Judge: Stephen P. Pfahler, Case: 20STCV38847, Date: 2023-02-06 Tentative Ruling

Case Number: 20STCV38847    Hearing Date: February 6, 2023    Dept: F49

Dept. F-49

Date: 2-6-23

Case #20STCV38847

Trial Date: 6-5-23

RECONSIDERATION

MOVING PARTY: Plaintiff, Cinda Mickols

RESPONDING PARTIES: Defendant, Imad Abumeri, M.D.

RELIEF REQUESTED

Motion for Reconsideration of Order Granting Summary Judgment

SUMMARY OF ACTION

On October 10, 2019, Plaintiff Cinda Mikols presented to the emergency room, and underwent a right sided lateral interbody fusion and segmental fixation at L4-L5 operation performed by Defendant Dr. Mark Liker. Plaintiff’s post surgical condition, due to both post-operative infections and developing hypoxemia. On October 14, 2019 Plaintiff was diagnosed with a number of conditions, including but not limited to, septic shock and renal failure, which the diagnosing physician, Imad Abumeri, found unrelated to surgery and therefore required no further intervention. On October 20, 2019, Plaintiff underwent a second operation for a right hemi-colectomy with ileostome placement.

On October 9, 2020, Plaintiff filed a complaint for Medical Malpractice and Medical Negligence. The action was transferred from Department 28 to Department 49 on January 14, 2022.

RULING: Continued to March 22, 2023.

Plaintiff Cinda Mickols moves for reconsideration of the October 4, 2022, order granting summary judgment in favor of defendant Imad Abumeri, M.D. Plaintiff moves under Code of Civil Procedure section 1008 on grounds of both the availability of a corrected declaration from Dr. Hillel Baldwin, as well as inadvertent error and excusable mistake by both the retained expert and counsel.

Defendant in opposition challenges the motion on grounds of untimeliness. Defendant also contends the motion lacks any showing of new or different facts, as required under the standard. Nothing in the motion explains the delayed discovery of the error.

Defendant in reply asserts the motion is well supported with “new or different facts, circumstances, or law,” based on the “inadvertent error” of counsel and Dr. Baldwin. Plaintiff offers additional argument regarding the “presumption” of submitting the declaration under the penalty of perjury pursuant to California law.

The motion comes after the August 24, 2022, hearing whereby Plaintiff failed to attach the purported declaration of Hillel Baldwin, M.D. The court in its discretion continued the hearing to October 4, 2022 in order to allow Plaintiff an opportunity to present the declaration for consideration. At the time of the reset hearing date, the court granted the motion for summary judgment, due to Plaintiff’s failure to submit any admissible counter expert declaration in a motion requiring expert testimony. The written judgment was entered on October 25, 2022. The instant motion was filed on November 8, 2022.

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

(Code Civ. Proc., § 1008, subd. (a).)

The motion was filed more than 10 days after the entry of the order granting summary judgment, and after entry of the order for judgment in favor of Dr. Albumeri. The motion is therefore untimely. (Ten Eyck v. Industrial Forklifts Co. (1989) 216 Cal.App.3d 540, 545; Hartford Accident & Indemnity Co. v. Sequoia Ins. Co. (1989) 211 Cal.App.3d 1285, 1303.) The court therefore declines to consider the substantive arguments regarding the basis for relief under this statutory standard.

Notwithstanding the procedural bar under section 1008, subdivision (a), law on the subject also allows a party seeking relief from summary judgment to proceed as a motion for new trial. The motion itself lacks any explicit request for a “new trial,” though “Accident or surprise, which ordinary prudence could not have guarded against” constitutes a standard for relief. (Code Civ. Proc., § 657(3).) The court in its discretion can consider such a basis for relief  (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 194; Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1610.) The instant motion was filed less than 15 days following the entry of the judgment, thereby making such a motion timely. (Code Civ. Proc., § 659.)

The court however declines to preclude consideration of a potentially valid motion for new trial, due to the lack of a specific request and denial of opportunity to Dr. Albumeri to challenge any such request. In an abundance of caution to preserve any potential pertinent timelines, the court therefore defers consideration of any potential motion for new trial arising from the subject motion for reconsideration following the motion for relief under Code of Civil Procedure section 473, subdivision (b).

The subject motion for reconsideration hearing is therefore continued to March 22, 2023. The court will consider the declarations submitted in support under the standard of Code of Civil Procedure section 657(3).

Meanwhile, the court will first consider the filed motion for relief under Code of Civil Procedure section 473, subdivision (b) currently set for hearing on February 10, 2023. “Both a motion for new trial under section 1008 and a motion for relief from the judgment under section 473 are appropriate means for seeking trial court relief from an order granting summary judgment or adjudication.” (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.)

The continued motion date and supplemental hearing dates are intentionally set for a period well after the February 10, 2023 hearing should the instant motion become rendered moot if Plaintiff prevails on the February 10, 2023 motion for relief under Code of Civil Procedure section 473, subdivision (b). As for the March 22, 2023 hearing, any opposition and reply are due under statutory standards—nine (9) and five (5) court days from the hearing date.

Plaintiff to give notice to all parties.