Mitchell Jones vs. Pacific Medical & Rehabilitation, Inc.

Motion for Change of Venue

Cal. Super. - 4th Dist.June 19, 2015

G O N Z A L E Z & H U L B E R T , LL P H O w NO C 8 N N Wn MICHAEL D. GONZALEZ [SBN 115684] MARK J. HABEEB [SBN 176796] GONZALEZ & HULBERT, LLP 101 North Brand Boulevard, Suite 1880 Glendale, CA 91203 Telephone (818) 844-0188 Facsimile (818) 844-0181 Attorneys for Defendant, MARINA DEL REY HOSPITAL Co un ty of Or an ge 12 /2 3/ 20 15 at 12 :2 4: 00 PM Cl er k of th e Su pe ri or Co ur t E L E C T R O N I C A L L Y FI LE D Su pe ri or Co ur t of Ca li fo mi a By N o m La u, De pu ty Cl er k SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE MITCHELL JONES AND TINA JONES, Plaintiff, Vs. PACIFIC MEDICAL & REHABILITATION, INC., CHARLES HERRING, M.D.; MARINA DEL REY HOSPITAL; and DOES 1 to 100, inclusive, Defendants. CASE NO. 30-2015-00794419-CU-MM-CJC [Assigned to Department "C23" the Honorable Frederick P. Aguirre, Judge Presiding] Complaint Filed: 06/19/15 Trial Date: None MOTION FOR CHANGE OF VENUE (TRANSFER) DATE: March 29,2016 TIME: 8:30 a.m. DEPT: C23 RESERVATION NO.: 72289404 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN: PLEASE TAKE NOTICE that on March 29, 2016 at 8:30 a.m. or as soon thereafter as counsel may be heard in Department “C23” of the above-entitled Court located at 700 Civic Center Drive West, Santa Ana, California 92702-2024, Defendant MARINA DEL REY HOSPITAL will move this court for an order transferring the matter from the Superior Court of California, County of Orange to the Superior Court of California, County of Los Angeles, Northeast District. MOTION FOR CHANGE OF VENUE (TRANSFER) G O N Z A L E Z & H U L B E R T , LL P IN ] DO 8 N S N in B W This motion is brought pursuant to California Code of Civil Procedure § 377(a), warranting the transfer of this action in as much as (1) the circumstances and events giving rise to the occurrence of the negligence as alleged in Plaintiff's Complaint occurred in Los Angeles County; (2) a majority of the witnesses and evidence can be located within Los Angeles County; (3) and is made upon the grounds that this Court is not the proper Court for trial in this matter. In bringing this motion, Defendants are not seeking to delay trial of this matter. Defendants will not move to continue trial nor will Defendants oppose or object to the enforcement of Plaintiffs’ preferential trial setting in Los Angeles County. This motion is based upon this Notice of Motion and Motion, the accompanying Points and Authorities, the attached Declaration of Mark J. Habeeb and all pleadings and records on file herein along with such further oral and documentary evidence as may be presented up through the time of the hearing on this motion. DATED: December 23, 2015 GONZALEZ & HULBERT, LLP py) rd A. th fz! MICHAEL D. GONZALEZ MARK J. HABEEB Attorneys for Defendant, MARINA DEL REY HOSPITAL 2 MOTION FOR CHANGE OF VENUE (TRANSFER) G O N Z A L E Z & H U L B E R T , LL P ND N R W NY ) P d p k n l ) MEMORANDUM OF POINTS AND AUTHORITIES I INTRODUCTION This is a medical malpractice action in which Plaintiffs alleged that Defendants, including MARINA DEL REY HOSPITAL, CHARLES HERRING, M.D. AND PACIFIC MEDICAL REHABILITATION were negligent in the diagnosis and treatment of Plaintiff MITCHELL JONES, causing Plaintiffs’ damages, including a claim for loss of consortium by plaintiff TINA JONES. With respect to venue, Plaintiffs set forth: [1] On or about April 3, 2014, Defendants, PACIFIC MEDICAL & REHABILITATION, INC., CHARLES HERRING, M.D. undertook the care, treatments, and examination of the plaintiff in order to treat said plaintiff for the difficulties he was encountering with his knee, and for total knee replacement. [exhibit “A”, Complaint, Paragraph 5] [2] MARINA DEL REY HOSPITAL, ...., a general hospital known as MARINA DEL REY HOSPITAL in the County of Los Angeles, State of California. [exhibit “A,” Complaint, paragraph 3] 3] That the injury in which the cause of action is based occurred in the County of Orange, State of California. [exhibit “4,” Complaint, paragraph 3] None of the defendants were doing business in the County of Orange. Defendants MARINA DEL REY HOSPITAL, CHARLES HERRING, M.D. AND PACIFIC MEDICAL & REHABILITATION, INC. at all times relevant were, located in the County of Los Angeles in the State of California. While Plaintiffs reside in Costa Mesa, California, in the County of Orange, there are no facts to substantiate plaintiff's claim that the injury occurred in Orange County. In fact, the surgery at issue occurred in Marina Del Rey Hospital and was performed by Dr. Charles Herring, both of who are located in Los Angeles County. Plaintiff’s treating physicians are located in the County of Los Angeles. i" 1 3 MOTION FOR CHANGE OF VENUE (TRANSFER) G O N Z A L E Z & H U L B E R T , LL P ~N O N hh B W N D Since the alleged injury occurred in Los Angeles County and the convenience of the witnesses and the ends of justice will be promoted by a change in venue from Orange County to Los Angeles County, this Motion should be granted. II. ARGUMENT A. ANY ACTION FOR BODILY INJURY SHOULD BE FILED IN THE DISTRICT IN WHICH THE INJURY OR DAMAGE OCCURRED. The proper venue is where the accident giving rise to the lawsuit occurred. Edwards v. Pierson (1957) 156 Cal.App.2d 72, 76. Rules relating to venue designate the particular county or counties within California as the proper place for a trial of the action. Since jurisdiction for the action is statewide, venue serves to narrow the geographic place for the trial. The legislative intent for venue rules is to give the defendant some choice in the forum. Otherwise, plaintiffs could file the action in some remote county where it would be difficult or impractical for the defendant to defend himself. For venue purposes, actions are classified as “local” or “transitory”. To determine whether an action is local or transitory, the court looks to the main relief sought in the Complaint. If the main relief relates to rights and real property, the action is local. Brown v. Superior Court (1984) 37 Cal.3d 477, 482. If the main relief sought is personal, the action is transitory. In the present action, the relief sought relates to personal injuries and the action should be considered transitory. California Code of Civil Procedure §395 governs transitory actions. California Code of Civil Procedure §395 states in pertinent part as follows: (a) Except as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action. If the action is for injury to person or personal property or for death from wrongful act or negligence, the superior court in either the county where the injury occurs or the injury causing death occurs or the county where the defendants. or 4 MOTION FOR CHANGE OF VENUE (TRANSFER) G O N Z A L E Z & H U L B E R T , LL P J NV 0 N N N nh B W some of them reside at the commencement of the action, is the proper court for the trial of the action. . . . [emphasis added]. Furthermore, case law in California has consistently applied this rule to a personal injury action and the proper Court for the filing of the lawsuit is either the County where the injury occurred or the County where the defendants or some of them reside or where business entities have their principal place of business. Mills v. Dickson (1933) 129 Cal.App.728; Maxwell v. Murray (1961) 190 Cal.App.2nd 440. Applying the statutory guidelines, it is apparent that Los Angeles County, not Orange County, is the proper venue for this litigation. Plaintiff's claim and damages clearly arise out of events which occurred in Los Angeles County. The allegations set forth in the Complaint in connection with the injuries plaintiff is alleging she sustained, and the accompanying Declaration of Mark J. Habeeb, reveal that the allegations as set forth against the Defendants which are the subject of this action were performed in Marina Del Rey, California in the County of Los Angeles, California, and therefore are within the boundaries of the Los Angeles Superior Court. As such, the motion to transfer should be granted. B. THE COURT MAY, ON MOTION, CHANGE THE PLACE OF TRIAL WHEN THE COURT DESIGNATED IN THE COMPLAINT IS NOT THE PROPER COURT. California Code of Civil Procedure § 397 states in pertinent part: The court may, on motion, change the place of trial in the following cases: (a) When the com desipiated in the complaint is not the proper court. (c) When the convenience of witnesses and the ends of justice would be promoted by the change. 5 MOTION FOR CHANGE OF VENUE (TRANSFER) G O N Z A L E Z & H U L B E R T , LL P tJ ~ o N hh B W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “There is no time fixed by this section when an action may be transferred for trial because of convenience of witnesses or to promote justice, but the motion should be made within a reasonable time after the case is at issue on the facts,. . .” Cooney v. Cooney (1944) 25 Cal.2d 202. Good cause exists for transferring this matter to Los Angeles County and it is apparent that Los Angeles County, not Orange County, is the proper venue for this litigation. Plaintiffs claim and damages clearly arise out of events which occurred in Los Angeles County ITI. CONCLUSION Plaintiffs have filed this action in the wrong court. The Orange County Superior Court is not the proper court to hear this matter. The proper court for the trial of this matter is the Northeast District of the Los Angeles County Superior Court. As such, Defendants respectfully request that this Court transfer this matter to the Los Angeles County Superior Court. DATED: December 23, 2015 GONZALEZ & HULBERT, LLP By: JY ase od Hebe tls MICHAEL D. GONZALEZ MARK J. HABEEB Attorneys for Defendant, MARINA DEL REY HOSPITAL 6 MOTION FOR CHANGE OF VENUE (TRANSFER) G O N Z A L E Z & H U L B E R T , LL P DECLARATION OF MARK J. HABEEB I, MARK J. HABEEB, declare: 1. I am an attorney duly licensed to practice law before all Courts of the State of California, and am an attorney with the law firm of Gonzalez & Hulbert, attorneys of record for Defendant MARINA DEL REY HOSPITAL in this matter. If called upon to do so, I could and would testify of my own personal knowledge to the following. Z Attached as Exhibit "A" is a true and exact service copy of Plaintiffs’ Complaint for Damages filed on or about June 19, 2015 and served on or about November 24, 2015. J. This is a medical malpractice action in which Plaintiffs alleged that Defendants, including CHARLES HERRING, M.D. AND MARINA DEL REY HOSPITAL were negligent in the diagnosis and treatment of his knee condition with respect to knee replacement surgery performed by Dr. Herring at Marina Del Hospital, located in the COUNTY OF LOS ANGELES. 4. None of the defendants were doing business in the County of Orange. Defendants CHARLES HERRING, M.D. AND MARINA DEL REY HOSPITAL at all times relevant were, located in the County of Los Angeles in the State of California. 5. For the convenience of witnesses and in the interest of justice, this action should be transferred to the Los Angeles County Superior Court. Multiple treating physicians who cared for Plaintiff during the key periods of alleged negligence will be called to trial. 7 1 I iu in 1 7MOTION FOR CHANGE OF VENUE (TRANSFER) G O N Z A L E Z & HU LB ER T, LL P ND 0 N O Y wn 6. Since the alleged injury occurred in Los Angeles County and the convenience of the witnesses and the ends of justice will be promoted by a change in venue from Orange County to the County of Los Angeles County, this Motion should be granted. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. om Rl Executed thise2- day of December 20135, at Glendale, California. J oles b J. HABEEB 8 MOTION FOR CHANGE OF VENUE (TRANSFER) EXHIBIT “A” SUM-100 SUNMBONS ol SE re {CITACION JUDICIAL) ; NOTICE TO DEFENDANT: PACIFIC MEDICAL & REHABILITATON, INC ; ELECTRONICALLY FILED (AVISO AL DEVMANDADOJ: CHARLES HERRING, M.D.; MARINA DEL REY Superior Court af California, HOSPITAL; und DOES 1 TO 100, inclusive, County of Orange (OG / 30/2045 at 09:35:00 Ad : Clerks of the Superior Court YOU ARE BEING SUED BY PLAINTIFF: MITCHELL JONES, an individual, By Joseph llega. Deputy Clerk (LO ESTA DEMANDANDO EL DEMANDANTE): TINA JONES, an individual Voy fem NOTICE] You have been sued, The court may decide against you without your belng heard unless you respand within 3b'twys. Read the information belaw, You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file 8 writen response al this court and have a copy served on lhe plaintiff. A lelter or phone call will not prolect you. Your written response must be in proper legal form If you wanl the court lo hear your case. There may be a court form that you can use for your respanse. You can find these court forms and mere Informallon at the California Courts Online Sall-Help Centar (www.courinfe.oa.gov/se/fiiaip), yaur counly law (brary, or the courthouse nearest you, if you eannot pay the fling fes, ask the court clerk for a fee walver form. If you do not file your response an time, you may lose the case by default, and your wages, money, and properly may be taken without further warning from the court, There are other lagal requirements. You may want to call an alforney right away. If you do not know an etlorney, you may wan! to call an altorney referral service, Ifyou cannot alfard an attorney, you may be fille for frac [egal services from a nonprofit legal services program. You can locate these nonprofil groups at the California Legal Services Weh site (wwwv./awhelpealifornla.org), Ihe Califorala Coutts Online Self-Halp Center (www.courtinfa.ca.gov/selfhelp), or by contacting your local court or county bar association. NOTE: The court has a statutory llen for walved fees and costs on any sefllemant or arbitration award of $10,000 or more in a civil case. The court's lien must be pald bafore the court will dismiss the cass, JAVISO! Lo han demandade. Sno responds dentro de 30 dias, la corte puede decidir en su Gontra sin escuchar su varsidn. Lea la informacién a confinuasién. Tienes 30 DIAS DE CALENDARIO despuds de que je entraguen esfa citation y papeles legales para presentar una respuesta por escrito en esta corte y hacer gua se eniregue una capla al demandanta. Una carta o una lamada felafdnica ne lo prolegen. Su respuesta por escrito tiene qua estar en formato legal correclo si desea que procesen su caso en fa core. Es posible que haya un fonmulerie que usted pueda usar para su respuesta. Pusds encontrar estos formularios de la corte y mds infermacisn en ef Genlro de Ayuda da les Cortes de Califomia (www.sucarte.ca.gov), en la kiblioteca de leyes de su condado o en fa corte que Je quede mds cerca. SI no puede pagarla cuota de presentacidn, plda al secretario de la carte que le dé un tormulanio de exenclon de pago de cuotas. Sf no presenta su respuesta a iampo, pueda perder el caso porincumplimianta y Ia corts fe - podra quitar su sueldo, dinero y blenes sin mis advertencla. Hay afrus roquisilos legalss. Es recamandable que lame a un abagado inmedistamenfe. Sf no conoce a un abogada, pugde llamar a un serviclo de remislén a abogados, S| no puede pagar un ebogado, es posibla que ciimpla con los roquisilos para obtaner servicls legales gralvltos de un programa de sarvicias logales sin fines de lucra. Pueda encontrar estos grupos sin fines de Jucro en ef silio web de California Legal Services, (www.lawhalpcallfornla.arg), en of Centro da Ayuda de las Gordes de California, (www .sucorie.ca.gov) o ponlindosa on contacto can la core o of colegio de abogados Jocales. AVISO; Par ley, ia corte tiene derecho a raclamar las cuofas y los costos exenlfos por imponer un gravamen sobre cualquier recupsracin de $10,000 6 mds de valer racibida mediante un acuerda o una concesién de &rbitraje en un caso de deracho civil. Tlene que J) pagar el gravamen da fa corte anles de que lg Goris pueda desachar sf caso. Astane ai sig : {fe cari Fi iy 902015 00794410. CLIMCIC » . « = . 1 Superior Court of Californin, County of Orange Judge Fredericle P. Aguirre 700 Civic Center Drive West Santa Ana, California 92701 The name, address, and telephone number of plaintiff's attorney, or plaintiff without an attorney, ls: Richard A. Cohn (El nombre, Ia direccién y el ntimero de feléfono del abogado del demanvants, o del demandante que no fisne sbogado, as): AITKEN AITKEN COHN 3 MacArthur Place, Suite 800, SANTA ANA, CA 92707 - (714) 434-1424 : : BD ot) 08/30/2015 alan carlaen, clerk of the court ei 0) A (For proof of service of this summons, Use Proof of Service of Summens (form POS-010).) - Joseph Villegas (Para prueba de entrega de esta cltalién use sf formulario Proof of Service of Summons, (POS-010)). NOTICE TQ THE PERSON SERVED: You ara served 1. [__] as an individual defendant. 2. [ss the person sued under the fictitious name of (specify): 3. = on behalf of specity Minera OD E Ley Moats under: C1 CCP 416.10 (corporation) [] CCP 416.60 (minor) [7] CCP 416.20 {defunct corporation) CCP 416,70 (consarvales) [7] CCP 416.40 {assoclgtlon ar partnership) CCP 416.80 (authorized person) other (specify): (4 Cio wlety” 4. A) by personal delivery on (dats): / . SUA / a Page iol v ’ YJ Farm Adopted Jor Mandalery Use Code of Cril Ploceuro §8 412.30, 465 Judisial Council of California S UMMONS wav, curtinfa.co gov SUM-10G {Rav. July 1, 2000} Westlaw Dot fe Fan Bulle r a 2 3 4 5 6 a A 8 . 0 ! 10 11 12 g 13 EI + Fe - =z 0 38 Padi 22218 16 <= 57 ZEE™E 2g i 17 22° F = 18 Jo 19 20 21 22 23 24 25 26 27 28 <} PRINTED ON RECYCLED PAPER ELECTRONICALLY FILED RICHARD A, COHN (SBN 145156) Superior Court af California, MACARTHUR PLACE, SUITE 80 972015 ot 115 , 0 06/19/2015 at 11:62:30 Al SANTA ANA, CA 92707-2555 Clee of the Superior Court (714) 434-1424 Telephone By “deronica Acasta, Deputy Clan (714) 434-3600 Facsimile Attorneys for Plaintiff, Mitchell Jones and Tina Jones SUPERIOR COURT OF THE STATE OF CALIFORNIA TOR THE COUNTY OF ORANGE COUNTY MITCHELL JONES, an individual, TINA JONES, | CASE NO. 30-2015-00784418-CU-btut- CJC an individual : Judge Frederick P. Aguirre Plaintiffs, vs. COMPLAINT FOR MEDICAL NEGLIGENCE PACIFIC MEDICAL & REHABILITATON, INC.; CHARLES HERRING, M.D.; MARINA DEL REY HOSPITAL; and DOES 1 to 100, inclusive, Defendants. FIRST CAUSE OF ACTION (MEDICAL NEGLIGENCE on behalf of MITCHELL JONES vs ALL DEFENDANTS, and DOLS 1 through 100) I. The true names or capacities of the defendants, DOES 1 through 100, whether individual, corporate, associate or otherwise, are unknown to plaintiffs at the time of filing this Complaint and plaintiffs, therefore, sue said defendants by such fictitious names and will ask leave of court to amend this Complaint to show their true names or capacities when the same have been ascertained. Plaintiffs are informed and believe, and thereon allege, that each of the DOE defendants is, in some manner, responsible for the events and happenings herein set forth and proximately caused injury and damages to the plaintiffs as herein alleged, t COMPLAINT FOR MEDICAL NEGLIGENCE - 2 3 4 5 6 7 8 9 10 11 12 2 13 z 1d . Fagg Yua¥