Judge Stephen Morgan, Case Number: 22AVCV00648, Date: 2023-09-19 Tentative Ruling

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This is a medical malpractice action. Plaintiffs Anthony Burgos (“Anthony”[1]) and Amy Burgos (“Amy” and collectively “Plaintiffs”) allege that on September 24, 2021, Anthony underwent a robotic assisted bilateral inguinal hernia repair procedure at Defendant Palmdale Regional Medical Center (“PRMC”) where Defendant Aldo T. Gamarra, M.D., erroneously sued as Aldo Gamarra, M.D. (“Dr. Gamarra”), performed the surgery and Brandon Stark, M.D. (“Dr. Stark”), was the anesthesiologist. Plaintiffs present that PRMC, Dr. Gamarra, and Dr. Stark failed to provide the proper care, resulting in an epigastric bleed which was not recognized intraoperative, that caused Anthony to suffer cardiac arrest the next morning due to hemorrhagic shock. Plaintiffs further allege that Anthony was admitted to Defendant Southern California Specialty Care, LLC dba Kindred Hospital San Gabriel Valley, erroneously sued as Kindred Healthcare (“Kindred”), on or around October 22, 2021 where he developed a significant bed sore due to the care received.

On August 26, 2022, Plaintiffs filed their Complaint alleging two causes of action for Professional Negligence and Loss of Consortium.

On October 27, 2022, Plaintiffs dismissed PRMC, Dr. Gamarra, and Dr. Stark without prejudice.

On August 10, 2023, Kindred filed an Ex Parte Application for an Order Shortening Time and/or Continuing Trial. The application sought to shorten the time to hear Kindred’s Motion to Dismiss. The motion was granted on August 11, 2023.

On August 14, 2023, Kindred filed its Motion to Dismiss for Delay in Prosecution “Motion to Dismiss”)

No Opposition has been filed. “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days. . .before the hearing.” (Cal. Code Civ. Proc. §1005(b).) “Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by this section.” (Ibid.) The hearing is set for September 19, 2023. Accordingly, an Opposition was due by September 06, 2023. Should an Opposition be filed, it is now untimely.

On September 14, 2023, Kindred filed a Supplemental Declaration of Cat N. Bulaon in Support of the Motion to Dismiss for Delay in Prosecution. The Court notes that the date of the filing is two days later than the date when replies are due under Cal. Code Civ. Proc. § 1005(b) (5 court days prior to the hearing). Thus, the Supplemental Declaration of Cat N. Bulaon in Support of the Motion to Dismiss for Delay in Prosecution is not akin to a Reply and is improper. Further, the Supplemental Declaration included new facts and evidence. New evidence is generally not permitted on reply, as the opposing party does not have an opportunity to respond. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1538 [holding "[t]he general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers"]; see also San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 312 [reversing summary judgment where the moving party submitted for the first time with its reply papers a supplemental declaration containing new facts].) This is applicable to the situation at hand where new evidence associated with this supplemental declaration, filed at an even later date than a reply, would not provide Plaintiffs with an opportunity to respond. The Court declines to consider the Supplemental Declaration of Cat N. Bulaon in Support of the Motion to Dismiss for Delay in Prosecution.

Standard for Motion to Dismiss for Lack of Prosecution – Cal. Code of Civ. Proc. § 583.410 states:

(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.

(b) Dismissal shall be pursuant to the procedure and in accordance with the criteria prescribed by rules adopted by the Judicial Council.

(a) The court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following conditions has occurred:

(1) Service is not made within two years after the action is commenced against the defendant.

(A) Three years after the action is commenced against the defendant unless otherwise prescribed by rule under subparagraph (B).

(B) Two years after the action is commenced against the defendant if the Judicial Council by rule adopted pursuant to Section 583.410 so prescribes for the court because of the condition of the court calendar or for other reasons affecting the conduct of litigation or the administration of justice. . . ."

Cal. Rules of Court, Rule 3.1340(a), states, “The court on its own motion or on motion of the defendant may dismiss an action under Code of Civil Procedure sections 583.410-583.430 for delay in prosecution if the action has not been brought to trial or conditionally settled within two years after the action was commenced against the defendant.” Cal. Rules of Court, Rule 3.1340 also provides a special timeline – any opposition must be filed within 15 days. (See Cal. Rules of Court, Rule 3.1340(b).) Within five days of service of the opposition, a reply must be filed. (See Cal. Rules of Court, Rule 3.1340(d).)

“The court may grant or deny the motion or, where the facts warrant, the court may continue or defer its ruling on the matter pending performance by either party of any conditions relating to trial or dismissal of the case that may be required by the court to effectuate substantial justice.” (Cal. Rules of Court, Rule 3.1340(f).) Relevant matters that must be considered on such a motion are:

(1) The court's file in the case and the declarations and supporting data submitted by the parties and, where applicable, the availability of the moving party and other essential parties for service of process;

(3) The extent to which the parties engaged in any settlement negotiations or discussions;

(4) The diligence of the parties in pursuing discovery or other pretrial proceedings, including any extraordinary relief sought by either party;

(6) The law applicable to the case, including the pendency of other litigation under a common set of facts or determinative of the legal or factual issues in the case;

(7) The nature of any extensions of time or other delay attributable to either party;

(8) The condition of the court's calendar and the availability of an earlier trial date if the matter was ready for trial;

(9) Whether the interests of justice are best served by dismissal or trial of the case; and

(10) Any other fact or circumstance relevant to a fair determination of the issue.

The court must be guided by the policies set forth in Code of Civil Procedure section 583.130.

Application – Plaintiff commenced this action on August 26, 2022. Kindred presents that Plaintiffs informed PRMC that they were dismissing the case, but did not sign the requests for dismissals sent by Kindred. (Bulaon Decl. ¶10, Exhibit 9.) It appears PRMC’s counsel attempted to reach out multiple times via email. (Bulaon Decl. ¶¶ 9, 12 ,13; Exhs. 5, 8, and 10.) Kindred presents that at this time, Plaintiffs have not propounded discovery, failed to communicate with Kindred’s counsel, and failed to acknowledge the imminent trial date of October 27, 2023. Kindred directs the Court to Lopez v. Larson (1979) 91 Cal.App.3d 383, 397–98.

Plaintiffs have not opposed this motion. The Court construes Plaintiff's failure to oppose the demurrer as a concession on the merits. (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, fn. 4 [where nonmoving party fails to oppose a ground for a motion "it is assumed that [nonmoving party] concedes" that ground].)

[1] Plaintiffs share the same surname. The Court addresses each plaintiff individually by their first name for the purpose of clarity. No disrespect is meant.