2015-00184230-CU-PO

Beverly Edwards vs. Plum Healthcare Group LLC

Nature of Proceeding: Motion to File Second Amended Complaint

Filed By: Dawson, Valerie M.

Plaintiff Beverly Edwards’ motion for leave to file a second amended complaint (SAC)

is granted, on the conditions set forth herein:

This is an elder abuse action arising out of the alleged neglect and abuse that Plaintiff, Beverly Edwards, suffered during the period from May 2014 through May 2015 while she was a resident at three defendant skilled nursing facilities in the Plum Healthcare chain. Vohra Wound Physicians of California, P.C. and its physicians Luis Lee, M.D and Michael W. Montgomery M.D. were allegedly responsible for providing wound care in the facilities. The current defendants are Vohra Wound Physicians of California, P.C., (Vohra) and Luis Lee, M.D. (Dr. Lee) (collectively “Defendants”) are.

On July 7, 2017, Defendants filed motions for summary judgment. The motions advance theories that neither Dr. Lee nor Dr. Montgomery who treated Edwards was a “care custodian” under California’s elder abuse statute. The motions for summary judgment are currently set for March 6, 2018.

On August 28, 2017, Edwards filed two Doe amendments pursuant to CCP § 474. The new defendants are Vohra-affiliated entities that Edwards contends are Vohra’s alter egos. The purpose of plaintiff’s proposed amendments is to include Vohra Wound Physicians Management, LLC and Vohra Health Services, P.A. as named defendants in the case caption; add factual allegations regarding these defendants; and make certain other changes and clarifications as to

other defendants. The allegations to be added are set forth verbatim in the notice of motion. Plaintiff contends that the facts supporting the new allegations were determined through discovery. Some of the new allegations fortify her theory that Vohra and its physicians were care custodians although this theory was already alleged in the First Amended Complaint. (FAC 81-87).

“Trial courts are vested with the discretion to allow amendments in the furtherance of justice… That Trial courts are to liberally permit such amendments, at any stage of the proceeding, has been established policy in this state…resting on the fundamental policy that cases should be decided on the merits.” Hirsa v Superior Court (1981) 118 Cal.App.3d 486, 488-489.

Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit. Thus, the court’s discretion will usually be exercised liberally to permit amendment of the pleadings. See Nestle v. Santa Monica (1972) 6 Cal.3d 920,939; Mabie v Hyatt (1998) 61 Cal. App.4th 581, 596 (citing text). Howard v. County of San Diego (2010)184 Cal.App.4th 1422, 1428.” California Civil Procedure Before Trial (2012, Rutter) § 6:638 – 6:339. Courts apply the policy of great liberality in permitting amendments to the complaint “at any stage of the proceedings, up to and including trial” absent prejudice to the adverse party. Atkinson v Elk Corp. (2003) 109 Cal.App.4 th 739, 761.

If Plaintiff is the party seeking amendment, proximity to the trial date is not a ground for denial, as long as no prejudice to defendant is shown. Mesler v Bragg Mgmt. Co. (1985) 39 Cal.3d 290, 297.

In opposition to the motion, the Vorha defendants contend that the granting of this motion without the requested conditions will defeat their statutory right to avoid trial by of a summary judgment motion, thereby resulting in prejudice. However, the Court believes that the liberal policy of allowing amendments to pleadings prevails, as long as defendants’ right to a summary judgment hearing date is preserved. The Court is

aware of no case or statutory authority that requires denial of a motion to amend when there is a pending MSJ that may or may not become “moot” due to the amendment.

Defendants’ opposition sets forth the following requested conditions if the court were to grant this motion:

1. The pending Motions for Summary Judgment are not “moot” as a result of the filing of the Second Amended Complaint;

2. The pending Motions for Summary Judgment may proceed as filed and as pending and will be deemed by this Court to be applicable to Plaintiff’s Second Amended Complaint;

3. The Defendant Luis Lee, M,D. will have the right to timely amend his Notice of Motion to include any additional “issues” necessary to specifically address the Second Amended Complaint;

4. Defendant VWPC will have the right to timely amend its Notice of Motion to include any additional “issue” necessary to specifically address the Second Amended Complaint;

5. The Vohra Defendants will have the right to timely amend their respective Separate Statements to include any additional facts necessary to specifically address the Second Amended Complaint;
6. The newly added “Vohra” entities, who have not yet appeared in this
litigation, should have the right to challenge Plaintiffs Second Amended Complaint and to bring their own summary judgment motions should be required in the event the court grants the motion.

The Court grants the above conditions. The Court has discretion to consider an MSJ directed to one complaint to apply to a later filed complaint as long as there is no prejudice to the defendant. National Grange of Order of Patrons of Husbandry v. California Guild (2017 3rd DCA) 17 Cal. App. 5th 1130, 1140-1145. Defendants may therefore amend their moving papers on their MSJs (conditions 3-5 above) to meet the allegations of the SAC. Thus, the Court is not “mooting” the MSJs in the sense that defendants would be required to file entirely new motions directed to the SAC. The Court will rule on the motions including the amendments, as directed to the SAC.

Plaintiff’s supplemental briefing filed October 13, 2017 states that “the parties have already agreed on measures to mitigate any prejudice from granting leave to amend, including vacating the trial date (which was then in November) and giving defendants an open-ended timeframe in which to bring an amended or new summary judgment motion.” It is not clear what measures the parties have agreed to but they appear to be consistent with the conditions set forth herein.

There is a pending motion for trial preference set in Department 47 for February 6, 2018. The granting of this motion on the conditions set forth herein will result in the continuance of the March MSJ hearing dates for a sufficient period of time to allow defendants to file amended papers to address the new allegations of the SAC and for plaintiffs to have adequate notice to prepare an opposition. This will likely impact the ability to have a preference trial date, if such is granted on February 6. Unfortunately the request to amend the Complaint, with the attendant delays of the MSJ and Trial date, will directly impact Plaintiff’s ability to have a firm trial preference date. Plaintiff’s counsel conceded in her October 25, 2017 letter to the court urging the court to allow the amendment, that “they [defendants] always have the option to delay the [hearings] further [ i.e beyond March 6, 2018].”

The parties shall meet and confer on a new hearing date and briefing schedule for the MSJs and inform the court clerk of the new date by 4:00 pm on January 23. If no agreement is made, the parties may appear at oral argument and the Court will determine the new date for the MSJs.

Plaintiff may file and serve the proposed Second Amended Complaint on or before February 5, 2018. Response to be filed and served within 30 days of service of the SAC, 35 days if served by mail.