Preview
1 Michele Ballard Miller (SBN 104198)
ELECTRONICALLY FILED (Auto)
mbmiller@cozen.com
SUPERIOR COURT OF CALIFORNIA
2 Ethan W. Chernin (SBN) 273906 COUNTY OF SAN BERNARDINO
echernin@cozen.com 5/1/2024 6:06 PM
3 COZEN O'CONNOR
401 Wilshire Boulevard, Suite 850
4 Santa Monica, California 90401
Telephone: 310.393.4000
5 Facsimile: 310.394.4700
6 Attorneys for Defendants
KAISER FOUNDATION HOSPITALS, KAISER
7 FOUNDATION HEALTH PLAN, INC.,
SOUTHERN CALIFORNIA PERMANENTE
8 MEDICAL GROUP, and TAWNA BRUUN
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF SAN BERNARDINO
12
13 ESPERANZA PEREZ, Case No.: CIVDS1920836
COZEN O’ CONNOR
401 WILSHIRE BOULEVARD
SANTA MONICA, CA 90401
SUITE 850
14 Plaintiff, [Assigned to the Hon. Thomas S Garza, Dept.
S27]
15 vs.
DEFENDANTS’ OPPOSITION TO
16 KAISER FOUNDATION HOSPITALS, a PLAINTIFF’S EX PARTE
California Corporation; KAISER APPLICATION TO ADVANCE
17 FOUNDATION HEALTH PLAN, INC., a HEARING DATE FOR PLAINTIFF’S
California Corporation; and SOUTHERN MOTION FOR LEAVE TO FILE
18 CALIFORNIA PERMANENTE MEDICAL SECOND AMENDED COMPLAINT
GROUP, INC., a California Corporation;
19 TAWNA BRUUN, an Individual; and DOES 1 Date: May 2, 2024
through 50, Inclusive, , Time: 8:30 a.m.
20 Dept.: S27
Defendants.
21
Action Filed: March 20, 2019
22 Trial Date: July 22, 2024
23
24
25
26
27
28
LEGAL\70314629/2 1
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO ADVANCE HEARING
DATE FOR PLAINTIFF’S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
CASE NO. CIVDS1920836
1 I. INTRODUCTION
2 Plaintiff Esperanza Perez (“Plaintiff”) was terminated from her employment with Defendant
3 Kaiser Foundation Hospitals1 on October 26, 2017, for sleeping while on the clock. Now, almost
4 seven years later, more than five years after initially filing her lawsuit, and more than a month
5 after trial in this action was to start – which was delayed beyond the statutorily required 5-year
6 period only because Plaintiff improperly filed a last-minute second motion to reconsider the Court’s
7 order granting in part Defendants’ Motion for Summary Judgment/Adjudication – Plaintiff filed an
8 untimely and baseless motion for leave to file a second amended complaint to add a time-barred
9 cause of action and attempt to revitalize causes of action that were previously dismissed with
10 prejudice. And she seeks to do so not by noticed motion, as required, but on an ex parte basis.
11 The Court should deny Plaintiff’s ex parte application because: (1) the alleged “irreparable
12 harm” is a mess of Plaintiff’s own making, as she failed for years to amend her complaint without
COZEN O’ CONNOR
13 justification; (2) a motion to amend cannot be heard except by noticed motion; and (3) the motion
401 WILSHIRE BOULEVARD
SANTA MONICA, CA 90401
SUITE 850
14 to amend should be denied because it is untimely and unfairly prejudices Defendants.
15 II. RELEVANT PROCEDURAL HISTORY
16 Plaintiff filed her initial Complaint in this action on March 19, 2019, and filed an amended
17 Complaint on March 26, 2019.
18 On September 1, 2021, the Court granted, without leave to amend, Defendants’ Motion for
19 Judgment on the Pleadings as to Plaintiff’s Thirteenth Cause of Action for Recovery of Penalties
20 pursuant to the California Private Attorneys General Act. (Declaration of Ethan Chernin (“Chernin
21 Dec.”), ¶ 3, Ex. A.)
22 On July 21, 2022, the Court issued a 33-page tentative ruling granting in part, and denying
23 in part, Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication.
24 (Chernin Dec., ¶ 4, Ex. B.) On September 16, 2022, the Court issued a Minute Order adopting its
25 tentative ruling as the order of the Court, and directed Defendants to prepare an order reflecting the
26 Court’s decision. (Chernin Dec., ¶ 5, Ex. C.) Defendants did so and submitted the Proposed Order
27 1
In addition to her employer, Kaiser Foundation Hospitals (“KFH”), Plaintiff brought this lawsuit
against Kaiser Foundation Health Plan, Inc., Southern California Permanente Medical Group, and
28 Plaintiff’s former supervisor, Tawna Bruun (“Bruun”) (collectively, “Defendants”).
LEGAL\70314629/2 2
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO ADVANCE HEARING
DATE FOR PLAINTIFF’S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
CASE NO. CIVDS1920836
Preview
1 Michele Ballard Miller (SBN 104198) ELECTRONICALLY FILED (Auto) mbmiller@cozen.com SUPERIOR COURT OF CALIFORNIA 2 Ethan W. Chernin (SBN) 273906 COUNTY OF SAN BERNARDINO echernin@cozen.com 5/1/2024 6:06 PM 3 COZEN O'CONNOR 401 Wilshire Boulevard, Suite 850 4 Santa Monica, California 90401 Telephone: 310.393.4000 5 Facsimile: 310.394.4700 6 Attorneys for Defendants KAISER FOUNDATION HOSPITALS, KAISER 7 FOUNDATION HEALTH PLAN, INC., SOUTHERN CALIFORNIA PERMANENTE 8 MEDICAL GROUP, and TAWNA BRUUN 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF SAN BERNARDINO 12 13 ESPERANZA PEREZ, Case No.: CIVDS1920836 COZEN O’ CONNOR 401 WILSHIRE BOULEVARD SANTA MONICA, CA 90401 SUITE 850 14 Plaintiff, [Assigned to the Hon. Thomas S Garza, Dept. S27] 15 vs. DEFENDANTS’ OPPOSITION TO 16 KAISER FOUNDATION HOSPITALS, a PLAINTIFF’S EX PARTE California Corporation; KAISER APPLICATION TO ADVANCE 17 FOUNDATION HEALTH PLAN, INC., a HEARING DATE FOR PLAINTIFF’S California Corporation; and SOUTHERN MOTION FOR LEAVE TO FILE 18 CALIFORNIA PERMANENTE MEDICAL SECOND AMENDED COMPLAINT GROUP, INC., a California Corporation; 19 TAWNA BRUUN, an Individual; and DOES 1 Date: May 2, 2024 through 50, Inclusive, , Time: 8:30 a.m. 20 Dept.: S27 Defendants. 21 Action Filed: March 20, 2019 22 Trial Date: July 22, 2024 23 24 25 26 27 28 LEGAL\70314629/2 1 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO ADVANCE HEARING DATE FOR PLAINTIFF’S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT CASE NO. CIVDS1920836 1 I. INTRODUCTION 2 Plaintiff Esperanza Perez (“Plaintiff”) was terminated from her employment with Defendant 3 Kaiser Foundation Hospitals1 on October 26, 2017, for sleeping while on the clock. Now, almost 4 seven years later, more than five years after initially filing her lawsuit, and more than a month 5 after trial in this action was to start – which was delayed beyond the statutorily required 5-year 6 period only because Plaintiff improperly filed a last-minute second motion to reconsider the Court’s 7 order granting in part Defendants’ Motion for Summary Judgment/Adjudication – Plaintiff filed an 8 untimely and baseless motion for leave to file a second amended complaint to add a time-barred 9 cause of action and attempt to revitalize causes of action that were previously dismissed with 10 prejudice. And she seeks to do so not by noticed motion, as required, but on an ex parte basis. 11 The Court should deny Plaintiff’s ex parte application because: (1) the alleged “irreparable 12 harm” is a mess of Plaintiff’s own making, as she failed for years to amend her complaint without COZEN O’ CONNOR 13 justification; (2) a motion to amend cannot be heard except by noticed motion; and (3) the motion 401 WILSHIRE BOULEVARD SANTA MONICA, CA 90401 SUITE 850 14 to amend should be denied because it is untimely and unfairly prejudices Defendants. 15 II. RELEVANT PROCEDURAL HISTORY 16 Plaintiff filed her initial Complaint in this action on March 19, 2019, and filed an amended 17 Complaint on March 26, 2019. 18 On September 1, 2021, the Court granted, without leave to amend, Defendants’ Motion for 19 Judgment on the Pleadings as to Plaintiff’s Thirteenth Cause of Action for Recovery of Penalties 20 pursuant to the California Private Attorneys General Act. (Declaration of Ethan Chernin (“Chernin 21 Dec.”), ¶ 3, Ex. A.) 22 On July 21, 2022, the Court issued a 33-page tentative ruling granting in part, and denying 23 in part, Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication. 24 (Chernin Dec., ¶ 4, Ex. B.) On September 16, 2022, the Court issued a Minute Order adopting its 25 tentative ruling as the order of the Court, and directed Defendants to prepare an order reflecting the 26 Court’s decision. (Chernin Dec., ¶ 5, Ex. C.) Defendants did so and submitted the Proposed Order 27 1 In addition to her employer, Kaiser Foundation Hospitals (“KFH”), Plaintiff brought this lawsuit against Kaiser Foundation Health Plan, Inc., Southern California Permanente Medical Group, and 28 Plaintiff’s former supervisor, Tawna Bruun (“Bruun”) (collectively, “Defendants”). LEGAL\70314629/2 2 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO ADVANCE HEARING DATE FOR PLAINTIFF’S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT CASE NO. CIVDS1920836