that complies with the statutory requirements of Cal. Code Civ. Proc. § 1030(b) by Defendant’s counsel, and
(2) financial information from Plaintiffs.
The Court sets the following timeline:
· The
aforementioned documents are due by 04/03/2023;
· Plaintiffs
may file an Opposition to amount proposed by Defendant by 04/14/2023;
· Defendant
may file a Reply by 04/21/2023;
· A
hearing on the amount of the undertaking will be set on 05/02/2023; and
· Should
an undertaking be required, Plaintiffs shall file the undertaking not later
than 30 days after service of the court’s order following the 05/02/2023
hearing on the amount of undertaking. (See Cal. Code Civ. Proc. § 1030(d).)
The Court will take into consideration Plaintiff’s
financial filing for the purpose of waiver and/or setting the amount of
undertaking.