Case Number: BC665499 Hearing Date: December 17, 2019 Dept: 4B

ORDER RE DISMISSAL

On June 19, 2017, Plaintiff filed this case against Aurobindo Pharma, Torrent Pharmaceuticals, Teva Pharmaceuticals, GlenMed Pharmacy, Luxas Alexanian, Lianna Poghosyan, Glendale Adventist Medical Center, and MCLA Psychiatric Medical Group. Plaintiff did not serve any of the defendants with the complaint and summons. On the December 17, 2018 trial date, Plaintiff did not appear, and the Court dismissed the case. On May 30, 2019, Plaintiff moved to set aside the dismissal pursuant to Code of Civil Procedure section 473, subdivision (b) based on attorney mistake. The Court granted the motion on June 24, 2019, and reinstated the case.

According to Defendant Glendale Adventist Medical Center dba Adventist Health Glendale (“Defendant”), Plaintiff finally served the complaint on Defendant on October 23, 2019. On November 15, 2019, Defendant filed a demurrer, a motion to strike, and a motion for reconsideration of the June 24, 2019 ruling setting aside the dismissal, all set for hearing on December 17, 2019.

On December 4, 2019, Plaintiff filed a request for dismissal of the complaint without prejudice, which was entered, and the case was dismissed. On December 10, 2019, Defendant filed a reply in support of its motion for reconsideration arguing that the case could not be dismissed because three dispositive motions were pending. Defendant is not correct. None of the three motions was dispositive.

The motion for reconsideration was based on the assertion that Plaintiff had failed to serve Defendant with its May 30, 2019 motion to set aside the dismissal. A moving party is required to serve only parties who have appeared in the action. (Code Civ. Proc. § 1014 [“Where a defendant has not appeared, serve of notice or papers need not be made upon the defendant”].) On May 30, 2019, Defendant had not yet been served with the complaint and summons and had made no appearances. Defendant did not make an appearance until November 15, 2019. Therefore, Plaintiff was not required to serve Defendant with the motion to set aside the dismissal.

Defendant also argued in the motion for reconsideration that Plaintiff’s counsel’s declaration in support of the motion was false because counsel was not representing Plaintiff in December 2018 when the mistake occurred, and because counsel made other false statements. Defendant did not cite any authority holding that the Court is to judge the credibility of an attorney’s declaration made pursuant to section 473, subdivision (b). To the contrary, that section states that when an attorney submits a sworn affidavit attesting to his or her mistake “the court shall” vacate any dismissal caused by the mistake. The section does not give the Court discretion to question whether the mistake actually occurred or whether the attorney’s declaration is truthful. In sum, the motion for reconsideration had no merit.

The demurrer was based on the argument that Plaintiff failed to allege negligence adequately. Defendant also argued the action was barred by the statute of limitations because in other documents, Plaintiff’s counsel stated the incident occurred on June 22, 2016. On a demurrer, the Court cannot consider documents outside the complaint, such as statements by Plaintiff’s counsel in other documents. Even if the Court did consider Plaintiff’s counsel’s statement about the incident occurring on June 22, 2016, the complaint was filed on June 19, 2017, within the one year statute of limitations. Defendant mistakenly thinks a plaintiff must serve the complaint within the limitations period. That is not correct. A plaintiff need only file the complaint within the statutory period. At most, if the Court were to sustain the demurrer, it would allow leave for Plaintiff to file a First Amended Complaint to amend its allegations of negligence against Defendant. Therefore the demurrer was not dispositive.

The motion to strike asks the Court to strike the request for punitive damages. Even if granted, the motion would not have been dispositive of the entire action against Defendant.