Judge: Thomas D. Long, Case: 19STCV29697, Date: 2024-02-06 Tentative Ruling

Case Number: 19STCV29697    Hearing Date: March 14, 2024    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On August 21, 2019, Plaintiffs Evan Vartanian (a minor, by and through his guardian ad litem Crystal Vartanian), Crystal Vartaniana, and Nark Vartanian filed this medical malpractice action against Defendants Sarah Badran M.D. and Children’s Hospital Los Angeles.

On September 19, 2023, Plaintiffs substituted Children’s Hospital Los Angeles Medical Group (“CHLAMG”) for Doe 1.

On October 6, 2023, Plaintiffs dismissed Children’s Hospital Los Angeles.

On January 8, 2024, CHLAMG filed a motion to continue trial, and on January 9, 2024, CHLAMG filed a demurrer.

DEMURRER

A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true.  (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)

CHLAMG argues that it must be dismissed because it was not served within the statutory time limits.  “A plaintiff must serve ‘a defendant within three years after the action is commenced against the defendant.’  (§ 583.210, subd. (a).)  ‘[A]n action is commenced at the time the complaint is filed.’  (Ibid.)  Dismissal is mandatory where a plaintiff fails to serve a defendant within the statutory time limits.  (§ 583.250, subd. (b).)  The three-year rule applies where the defendant seeking dismissal was served as a Doe defendant named in the original complaint, later amended to show his or her true name.  [Citations.]  In short, a plaintiff has three years from the date of filing the complaint to identify and serve a Doe defendant.”  (Inversiones Papaluchi S.A.S. v. Superior Court (2018) 20 Cal.App.5th 1055, 1061.)  “Service requirements ‘are mandatory and are not subject to extension, excuse, or exception except as expressly provide by statute.’  (§ 583.250, subd. (b).)”  (Id. at pp. 1061-1062.)

Plaintiffs filed this action on August 21, 2019.  Accordingly, all defendants must have been served by August 21, 2022.  Plaintiffs named CHLAMG on September 19, 2023, and they filed a proof of service reflecting personal service on CHLAMG on December 6, 2023.  Plaintiffs’ amendment and service are untimely with respect to CHLAMG.

In opposition, Plaintiffs argue that dismissal of CHLAMG would be a meaningless formality because the statute of limitations has not yet run, so Plaintiff Evan will be able to re-file a new lawsuit and incur more costs for all parties.  Plaintiffs also contend that there is no prejudice to CHLAMG “in letting the current Doe amendment and service stand against it.”  However, the service requirements are mandatory.

The demurrer is SUSTAINED without leave to amend.  Defendant Children’s Hospital Los Angeles Medical Group is DISMISSED WITHOUT PREJUDICE.

MOTION TO CONTINUE TRIAL

Defendants Sarah Badran M.D. and CHLAMG request a continuance of the April 22, 2024 jury trial to September 9, 2024, or a date thereafter.  When CHLAMG filed its demurrer, the first available hearing date was May 14, 2024—after the trial date.  The parties seek to continue trial because “Defendant CHLAMG is entitled to have its Demurrer heard prior to the start of trial.  If the Demurrer is overruled, it is also entitled to conduct discovery on its behalf.”  However, on February 6, 2024, the Court advanced the demurrer’s hearing date.  With the Court’s concurrent order sustaining the demurrer and dismissing CHLAMG, the grounds for this motion are now moot.

The motion to continue trial is DENIED AS MOOT.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

         Dated this 14th day of March 2024