Case Number: BC628119 Hearing Date: March 22, 2018 Dept: 97

Superior Court of California
County of Los Angeles
Department 97

Jessica Dulin,

Plaintiff,

v.

Long BEach Memorial Medical Center., et al.,

Defendants.

Case No.: BC628119

Hearing Date: March 22, 2018

[TENTATIVE] order RE:

Defendant’s motion for a PReliminary Injunction Requiring Plaintiff to Hold $39,000 of her Settlement Funds in Bond/Trust

BACKGROUND

Plaintiff Jessica Dulin (“Plaintiff”) commenced this action against Defendants Long Beach Memorial Medical Center (“LBMMC”), Praveen Jonnala M.D., and Does 1-100 based on allegations of medical negligence. A Doe amendment was then made to add Defendants Linda Sarson, R.N., and PICC RNS Plus, Inc. (“the Moving Defendants”). Plaintiff alleges that Defendant Sarson negligently performed a PICC line placement on Plaintiff, which resulted in a foreign object being left inside Plaintiff’s vein.

The parties proceeded to mediation where Defendants LBMMC and Praveen Jonnala M.D. reached a settlement with Plaintiff. LBMMC then filed a motion for determination of good faith settlement. The Court heard the motion on February 13, 2018 and found that the settlement by LBMMC was made in good faith. Dr. Jonnala has filed an application for determination of good faith settlement, but no ruling has been issued as of this hearing. The total settlement to be received by Plaintiff from LBMMC and Dr. Jonnala is $60,000.

The Moving Defendants did not settle this case at mediation and thus are continuing the case through the Court.

The Moving Defendants request that the Court issue a preliminary injunction to require that Plaintiff hold $39,000 of the above settlement in bond or in a separate trust account so that Plaintiff will be able to satisfy any obligations arising under Code of Civil Procedure § 998 to pay Defendants’ costs if the Moving Defendants ultimately prevail in this matter. Plaintiff opposes this motion, and the Moving Defendants filed a reply.

Legal Standard

The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial. (See Scaringe v. J.C.C. Enterprises, Inc. (1988) 205 Cal.App.3d 1536.) The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy. (14859 Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396. 1402.) Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. (See, e.g., ReadyLink Healthcare v. Cotton (2005) 126 Cal.App.4th 1006, 1016; Ancora-Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146, 150.)

The trial court considers two factors in determining whether to issue a preliminary injunction: (1) the likelihood the moving party will prevail on the merits of its case at trial, and (2) the interim harm the moving party is likely to sustain if the injunction is denied as compared to the harm the non-moving party is likely to suffer if the court grants a preliminary injunction. (Code Civ. Proc. § 526(a); Husain v. McDonald’s Corp. (2012) 205 Cal.App.4th 860, 866-67.) The balancing of harm between the parties “involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.” (Husain, supra, 205 Cal.App.4th at 867.) Thus, a preliminary injunction may not issue without some showing of potential entitlement to such relief. (Doe v. Wilson (1997) 57 Cal.App.4th 296, 304.) The decision to grant a preliminary injunction generally lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. (Thornton v. Carlson (1992) 4 Cal.App.4th 1249, 1255.)

Discussion

The Moving Defendants bring this motion for preliminary injunction under CCP § 526(a). They argue that a preliminary injunction is required “[b]ecause there is a substantial probability of Defendants prevailing in this matter and Plaintiff being unable to reimburse them for their recoverable costs and fees [under CCP § 998].” (Def. Motion, at pg. 3.) The Moving Defendants also argue that requiring Plaintiff to hold the $39,000 of the settlement funds is appropriate under Code of Civil Procedure §1030, which allows defendants to request an undertaking to secure an award of costs against out of state plaintiffs. The Moving Defendants maintain that the intent of Section 1030 should apply by analogy through Section 526(a) to allow Defendants some security in their ability to collect fees and costs from the opposing party.

In opposition, Plaintiff argues that there is no legal basis for this motion for preliminary injunction. Plaintiffs contend that the Moving Defendants are in actuality moving to mandate an undertaking for costs as a condition of Plaintiff’s prosecution of this action, which is severely limited in medical malpractice actions under CCP § 1029.6. Finally, Plaintiff contends that the evidence attached to the motion by the Moving Defendants is inadmissible and insufficient to show good cause to support a preliminary injunction.

The Court finds that the Moving Defendants do not provide a sufficient legal basis for this motion. The Moving Defendants do not cite any authority supporting the issuance of a preliminary injunction requiring Plaintiff to hold portions of settlement money for costs that Defendants may or may not be entitled to at the end of the litigation. Defendants cite to West Coast Constr. Co. v. Oceano Sanitary Dist. (1971) 17 Cal.App.3d 693 for the proposition that a party’s insolvency may properly be considered as grounds for granting an injunction to prevent the party from making it impossible for the party to pay any judgment that may be secured. However, West Coast Constr. Co. involved a motion for preliminary injunction by a contractor plaintiff against a defendant to prevent (1) the defendant from hiring other contractors to complete the construction while the litigation was pending and (2) the diversion of project funds for litigation expenses. (Id. at 697-698.) The factual scenario presented in West Coast Constr. Co. is not similar to this case and does not provide a legal basis for the Moving Defendants to secure costs by means of a preliminary injunction.

The Moving Defendants also cite to Myers v. Carter (1960) 178 Cal.App.2d 622 for the proposition that the purpose of Section 1030 (undertakings against out of state Plaintiffs) is similar to that of Section 526. (Def. Mot., at pg. 5.) However, nowhere in Myers does the court discuss Section 526 or preliminary injunctions.

The Moving Defendants have failed to cite any applicable authority for the Court to issue a preliminary injunction restricting Plaintiff’s use of settlement funds to secure Defendants’ litigation costs. As there is no basis in the law to support this request, the Court denies the motion.

Even if there were valid authority for a preliminary injunction in this situation, Defendants have failed to show that they would likely suffer harm if the injunction is denied. Defendants argue that they may not be able to collect their costs if they prevail in litigation. Defendants state in the motion that “Plaintiff is currently attending college and tending bar on night per week.” (Def. Mot., at pg. 3.) However, Defendants provide no evidence to support these contentions. Defendants attach portions of the Plaintiff’s deposition as Exhibit I, but none of the included pages reference Plaintiff’s financial status. Further, even if there were some evidentiary support for these factual assertions, Plaintiff’s status as a college student and part-time work at a bar do not demonstrate a likelihood that Plaintiff will be insolvent and unable to pay costs if Defendants prevail in this case. In short, Defendants have failed to differentiate Plaintiff’s situation from litigants in every other case where there always exists a possibility that ultimately the non-prevailing party may not have the ability to pay the judgment in one lump sum, and the prevailing party may have to collect on the judgment through wage garnishments, bank levies, or assignment orders. Therefore, Defendants’ request for a preliminary injunction is denied on the additional ground that Defendants have failed to show that there will be irreparable harm or that other remedies are inadequate.

To the extent that the Moving Defendants are attempting to secure an undertaking for costs against Plaintiff, the motion is also denied. Any such undertaking is severely limited in medical malpractice cases. Under CCP § 1029.6(a) whenever a personal injury action is filed against a medical professional, such as a doctor or nurse, a defendant may, “within six months of service of summons,” move for an order requiring the plaintiff to file an undertaking “in a sum not to exceed five hundred dollars ($500) as security for the costs of defense.” Here, Defendant Sarson answered the complaint on December 16, 2016, and Defendant PICC RNS Plus. Inc. filed an answer on November 8, 2016. The Moving Defendants did not file this motion until January 12, 2018, which is beyond the proper time frame required for a motion for undertaking of costs. Finally, the Moving Defendants may only request an undertaking of $500. The current motion seeks a total of $39,000, which is well over the $500 limit.

Based on the foregoing, the Court finds that it need not reach the merits of the factual arguments related to the likelihood that each party would prevail. Plaintiff filed an objection to paragraphs 9 and 19 of the Declaration of Judy Thompson. As the Court has ruled on this motion without reaching factual determinations as to the likelihood of success of Plaintiff’s claims, the objections to the Thompson Declaration are deemed moot.

Finally, Plaintiff has requested that the Court take judicial notice of three documents under Evidence Code § 452. However, each document relates to the factual arguments presented by Plaintiff. As stated above, the Court does not reach the factual arguments, and thus the Court declines to take judicial notice of these documents as they are not relevant to the above analysis.

CONCLUSION AND ORDER

The Moving Defendants’ motion for a preliminary injunction requiring Plaintiff to hold $39,000 in bond/trust is denied.

The Moving Defendants are ordered to give notice of this order.

DATED: March 22, 2018 ___________________________

Elaine Lu

Judge of the Superior Court