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Nikkel v. Seasons Hospice & Palliative Care of Cal., LLC

Feb 13, 2020
G055180 (Cal. Ct. App. Feb. 13, 2020)


G055180 G055225


DIANA NIKKEL, Plaintiff and Appellant, v. SEASONS HOSPICE AND PALLIATIVE CARE OF CALIFORNIA, LLC, et al., Defendants and Respondents.

Diana Nikkel, in pro. per., for Plaintiff and Appellant. Wood, Smith, Henning & Berman, Kevin D. Smith, Jade N. Tran and Nicholas M. Gedo for Defendants and Respondents Seasons Hospice and Palliative Care of California, LLC, and Seasons Hospice and Palliative Care of California-Orange, LLC. Zfaty | Burns, Isaac R. Zfaty, Ryan N. Burns and Garrett M. Prybylo for Defendant and Respondent Paula Nikkel.


The opinion filed February 13, 2020, is ordered modified as follows:

1. Page 9, in the third sentence of the first new paragraph on the page, change "substitute in as Nikkel's counsel at the hearing" to "substitute in as Nikkel's counsel for the hearing".

2. Page 15, in the first sentence of the last new paragraph on the page, change the date from "July 2016 hearing" to "September 2016 hearing".

3. Page 16, in the first sentence of the first new paragraph on the page, change "July 2016" to "September 2016" and change "additional two months" to "additional four months".

4. Page 18, in the first sentence of the last new paragraph, change "the July 2016 hearing at which it granted Wang's strike motion" to "the July 2016 status conference."

These modifications do not affect the judgment.

The petition for rehearing filed March 2, 2020, is DENIED.



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2012-00613835) OPINION Appeal from judgments and orders of the Superior Court of Orange County, Linda S. Marks, Judge. Affirmed. Diana Nikkel, in pro. per., for Plaintiff and Appellant. Wood, Smith, Henning & Berman, Kevin D. Smith, Jade N. Tran and Nicholas M. Gedo for Defendants and Respondents Seasons Hospice and Palliative Care of California, LLC, and Seasons Hospice and Palliative Care of California-Orange, LLC. Zfaty | Burns, Isaac R. Zfaty, Ryan N. Burns and Garrett M. Prybylo for Defendant and Respondent Paula Nikkel.

* * *

Diana Nikkel appeals from the trial court's dismissal orders and entry of judgment in favor of Seasons Hospice and Palliative Care of California, LLC, Seasons Hospice and Palliative Care of California-Orange, LLC (collectively, Seasons), Paula Nikkel, and other defendants after sustaining the defendants' demurrers, and after Nikkel failed to prosecute her single claim that survived demurrer—battery against two defendants.

Nikkel filed her complaint more than a year after her father died in hospice. She argues a host of issues on appeal, including that the court erred (1) by sustaining the demurrers on particular causes of action; (2) by failing to grant an extension to the time the court allotted for her to file a third amended complaint; and (3) by declining to continue the trial date for her to obtain counsel after her repeated failure over more than four years of litigation to secure representation to prosecute the case. Nikkel's arguments for reversal are without merit. We therefore affirm the judgment.

Paula Nikkel was married to Diana's father at the time of his death at age 76. She has no apparent biological or adoptive relation to Diana. For ease of reference, given that they share the same last name, we refer to appellant by her last name and to Paula by her first name. We intend no disrespect to either.


Nikkel filed her original complaint in propria persona in November 2012. She asserted causes of action against Seasons, Mission Hospital, and Dr. John W. Wang for professional negligence, alleging they caused the wrongful death of her father in hospice in August 2011. She briefly hired an attorney to represent her during discovery to obtain her father's medical records.

In August 2013, self-represented again, Nikkel filed a first amended complaint (FAC) to add Paula as a defendant. Her FAC asserted causes of action against Seasons for professional negligence and battery, and she alleged claims against both Seasons and Nikkel for elder abuse, intentional infliction of emotional distress, negligence, negligent infliction of emotional distress, willful misconduct, breach of fiduciary duty, and wrongful death. Nikkel alleged generally that the defendants' actions "involv[ed] medication, total parenteral nutrition, and hospice."

In our discussion below, we briefly address the trial court's dismissal of Nikkel's claims against Mission Hospital, and we earlier granted Nikkel's request to dismiss her appeal concerning her claims against Dr. Wang. We therefore make only limited further reference to these defendants.

The record indicates Nikkel failed to serve the defendants with the initial complaint or FAC. In March 2015, seventeen months after filing the FAC and nearly two and one-half years after her initial complaint, Nikkel sought an "extension of time to serve" the defendants. She requested the extension because she was still seeking a lawyer to take her case, having contacted "[o]ver 30 attorneys . . . since the last case management conference."

The trial court's April 2015 minute order, issued after an order to show cause hearing, observed that since its inception, the case "has come up for hearing twelve times and that at each appearance Plaintiff has represented to the Court that she was seeking to secure counsel and has not attempted to perfect service." Noting that "Plaintiff has been informed multiple times that attempting to secure counsel is not a valid reason for not perfecting service or for once again continuing this case," the court dismissed the action without prejudice.

In July 2015, the court treated Nikkel's subsequent request for reconsideration as a motion for a new trial, granted the motion, and reinstated the case with directions to serve the defendants. Still self-represented, Nikkel in September 2015 obtained leave ex parte to file a second amended complaint (SAC) alleging substantially the same causes of action against the same defendants. The SAC apparently was served thereafter on the defendants.

The defendants demurred to the SAC. On February 19, 2016, the trial court sustained Paula's and Mission Hospital's demurrers in their entirety as well as the demurrers filed by Seasons as to all causes of action except battery, but with leave for Nikkel to amend her claims. The court gave Nikkel 30 days' leave to file a third amended complaint (TAC) and directed her to serve a draft copy on each defendant within 15 days. The court observed that Nikkel potentially could "plead around the statute of limitations" that barred her claims against Seasons.

The court's order was emphatic and specific: "Plaintiff may file a Third Amended Complaint consistent with this Order within 30 days . . . . Plaintiff is to allege FACTS not law as to EACH [d]efendant which would support the causes of action alleged against each defendant. . . . Prior to Plaintiff filing a Third Amended Complaint, Plaintiff must 'meet and confer' with all defendants by sending a draft Third Amended Complaint to each defendant within 15 days[] of this Order. Defendants shall inform Plaintiff in writing as to all of the specific causes of action that they believe are subject to demurrer and identify with legal support the basis of the deficiencies to each cause of action within 10 days of receipt of Plaintiff's draft Third Amended Complaint." The court apparently anticipated this process would enable Nikkel to "attempt to cure the deficiencies if they exist prior to filing a Third Amended Complaint" or otherwise aid her in "address[ing] why there are no deficiencies in the pleading, if another demurrer is filed to the Third Amended Complaint."

Over the next 12 months, Nikkel did not file a TAC or serve on the defendants a proposed TAC. In early February 2016, two weeks before the court sustained the demurrers to the SAC, Nikkel had a California law firm substitute into the case to replace her as counsel of record, with anticipated co-representation by a Pennsylvania attorney who submitted a pro hac vice application. Within a few weeks, however, the California law firm moved the court to withdraw as counsel, citing "an irreparable breakdown in communication between [the firm] and Plaintiff." The attorney at the firm who handled elder abuse cases also informed the court he suffered medical issues which prevented him from continuing on the case.

In conjunction with the law firm's withdrawal motion, the parties stipulated they would agree, with court approval, to continue all pending due dates in the case. Plaintiff, however, still had not filed her TAC by late March 2016, more than 30 days after the court's February 19, 2016 order. Having "read and considered" the parties' proposed stipulation, the trial court in a minute order filed on March 24, 2016 "decline[d] to sign the stipulation at this time."

By late April 2016, Nikkel still had not procured counsel or filed her TAC. On April 27, 2016, the court issued an order approving the California firm's withdrawal and denying the Pennsylvania lawyer's pro hac vice application without prejudice, for lack of a sponsoring California attorney.

Nikkel sought reconsideration of that ruling. She argued that if her original attorney was too sick to proceed, other attorneys in the firm that had withdrawn could be ordered to try the case for her. The court denied the motion. The court found the specialized expertise required for elder abuse cases meant other lawyers at a small firm could not simply step in for their ill colleague and that Nikkel would have ample time to find replacement counsel, as no trial date had yet been set.

The court cautioned Nikkel at the July 2016 status conference that the case had been pending almost four years and therefore it risked running up against the five-year deadline for bringing it to trial. The court explained the impact of the statutory rules related to cases older than five years, namely, "a drop dead automatic dismissal. There's no tol[l]ing." Accordingly, the court set a trial date in February 2017—almost seven months in the future—to give Nikkel time to retain new counsel.

Two months later, the court held a hearing on a motion that Dr. Wang filed to strike certain damages and attorney fee requests still pending against him in the SAC. In the course of the hearing, at which Nikkel appeared telephonically, the court observed that the SAC remained the operative pleading in the case because there "ha[ve] been no filings before the court requesting any extensions regarding leave to amend." Nikkel stated her "belie[f] that the court was waiting for [her] to get counsel to amend the complaint because it would make sense for the complaint to be amended by counsel," whom she had still not secured.

At that hearing, the court observed that "months and months" had passed since its February 2016 ruling granting leave to amend within 30 days and said, "amending [now] would seem a little bit too late." In any event, Nikkel did not indicate she had yet retained counsel. Nor did she indicate she had a draft TAC ready to serve on the defendants or to file with the court.

In granting Wang's strike motion, the court explained to Nikkel at the hearing that in light of its February 2016 demurrer ruling, "the additional relief you were seeking [against Wang, i.e., punitive and emotional distress damages, and attorney fees] would no longer be applicable." Therefore, the court indicated granting the motion amounted to "simply cleaning up the pleadings." The court clarified again at the conclusion of that hearing, "the case will go forward at the present time based on the second amended complaint," and, more specifically, on "the allegations . . . that are still alive . . . within that second amended complaint."

Because no allegations remained in the SAC against Mission Hospital, it subsequently moved for dismissal and entry of judgment. While that motion was pending, Seasons and Wang sought summary judgment on the causes of action remaining against them.

At a hearing in early January 2017, the trial court considered Mission Hospital's dismissal motion. The court observed, "There are no operative causes of action that have been directed against Mission Hospital at this time. There has been no amendment [since the court's ruling] sustaining . . . the demurrer to the second amended complaint which occurred on February 19th of 2016." The court therefore indicated it would "dismiss defendant Mission Hospital from this case."

At the same hearing, which took place on a Monday, a California-licensed attorney made a special appearance on Nikkel's behalf, but only to oppose summary judgment. Nikkel again appeared telephonically at that Monday morning hearing. Addressing Nikkel, the court observed that "when you learned that this court was not going to continue these motions for summary judgment, you have barraged this court, as well as opposing counsel, with documents between Friday and this morning. [¶] I think the total is 14 filings . . . ." The court noted this was not an isolated occurrence, but instead seemed to be Nikkel's "modus operandi." The court cautioned it "would not accept that from an attorney, nor should it accept it from a self-represented litigant."

Expecting that Nikkel would again seek to continue the trial date, counsel for Wang observed that with trial scheduled to begin in less than a month, the case was, "beyond the cutoff date" for discovery. The court agreed. Wang then indicated he preferred—if the trial court were considering continuing the trial date—to withdraw his summary judgment motion and proceed to trial on the trial date that had been set for months. Wang's counsel observed that, from "the very first status conference with regard to this matter," "the court has been advising her that she needs to get counsel on a case like this." Seasons' counsel advised the court he was "not in a position to withdraw my summary judgment [motion] right now."

The trial court agreed to a limited continuance of the summary judgment hearing "to give [defendants and the court] an opportunity to review what has been filed by Ms. Nikkel," for defendants to reply to the filings, and for Nikkel to respond.

Nikkel's attorney at the hearing, Sara Poster, then requested the court continue the February 2017 trial date because Nikkel represented to her that "a few attorneys . . . do seem like they're interested, but nothing has been inked yet." The court informed Nikkel that "[i]f you come in and there is truly someone you've retained on [the February trial date], if there is counsel that comes in to this court that has been retained by you and is requesting more time to prepare the case for trial, then I will be inclined and be receptive to your request made today." (Italics added.)

The court, however, cautioned Nikkel: "[M]ore time has, if I look at the history of this case, . . . been provided to you and this court has been more lenient than perhaps it otherwise should have been in allowing continued extensions knowing and believing how important this case is to you." Almost three years had passed after Nikkel filed the initial complaint before she served the defendants for the first time. The court observed that, despite Nikkel's claim she had "been calling every day . . . to seek to have counsel retained" since her first firm withdrew, the court "consider[ed] that to be a fairly long period of time" totaling "almost nine months." The court concluded that "a reasonable amount of time, if not almost unreasonable," had been afforded to Nikkel "to secure new counsel on this case."

The court reiterated that "if counsel comes in on [the February trial date], whether it be . . . Ms. Poster, or another counsel that has truly been retained to represent Ms. Nikkel, then this court on that date would be receptive to a request to continue the trial." (Italics added.) The court expressly warned Nikkel, "If counsel is not retained by that date, then I will expect to see you here, Ms. Nikkel, and we'll proceed with the trial in this case."

Despite the court's specific instruction, Nikkel appeared telephonically, and without counsel, on the trial date. As the court noted in its subsequent minute order, "An attorney Eskander appeared at the hearing, but had no standing to appear neither [having been] retained by plaintiff, nor having filed a limited scope of representation form." Eskander did not offer to substitute in as Nikkel's counsel at the hearing, stating instead that he appeared because Poster "wanted another counsel to be able to associate with her that is local to assist her in this case."

The court observed, however, that Poster had appeared on the case in January 2017 only for the limited purpose of assisting Nikkel in opposing summary judgment. The summary judgment hearing had been continued to the February 9, 2017 trial date, and the court noted that while Poster had filed a declaration requesting that the summary judgment motion be continued because she was unavailable on that day, she did not "indicate that she is going to file a [general] substitution of attorney. She simply is asking this court to continue the motion for summary judgment."

The court asked Nikkel a direct question on the trial date: "Have you signed a retainer agreement with Ms. Poster?" When Nikkel gave equivocal answers, the court repeated the question several times. It never received a direct answer. Noting Nikkel's stated reason for appearing telephonically, the court responded, "I understand you have a medical condition, but that is not something that has just arisen, that has been ongoing." Regarding Nikkel's repeated claims that she could not try the case herself and she was seeking counsel, the court observed, "Well, . . . the last time we had a telephonic conference and you appeared, you assured the court it was going to be momentarily, that it was going to take place within a couple of weeks. A couple of weeks has passed. I continued this motion . . . for supplemental briefing."

Exhibiting extraordinary patience, the court addressed Nikkel again concerning obtaining counsel: "I don't want to impede your attorney-client relationship, but I think the court is within its right to ask you and get a direct response as to when a substitution of attorney will be filed. [¶] It has nothing to do with Mr. Eskander's firm. It has to do with your relationship with counsel, who you intend to be lead counsel, which is Ms. Poster. [¶] So when is that going to occur?" Nikkel answered, "I don't know, your honor." She offered only that it could be "[a]s soon as Ms. Poster gets it to me."

The court inquired whether the defendants had received any indication from Poster that she would be taking the case. Defense counsel responded that there had been no "contact with Ms. Poster," and that Nikkel instead had "served this morning on this case by e-mail" three or four documents, as was her usual practice on the eve of a hearing. Those documents included ex parte motions to continue the summary judgment hearing and trial, which the court denied. Defendants then moved to withdraw their summary judgment motion and announced they were ready for trial.

After observing, that "this morning is the date set for trial," the court granted the defendants' request to withdraw their summary judgment motions. The court then explained to Nikkel, "I did inform counsel as of the last hearing that . . . you were required to have an attorney appear this morning on your behalf, [a] substitution of attorney to be filed with this court, because the court felt that it had given you sufficient time within which to procure an attorney."

Seasons and Wang then moved for the case to be dismissed for Nikkel's failure to prosecute it, since she was not ready to proceed with trial. The court granted the motion.

The court stated in its subsequent minute order: "It should be noted that since 11/20/2012, the date of the inception of this case, Plaintiff has appeared before the court on 19 occasions. Of those 19 appearances, 17 have been made in propria persona and plaintiff has repeatedly requested continuances and extensions to allow her time to secure counsel. At the majority of those hearings, Plaintiff has been directed to move forward in prosecuting her case and has been put on notice multiple times that failure to procure counsel is not a valid reason for not proceeding with her case. Plaintiff once again is requesting a continuance without a showing of good cause. Plaintiff's inability to inform the court as to when she can proceed with trial is viewed as a de facto abandonment of her case. While the court is sympathetic to plaintiff's plight, and her desire to pursue her case, plaintiff has been given numerous opportunities over the years to pursue her case, and has been admonished that the rules of civil procedure safeguard against civil cases that are not diligently prosecuted. [¶] Therefore, the court Grants defendants' motion to dismiss pursuant to CCP § 581, § 583.110, § 583.160, and CCP § 583.410, § 583.420(2)(A)." (Italicization of cites omitted.)

At the same hearing on February 9, 2017, the trial court granted Paula's pending motion for dismissal. The court explained, "There are no . . . causes of action against Ms. [Paula] Nikkel in the second amended complaint; therefore, [she] is now dismissed."

The trial court subsequently entered judgments on behalf of the dismissed defendants. Nikkel now appeals.


Nikkel's appellate brief raises a variety of contentions under numerous headings and subheadings. For ease of reference, we consolidate and address her primary arguments for reversal in the order in which the errors she alleges occurred below.

Nikkel contends the trial court erred in sustaining in whole or in part the demurrers Paula, Seasons, and Mission Hospital filed to the second amended complaint. We review an order sustaining a demurrer de novo to determine whether the complaint states a cause of action. (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1490.)

The plaintiff, however, retains the burden of "overcoming all of the legal grounds on which the trial court sustained the demurrer, and if the defendant negate[d] any essential element, we will affirm the order sustaining the demurrer as to the cause of action." (Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031.) Our review is limited to the points raised and adequately supported in the appellant's brief. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)

Nikkel challenges the trial court's demurrer ruling with respect to Paula only on grounds that the SAC adequately "pled negligence [against] Paula . . . ." We confine our analysis to this contention rather than stray remarks regarding other causes of action against Paula because issues not raised by a separate heading are forfeited. (Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4.)

The trial court concluded Nikkel's claims against Paula "for mistreatment of her father are uncertain in light of Plaintiff's allegations that the decedent was in hospice and under the care of medical professionals when he passed away. Plaintiff also has not alleged the existence of a fiduciary duty as to Ms. Nikkel . . . ."

Nikkel contends she adequately alleged Paula's negligence by asserting her father was competent to refuse hospice care, did refuse it, and that although Paula held his designated healthcare power of attorney (POA), she "had no legal right" to exercise it to arrange for his admission to hospice because he was competent. Nikkel, however, does not suggest any legal basis under the POA her father gave to Paula for a duty of care Paula allegedly would owe to Nikkel.

A duty of care "to the plaintiff" is an essential element of a cause of action for negligence. (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 838.) Nikkel suggested in her SAC that she was a "direct victim" of Paula's alleged negligence because she was in a "confidential relationship" with Paula "as her step mother and father's wife." But nothing suggests Nikkel was in a child-parent relationship with Paula at the time in question, and Nikkel made no allegation her relationship with Paula extended back to her childhood or that there otherwise was a conceivable basis for a fiduciary duty to her.

In any event, Nikkel provides no argument or authority on appeal for the existence of a duty owed to her by Paula based on a confidential relationship or otherwise, or for a breach of such a duty by Paula's alleged breach of the POA. "Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, [they are] waived." (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.) Nikkel's bid for reversal of the demurrer order as to Paula therefore must fail.

Nikkel's challenge to the trial court's order sustaining Seasons' demurrer is likewise without merit. The court's demurrer order stated the SAC "shows on its face that Plaintiff's First Cause of Action for Professional Negligence, and all other tort causes of action that are based on defendant's alleged professional negligence in mistreating the decedent while he was in their care, are barred by the one-year statute of limitations in Code Civ. Proc., § 340.5." The court based its ruling on the fact that Nikkel "initiated this action more than one-year after August 23, 2011—the date Plaintiff expressly alleges in her Second Amended Complaint that her father died and she became suspicious of professional negligence."

The court did not err. Nikkel alleged she "became suspicious about professional negligence and the other causes of action after her father's untimely death," and that she "personally observed some of the acts" she alleged constituted "professional negligence, elder neglect, negligence, [and] willful misconduct at the hands of defendants . . . ." Her allegations therefore suggest she suspected a basis for suing Seasons even before he died, based on the care, or lack thereof, that she personally observed. "Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights." (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111.)

The trial court indicated when it granted Nikkel leave to amend, it remained open to the possibility that something about the later release of the medical records might furnish grounds for Nikkel to invoke the discovery rule tolling the statute of limitations. But it was incumbent upon Nikkel to make an affirmative showing of those facts in a TAC. She did not do so. The disjointed and contradictory allegations in Nikkel's SAC about when her suspicions arose for her various claims, and the fact she did not clearly articulate the factual basis for each of her claims against each of the many defendants, supported the court's demurrer ruling. Because the SAC omitted facts or mixed them with legal argument, the court did not err in requiring Nikkel to amend her complaint to specify a clear factual basis for claims she contended were not barred by the statute of limitations.

For example, Nikkel contends on appeal that she provided defendants a notice of intent to sue before she filed her initial complaint. She contends that fact could provide a statutory basis for tolling the running of the limitations period, invoking Code of Civil Procedure, section 364. Nikkel, however, did not amend her complaint to allege she had provided defendants the notice of intent to sue, which constituted a new fact that had been absent from her SAC. The trial court therefore was correct in concluding that the SAC on its face indicated the one-year statute of limitations for professional negligence had run for allegations Nikkel admitted in the complaint she suspected before her father's death.

The same statute of limitations applies to the other causes of action that Nikkel contends were erroneously eliminated by demurrer. She argues the court erred in sustaining Seasons' demurrers to her claims for elder abuse, willful misconduct, and wrongful death. But these claims pertained to Seasons' alleged violations of their professional standard of care in admitting and treating Nikkel's father in hospice. Regardless of their label, claims that are based on a medical provider's alleged professional negligence are subject to the one-year statute of limitations. (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 346-347.) The same is true for Nikkel's negligence, gross negligence, and professional negligence claims against Mission Hospital for discharging her father to hospice care. Nikkel failed to allege facts sufficient to toll the statute of limitations as to any of these causes of action. The trial court therefore correctly sustained these demurrers.

Nikkel asserts the court erred by "declining to sign [the proposed] order granting [her a] stipulated extension of time" to file a TAC. She argues that the court's "reason for approving counsel's withdrawal is inconsistent with [the] court declining to sign [the] stipulated order . . . ." (Original capitalization in both quotes omitted.) Nikkel bases her claim of "inconsisten[cy]" in the court's decision not to require other lawyers at her withdrawing firm to serve as her counsel because those attorneys did not practice elder law. She reasons that because her elder abuse cause of action had been eliminated by defendants' demurrer to the SAC, the court's reference to elder abuse law led Nikkel to believe she would be entitled to file a TAC so long as it included claims of elder abuse, despite the court's refusal to sign the stipulated extension. We are not persuaded. It appears Nikkel simply assumed she would be entitled to amend her complaint when she should have secured an order authorizing her to do so.

In any event, Nikkel's argument does not carry the day for the simple reason that she never prepared a proposed amended complaint, as ordered by the trial court, to serve on the defendants; nor did she meet and confer with them as ordered. In fact, it does not appear she ever had in-hand and ready-to-file a proposed TAC. In March 2016, the trial court reasonably declined "at this time" to sign the parties' proposed stipulation to allow the court to determine whether or not Nikkel or the firm that still represented her would file the TAC. Neither she nor her firm did so by the firm's withdrawal in April 2016, nor did she do so by the requested extension date in May 2016. In fact, Nikkel failed to file her TAC at any time thereafter.

We have reviewed the transcript of the July 2016 hearing on Wang's strike motion, and it does not reflect an unequivocal request by Nikkel for an extension of time to file a TAC. The only hint of such a request appears almost a dozen pages deep in Nikkel's written opposition to Wang's motion to strike certain damages and attorney fees. Nikkel did not separately caption or notice that request in her moving papers to alert the court or the parties to it.

That belated request in July 2016 was already well beyond the 30 days' leave to amend that the court granted in February 2016, as well as the April 2016 date at which her former firm withdrew, and an additional two months beyond the proposed May 2016 extension date—and Nikkel still did not have a proposed TAC ready to file. As the trial court appropriately warned Nikkel on more than one occasion, "At some point . . . you need to come to terms with either you have counsel or you do not have counsel and need to proceed as a self-represented litigant . . . ."

In any event, Nikkel never filed or presented her TAC to the defendants, and the court did not prevent her from filing it. Trial courts are vested with discretion to extend the time in which a litigant may file an amended complaint. (Harlan v. Department of Transportation (2005) 132 Cal.App.4th 868, 872-873.) In Harlan, the plaintiff filed his first amended complaint eight days past the 10 days in which the court had given him leave to amend. The court excused the late filing. (Ibid.) Any conceivable error here in the court failing to grant an unspecified, open-ended extension of time for Nikkel to file a TAC was harmless on this record. Nikkel claims on appeal that she now has "additional facts available for [her] elder abuse claim" (capitalization omitted). That is irrelevant in light of her failure to timely amend her complaint.

During argument Nikkel requested an opportunity to file an additional letter brief regarding such "additional facts." That request is denied.

Nikkel contends the court improperly struck her request in her complaint against Seasons for attorney fees, but she does not provide a record cite for this ruling. Instead, she references Wang's successful motion to strike the SAC's prayer for attorney fees against him. Nikkel's argument is difficult to decipher, but it appears she asserts that striking her prayer in her SAC for fees against Seasons—assuming the court did so—was premature because the statutory basis for such fees arises only at trial on an elder abuse claim, upon proving recklessness, and she was actively seeking counsel for trial. The argument fails without record citations. Moreover, because there is no merit in Nikkel's challenge to the trial court's demurrer ruling, nothing remained in her complaint to support her attorney fee claim against Seasons as a remedy for alleged elder abuse. Assuming the court struck her prayer for attorney fees in the SAC, there was no error in doing so.

Finally, Nikkel argues the trial court "prejudiced plaintiff by denying plaintiff's motion and [her] attorney's request to continue [the] trial date." (Capitalization omitted.) This characterization of the events below is not accurate. Nikkel had not retained an attorney for trial by the trial date, which was the condition precedent the court clearly imposed for a trial continuance. Nikkel suggests attorney Poster requested to continue the trial date. Not so. Poster represented Nikkel only for the limited purpose of opposing summary judgment and requested in her declaration only to continue the summary judgment hearing. That request was mooted by the defendants' withdrawal of their summary judgment motions on the trial date, which Nikkel was on notice would be their likely response to a further continuance request, as counsel said as much when Nikkel had gained, with a flurry of late filings, an 11th hour continuance of the original summary judgment hearing a month earlier.

We observe, furthermore, that many of Nikkel's appellate arguments are precluded by her failure to timely file volumes 5 and 6 of her appellant's appendix. We denied Nikkel's repeated requests to file those volumes when she realized her error only after the respondents' briefs were due, depriving them of the opportunity to address her claims based on those volumes. We allowed Nikkel to lodge the volumes with this court pending our consideration of her renewed motion for relief to file them. After review of volumes 5 and 6, Nikkel's motion for relief is granted on grounds that some of the documents, including some of the very orders she appeals from, are essential to our review. We therefore direct the clerk of this court to file volumes 5 and 6 of appellant's appendix forthwith. We stress, however, that nothing in either volume provides a basis for reversal of the judgment.
During argument, the court also ordered "filed," the "errata" recently submitted by Nikkel. This pleading had previously only been "received" by this court. Nothing in the errata provides a basis for reversing the judgment.

When pressed, on the day of trial, Nikkel could only offer that she would retain an attorney for trial "soon," but the court reasonably could discount that well-worn excuse. Nikkel invokes the policy favoring trial on the merits as a reason to grant her request for a continuance. But that general proposition does not apply where Nikkel's claim that she would "soon" retain counsel was the same promise she had repeatedly made since the beginning of the case more than four years earlier. As the Trial Court Delay Reduction Act (Gov. Code, § 68600 et seq.) specifies, "[J]udges shall have the responsibility to eliminate delay in the progress and ultimate resolution of litigation, . . . and to compel attorneys and litigants to prepare and resolve all litigation without delay," from commencement to disposition. (Gov. Code, § 68607.)

Nikkel also invokes an attorney's sudden illness, relying on Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1393-1394, as grounds for a continuance, which she analogizes to a "disability" which prevented her from appearing on the trial date. Oliveros did not involve an illness, but instead a sudden conflict in the attorney's schedule. (Ibid.) Here, in contrast, the trial court reasonably concluded, as it explained at the hearing, that her asserted inability to present her case, including for medical reasons, was not new. In fact, it was one of the reasons Nikkel repeatedly gave over the years to explain her need to obtain counsel.

At the conclusion of her brief, Nikkel argues that the trial court erred in setting the trial date just seven months from the July 2016 hearing at which it granted Wang's strike motion. Nikkel suggests that seven months was inadequate due to "the amount of discovery that needs conduction." We find no error since Nikkel's SAC at that time was limited to a single cause of action, battery, against only two remaining defendants. In sum, the court exhibited extraordinary patience here and did not abuse its discretion in denying Nikkel's request for a continuance.


The judgments and underlying orders are affirmed. Respondents are entitled to their costs on appeal.


Summaries of

Nikkel v. Seasons Hospice & Palliative Care of Cal., LLC

Feb 13, 2020
G055180 (Cal. Ct. App. Feb. 13, 2020)
Case details for

Nikkel v. Seasons Hospice & Palliative Care of Cal., LLC

Case Details

Full title:DIANA NIKKEL, Plaintiff and Appellant, v. SEASONS HOSPICE AND PALLIATIVE…


Date published: Feb 13, 2020


G055180 (Cal. Ct. App. Feb. 13, 2020)