Superior Court, State of California



DATE: Tuesday, 08 March 2022

TIME: 9:00 A.M.

This Department prefers that litigants use Zoom for Law and Motion and for Case Management Calendars. Court Call is also acceptable.

All Courts of California celebrate the diversity of the attorneys and the litigants who appear in our Courts. Do not hesitate to correct the Court or Court Staff concerning the pronunciation of any name or how anyone prefers to be addressed. As this Court is fond of saying, “with a name like mine, I try to be careful how I pronounce the names of others.” If your client is with you, please inform the Court how your client would prefer to be introduced. The Court encourages the use of diacritical marks, multiple surnames and the like for the names of attorneys, litigants and in court papers.

You may use these links for Case Management Conferences and Trial Setting Conferences without Court permission. Informal Discovery Conferences and appearances on Ex Parte applications will be set on Order by the Court.

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PLEASE READ THIS PAGE IN ITS ENTIRETY AS SOME OF THE PROTOCOLS HAVE CHANGED.

Please check this Tentative Rulings page before making any appearance.

Whether appearing in person or on a virtual platform, the usual custom and practices of decorum and attire apply.

For new Rules of Court concerning remote hearings and appearances, please review California Rules of Court, rule 3.672.

This Court expects all counsel and litigants to comply with the Tentative Rulings Procedures that are outlined in Local Civil Rule 7(E) and California Rules of Court, rule 3.1308. If the Court has not directed argument, oral argument must be permitted only if a party notifies all other parties and the Court at (408) 808-6856 before 4:00 p.m. on the court day before the hearing of the party's intention to appear. A party must notify all other parties by telephone or in person. A failure to timely notify this Court and/or the opposing parties may result in the tentative ruling being the final order in the matter.

Please notify this Court immediately if the matter will not be heard on the scheduled date. California Rules of Court, rule 3.1304(b). If a party fails to appear at a law and motion hearing without having given notice, this Court may take the matter off calendar, to be reset only upon motion, or may rule on the matter. California Rules of Court, rule 3.1304(d). A party may give notice that he or she will not appear at a law and motion hearing and submit the matter without an appearance unless this Court orders otherwise. This Court will rule on the motion as if the party had appeared. California Rules of Court, rule 3.1304(c). Any uncontested matter or matters to which stipulations have been reached can be processed through the Clerk in the usual manner. Please include a proposed order.

All proposed orders and papers should be submitted to this Department’s e-filing queue. Do not send documents to the Department email unless directed to do so.

APPEARANCES.

While the Court will still allow physical appearances, all litigants are encouraged to use the Zoom platform for Law & Motion appearances and Case Management Conferences. Use of other virtual platform devices will make it difficult for all parties fully to participate in the hearings. Please note the requirement of entering a password (highlighted above.)

As for personal appearances, protocols concerning social distancing and facial coverings in compliance with the directives of the Public Health Officer will be enforced. Currently, facemasks are required in all courthouses. If you appear in person, it will be helpful if you wear a disposable paper mask while using the courtroom microphones so that your voice will not be muffled.

Individuals who wish to access the Courthouse are advised to bring a plastic bag within which to place any personal items that are to go through the metal detector located at the doorway to the courthouse.

Sign-ins will begin at about 8:30 AM. Court staff will assist you when you sign in. If you are using the Zoom virtual platform, it will helpful if you “rename” yourself as follows: in the upper right corner of the screen with your name you will see a blue box with three horizontal dots. Click on that and then click on the “rename” feature. You may type your name as: Line #/name/party. If you are a member of the public who wishes to view the Zoom session and remain anonymous, you may simply sign in as “Public.”

The Santa Clara County Superior Court has established listen-only telephone Lines to allow remote access to public court proceedings. To listen to a public court proceeding in Department 20, you may dial 888-251-2909. When prompted, enter the access code number 4362730 when prompted, followed by the pound or hashtag (#) sign.

COURT REPORTERS.

This session will not be recorded. No electronic recordings, video, still photography or audio capture of this live stream is allowed without the expressed, written permission of the Superior Court of California, County of Santa Clara. State and Local Court rules prohibit photographing or recording of court proceedings whether in the courtroom or while listening on the Public Access Line or other virtual platform, without a Court Order. See Local General Rule 2(A) and 2(B); California Rules of Court, rule 1.150.

This Court no longer provides for Court Reporters in civil actions except in limited circumstances. If you wish to arrange for a court reporter, please use Local Form #CV-5100. All reporters are encouraged to work from a remote location. Please inform this Court if any reporter wishes to work in the courtroom. This Court will approve all requests to bring a court reporter. Counsel should meet and confer on the use of a court reporter. Occasionally each side will retain a court reporter which leaves this Court in a conundrum as to which reporter will be the official reporter for the purposes of the hearing.

PROTOCOLS DURING THE HEARINGS.

During the calling of any hearing, this Court has found that the Zoom video platform works very well. But whether using Zoom or any telephone, it is preferable to use a landline if possible. IT IS ABSOLUTELY NECESSARY FOR ALL INDIVIDUALS TO SPEAK SLOWLY. Plaintiff should speak first, followed by any other person. All persons should spell their names for the benefit of Court Staff. Please do not use any hands-free mode if at all possible. Headsets or earbuds of good quality will be of great assistance to minimize feedback and distortion.

The Court will prepare the Final Order unless stated otherwise below or at the hearing. Counsel are to comply with California Rules of Court, rule 3.1312.

Troubleshooting Tentative Rulings.

To access a tentative ruling, move your cursor over the line number, hold down the “Control” key and click. If you see last week’s tentative rulings, you have checked prior to the posting of the current week’s tentative rulings. You will need to either “REFRESH” or “QUIT” your browser and reopen it. Another suggestion is to “clean the cache” of your browser. Finally, you may have to switch browsers. If you fail to do any of these, your browser may pull up old information from old cookies even after the tentative rulings have been posted.

Tentative Rulings Are Continued Below. Full Orders Are On The Following Pages.

This Court's tentative ruling is just that—tentative. Trial courts are not bound by their tentative rulings, which are superseded by the final order. (See Faulkinbury v. Boyd & Associates, Inc. (2010) 185 Cal.App.4th 1363, 1374-1375.) The tentative ruling allows a party to focus his or her arguments at a subsequent hearing and to attempt to convince the Court the tentative should or should not become the Court's final order. (Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 917.)

If you wish to challenge a tentative ruling, please refer to a specific portion of the tentative ruling to which you disagree.

|LINE # |CASE # |CASE TITLE |RULING |

|LINE 1 |21CV381642 |Gouri S. Jha; Alka Jha; v. KBHS Home Loans, LLC |Demurrer of Defendant KNHS Home Loans, LLC to Plaintiff’s First |

| | | |Amended Complaint. |

| | | |The demurrer is unopposed. |

| | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 2 |21CV381642 |Gouri S. Jha; Alka Jha; v. KBHS Home Loans, LLC |Motion of Defendant KNHS Home Loans, LLC to Strike Plaintiff’s First |

| | | |Amended Complaint. |

| | | |The motion to strike is unopposed. |

| | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 3 |21CV389697 |Michael Pham Johnson v. San José Gastroenterology, |Demurrer of Defendants San José Gastroenterology, Inc. and Huy Ngoc |

| | |Inc.; Huy Ngoc Trinh, M.D. |Trinh, M.D. to Plaintiff’s Complaint. |

| | | |Defendants Trinh and SJ Gastroenterology’s demurrer to the second |

| | | |cause of action in Plaintiff’s complaint on the ground that the |

| | | |pleading does not state facts sufficient to constitute a cause of |

| | | |action [Code of Civil Procedure, § 430.10, subd. (e)] for medical |

| | | |battery is OVERRULED. Defendants shall file an answer within 10 days |

| | | |from the date of the filing and service of this order. |

| | | |Defendants Trinh and SJ Gastroenterology’s motion to strike |

| | | |Plaintiff’s claim for punitive damages is GRANTED. |

| | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 4 |21CV389697 |Michael Pham Johnson v. San José Gastroenterology, |Motion of Defendants San José Gastroenterology, Inc. and Huy Ngoc |

| | |Inc.; Huy Ngoc Trinh, M.D. |Trinh, M.D. to Strike the Prayer for Punitive Damages From Plaintiff’s|

| | | |Complaint. |

| | | |SEE LINE #3. |

|LINE 5 |20CV372199 |Janine Mattos v. Impec Group |Motion of Defendant to Compel Plaintiff to Provide Further Responses |

| | | |to Initial Interrogatories (Set Six) and Request for Monetary |

| | | |Sanctions. |

| | | |NO TENTATIVE RULING. The parties should use the Tentative Ruling |

| | | |Protocol to advise the Court whether they wish to submit on the papers|

| | | |or to appear to argue the motion on the merits. |

|LINE 6 |21CV376384 |Jane Doe v. Korean Emmanuel Presbyterian Church;Minjae|Motion of Plaintiff to Quash Deposition Subpoena for Production of |

| | |Kim |Records. |

| | | |Motion deferred until 1:30 PM this afternoon pending Informal |

| | | |Discovery Conference |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 7 |17CV317602 |Gregory Steshenko v. Foothill-De Anza Community |Motion of Plaintiff to Reconsider This Court’s Order of 7 January 2022|

| | |College District et al. |Denying Leave to File an Amended Complaint. |

| | | |The motion is DENIED. |

| | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 8 |17CV317602 |Gregory Steshenko v. Foothill-De Anza Community |Motion of Plaintiff for a New Trial. |

| | |College District et al. |The motion is DENIED. |

| | | |SEE LINE #7 for Tentative Ruling. |

|LINE 9 |17CV319854 |James Englehart v. Robert Jefferis; Seele, Inc. |Application of John D. Winer, Esq. and Matthew P. Vandall To Withdraw |

| | | |As Counsel for Plaintiff. |

| | | |The motion to be relieved as counsel for plaintiffs is GRANTED. The |

| | | |Order will take effect upon the filing and service of the executed |

| | | |order of this Court and an order that is written on Form MC-053 and |

| | | |that otherwise complies with California Rules of Court, rule |

| | | |3.1362(e). This Court will modify the proposed order to reflect the |

| | | |Trial Setting Conference on 26 April 2022 at 11:00 AM in this |

| | | |Department. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 10 |18CV338185 |Sanjay Badshah v. Himanshu Kansara |Motion of Plaintiff for Leave to File a First Amended Complaint. |

| | | |The motion is not opposed. The motion is GRANTED. Counsel for |

| | | |plaintiff is to submit a copy of the proposed first amended complaint |

| | | |to the clerk for filing and then moving party is to serve the |

| | | |filed-endorsed complaint on all parties. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 11 |19CV356299 |HCL America, Inc. v. Partners Personnel-Management |Joint Motion to Seal Exhibits, etc., and Stipulated Junction for One |

| | |Services, LLC; David Sorensen; Shannon Sorensen. |Year. |

| | | |The application is GRANTED. This Court will execute the proposed |

| | | |order. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 12 |19CV360356 |Michael Pérez v. Samsung SDI America, Inc.; Sigelei |Motion of Law Offices of Bin Li, Esq. and James Howard, Esq. to be |

| | |Vape, Inc. |Relieved as Counsel for Defendant Sigelei Vape, Inc. |

| | | |The Motion of Law Offices of Bin Li, Esq. and James Howard, Esq. to be|

| | | |relieved as counsel for Defendant Sigelei Vape, Inc. is GRANTED. The |

| | | |Order will take effect upon the filing and service of the executed |

| | | |order of this Court and an order that is written on Form MC-053 and |

| | | |that otherwise complies with California Rules of Court, rule |

| | | |3.1362(e). The order should reflect the Trial Setting Conference of 22|

| | | |March 2022 at 11:00 AM in Department 20. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 13 |21CV391881 |Amir Weiner; Ya’el Weiner; Julia Erwin-Weiner v. |Application of All Plaintiffs to Admit Carlos F. Gonzales, Esq. Pro |

| | |Leland Stanford Junior University; William Mitchell; |Hac Vice. |

| | |Matthew Ming Carpenter; Cole Dill-De-Sa; Muhammad |The application is GRANTED. |

| | |Khattak; Theta Delta Chi |This Court wishes to advise all parties that it was a member of and |

| | | |President of the Theta Delta Chi house at UCLA from 1970-1972. This |

| | | |Court’s brother-in-law was a member of the Theta Delta Chi at Stanford|

| | | |from 1970-1974. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 14 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 15 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 16 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 17 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 18 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 19 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 20 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 21 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 22 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 23 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 24 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 25 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 26 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 27 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 28 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 29 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 30 | | |SEE ATTACHED TENTATIVE RULING. |

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|SUPERIOR COURT, STATE OF CALIFORNIA | |

|COUNTY OF SANTA CLARA | |

| | |

|DEPARTMENT 20 | |

| | |

|161 North First Street, San Jose, CA 95113 | |

|408.882.2320 · 408.882.2296 (fax) | |

|smanoukian@ | |

| |(For Clerk's Use Only) |

|CASE NO.: |21CV389697 |Michael Pham Johnson v. Huy Ngoc Trinh, M.D. et. al. |

|DATE: 8 March 2022 |TIME: 9:00 am |LINE NUMBERS: 3 & 4 |

|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |

|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 07 March 2022. Please specify |

|the issue to be contested when calling the Court and Counsel. |

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|Orders On: |

|(1) Demurrer of Defendants To Plaintiff’s Medical Battery Cause Of Action; and |

|(2) Motion To Strike of Defendants to the Prayer For Punitive Damages. |

I. Statement of Facts.

On information and belief, plaintiff Michael Pham Johnson (“Plaintiff”) alleges that on 10 August 2021, defendant Huy Ngoc Trinh, M.D. (“Trinh”) performed a polypectomy “when the written consent signed by Plaintiff only authorized Defendant Trinh to perform a [c]olonoscopy.” (Complaint, ¶4.)

Defendant Trinh is employed by Defendant San Jose Gastroenterology, Inc. (erroneously sued as San Jose Gastroenterology, Medical Corporation; hereafter, “SJ Gastroenterology”). (Complaint, ¶7.) There are no allegations specific to defendant San Jose Gastroenterology. (See generally, Complaint.)

From 13 August 2021 through 15 August 2021, Plaintiff was hospitalized after suffering “severe and extensive near fatal blood loss” as a result of the unauthorized polypectomy conducted during a consented-to colonoscopy. (Complaint, ¶5.) On 16 August 2021, defendants Trinh and SJ Gastroenterology contacted Plaintiff only after Plaintiff’s cardiologist called defendant Trinh to complain about defendant Trinh’s failure to contact Plaintiff’s cardiologist prior to the surgical procedure. (Id.)

On 12 October 2021[1], Plaintiff filed a complaint against defendants Trinh and San Jose Gastroenterology, asserting causes of action for:

1) Negligence – Medical Malpractice

2) Medical Battery

On 10 December 2021, defendants Trinh and SJ Gastroenterology filed the two motions now before the court, a demurrer as to Plaintiff’s second cause of action and a motion to strike Plaintiff’s complaint. Plaintiff has filed oppositions to defendants’ demurrer and motion to strike.

II. Demurrers and Motions to Strike.

A. Demurrers.

A complaint must contain substantive factual allegations sufficiently apprising the defendant of the issues to be addressed. (See Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

A demurrer tests the legal sufficiency of a complaint. It is properly sustained where the complaint or an individual cause of action fails to “state facts sufficient to constitute a cause of action.” (Code of Civil Procedure, § 430.10, subd. (e).) “[C]onclusionary allegations . . . without facts to support them” are insufficient on demurrer. (Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531, 537.) “It is fundamental that a demurrer is an attack against the complaint on its face, it should not be sustained unless the complaint shows that the action may not be pursued.” (Yolo County Dept. of Social Services v. Municipal Court (1980) 107 Cal.App.3d 842, 846-847.)

“It is not the ordinary function of a demurrer to test the truth of the plaintiff’s allegations or the accuracy with which he describes the defendant’s conduct. A demurrer tests only the legal sufficiency of the pleading.” (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213.) “It ‘admits the truth of all material factual allegations in the complaint . . .; the question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.’ [Citation.]” (Id. at pp. 213-214; see Cook v. De La Guerra (1864) 24 Cal. 237, 239: “[I]t is not the office of a demurrer to state facts, but to raise an issue of law upon the facts stated in the pleading demurred to.”)

B. Motions to Strike.

“The court may, upon a motion made pursuant to [Code of Civil Procedure, § 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code of Civil Procedure, § 436.)

“A notice of motion to strike must be given within the time allowed to plead, and if a demurrer is interposed, concurrently therewith, and must be noticed for hearing and heard at the same time as the demurrer.” (Rules of Court, rule 3.1322(b).)

“A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” (Rules of Court, rule 3.1322(b).)

Under general rules of civil procedure, a motion to strike may be brought on the following two grounds:

a. Strike out any irrelevant, false, or improper matter inserted in any pleading.

b. Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code of Civil Procedure, § 436.)

Irrelevant matter includes “immaterial allegations.” (Code of Civil Procedure, § 431.10, subd. (c).) “An immaterial allegation in a pleading is any of the following: (1) An allegation that is not essential to the statement of a claim or defense; (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense; (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.” (Code of Civil Procedure, § 431.10, subd. (b).)

“As with demurrers, the grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice.” (Weil & Brown, et al., California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶7:168, p. 7(I)-75 citing Code of Civil Procedure, § 437.) “Thus, for example, defendant cannot base a motion to strike the complaint on affidavits or declarations containing extrinsic evidence showing that the allegations are ‘false’ or ‘sham.’ Such challenges lie only if these defects appear on the face of the complaint, or from matters judicially noticeable.” (Id. at ¶7:169, pp. 7(I)-75 to 7(I)-76.)

“A motion to strike may be used as a scalpel—to cut out any irrelevant, false, or improper matters inserted therein.” (Weil & Brown, California Practice Guide: Civil Procedure before Trial (The Rutter Group 2019) §7:177, p. 7-61 citing Code of Civil Procedure, § 436(a) (internal punctuation modified.) “This includes allegations not essential to the claim or defense; allegations neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.’” Id. at §7:178 citing Code of Civil Procedure, § 431.10(b).) (internal punctuation modified.)

“In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to the motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “In ruling on a motion to strike, courts do not read allegations in isolation.” (Clauson, 67 Cal.App.4th at 1255.)

III. Analysis.

A. Procedural Issue: Timely Service

Plaintiff opposes defendants’ demurrer and motion to strike on the basis that service of the amended notices and motions was untimely. Plaintiff notes that pursuant to California Code of Civil Procedure, § 1005(b):

“Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. The moving and supporting papers served shall be a copy of the papers filed or to be filed with the court.”

Pursuant to the Local Rules of this court, “[a] party seeking a law and motion hearing date must file and serve all of the moving papers as soon as complete, and leave the hearing date blank on the moving papers.” (Super. Ct. Santa Clara County, Local Rules Civil Rule 8C). Once the court date is obtained from the calendar clerk, “the moving party must file and serve an amended notice of hearing with the hearing date.” (Ibid.) “Failure to file and serve an amended notice of motion with sufficient statutory notice will either lead to a continuance of the motion or the motion being ordered off calendar by the Court.” (Ibid.)

Plaintiff’s counsel declares that defendants initially served a notice of motion and motion for both a demurrer and motion to strike on 10 December 2021, with blank hearing dates. The notices and motions were subsequently filed on 10 December 2021 with the hearing date of 8 March 2022. Defendants did not file and serve the amended notices and motions until 22 February 2022. Pursuant to the Local Rules of this court, defendants, as moving party, are required to file and serve amended notices with sufficient statutory notice.

Plaintiff correctly notes that defendants have violated Code of Civil Procedure, § 1005(b) in serving the amended notices and motions less than the statutorily required 16 court days. While service of the amended notices and motions was improper, the Court would not be justified in denying the defendants’ motions, as Plaintiff cites no statute or case law authorizing a court to deny papers that may not have been served by an appropriate method.

Furthermore, where both parties appear and contest a motion, without objection in the trial court, such appearance is a waiver of a written notice, if none were given, or of the defect in the notice to specify all of the relief asked and given, if the motion and order went beyond the terms of the notice. (Hammond Lumber Co. v. Bloodgood (1929) 101 Cal.App.561, 563-564.)

Plaintiff was able to timely file reply papers that address the substance of defendants’ motion. Thus, the Court will overlook this procedural irregularity and consider the merits of the defendants’ demurrer and motion to strike.

B. Defendants Trinh and SJ Gastroenterology’s demurrer to the second cause of action [Medical Battery] in Plaintiff’s complaint is OVERRULED.

“Where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 239 (Cobbs); see also CACI, No. 530A.) “[W]hen the patient consents to certain treatment and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information.” (Id. at p. 240.) Thus, “[a]n action ‘should be pleaded in negligence’ when the doctor performs an operation to which plaintiff consents, but without disclosing sufficient information about the risks inherent in the surgery. [Citation.]” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324.)

As noted above, a medical battery claim is clear when a doctor deviates from the consented treatment plan. (Cobbs, supra, 8 Cal.3d at p. 239.) Defendants cite Cobbs to illustrate the difference between medical malpractice and medical battery. In Cobbs, a patient brought a medical battery claim against a surgeon on the basis that the surgeon did not have consent to touch the patient’s spleen during an operation to remove a duodenal ulcer. In addressing the plaintiff’s claim of medical battery, the Cobbs court explained that an action for negligence arises “when the patient consents to certain treatment and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears…” (Id. at p. 240.) Moreover, the Cobbs court notes that “when an undisclosed potential complication results, the occurrence of which was not an integral part of the treatment procedure but merely a known risk,” a case for negligence is more appropriate. (Id. at 239). Accordingly, the Cobbs court determined the appropriate cause of action was not medical battery, but negligence because the injury to the plaintiff’s spleen derived from an operation plaintiff consented to and the subsequent injuries were “undisclosed inherent complication[s]” not integral to the original, consented-to operation.

Defendants Trinh and SJ Gastroenterology contend on demurrer that Plaintiff has not alleged a claim for medical battery with sufficient specificity. Defendants argue that Plaintiff’s second cause of action is deficient because it solely “adopts and incorporate[s] all of the facts and allegations set for above in paragraphs 1 through 16 as if fully set forth herein” but fails to state facts constituting a cause of action for medical battery and the basis for a claim of medical battery. (Complaint, ¶17.)

Moreover, defendants contend that because a polypectomy is integral, and therefore not substantially different from the consented-to colonoscopy, Plaintiff had consented to the polypectomy, and in doing so, Plaintiff has not stated facts sufficient to constitute a claim of medical battery.

However, the court has not taken judicial notice of defendants’ assertion that a polypectomy is an integral part of a colonoscopy as opposed to a separate and distinct procedure. Thus, the court accepts Plaintiff’s allegation that a polypectomy was unauthorized and unnecessary. Accordingly, Plaintiff has successfully alleged that consent was only provided for a colonoscopy and that defendants deviated from the authorized colonoscopy by conducting the polypectomy.

Defendants Trinh and SJ Gastroenterology’s demurrer to the second cause of action in Plaintiff’s complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for medical battery is OVERRULED.

C. Defendants Trinh and SJ Gastroenterology’s motion to strike Plaintiff’s complaint for punitive damages is GRANTED.

Defendants Trinh and SJ Gastroenterology move to strike Plaintiff’s claim for punitive damages on the ground that punitive damages against health care providers cannot be included in a complaint without a court order. CCP section 425.13(a) states, “In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.”

Plaintiff opposes defendants’ motion to strike his claim for punitive damages on the ground that Code of Civil Procedure, § 425.13(a) only applies to professional negligence cases, not medical battery. Plaintiff contends that the prayer for punitive damages arises out of Defendant Trinh’s unauthorized polypectomy, not negligence in the services Defendant Trinh was authorized to perform.

However, defendants cite Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.App.4th 181, 192 to contend that courts have relied on legislative intent in interpreting Code of Civil Procedure, § 425.13(a) to apply to both professional negligence cases and intentional tort cases so long as the claimed injury arises from or is directly related to how medical services were rendered. Plaintiff does not provide legal authority or support to contradict the Central Pathology ruling.

Defendants have sufficiently established that Code of Civil Procedure, § 425.13(a) applies to alleged unauthorized polypectomy, an intentional tort, and punitive damages may not be requested on Plaintiff’s Complaint without court order. Accordingly, defendants Trinh and SJ Gastroenterology’s motion to strike for Plaintiff’s claim for punitive damages is GRANTED.

IV. Tentative Ruling.

The tentative ruling was duly posted.

V. Case Management.

The Court will set a further Case Management Conference on 30 August 2022 at 10:00 AM in Department 20. The parties are to engage in discovery and discuss whether Alternate Dispute Resolution is appropriate for this matter.

VI. Order.

Defendants Trinh and SJ Gastroenterology’s demurrer to the second cause of action in Plaintiff’s complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code of Civil Procedure, § 430.10, subd. (e)] for medical battery is OVERRULED. Defendants shall file an answer within 10 days from the date of the filing and service of this order.

Defendants Trinh and SJ Gastroenterology’s motion to strike Plaintiff’s claim for punitive damages is GRANTED.

|___________________________ |______________________________________________ |

|DATED: |HON. SOCRATES PETER MANOUKIAN |

| |Judge of the Superior Court |

| |County of Santa Clara |

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|SUPERIOR COURT, STATE OF CALIFORNIA | |

|COUNTY OF SANTA CLARA | |

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|DEPARTMENT 20 | |

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|161 North First Street, San Jose, CA 95113 | |

|408.882.2320 · 408.882.2296 (fax) | |

|smanoukian@ | |

| | |

| |(For Clerk’s Use Only) |

|CASE NO.: |17CV317602 |Gregory Steshenko v. Foothill-De Anza Community College District et al. |

|DATE: 08 March 2022 |TIME: 9:00 am |LINE NUMBER: 7, 8 |

|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |

|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 07 March 2022. Please specify |

|the issue to be contested when calling the Court and Counsel. |

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|Orders on: |

|1. Motion of Plaintiff to Reconsider This Court’s Order of 7 January 2022 |

|Denying Leave to File an Amended Complaint; and |

|2. Motion of Plaintiff for a New Trial. |

I. Statement of Facts.

On 27 February 2020, plaintiff filed a peremptory challenge against this Judge pursuant to Code of Civil Procedure, § 170.6. This Court initially accepted the challenge but vacated the challenge after learning that on 23 July 2019, plaintiff filed a similar challenge against and accepted by Judge Arand. Plaintiff also presented several challenges pursuant to Code of Civil Procedure, § 170.1, which were all technically deficient and all stricken by this Court.

On 29 June 2021, Defendants filed a motion for summary judgment.

On 28 July 2021, Plaintiff filed a cross motion for summary judgment.

On 18 November 2021, this Court heard the above motions for summary judgment.

On 27 December 2021, plaintiff filed a document entitled “Objection to the Pendant Proceedings before This Court and the Proceedings That Occurred after the Perfecting of an Appeal; Request to Strike and Vacate the Proceedings Thereof.” In this document, plaintiff asserts that he perfected an appeal on 28 December 2020 by the filing of a notice of appeal from the court order denying him an injunction. A review of the dockets on the Court of Appeal files on this matter shows that no stay was issued by the Court of Appeal.

On 28 December 2021, this Court signed an 14 page, singlespaced order granting summary judgment (“Order”) for Defendants.

On 29 December 2021, the foregoing order was filed.

On 29 December 2021, Plaintiff filed an amended notice of intention to move for a new trial and amended notice of intention to move for a new trial.

On 7 January 2022, Plaintiff filed additional documents in support of his motion for a new trial.

On 1 February 2022, the Court entered the judgment dated 31 January 2022.

III. Motion of Plaintiff to Reconsider This Court’s Order of 7 January 2022

Denying Leave to File an Amended Complaint.

A party filing either a motion under Code of Civil Procedure, § 1008, subdivision (a) or (b) is seeking a new result in the trial court based upon new or different facts, circumstances, or law. (Chango Coffee, Inc. v. Applied Underwriters, Inc, (2017) 11 Cal.App.5th 1247, 1252 (citing Tate v. Wilburn, (2010) 184 Cal. App. 4th 150, 159-160.) A motion for reconsideration is authorized only when the motion is based on new or different facts, circumstances, or law. (McPherson v. City of Manhattan Beach (2000) 78 Cal.App.4th 1252, 1265; Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500-1501.) The party moving for reconsideration on the basis of new or different facts must make a threshold showing of diligence which requires a satisfactory explanation for failing to provide the evidence earlier. (McPherson v. City of Manhattan Beach, supra, 78 Cal.App.4th at 1265; see also Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 688-691.)

Code of Civil Procedure, § 1008(a) states:

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

To move for reconsideration of a prior court order on the basis of “new or different facts” or newly discovered evidence, the moving party must provide to this Court a satisfactory explanation for the failure to produce that evidence at an earlier time.  (Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 255.)

The first step on a motion for reconsideration is to determine whether the moving party has complied with procedural requirements and set forth a basis for reconsideration. The moving party is required to file a motion within 10 days of service of a formal notice of ruling. (Code of Civil Procedure, §1008(a).) The instant motion was timely filed.

The moving party is also required to state “by affidavit” what application was made before, when and to what judge, what order or decisions were made and what new or different facts, circumstances or law are claimed to be shown. (Code of Civil Procedure, §1008(a).) The legislative intent of this requirement was to limit motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered and some valid reason for not offering it earlier. (See Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) The moving party must present a satisfactory explanation for failing to provide the evidence earlier, which can only be described as a strict requirement of diligence. (See Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) If the statutory requirements are met, the court should grant reconsideration. That does not, however, mean that the court must rule differently on the motion; upon reconsideration, the court may simply reaffirm its original order. (See Corns v. Miller (1986) 181 Cal.App.3d 195, 202.)

Reconsideration cannot be granted based on claims the Court misinterpreted the law in its initial ruling. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.[2]) However, it can be granted based on legal principles that were not considered in the initial ruling provided that the party provides a reasonable explanation for not producing those legal principles at the first hearing. (Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198-1199.) Otherwise, “the number of times a court could be required to reconsider its prior orders would be limited only by the ability of counsel to belatedly conjure a legal theory different from those previously rejected. . . .” (Id. at 1199.)

The current application fails to comply with Code of Civil Procedure, § 1008 and is DENIED.

II. Motion of Plaintiff for a New Trial.

Code of Civil Procedure, § 657 states, in part:

“The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:

1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.

2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.

3. Accident or surprise, which ordinary prudence could not have guarded against.

4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.

5. Excessive or inadequate damages.

6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

7. Error in law, occurring at the trial and excepted to by the party making the application. . . . .”

“The right to a new trial is purely statutory, and a motion for a new trial can be granted only 0n one of the grounds enumerated in the statute.” (Fomco, Inc., v. Joe Maggio, Inc. (1961) 55 Cal.2d 162,166.) All of the subsequent enumerated statutory grounds for granting a new trial require a showing of some error “materially affecting the substantial rights of [the moving] party.” (Code of Civil Procedure, § 657).

“When the application is made for a cause mentioned in the first, second, third and fourth subdivisions of Section 657, it must be made upon affidavits; otherwise it must be made on the minutes of the court.” (Code of Civil Procedure, § 658.)

This Court is unclear as to the bases of plaintiff’s claims of irregularities, accidents or surprises to justify a new trial. A Court may grant a party’s motion for a new trial in the event of “accident or surprise, which ordinary prudence could not have guarded against.” (Code of Civil Procedure, § 657 [3].) “The terms ‘accident’ and ‘surprise,’ as used in [Code of Civil Procedure, § section 657], are given substantially the same meaning.” (McCown v. Spencer (1970) 8 Cal.App.3d 216, 228.) “‘Surprise,’ as a ground for new trial, denotes some condition or situation in which a party to a cause is unexpectedly placed, to his injury, without any negligence of his own which ordinary prudence could not have guarded against.” (South Santa Clara Valley Water Conservation Dist. v. Johnson (1964) 231 Cal.App.2d 388, 406.)

Contrary to what plaintiff may think, this Court does not have a “leisurely” calendar. Due to insufficient legal research help, this Court drafts 90% of its own orders from scratch and that included the orders on this case.

Additionally, the first time that this Court learned of plaintiff’s complaint to the Commission on Judicial Performance was reading about it in plaintiff’s moving papers in support of this motion.

Finally, plaintiff was well aware of the relationship between this Judge and Foothill College. Foothill College is in the Foothill-De Anza Community College District but is not otherwise involved in this matter which concerns De Anza College. “A judge has a duty to decide any proceeding in which he or she is not disqualified.” (Code of Civil Procedure, § 170.)

As set forth in the opposition papers filed by defendants, the moving papers filed by plaintiff failed to comply with the requirement of filing proper supporting affidavits.

The motion of plaintiff for a new trial is DENIED.

|____________________________________ |_________________________________________________________ |

|DATED: |HON. SOCRATES PETER MANOUKIAN |

| |Judge of the Superior Court |

| |County of Santa Clara |

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[1] This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600–68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C).)

[2] “Respondent urges that this jurisdictional prerequisite was satisfied in one of two ways: first, respondent argues that the trial court misinterpreted California law in its initial decision and, therefore, the respondent relied upon "different" law when it reiterated its prior reasoning and authorities for rejecting appellant's Government Code section 946.6 petition. Second, respondent urges that the fact that it had not intended to waive oral argument on the initial motions constitutes a "new" fact or circumstance sufficient to satisfy the statute. . . . .[¶] Respondent's first contention is utterly specious. What respondent essentially argues is that section 1008 does not apply when the litigant disagrees with the trial court's ruling. Since in almost all instances, the losing party will believe that the trial court's "different" interpretation of the law or facts was erroneous, to interpret the statute as the respondent urges would be contrary to the clear legislative intent to restrict motions to reconsider to circumstances where a party offers the court some fact or authority that was not previously considered by it.”

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