Case Number: BC522493    Hearing Date: August 28, 2014    Dept: 93

Superior Court of California
County of Los Angeles
Department 93

MARCY B. EISENMAN,

Plaintiff(s),
v.

SWH MIMI’S CAFÉ, LLC, et al.

Defendant(s). Case No.: BC522493

Hearing Date: August 28, 2014

[TENTATIVE] RULING RE:
DEFENDANT SWH MIMI’S CAFÉ, LLC’S MOTION TO RECLASSIFY THIS CASE TO A COURT OF LIMITED JURISDICTION

Defendant SWH Mimi’s Café, LLC’s Motion to Reclassify this Case to a Court of Limited Jurisdiction is DENIED. Defendant has not demonstrated to a legal certainty that Plaintiff Marcy B. Eisenman’s recovery will fall below the jurisdictional limit.

Plaintiff’s Objections to Exhibits A and B of Defendant’s Reply

Plaintiff’s objections to the Reply exhibits are sustained on relevance grounds. As is discussed below, the question of jurisdiction is not a test on the merits as to the validity of Plaintiff’s claims.

Procedural Background

Defendants’s Motion to Reclassify as a Limited Civil Case came on for hearing before Judge Samantha Jessner on July 24, 2015. Judge Jessner’s tentative ruling as of July 24 was to grant the motion because Plaintiff had not submitted evidence to support a finding that her general damages would bring the total damages possible above $25,000. Judge Jessner continued the matter to August 28, 2014, to allow both sides to submit supplemental pleadings on the question of general damages.

Since that time, on August 5, Plaintiff Marcy Eisenman submitted a Declaration in support of her Opposition, and on August 15, 2014, Defendant SWH Mimi’s Café, LLC filed a Response to the Declaration. In her declaration, Plaintiff acknowledges that she has not seen the orthopedist since October 2013. She states in her declaration that “after the cortisone shot wore off, the problems with my ankle returned to the same level as before the cortisone shot. There has been no further improvement.” (Supp. Eisenman Decl. ¶2.) She states further that she has wanted to see a doctor, but has not done so because of her work schedule and the impact of the passing of her father. (Id. ¶¶ 4-5.)

Significantly, the declaration describes continuing problems Plaintiff has with her ankle, including “getting cramps and muscle (sic) spasms in my ankle and foot,” that “[i]f I wear anything but a flat shoe my ankle aches after 5 minutes,” “I cannot walk as fast as I use to or as far,” “[t]he ankle constantly hurts,” “Sometimes, when I’m standing at trade shows the ankle swells,” and “I have to sit and put my leg up, which is inconsistent with my duties at a trade show.” (Id ¶¶ 6-7.)

In Defendant’s Response, they request that the Court consider the evidence submitted with their Reply brief because Plaintiff has now had an opportunity to respond to that evidence. However, the issue of whether the alleged defect at the restaurant is a “trivial defect” falling within the trivial defect doctrine is a question to be considered in the case, whether by summary judgment or trial, and is not an issue for consideration in deciding whether the action should be classified as a limited or unlimited jurisdiction case. Defendant also argues that Plaintiff has not appeared at her declaration, but it does not appear that Defendant noticed Plaintiff’s deposition and she refused to appear. Finally, Defendant argues that it would be prejudiced by allowing the case to remain in an unlimited jurisdiction court because of the costs of the greater amount of discovery allowed in an unlimited jurisdiction case.

Legal Standard

CCP Section 403.040 states in relevant part:

(a) The plaintiff, cross-complainant, or petitioner may file a motion for reclassification within the time allowed for that party to amend the initial pleading. The defendant or cross-defendant may file a motion for reclassification within the time allowed for that party to respond to the initial pleading. The court, on its own motion, may reclassify a case at any time. A motion for reclassification does not extend the moving party’s time to amend or answer or otherwise respond. The court shall grant the motion and enter an order for reclassification, regardless of any fault or lack of fault, if the case has been classified in an incorrect jurisdictional classification.

(b) If a party files a motion for reclassification after the time for that party to amend that party’s initial pleading or to respond to a complaint, cross-complaint, or other initial pleading, the court shall grant the motion and enter an order for reclassification only if both of the following conditions are satisfied:

(1) The case is incorrectly classified.

(2) The moving party shows good cause for not seeking reclassification earlier.

The appropriate standard for determining whether a matter must be reclassified for failing to meet the jurisdictional threshold for the amount of recovery is not whether damages “realistically” will exceed the threshold, but rather whether it is possible that the damages will exceed the jurisdictional limit. (See Maldonado v. Superior Court of Orange County (1996) 45 Cal.App.4th 397, 402 (“the trial court looks to the possibility of a jurisdictionally appropriate verdict, not to its probability.”); see also Walker v. Superior Court of Los Angeles County (1991) 53 Cal.3d 257, 270 (“the [trial] court may believe it highly unlikely that plaintiff will recover the amount demanded, but this is not enough to defeat jurisdiction, unless it appears to a legal certainty that plaintiff cannot recover the amount [of the] demand.”); see also Ytuarte v. Superior Court of Los Angeles County (2005) 129 Cal.App.4th 266, 278-79.)

Discussion

Plaintiff’s medical specials are limited to the amount her medical providers have accepted in payment for her treatment. (See Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541.) As the court held in Howell: “We hold, therefore, that an injured plaintiff whose medical expenses are paid through private insurance may recover as economic damages no more than the amounts paid by the plaintiff or his or her insurer for the medical services received or still owing at the time of trial.” (Id. at 566.) Here, there is a dispute as to the actual amount of Plaintiff’s medical specials, but a review of the evidence presented by Plaintiff and Defendant shows that the medical expenses for this injury are under $4,500.

Defendant argues that Plaintiff’s total medical specials are between $1,514.00 and $4,145.00. These calculations are based on charges from West Hills Hospital (attached to the Motion as Exh. B), and charges from Southern California Orthopedic Institute (“SCOI”) (attached to the Motion as Exh. C). Plaintiff argues, based on the declaration of attorney Donald Weissman that the medical bills exceed $7200 (Weissman Decl. ¶6, attached to Plaintiff’s Memorandum of Points and Authorities in Opposition), although the documents attached to his declaration (Exs. 1, 4) do not support this figure.

West Hills Hospital

It appears undisputed that West Hills Hospital is owed $506.20. (Motion, Clark Decl. (“Clark Decl.) ¶5 and Exh. B.) The West Hills bill submitted by Defendant (Ex. B) shows a $1,715.92 bill less an adjustment for $1209.72 for a balance owed of $506.20. The bill submitted by Plaitniff (Ex. 1 to the Weissman Decl.) shows the same “total charges” of $1,715.92 and “contractual adj” of $1209.72.

SCOI

According to Plaintiff’s medical billing records, the total payments made to SCOI are $4,113.29. (See Ex. C, p. 12.) This amount reflects an adjustment of $8,613.85. (Id.) Notably, this bill covers the last doctor’s visit Plaintiff had at SCOI according to her own attorney’s declaration, on October 18, 2013.) (See Ex. C, p11.) The bill submitted by Plaintiff shows a lower total balance of $1,804 (Ex. 4, Memorandum at 63), although this balance only reflects office visits to SCOI through August 27, 2013.

Because some of the SCOI billing records pre-date the accident, i.e., prior to April 15, 2013, defense counsel subtracted the pre-accident payments, resulting in payments of approximately $3,639.00 attributable to the accident. (Motion, p. 5:9-10.) However, according to the Court’s calculations, the balance owed as of April 15, 2013 was $196.18 (see Ex. C at 2), so this is the amount that should be deducted from the $4,113.29 bill, for a balance owed to SCOI of $3917.11. If this amount is added to the bill for West Hills, the total medical specials according to the evidence is $4,423.31 ($3,917.11 plus $506.20).

Plaintiff alleges her medical specials to be approximately $7,200.00, although she offers no proof other than her attorney’s declaration. (Opposition, Weissman Decl. (“Weissman Decl.”) ¶6.) It is unclear how Plaintiff reached this monetary figure, other than through unsupported allegations that she paid over $4,100.00 to SCOI and over $3,000.00 to West Hills Hospital. It appears that the $4,100.00 figure is from the SCOI bill attached to the Motion as Exh. C; however, that figure includes expenses incurred since 2008, which pre-date the accident at issue in this case. Also, as explained above, Plaintiff only owed West Hills Hospital $506.20 of the total bill. (Clark Decl. ¶ 5 and Exh. B).

The evidence that Plaintiff will require future medical treatment is limited to her declaration. As noted above, Plaintiff states that after her cortisone shot in October 2013, her ankle returned to the same condition as before the shot within a couple of months. (Supp. Eisenman Decl. ¶¶2-4.) She is unable to wear anything other than flat shoes, to exercise through walking or to stand for long periods of time. (Id. ¶¶6-7.) Plaintiff indicates that she wants to see the doctor again, but has been unable to do so due to a busy work schedule and the sudden passing of her father. (Id. ¶¶4-5.) She does not know when she will see the doctor again, but hopes to do so soon. (Id. ¶8.)

The Court finds that Plaintiff’s supplemental declaration provides sufficient information, under penalty of perjury, on which the Court must conclude that it is “possible” that damages she would recover for her injuries would be above $25,000. The converse to this is that the Court cannot say to a “legal certainty” that the medical specials and general damages will not exceed $25,000. Contrary to Defendant’s argument, it is “possible” that a jury would find that the past medical expenses are at $4,423.31, there are future medical expenses (assuming Plaintiff sees a doctor and/or physical therapist in the future), and she recovers for pain and suffering as a result of her continued injuries in an amount that would bring her total damages above $25,000.

The fact that keeping this lawsuit as a general jurisdiction case will mean greater discovery, and thus greater litigation costs for both sides, is not a factor that the Court may consider in applying the Walker standard to this action.

Plaintiff is ordered to give notice.

DATED: August 28, 2014
_________________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court