Judge Yolanda Orozco, Case 21STCV41050 2022-08-02 Tentative Ruling

Judge: Yolanda Orozco, Case: 21STCV41050, Date: 2022-08-02 Tentative Ruling

Case Number: 21STCV41050 Hearing Date: August 2, 2022 Dept: 31

MOTION FOR RECONSIDERATION IS GRANTED

Background

On November 11, 2021, Plaintiff Jane Ramsey (“Plaintiff”) filed the instant action against Defendants Barry Katz (“Katz”) and Katz Entertainment, Inc. (“Katz Entertainment”) (collectively, “Defendants”), asserting the following causes of action:

1. Promissory Fraud;

2. Breach of Contract;

3. Rescission of Contract;

4. Fraud (Intentional Misrepresentation with Monetary Damages);

5. Restitution (Unjust Enrichment Relief);

6. Conversion;

7. Intentional Infliction of Emotional Distress;

8. Fraud and Deceit with Constructive Trust;

9. Declaratory Relief;

10. Breach of Implied in Fact Contract;

11. Negligent Infliction of Emotional Distress; and

12. Common Counts (Money Had and Received).

Both parties are self-represented.

On March 10, 2022 Plaintiff filed a Motion for Trial Setting Preference, which Katz opposed. On June 30, 2022, the Court found Plaintiff’s evidentiary showing fell short under Code. Civ. Proc., Section 36(d) and denied Plaintiff’s Motion without prejudice. (Min. Or. 06/30/22.)

The current trial date is set for March 28, 2023.

Legal Standard

Code of Civil Procedure section 1008 provides, in pertinent part:¿¿ ¿

“(a) 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 an 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.¿

(b) A party who originally made an application for an order which was refused in whole or in part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown 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. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on an ex parte motion.¿¿

[. . .]

(e)¿This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”¿

Discussion

Plaintiff seeks reconsideration of the Court’s June 30, 2022 (erroneously dated in Plaintiff’s moving papers as being issued on July 30th, 2022). The June 30, 2022, ruling denied Plaintiff’s Motion for Trial Preference. Plaintiff’s asserts new and different facts have been discovered that reveal there is basis for a trial preference in this case.

The new fact is that Plaintiff is at risk for being unable to participate in the litigation of this matter and that there are no alternatives to the surgery.

In the June 30th’s Order denying Plaintiff’s motion, the Court made the following observations:

· “Plaintiff was purportedly advised by her medical team to go forward with surgical incision....She was further advised that further delay could require total thyroidectomy....

· “Instead she declined such course of treatment in favor of routine screening.”

· “Additionally, based on the report, Plaintiff was aware of her medical condition as early as August 2018. This would suggest that the cancer is slow growth, and this inference is supported by the report. Moreover, even though death is listed as possible risk with thyroid lobectomy, the report does not clearly state how likely that risk is in Plaintiff’s case”.

· “Lastly the report lists alternatives to the procedure, which potentially increases Plaintiffs survival beyond six months.”

(See Min. Or. 06/30/22)

Plaintiff’s Motion

Plaintiff asserts that the Court overlooked the reason she declined the surgical incision from 2018 to 2020, that due to the abuse she suffered by Defendants and she did not want a future but instead for the cancer to kill her. (Mot. at 4:2-3.) Not being able to take her own life, Plaintiff opted for routine screening.

Plaintiff has since decided to have the surgery as recommended by her doctors after the court trial. Plaintiff wants to have the surgery after trial because there are life-threatening risks and complications involved with the surgery.

The fact Plaintiff’s cancer is slow growth, does not mean the cancer is not life-threatening and Plaintiff’s doctor has recommended Plaintiff get surgery within 3 months or as soon as possible. (Exhibit 1 -A.) The Patient Letter provided by Plaintiff states that although thyroid cancers are typically slow to progress, Plaintiff’s treating doctor, Dr. Jonathan West, is unable to predict if the cancer will spread regionally or distantly, but the cancer may spread. (Id.) Plaintiff’s most recent ultrasound from 06/22/21 “shows interval grows from previous ultrasound studies” that occurred in September 2020, November 2019, March 2019, and August 2018. (Id.)

Moreover, despite alternative therapies being available, Dr. West does not recommend the alternative therapies: “we are recommending hemithyroidectomy” within 3 months for Ms. Ramsay. (Exhibit 1 -A.) Dr. West further adds “We have counseled patient that our strong recommendation is still surgical excision as soon as possible.” (Id.)

Defendants opposed Plaintiff’s motion on the basis that Plaintiff has used her diagnosis in bad faith since she has had the same medical condition since 2018 and she should have opted to have the surgery in 2018. (See. Opp. to Plaintiff Motion at 2:2:5.) Plaintiff asserts that since 2018 Defendants have known about Plaintiff’s cancer and her option not to treat the cancer and know that surgery is the only treatment.

Plaintiff asserts that the standard set in Fox v. Superior Court (2018) is that “[t]he health of the party is such that preference is necessary to prevent prejudicing the party’s interest in the litigation.” (21 Cal.App.5th 529, 495.) Therefore, the issue before the Court is not whether the Plaintiff may die before trial or become so ill that she is absent, but whether the Plaintiff can currently participate in the litigation and a delay will prejudice her from being able to do so in the future. Here, Plaintiff argues that her health may deteriorate, and she may be unable to participate in the litigation for much longer, making trial preference necessary.

The court in Fox was referring to the mandatory provision of Cal. Civ. Pro. Code Section 36(a) which applies to a party in a civil action “who is over 70 years of age” and “[t]he health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.”

Here, Plaintiff is not over the age of 70 and the proper legal standard for Plaintiff’s motion is Section 36(d) which states:

“In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.”

Plaintiff asserts that she is entitled to trial preference because due to her health, putting off the surgery could lead to death or for the surgery to no longer be an option for treatment. If Plaintiff continues to decline treatment, the consequences are that the “Cancer may grow or spread. Treatment at a later date may not be possible. Growth or spread of cancer can lead to death.” (Ex. 3 – “3/9”.)

Plaintiff asserts that undergoing the surgery involves risks, such further injury or even death. (Ramsey Decl. ¶ 3, Ex. 3.) Therefore, Plaintiff has opted to have surgery after the trial and asks that trial be set for an earlier date, so she can obtain surgery sooner. (Id. at p. 12-13.) Plaintiff has agreed to have the surgery. (Ex. 3 – “5/9” and “8/9.”)

Defendant’s Opposition

Defendant Barry Katz opposes the motion because the new information is two new doctors' reports that are consistent with the previous doctors’ report. (See Mot. Ex. 1-A, 1-C.) Defendant Katz asserts that Plaintiff’s reports are hearsay because Plaintiff failed to get proper declarations under penalty of perjury.

Moreover, Defendant Katz assertion that if Plaintiff had the surgery next month, Plaintiff would have 7 months to heal. However, Defendant Katz fails to consider that Plaintiff's recovery is not guaranteed. Apart from possible death during surgery, Plaintiff could suffer complications, and while in recovery Plaintiff may be unable to meaningfully prepare and participate in the trial, thus prejudicing her interests.

Plaintiff’s Reply

Moreover, Plaintiff asserts that the medical reports submitted are not hearsay because they are business records made during the regular course of business. Plaintiff provided an email from Dr. West attesting that the letters attached are legitimate and authentic medical recodes, submitted under penalty of perjury, all the risks detailed in the surgical consent form apply to Plaintiff and that Thyroid ultrasounds are used to monitor local and regional thyroid cancer not distant (i.e. metastatic) thyroid cancer. (Reply Ex. 4A.)

The fact Plaintiff has survived 4 years with cancer has no bearing on what course the cancer will take in the near future, or after the currently scheduled trial in March of 2023, or if surgery will still be an option for Plaintiff, as outlined in her medical reports. Plaintiff’s medical reports also outline the possible risks and complications that may impede Plaintiff’s ability to participate in the trial.

Legal Standard of CCP Section 36(d) and CCP Section 36(e)

One underlying reason Plaintiff’s motion was denied on June 30, 2022 was “the report lists alternatives to the procedure, which potentially increases Plaintiff’s survival beyond six months” which Plaintiff's current doctors dispute as being untrue. (See Min. Or. 06/30/22.)

In rejecting Plaintiff’s motion on June 30, 2022, the Court stated it would need: “Plaintiff’s current medical diagnosis and prognosis, as well as the risk of death associated with thyroid lobectomy, the rate of growth of Plaintiff’s cancer, and the risks associated with the alternatives to thyroid lobectomy would constitute the type of evidence required to enable the Court to analyze the motion’s merits.” (Min. Or. 06/30/22.) As Dr. West explains, such information is uncertain, but Plaintiff does need surgery as soon as possible. (See Mot. Ex. 1-A.)

Under Cal. Code Civ. Pro. Section 36(d), motion for reconsideration is discretionary and premised on Plaintiff showing through clear and convincing medical documentation that raises “substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.”

Although Plaintiff has provided sufficient medical documentation that surgery is the only available treatment, the Court is not satisfied that the risk of death due to the surgery establishes “substantial medical doubt” of Plaintiff’s survival beyond six months.

Plaintiff’s desire to avoid preparing for trial while facing or undergoing the medical complications associated with her surgery may be mitigated by the fact that Plaintiff may survive the surgery and recover in time for trial. However, if Plaintiff has the surgery sooner, this means that Plaintiff could be recovering from any number of complications while also preparing to litigate this case and her interests will likely be prejudiced.

The Court nevertheless has the discretion to grant Plaintiff’s motion under Cal. Civ. Pro. Section 36(e). Section 36(e) provides:

“Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference.”

The Court finds that Plaintiff has submitted sufficient medical documentation to show she suffers from a life-threatening illness and that if she undertakes surgery, there is a risk of death. The Court is satisfied that complications from surgery could prejudice Plaintiff’s ability to prepare for trial and the interest of justice will be served by granting Plaintiff’s motion.

Defendant Katz opposed Plaintiff's original motion on the basis that he would be prejudiced if he is forced to “hurriedly prepare and be ready for trial before March 27, 2023.” The reasons given were that on January 01, 2021, Defendant entered into a 3-year consultation contract with Cirque Du Solei, and Defendant would be required to travel and stay often in Las Vegas. Moreover, Defendant’s time is consumed running his business Barry Katz Entertainment. However, Defendant’s interest in maintaining March 27, 2023, trial date does not outweigh Plaintiff’s interest in not delaying her surgery or avoiding the possible complications of her surgery while engaging in a trial. This includes the risk of death.

While Defendant’s prejudice to prepare for trial concerns his availability it does not outweigh the possible health complications Plaintiff may experience. Therefore, the interest of justice will be served in granting Plaintiff’s motion.

Accordingly, Plaintiff’s Motion for Reconsideration is GRANTED.

Conclusion

Plaintiff’s Motion for Reconsideration of the June 30, 2022, Order is GRANTED pursuant to Cal. Civ. Pro. Section 36(e). Jury trial date is advanced and set on December 5, 2022, at 10 a.m. FSC is advanced and set on November 18, 2022, at 9 a.m.

Plaintiff is to give notice.