On August 03, 2022 a
Motion-Secondary
was filed
involving a dispute between
Musharbash, Joseph,
and
American Medical Response,
American Medical Response, Inc.,
Cutler, M.D, Aaron,
Does 2-100, Inclusive,
Does 3 -100, Inclusive,
Gibani, M.D, Siraj,
Hide-A-While,
Hide-A-While Lounge,
Musharbash, Susan,
Rancho Cucamonga Fire Protection District,
San Antonio Regional Hospital,
Young, M.D, Richard,
City Of Rancho Cucamonga,
County Of San Bernardino,
for Medical Malpractice Unlimited
in the District Court of San Bernardino County.
Preview
BORDIN SEMMER LLP
Joshua Bordin-Wosk, State Bar No. 241077 Wig
QUPERIOR‘ cciun"r 0F CALIFORNIA
jbordinwoské‘Dbordinsemmer.com
coumv 0F 53AM BERNARDINO
Bryan C. Swaim, State Bar No. 289729 9AM BERNARDINO DISTRICT
bswaim(d}bordinscmmmer.com JUN 2 02023
6100 Center Drive, Suite 1100
Los Angeles, CA 90045
Phone: (323) 457-21 10 av ,
“#524?
ROBEHf/KBEa'ztx/IEIER. DEPUTY
Fax: (323) 457-2120
Attorneys for Defendant,
RANCHO CUCAMONGA FIRE PROTECTION DISTRICT
(erroneously sued as the Rancho Cucamonga Fire Department)
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
JOSEPH MUSHARBASH, an individual, and [Exemptfromfilingfee due t0 Government
as successor-in-interest to the Estate 0f Code Section 61 03]
MICHAEL MUSHARBASH
Case No.: CIVSBZZI71 17
Plaintiffs,
(Assignedfor allpurposes t0 Hon. Jeffrey R.
v. Erickson, Dept. S14)
SAN ANTONIO REGIONAL HOSPITAL; DEFENDANT RANCHO CUCAMONGA
FIRE PROTECTION DISTRICT’S REPLY
AMERICAN MEDICAL RESPONSE; SIRAJ IN SUPPORT OF DEMURRER TO
GIBANI, M.D.; AARON CUTLER, M.D.; PLAINTIFF’S SECOND AMENDED
RICHARD YOUNG, M.D,, HIDE-A—WHILE COMPLAINT
LOUNGE, and DOES 1-100, inclusive, i
Date: June 26, 2023
Defendants. Time: 8:30 a.m.
Dept: $23
Complaint Filed: August 5. 2022
TO THE COURT, PLAINTIFF, AND HIS ATTORNEYS OF RECORD:
Defendant RANCHO CUCAMONGA FIRE PROTECTION DISTRICT (erroneously sued
as the Ranch Cucamonga Fire Department) (“RCFD”) hereby submits its Reply in support of its
demurrer to the Second Amended Complaint (“SAC”) filed by JOSEPH MUSHARBASH
(“Plaintiff”) as follows:
///
///
RCFD’S REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT
I. PLAINTIFF DID NOT PETITION THE COURT FOR LEAVE T0 FILE SUIT
AGAINST THE RCFD, WHICH IS A PUBLIC ENTITY
As the Court is aware, on November 3, 2022, Plaintiff petitioned this court ex parte for
relief from the tort claim requirement as to the City of Rancho Cucamonga (“City) and the County
of San Bemardino. (See RCFD’s Req. for Jud. Ntc., Exh. E.) Notably absent from Plaintiff’s
Petition is a request for relief from the tort claim requirement as to the RCFD, which is a public
entity. Thus, on February 3, 2023, the Court did not rule that Plaintiff was prohibited from filing a
claim against the RCFD, because Plaintiff did not request such relief in his Petition. As
Plaintiff‘s Opposition correctly notes, the Court did not make such a ruling because Plaintiff failed
10 to bring a Petition requesting relief to filed suit against the RCFD. By Plaintiff’s logic, he would be
11 free t0 add any public entity to his complaint without complying With the Government claims act
12 simply because he has not received any ruling from the Court prohibiting the same. The proper
13 procedure was to file a new Petition pursuant to Government Code section 946.6. Plaintiff did not
14 follow this procedure and instead skirted the Government Code requiéements. The Court
15 acknowledged this deficiency on March 14, 2023, in which it sustained RCFD’s Demurrer
16 with leave to amend, noting that Plaintiff had 30 days to amend his Complaint, one last time,
17 to allege compliance with the Tort Claims Act. Plaintiff‘s SAC does not include such allegations
18 and in fact cannot, because no tort claim was ever submitted to the RCFD.
19 The law is clear that no suit for money or damages may be maintained against a
20 governmental entity unless a formal claim has been presented to such entity and has been rejected
21 (or is deemed rejected by the passage of time). (Gov. Code §§ 945.4, 912.4; see Munoz v. State 0f
22 Calif (1995) 33 Cal.App.4th 1767, 1776.) The failure to comply with the government tort claims
23 statute bars the claim against the public entity. (State 0f Calif v. Sup.Ct. (Bodde) (2004) 32 Cal.4th
24 1234, 1239.) In the absence of such claims, the plaintiff must obtain a court order for relief from
25 the requirements of the claims act before filing suit pursuant to Government Code section 946.6.
26 (City ofLos Angeles v. Superior Court (1993) l4 Cal.App.4th 621, 627-28.)
27 Here, Plaintiff failed to submit a tort claim to the RCFD and failed to petition this court for
28 relief from the tort claim requirement pursuant t0 section 946.6. Thus, Plaintiff is precluded from
2
RCFD’S REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT
Preview
BORDIN SEMMER LLP Joshua Bordin-Wosk, State Bar No. 241077 Wig QUPERIOR‘ cciun"r 0F CALIFORNIA jbordinwoské‘Dbordinsemmer.com coumv 0F 53AM BERNARDINO Bryan C. Swaim, State Bar No. 289729 9AM BERNARDINO DISTRICT bswaim(d}bordinscmmmer.com JUN 2 02023 6100 Center Drive, Suite 1100 Los Angeles, CA 90045 Phone: (323) 457-21 10 av , “#524? ROBEHf/KBEa'ztx/IEIER. DEPUTY Fax: (323) 457-2120 Attorneys for Defendant, RANCHO CUCAMONGA FIRE PROTECTION DISTRICT (erroneously sued as the Rancho Cucamonga Fire Department) SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO JOSEPH MUSHARBASH, an individual, and [Exemptfromfilingfee due t0 Government as successor-in-interest to the Estate 0f Code Section 61 03] MICHAEL MUSHARBASH Case No.: CIVSBZZI71 17 Plaintiffs, (Assignedfor allpurposes t0 Hon. Jeffrey R. v. Erickson, Dept. S14) SAN ANTONIO REGIONAL HOSPITAL; DEFENDANT RANCHO CUCAMONGA FIRE PROTECTION DISTRICT’S REPLY AMERICAN MEDICAL RESPONSE; SIRAJ IN SUPPORT OF DEMURRER TO GIBANI, M.D.; AARON CUTLER, M.D.; PLAINTIFF’S SECOND AMENDED RICHARD YOUNG, M.D,, HIDE-A—WHILE COMPLAINT LOUNGE, and DOES 1-100, inclusive, i Date: June 26, 2023 Defendants. Time: 8:30 a.m. Dept: $23 Complaint Filed: August 5. 2022 TO THE COURT, PLAINTIFF, AND HIS ATTORNEYS OF RECORD: Defendant RANCHO CUCAMONGA FIRE PROTECTION DISTRICT (erroneously sued as the Ranch Cucamonga Fire Department) (“RCFD”) hereby submits its Reply in support of its demurrer to the Second Amended Complaint (“SAC”) filed by JOSEPH MUSHARBASH (“Plaintiff”) as follows: /// /// RCFD’S REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT I. PLAINTIFF DID NOT PETITION THE COURT FOR LEAVE T0 FILE SUIT AGAINST THE RCFD, WHICH IS A PUBLIC ENTITY As the Court is aware, on November 3, 2022, Plaintiff petitioned this court ex parte for relief from the tort claim requirement as to the City of Rancho Cucamonga (“City) and the County of San Bemardino. (See RCFD’s Req. for Jud. Ntc., Exh. E.) Notably absent from Plaintiff’s Petition is a request for relief from the tort claim requirement as to the RCFD, which is a public entity. Thus, on February 3, 2023, the Court did not rule that Plaintiff was prohibited from filing a claim against the RCFD, because Plaintiff did not request such relief in his Petition. As Plaintiff‘s Opposition correctly notes, the Court did not make such a ruling because Plaintiff failed 10 to bring a Petition requesting relief to filed suit against the RCFD. By Plaintiff’s logic, he would be 11 free t0 add any public entity to his complaint without complying With the Government claims act 12 simply because he has not received any ruling from the Court prohibiting the same. The proper 13 procedure was to file a new Petition pursuant to Government Code section 946.6. Plaintiff did not 14 follow this procedure and instead skirted the Government Code requiéements. The Court 15 acknowledged this deficiency on March 14, 2023, in which it sustained RCFD’s Demurrer 16 with leave to amend, noting that Plaintiff had 30 days to amend his Complaint, one last time, 17 to allege compliance with the Tort Claims Act. Plaintiff‘s SAC does not include such allegations 18 and in fact cannot, because no tort claim was ever submitted to the RCFD. 19 The law is clear that no suit for money or damages may be maintained against a 20 governmental entity unless a formal claim has been presented to such entity and has been rejected 21 (or is deemed rejected by the passage of time). (Gov. Code §§ 945.4, 912.4; see Munoz v. State 0f 22 Calif (1995) 33 Cal.App.4th 1767, 1776.) The failure to comply with the government tort claims 23 statute bars the claim against the public entity. (State 0f Calif v. Sup.Ct. (Bodde) (2004) 32 Cal.4th 24 1234, 1239.) In the absence of such claims, the plaintiff must obtain a court order for relief from 25 the requirements of the claims act before filing suit pursuant to Government Code section 946.6. 26 (City ofLos Angeles v. Superior Court (1993) l4 Cal.App.4th 621, 627-28.) 27 Here, Plaintiff failed to submit a tort claim to the RCFD and failed to petition this court for 28 relief from the tort claim requirement pursuant t0 section 946.6. Thus, Plaintiff is precluded from 2 RCFD’S REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT