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Ramos v. Marcisz

January 28, 2008

NAHIR RAMOS, ET. AL., PLAINTIFFS,
v.
THOMAS J. MARCISZ, M.D., ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

(Doc. No. 52)

On October 11, 2006 Plaintiff Nahir Ramos ("Plaintiff"), suing on behalf of herself and as the Administratrix of the Estate of Angel Ramos, commenced this diversity action against Defendants Thomas J. Marcisz, M.D. ("Marcisz"), David J. Oblon, M.D. ("Oblon"), and Tri-City Medical Center*fn1 ("Tri-City") alleging professional negligence, wrongful death, failure to obtain informed consent, and loss of care, comfort, companionship and support. (Doc. No. 1.) Pending before the Court is Defendant TriCity's Motion for Summary Judgment. (Doc. No. 52.) The Court decides the matter on the papers submitted and without oral argument. See S.D. Cal. Civ. R. 7.1(d.1). For the following reasons, the Court DENIES Defendant Tri-City's motion.

I. BACKGROUND

Because the present motion is based nearly entirely on procedural issues, a full recitation of the facts underlying the dispute is not necessary here. Thus, the Court will simply review the facts relevant in deciding Tri-City's statute of limitations argument.

Plaintiff Nahir Ramos, a New Jersey resident, was the wife of the late Angel Ramos ("Ramos") and is the Administratrix of Ramos' estate. (First Am. Compl. [hereinafter "FAC"] ¶¶ 1, 2, 53.) Defendant Tri-City is a California healthcare district, organized and existing under California's Local Health Care District Law. (Robert Cosgrove Decl. ¶ 2.) Tri-City operates a hospital in Oceanside, California, which treats patients and employs numerous physicians, including Drs. Marcisz and Oblon. (FAC. ¶¶ 6, 11, 14.)

From October 7, 2005 to November 16, 2005 Ramos was a Tri-City patient and treated by Drs. Marcisz and Oblon. (FAC ¶¶ 27, 32; Lee Lubin Decl. ¶ 5.) On November 26, 2005 Ramos passed away, and Plaintiff alleges that Tri-City, Marcisz and Oblon caused Ramos' death by failing to meet their required standard of care. (Lee Lubin Decl. ¶ 5.) On April 18, 2006 Plaintiff received Letters of Administration from the State of New Jersey allowing her to settle Ramos' estate. (FAC ¶ 2.)

On June 30, 2006 Plaintiff served a Notice of Intent to Commence Action Against a Healthcare Provider on Tri-City. (FAC ¶ 15.) On August 10, 2006 Tri-City rejected the Notice as a "late claim." (FAC ¶ 16.) On August 15, 2006 Plaintiff petitioned Tri-City for leave to file a late claim. (FAC ¶ 17.) On September 26, 2006 Tri-City denied Plaintiff's petition. (FAC ¶ 17.)

On October 11, 2006 Plaintiff filed this action alleging professional negligence, wrongful death, failure to obtain informed consent, and loss of care, comfort, companionship and support.*fn2 (Doc. No. 1.) Among other things, Plaintiff alleged that she had served a Notice of Intent to Commence Action upon Tri-City on June 30, 2006. (Compl. ¶ 15.)

Also on October 11, 2006 Plaintiff filed in San Diego Superior Court a petition for relief from California Government Code Section 945.4, a section of the California Tort Claims Act*fn3 ("CTCA") requiring that a written claim first be presented to a government entity before a plaintiff can maintain a suit against that entity. (Robert Cosgrove Decl. ¶ 4; Cal. Gov't Code § 945.4.) The California petition's hearing date was eventually set for January 24, 2007. (Lee Lubin Decl. ¶ 4.) On February 5, 2007 the San Diego Superior Court granted Plaintiff relief from the CTCA's claim presentation requirement. (Lee Lubin Decl. ¶ 8.)

Meanwhile, on November 27, 2006 Tri-City moved to dismiss Plaintiff's federal suit because she had failed to allege compliance with Section 945.4's*fn4 claim presentation requirement.*fn5 (Doc. No. 3.) On February 6, 2007, the day after the California court granted relief, this Court granted Tri-City's motion and dismissed Plaintiff's Complaint without prejudice, but denied leave to amend the Complaint against Tri-City. (Doc. No. 16.)

On February 13, 2007 Plaintiff filed an ex parte motion for leave to file a motion for reconsideration of the prior order. (Doc. No. 17.) On February 23, 2007 the Court granted Plaintiff's ex parte motion. (Doc. No. 18.) On March 9, 2007 Plaintiff moved for reconsideration of the order granting Tri-City's motion to dismiss, arguing that the prior order should have been granted with leave to amend because her Complaint's deficiencies were curable. (Doc. No. 20.) On April 25, 2007 the Court granted Plaintiff's motion and granted Plaintiff leave to file an amended complaint. (Doc. No. 30.) On May 7, 2007 Plaintiff filed her First Amended Complaint ("FAC"), which included allegations that Plaintiff obtained relief from the CTCA's claim presentation requirement. (Doc. No. 31.) On May 17, 2007 Tri-City answered, listing as its thirty- sixth affirmative defense that the CTCA's statute of limitations barred Plaintiff's action. (Doc. No. 34.)

On August 24, 2007 Plaintiff moved for partial summary judgment on Tri-City's statute of limitations defense. (Doc. No. 40.) On October 26, 2007 the Court denied Plaintiff's motion. (Doc. No. 49.) On November 28, 2007 Tri-City moved for summary judgment, arguing that Plaintiff's action is time barred because she did not file her complaint ...


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