Preview
1 Dennis R. Thelen, SBN 83999
Kevin E. Thelen, SBN 252665
2 LAW OFFICES OF
LEBEAU • THELEN, LLP
3 5001 East Commercenter Drive, Suite 300
Post Office Box 12092 E-FILED
4 Bakersfield, California 93389-2092 1/27/2021 2:48 PM
(661) 325-8962; Fax (661) 325-1127 Superior Court of California
5 County of Fresno
Attorneys for Defendant VALLEY HOSPITALIST By: K. Daves, Deputy
6 MEDICAL GROUP, INC.
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8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF FRESNO
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11 LAURA MILLER, GLENN GILBERT AND Case No.: 19CECG02595
LANA WHITWORTH,
12 Dept. No.: 503
Plaintiffs,
13 NOTICE OF MOTION AND MOTION TO
vs. CONTINUE TRIAL AND RELATED
14 DATES; MEMORANDUM OF POINTS AND
KA WEAH DELTA HEALTHCARE, INC. dba AUTHORITIES; DECLARATION OF
15 KA WEAH DELTA MEDICAL CENTER, KEVIN E. THELEN IN SUPPORT
VALLEY HOSPITALIST MEDICAL GROUP, THEREOF
16 INC., FRESNO COMMUNITY HOSPITAL AND
MEDICAL CENTER, SAINT AGNES Date: March 3, 2021
17 MEDICAL CENTER, VITUITY HOSPITALISTS Time: 3:30 p.m.
PC, UNIVERSITY FACULTY ASSOCIATES, Dept.: 503
18 INC., and DOES 1 to 50,
19 Defendants. Case Filed: July 17, 2019
_ _ _ _ _ _ _ _ _ _ _ _ _ _ ___. Trial Date: June 14, 2021
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21 TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD:
22 NOTICE IS HEREBY GIVEN that on March 3, 2021, at 3:30 p.m. in Department 503 of the
23 Fresno County Superior Court, located at 1100 Van Ness Avenue, Fresno, California, Defendant,
24 VALLEY HOSPIT AUST MEDICAL GROUP, INC. ("Defendant") will move this court for an order
25 to continue the current trial date of June 14, 2021 to a date convenient to the parties and the court, and
26 to continue the pre-trial cut-off dates to conform with the new trial date.
27 This motion is brought as good cause exists for the trial continuance pursuant to California
28 Rules of Court, rule 3.1332(c)(2). Defendant cannot complete discovery by the current cut-off date of
{00405782;1} -I-
NOTICE OF MOTION AND MOTION TO CONTINUE TRIAL AND RELATED DATES; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF KEVIN E. THELEN IN SUPPORT THEREOF
1 May 14, 2021, due to Plaintiffs' failure to participate in the discovery process. The missing discovery
2 is necessary to evaluate the substance of plaintiffs' negligence claims for wrongful death against
3 Defendant and to allow for sufficient time for a dispositive Motion for Summary Judgment or, in the
4 alternative, Summary Adjudication to be prepared and filed with the Court.
5 This Motion is based on this Notice, the Memorandum of Points and Authorities, the
6 Declaration of Kevin E. Thelen, Esq. and attached exhibits, and on such other evidence or oral
7 argument as may be presented to the Court or before the hearing on the Motion.
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9 Dated: January 27, 2021 LeBEAU-THELEN, LLP
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By::____,!~~ t:::z:
~ ~ ~~ ::::..____
11 DENNIS R. THELEN
12 KEVIN E. THELEN
Attorneys for Defendant
13 VALLEY HOSPIT ALIST MEDICAL
GROUP,INC.
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NOTICE OF MOTION AND MOTION TO CONTINUE TRIAL AND RELATED DATES; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF KEVIN E. THELEN IN SUPPORT THEREOF
MEMORANDUM OF POINTS AND AUTHORITIES
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I. INTRODUCTION
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Defendant VALLEY HOSPITALIST MEDICAL GROUP, INC. ("Defendant") is a party to
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the instant litigation, which is currently scheduled for trial on June 14, 2021 in the above-entitled
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Court. Defendant seeks a brief continuance of the trial date in this case, and for that reason, asks that
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the Court vacate the June 14, 2021 trial date and all trial-related dates, set this matter for a continued
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Case Management Conference, and select a new trial date at that time, with all discovery and trial
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related dates to be continued as well.
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II. FACTUAL BACKGROUND
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Trial in this matter is currently set to commence in Department 503 of the Fresno County
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Superior Court at 9:00 a.m. on June 14, 2021. (Declaration of Kevin E. Thelen ("Thelen
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Declaration"), ,r 2.) A Trial Readiness Conference is scheduled to take place on September 11,
2021, at 9:30 a.m., also in Department 503. (Id.) There is a Mandatory Settlement Conference set for
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May 18, 2021 at 10:00 a.m. in Room 575 of the above-mentioned court. (Id.)
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Defendant filed a Motion to Compel Plaintiffs' Discovery Responses on October 16, 2020.
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(Thelen Declaration, ,r 3.) The earliest date the court could hear defendant's motion was February 16,
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2021. (Id.) The Motion to Compel is set to take place on February 16, 2021, at 3:30 p.m. in the
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above-referenced Court. (Id.) This Motion was brought on the grounds that Plaintiffs have failed to
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provide responses to Defendant's interrogatories originally propounded on April 1, 2020. (Id.)
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Defendant is a medical group which currently employs twenty-four (24) physicians. (Thelen
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Declaration, ,r 4.) Decedent was not treated and cared for by all of Defendant's physicians for injuries
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plaintiffs attribute to the incident. Plaintiffs were asked through interrogatories to identify the
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individual physicians against whom they are claiming participated in the care and treatment of the
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decedent for which they are bringing suit for wrongful death. (Id.)
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As discussed in detail in Defendant's Motion to Compel Discovery Responses, Plaintiffs have
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failed to participate in the discovery process by withholding information requested by Defendants
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which is necessary to evaluate the substance of the claims and defenses. (Thelen Declaration, ,r 5.)
This is a complex matter involving allegations of medical negligence and wrongful death, which will
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NOTICE OF MOTION AND MOTION TO CONTINUE TRIAL AND RELATED DATES;.MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF KEVIN E. THELEN IN SUPPORT THEREOF
1 need to be thoroughly investigated to adequately prepare defense against Plaintiffs' claims. (Id.) The
2 information sought will be used in the review and retention of possible expert witnesses, with
3 corresponding depositions and testimony, and in the preparation of Motion for Summary Judgment
4 or, In the Alternative, Summary Adjudication, the last day of which to serve by mail is February 23,
5 2021, in order to address all of plaintiffs' contentions. (Id.)
6 Good cause exists because Defendant does not have sufficient time to prepare a defense with
7 the current cut-off dates for pre-trial motions and discovery. (Thelen Declaration, ,i 6.) Despite the
8 diligence of Defendant, and the good faith efforts to conduct discovery in a timely manner, it has not
9 been possible to resolve discovery matters without Court intervention. (Id.)
10 Accordingly, an order vacating the current trial date and setting a Further Case Management
11 Conference, at which a new trial date may be agreed upon based on all counsel's availability, having
12 had ample time to prepare for trial,will allow the trial date to be reset for a date after moving party
13 has had a reasonable amount of time to conduct discovery into this matter and to participate in the
14 litigation on the merits and in a meaningful way. (Thelen Declaration, ,i 7.)
15 For these reasons, the interests of justice are best served by a continuance and the facts and
16 circumstances of this case support granting the continuance. There is no significant prejudice to any
17 party by a continuance of the trial date, and no alternative means to address the problem giving rise to
18 the within requested continuance. (Cal. Rules of Court, rule 3.1332(d)(l)-(11).)
19 III. ARGUMENT
20 A. The Court May Continue Trial Upon a Showing of Good Cause
21 The Court may grant a continuance upon a showing of good cause requiring the continuance.
22 (See Cal. Rules of Court, rule 3.1332(c).) The trial judge must exercise his or her discretion with due
23 regard to all interests involved. The denial of a continuance which has the practical effect of denying
24 the applicant a fair hearing has been held reversible error. (See Palomar Mortg. Co. v. Lister (1963)
212 Cal.App.2d 236; Muller v. Tanner (1969) 2 Cal.App.3d 445.) The granting of a continuance is a
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matter within the court's discretion, which cannot be disturbed on appeal except upon a clear
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showing of an abuse of discretion. (Lazarus v. Titmus (1998) 64 Cal.App.4th 1242, 1249.)
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NOTICE OF MOTION AND MOTION TO CONTINUE TRIAL AND RELATED DATES; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF KEVIN E. THELEN IN SUPPORT THEREOF
1 "Circumstances that may indicate good cause include ... "A party's excused inability to
2 obtain essential testimony, documents, or other material evidence despite diligent efforts" (Cal. Rules
3 of Court, rule 3.1332(c)(6).) Counsel for Defendant refers the Court to the Declaration of Kevin
4 Thelen, which sets forth the showing of good cause necessary for the vacating of the current trial and
5 related dates.
6 B. The Factors Considered by the Court in Ruling on a Motion for Continuance Weigh
in Favor of Granting this Motion.
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g In ruling on a motion for continuance of trial, the Court must consider all the facts and
9 circumstances that are relevant to the determination. These may include:
10 "(1) The proximity of the trial date;
11 (2) Whether there was any previous continuance, extension of time, or
delay of trial due to any party;
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(3) The length of the continuance requested;
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(4) The availability of alternative means to address the problem that gave
14 rise to the motion or application for a continuance;
15 (5) The prejudice that parties or witnesses will suffer as a result of the
continuance;
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(6) If the case is entitled to a preferential trial setting, the reasons for that
17 status and whether the need for a continuance outweighs the need to
avoid delay;
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(7) The court's calendar and the impact of granting a continuance on other
19 pending trials;
20 (8) Whether trial counsel is engaged in another trial;
21 (9) Whether all parties have stipulated to a continuance;
22 (10) Whether the interests of justice are best served by a continuance, by the
trial of the matter, or by imposing conditions on the continuance; and
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( 11) Any other fact or circumstance relevant to the fair determination of the
24 motion or application."
25 (Cal. Rules of Court, rule 3.1332(d).)
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NOTICE OF MOTION AND MOTION TO CONTINUE TRIAL AND RELATED DATES; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF KEVIN E. THELEN IN SUPPORT THEREOF
1 The above factors weigh in favor of granting a continuance given the circumstances of this
2 case. Trial in this matter is approximately 5 months away from the filing of this motion. (Thelen
3 Declaration, ,r 8; see also Cal. Rule of Court 3.1332(d)(l).) The deadline to conduct discovery in this
4 matter is May 14, 2021. (Thelen Declaration, ,r 8.)
5 There have been no prior continuances of the trial date in this case requested by any party.
6 (Thelen Declaration, ,r 9; see also Cal. Rule of Court 3.1332(d)(2).)
7 There will not be any significant prejudice to any party in terms of their pre-trial preparation
8 and scheduling by a continuance of the trial date at this point in time. (Thelen Declaration, ,r 1O; see
9 also Cal. Rule of Court 3.1332(d)(l) and (5).)
10 There is no alternative means to address the problem that gave rise to the instant motion.
(Thelen Declaration, ,r 11; see also Cal. Rule of Court 3.1332(d)(4).)
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Finally, the interests of justice are best served by a continuance and the facts and
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circumstances of this case support granting the continuance requested by Defendant. (Thelen
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Declaration, ,r 12; see also Cal. Rule of Court 3.1332(d)(IO) and (11).)
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V. CONCLUSION
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In view of the above authorities, Defendant respectfully requests that the Court vacate the
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current trial date of June 14, 2021, and all related cutoff dates, and set this matter for a further Case
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Management Conference on a date available on the Court's calendar for the selection of a new trial
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date in which all counsel can have input.
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Dated: January 27, 2021 LeBEAU-THELEN, LLP
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By:_ ~_____,_
~~ --
23 DENNIS R. THELEN
KEVIN E. THELEN
24 Attorneys for Defendant
VALLEY HOSPITALIST MEDICAL
25 GROUP,INC.
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NOTICE OF MOTION AND MOTION TO CONTINUE TRIAL AND RELATED DATES; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF KEVIN E. THELEN IN SUPPORT THEREOF
1 DECLARATION OF KEVIN E. THELEN
2 I, Kevin E. Thelen, declare as follows:
3 1. I am an attorney at law duly licensed to practice before all the courts of the State of
4 California, and am a partner in the law firm of LeBeau-Thelen, LLP, attorneys for Defendant,
5 VALLEY HOSPITALIST MEDICAL GROUP, INC. ("Defendant"). Further, I have personal
6 knowledge of the matter as set forth herein, and could and would competently testify in support
7 thereof.
8 2. This matter is currently set to commence trial in Department 503 of the Fresno County
9 Superior Court at 9:00 a.m. on June 14, 2021. A Trial Readiness Conference is scheduled to take
10 place on September 11, 2021, at 9:30 a.m., also in Department 503. There is a Mandatory Settlement
11 Conference set for May 18, 2021 at 10:00 a.m. in Room 575 of the above-mentioned court.
12 3. Defendant filed a Motion to Compel Plaintiffs' Discovery Responses on October 16,
13 2020. The earliest date the court could hear defendant's motion was February 16, 2021, which was
14 calendared and set to take place at 3 :30 p.m. in the above-referenced Court. This Motion was brought
15 on the grounds that Plaintiffs have failed to provide responses to Defendant's interrogatories
16 originally propounded on April 1, 2020. In an effort to avoid judicial intervention, wasting the
17 Court's time and resources, Defendant allowed plenty of time for Plaintiffs to respond before filing
18 the Motion to Compel Responses. Plaintiffs' counsel never contacted my office after the Motion to
19 Compel was filed to discuss the discovery issues.
20 4. Defendant is a medical group which currently employs twenty-four (24) physicians. In
21 Defendant's second set of interrogatories, Plaintiffs were asked to identify the individual physicians
22 against whom they are claiming participated in the care and treatment of the decedent for which they
23 are bringing suit. Plaintiffs did not respond to these interrogatories.
24 5. Defendant filed a Motion to Compel Discovery Responses from Plaintiffs for failing to
25 participate in the discovery process. This is a complex matter involving allegations of medical
26 negligence and wrongful death, which need to be investigated to adequately evaluate the case and
27 prepare the Defendant for trial. The information sought will be used in the review and retention of
28 possible expert witnesses, with corresponding depositions and testimony, and in the preparation of
{00405782;1} - 7-
NOTICE OF MOTION AND MOTION TO CONTINUE TRIAL AND RELATED DATES; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF KEVIN E. THELEN IN SUPPORT THEREOF
1 Motion for Summary Judgment or, In the Alternative, Summary Adjudication, the last day of which
2 to serve by mail is February 23, 2021, in order to address all of plaintiffs' contentions.
3 6. Good cause exists to continue the trial and related dates because Defendant does not
4 have sufficient time to prepare a defense with the current cut-off dates for pre-trial motions and
5 discovery. Despite the diligence of Defendant and the good faith efforts to conduct discovery in a
6 timely manner, discovery matters cannot be resolved without Court intervention.
7 7. In order to have a reasonable amount of time to conduct discovery and participate in
8 litigation on the merits in a meaningful way, it is necessary that a new trial date be agreed upon based
9 on all counsel's availability, having had ample time to prepare for trial and conduct discovery.
8. Trial in this matter is approximately 5 months away from the filing of this motion. The
11 deadline to conduct discovery is May 14, 2021.
12 9. there have been no prior continuances of the trial date in this case requested by any
13 party.
14 10. There will not be any significant prejudice to any party in terms of their pre-trial
15 preparation and scheduling by a continuance of the trial date at this point in time.
16 11. There is no alternative means to address the problem that gave rise to the instant
17 motion.
18 12. The interests of justice are best served by a continuance and the facts and
19 circumstances of this case support granting the continuance requested by Defendant.
20 I declare under penalty of perjury that the foregoing is true and correct and that this
21 declaration was executed on January 27th , 2021, in Bakersfield, CA.
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KEVIN E. THELEN
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NOTICE OF MOTION AND MOTION TO CONTINUE TRIAL AND RELATED DATES; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF KEVIN E. THELEN IN SUPPORT THEREOF
PROOF OF SERVICE
1 Miller v. Kaweah Delta Healthcare, et al.
Fresno County Superior Court Case No. 19CECG02595
2
STATE OF CALIFORNIA, COUNTY OF KERN
3
I am a citizen of the United States and a resident of the county aforesaid; I am over the age of
4 eighteen years and not a party to the within action; my business address is: 5001 E.
Commercenter Drive, Suite 300, Bakersfield, California 93309. On January 27, 2021, I served the
5 within NOTICE OF MOTION AND MOTION TO CONTINUE TRIAL AND RELATED
DATES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF
6 KEVIN E. THELEN IN SUPPORT THEREOF on the interested parties in said action:
7 (XX) by placing LJ the original (½X) a true copy thereof as follows:
8 PLEASE SEE ATTACHED SERVICE LIST
9
(XX) (BY MAIL) I am "readily familiar" with the firm's practice of collection and
10 processing correspondence for mailing. Under that practice it would be deposited with the U.S.
Postal Service on that same day with postage thereon fully prepaid at Bakersfield, California, in the
11 ordinary course of business.
12 (½X) (BY ELECTRONIC DELIVERY) I caused such document to be delivered by
electronic means prior to close of business on this same day to the addressee(s) at the electronic
13 notification addressee( s) provided above.
14 (XX) (STATE) I declare under penalty of perjury under the laws of the State of California
that the above is true and correct, and that the foregoing was executed on January 27, 2021, in
15 Bakersfield, California.
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{00306565;1}
1 SERVICE LIST
2
Edward B. Chatoian, Esq. Richard Salinas, Esq.
3 Law Offices of Edward B. Chatoian Salinas Law Group
2607 Fresno Street, Suite C 8405 N. Fresno Street, Suite 150
4 Fresno, CA 93721 Fresno, CA 93720
Telephone: (559) 485-0101 Telephone: (559) 438-2080
5 Facsimile: (559) 485-7643 Facsimile: (559) 438-8363
Email: chatoianlaw@sbcglobal.net Email: rsalinas@salinaslg.com
6 Attorneys for Plaintiffs Email: cvue@salinaslg.com
Attorneys for Defendant Kaweah Delta
7 Healthcare, Inc. dba Kaweah Delta Medical
Center
8 James C. Schaeffer, Esq. Mark B. Canepa, Esq.
Jennifer B. Saccomano, Esq. Jennifer M. Mele, Esq.
9 Schaeffer Cota Rosen, LLP White I Canepa LLP
500 Esplanade Drive, Suite 950 7690 N. Palm Avenue, Suite 105
10 Oxnard, CA 93036 Fresno, CA 93711
Telephone: (805) 988-9200 Telephone: (559) 439-0800
11 Facsimile: (805) 988-9292 Facsimile: (559) 439-0802
Email: JSchaeffer@scr-legal.com Email: mcane12a@whitecane12a.com
12 Email: JSaccomano@scr-legal.com Email: jmele@whitecane12a.com
Email: sfreberg@scr-legal.com Email: kmtu:phy@whitecane12a.com
13 Email: eservice@scr-legal.com Email: pmaffei@whitecanepa.com
Attorneys for Defendant CEP America-California Attorneys for Defendant Fresno Community
14 Hospital and Medical Center dba
Community Regional Medical Center
15
Jerry D. Casheros, Esq. Jerry D. Jones, Esq.
16 McCormick, Barstow, Sheppard, Abigail Leaf, Esq.
Wayte & Carruth, LLP Stammer, McKnight, Barnum & Bailey, LLP
17 7647 North Fresno Street 2540 W. Shaw Lane, Suite 110
Fresno, CA 93720 Fresno, CA 93711
18 Telephone: (559) 433-1300 Telephone: (559) 449-0571
Facsimile: (559) 433-2300 Facsimile: (559) 432-2619
19 Email: jen:y.casheros@mccormickbarstow.com Email: jen:yj@smbblaw.com
Attorneys for Defendant Saint Agnes Medical Email: abbyleaf@smbblaw.com
20 Center Email: mkj@smbblaw.com
Attorneys for Defendant University Faculty
21 Associates, Inc.
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Preview
1 Dennis R. Thelen, SBN 83999 Kevin E. Thelen, SBN 252665 2 LAW OFFICES OF LEBEAU • THELEN, LLP 3 5001 East Commercenter Drive, Suite 300 Post Office Box 12092 E-FILED 4 Bakersfield, California 93389-2092 1/27/2021 2:48 PM (661) 325-8962; Fax (661) 325-1127 Superior Court of California 5 County of Fresno Attorneys for Defendant VALLEY HOSPITALIST By: K. Daves, Deputy 6 MEDICAL GROUP, INC. 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF FRESNO 10 11 LAURA MILLER, GLENN GILBERT AND Case No.: 19CECG02595 LANA WHITWORTH, 12 Dept. No.: 503 Plaintiffs, 13 NOTICE OF MOTION AND MOTION TO vs. CONTINUE TRIAL AND RELATED 14 DATES; MEMORANDUM OF POINTS AND KA WEAH DELTA HEALTHCARE, INC. dba AUTHORITIES; DECLARATION OF 15 KA WEAH DELTA MEDICAL CENTER, KEVIN E. THELEN IN SUPPORT VALLEY HOSPITALIST MEDICAL GROUP, THEREOF 16 INC., FRESNO COMMUNITY HOSPITAL AND MEDICAL CENTER, SAINT AGNES Date: March 3, 2021 17 MEDICAL CENTER, VITUITY HOSPITALISTS Time: 3:30 p.m. PC, UNIVERSITY FACULTY ASSOCIATES, Dept.: 503 18 INC., and DOES 1 to 50, 19 Defendants. Case Filed: July 17, 2019 _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___. Trial Date: June 14, 2021 20 21 TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: 22 NOTICE IS HEREBY GIVEN that on March 3, 2021, at 3:30 p.m. in Department 503 of the 23 Fresno County Superior Court, located at 1100 Van Ness Avenue, Fresno, California, Defendant, 24 VALLEY HOSPIT AUST MEDICAL GROUP, INC. ("Defendant") will move this court for an order 25 to continue the current trial date of June 14, 2021 to a date convenient to the parties and the court, and 26 to continue the pre-trial cut-off dates to conform with the new trial date. 27 This motion is brought as good cause exists for the trial continuance pursuant to California 28 Rules of Court, rule 3.1332(c)(2). Defendant cannot complete discovery by the current cut-off date of {00405782;1} -I- NOTICE OF MOTION AND MOTION TO CONTINUE TRIAL AND RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF KEVIN E. THELEN IN SUPPORT THEREOF 1 May 14, 2021, due to Plaintiffs' failure to participate in the discovery process. The missing discovery 2 is necessary to evaluate the substance of plaintiffs' negligence claims for wrongful death against 3 Defendant and to allow for sufficient time for a dispositive Motion for Summary Judgment or, in the 4 alternative, Summary Adjudication to be prepared and filed with the Court. 5 This Motion is based on this Notice, the Memorandum of Points and Authorities, the 6 Declaration of Kevin E. Thelen, Esq. and attached exhibits, and on such other evidence or oral 7 argument as may be presented to the Court or before the hearing on the Motion. 8 9 Dated: January 27, 2021 LeBEAU-THELEN, LLP 10 By::____,!~~ t:::z: ~ ~ ~~ ::::..____ 11 DENNIS R. THELEN 12 KEVIN E. THELEN Attorneys for Defendant 13 VALLEY HOSPIT ALIST MEDICAL GROUP,INC. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 {00405782;1} -2- NOTICE OF MOTION AND MOTION TO CONTINUE TRIAL AND RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF KEVIN E. THELEN IN SUPPORT THEREOF MEMORANDUM OF POINTS AND AUTHORITIES 1 I. INTRODUCTION 2 Defendant VALLEY HOSPITALIST MEDICAL GROUP, INC. ("Defendant") is a party to 3 the instant litigation, which is currently scheduled for trial on June 14, 2021 in the above-entitled 4 Court. Defendant seeks a brief continuance of the trial date in this case, and for that reason, asks that 5 the Court vacate the June 14, 2021 trial date and all trial-related dates, set this matter for a continued 6 Case Management Conference, and select a new trial date at that time, with all discovery and trial 7 related dates to be continued as well. 8 II. FACTUAL BACKGROUND 9 Trial in this matter is currently set to commence in Department 503 of the Fresno County 10 Superior Court at 9:00 a.m. on June 14, 2021. (Declaration of Kevin E. Thelen ("Thelen 11 12 Declaration"), ,r 2.) A Trial Readiness Conference is scheduled to take place on September 11, 2021, at 9:30 a.m., also in Department 503. (Id.) There is a Mandatory Settlement Conference set for 13 May 18, 2021 at 10:00 a.m. in Room 575 of the above-mentioned court. (Id.) 14 Defendant filed a Motion to Compel Plaintiffs' Discovery Responses on October 16, 2020. 15 (Thelen Declaration, ,r 3.) The earliest date the court could hear defendant's motion was February 16, 16 2021. (Id.) The Motion to Compel is set to take place on February 16, 2021, at 3:30 p.m. in the 17 above-referenced Court. (Id.) This Motion was brought on the grounds that Plaintiffs have failed to 18 provide responses to Defendant's interrogatories originally propounded on April 1, 2020. (Id.) 19 Defendant is a medical group which currently employs twenty-four (24) physicians. (Thelen 20 Declaration, ,r 4.) Decedent was not treated and cared for by all of Defendant's physicians for injuries 21 plaintiffs attribute to the incident. Plaintiffs were asked through interrogatories to identify the 22 individual physicians against whom they are claiming participated in the care and treatment of the 23 decedent for which they are bringing suit for wrongful death. (Id.) 24 As discussed in detail in Defendant's Motion to Compel Discovery Responses, Plaintiffs have 25 failed to participate in the discovery process by withholding information requested by Defendants 26 27 which is necessary to evaluate the substance of the claims and defenses. (Thelen Declaration, ,r 5.) This is a complex matter involving allegations of medical negligence and wrongful death, which will 28 {00405782; 1} -3- NOTICE OF MOTION AND MOTION TO CONTINUE TRIAL AND RELATED DATES;.MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF KEVIN E. THELEN IN SUPPORT THEREOF 1 need to be thoroughly investigated to adequately prepare defense against Plaintiffs' claims. (Id.) The 2 information sought will be used in the review and retention of possible expert witnesses, with 3 corresponding depositions and testimony, and in the preparation of Motion for Summary Judgment 4 or, In the Alternative, Summary Adjudication, the last day of which to serve by mail is February 23, 5 2021, in order to address all of plaintiffs' contentions. (Id.) 6 Good cause exists because Defendant does not have sufficient time to prepare a defense with 7 the current cut-off dates for pre-trial motions and discovery. (Thelen Declaration, ,i 6.) Despite the 8 diligence of Defendant, and the good faith efforts to conduct discovery in a timely manner, it has not 9 been possible to resolve discovery matters without Court intervention. (Id.) 10 Accordingly, an order vacating the current trial date and setting a Further Case Management 11 Conference, at which a new trial date may be agreed upon based on all counsel's availability, having 12 had ample time to prepare for trial,will allow the trial date to be reset for a date after moving party 13 has had a reasonable amount of time to conduct discovery into this matter and to participate in the 14 litigation on the merits and in a meaningful way. (Thelen Declaration, ,i 7.) 15 For these reasons, the interests of justice are best served by a continuance and the facts and 16 circumstances of this case support granting the continuance. There is no significant prejudice to any 17 party by a continuance of the trial date, and no alternative means to address the problem giving rise to 18 the within requested continuance. (Cal. Rules of Court, rule 3.1332(d)(l)-(11).) 19 III. ARGUMENT 20 A. The Court May Continue Trial Upon a Showing of Good Cause 21 The Court may grant a continuance upon a showing of good cause requiring the continuance. 22 (See Cal. Rules of Court, rule 3.1332(c).) The trial judge must exercise his or her discretion with due 23 regard to all interests involved. The denial of a continuance which has the practical effect of denying 24 the applicant a fair hearing has been held reversible error. (See Palomar Mortg. Co. v. Lister (1963) 212 Cal.App.2d 236; Muller v. Tanner (1969) 2 Cal.App.3d 445.) The granting of a continuance is a 25 matter within the court's discretion, which cannot be disturbed on appeal except upon a clear 26 showing of an abuse of discretion. (Lazarus v. Titmus (1998) 64 Cal.App.4th 1242, 1249.) 27 Ill 28 {00405782; 1} -4- NOTICE OF MOTION AND MOTION TO CONTINUE TRIAL AND RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF KEVIN E. THELEN IN SUPPORT THEREOF 1 "Circumstances that may indicate good cause include ... "A party's excused inability to 2 obtain essential testimony, documents, or other material evidence despite diligent efforts" (Cal. Rules 3 of Court, rule 3.1332(c)(6).) Counsel for Defendant refers the Court to the Declaration of Kevin 4 Thelen, which sets forth the showing of good cause necessary for the vacating of the current trial and 5 related dates. 6 B. The Factors Considered by the Court in Ruling on a Motion for Continuance Weigh in Favor of Granting this Motion. 7 g In ruling on a motion for continuance of trial, the Court must consider all the facts and 9 circumstances that are relevant to the determination. These may include: 10 "(1) The proximity of the trial date; 11 (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; 12 (3) The length of the continuance requested; 13 (4) The availability of alternative means to address the problem that gave 14 rise to the motion or application for a continuance; 15 (5) The prejudice that parties or witnesses will suffer as a result of the continuance; 16 (6) If the case is entitled to a preferential trial setting, the reasons for that 17 status and whether the need for a continuance outweighs the need to avoid delay; 18 (7) The court's calendar and the impact of granting a continuance on other 19 pending trials; 20 (8) Whether trial counsel is engaged in another trial; 21 (9) Whether all parties have stipulated to a continuance; 22 (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and 23 ( 11) Any other fact or circumstance relevant to the fair determination of the 24 motion or application." 25 (Cal. Rules of Court, rule 3.1332(d).) 26 Ill 27 Ill 28 Ill {00405782; 1} - 5- NOTICE OF MOTION AND MOTION TO CONTINUE TRIAL AND RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF KEVIN E. THELEN IN SUPPORT THEREOF 1 The above factors weigh in favor of granting a continuance given the circumstances of this 2 case. Trial in this matter is approximately 5 months away from the filing of this motion. (Thelen 3 Declaration, ,r 8; see also Cal. Rule of Court 3.1332(d)(l).) The deadline to conduct discovery in this 4 matter is May 14, 2021. (Thelen Declaration, ,r 8.) 5 There have been no prior continuances of the trial date in this case requested by any party. 6 (Thelen Declaration, ,r 9; see also Cal. Rule of Court 3.1332(d)(2).) 7 There will not be any significant prejudice to any party in terms of their pre-trial preparation 8 and scheduling by a continuance of the trial date at this point in time. (Thelen Declaration, ,r 1O; see 9 also Cal. Rule of Court 3.1332(d)(l) and (5).) 10 There is no alternative means to address the problem that gave rise to the instant motion. (Thelen Declaration, ,r 11; see also Cal. Rule of Court 3.1332(d)(4).) 11 Finally, the interests of justice are best served by a continuance and the facts and 12 circumstances of this case support granting the continuance requested by Defendant. (Thelen 13 Declaration, ,r 12; see also Cal. Rule of Court 3.1332(d)(IO) and (11).) 14 V. CONCLUSION 15 In view of the above authorities, Defendant respectfully requests that the Court vacate the 16 current trial date of June 14, 2021, and all related cutoff dates, and set this matter for a further Case 17 Management Conference on a date available on the Court's calendar for the selection of a new trial 18 date in which all counsel can have input. 19 20 Dated: January 27, 2021 LeBEAU-THELEN, LLP 21 22 By:_ ~_____,_ ~~ -- 23 DENNIS R. THELEN KEVIN E. THELEN 24 Attorneys for Defendant VALLEY HOSPITALIST MEDICAL 25 GROUP,INC. 26 27 28 {00405782; 1} -6- NOTICE OF MOTION AND MOTION TO CONTINUE TRIAL AND RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF KEVIN E. THELEN IN SUPPORT THEREOF 1 DECLARATION OF KEVIN E. THELEN 2 I, Kevin E. Thelen, declare as follows: 3 1. I am an attorney at law duly licensed to practice before all the courts of the State of 4 California, and am a partner in the law firm of LeBeau-Thelen, LLP, attorneys for Defendant, 5 VALLEY HOSPITALIST MEDICAL GROUP, INC. ("Defendant"). Further, I have personal 6 knowledge of the matter as set forth herein, and could and would competently testify in support 7 thereof. 8 2. This matter is currently set to commence trial in Department 503 of the Fresno County 9 Superior Court at 9:00 a.m. on June 14, 2021. A Trial Readiness Conference is scheduled to take 10 place on September 11, 2021, at 9:30 a.m., also in Department 503. There is a Mandatory Settlement 11 Conference set for May 18, 2021 at 10:00 a.m. in Room 575 of the above-mentioned court. 12 3. Defendant filed a Motion to Compel Plaintiffs' Discovery Responses on October 16, 13 2020. The earliest date the court could hear defendant's motion was February 16, 2021, which was 14 calendared and set to take place at 3 :30 p.m. in the above-referenced Court. This Motion was brought 15 on the grounds that Plaintiffs have failed to provide responses to Defendant's interrogatories 16 originally propounded on April 1, 2020. In an effort to avoid judicial intervention, wasting the 17 Court's time and resources, Defendant allowed plenty of time for Plaintiffs to respond before filing 18 the Motion to Compel Responses. Plaintiffs' counsel never contacted my office after the Motion to 19 Compel was filed to discuss the discovery issues. 20 4. Defendant is a medical group which currently employs twenty-four (24) physicians. In 21 Defendant's second set of interrogatories, Plaintiffs were asked to identify the individual physicians 22 against whom they are claiming participated in the care and treatment of the decedent for which they 23 are bringing suit. Plaintiffs did not respond to these interrogatories. 24 5. Defendant filed a Motion to Compel Discovery Responses from Plaintiffs for failing to 25 participate in the discovery process. This is a complex matter involving allegations of medical 26 negligence and wrongful death, which need to be investigated to adequately evaluate the case and 27 prepare the Defendant for trial. The information sought will be used in the review and retention of 28 possible expert witnesses, with corresponding depositions and testimony, and in the preparation of {00405782;1} - 7- NOTICE OF MOTION AND MOTION TO CONTINUE TRIAL AND RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF KEVIN E. THELEN IN SUPPORT THEREOF 1 Motion for Summary Judgment or, In the Alternative, Summary Adjudication, the last day of which 2 to serve by mail is February 23, 2021, in order to address all of plaintiffs' contentions. 3 6. Good cause exists to continue the trial and related dates because Defendant does not 4 have sufficient time to prepare a defense with the current cut-off dates for pre-trial motions and 5 discovery. Despite the diligence of Defendant and the good faith efforts to conduct discovery in a 6 timely manner, discovery matters cannot be resolved without Court intervention. 7 7. In order to have a reasonable amount of time to conduct discovery and participate in 8 litigation on the merits in a meaningful way, it is necessary that a new trial date be agreed upon based 9 on all counsel's availability, having had ample time to prepare for trial and conduct discovery. 8. Trial in this matter is approximately 5 months away from the filing of this motion. The 11 deadline to conduct discovery is May 14, 2021. 12 9. there have been no prior continuances of the trial date in this case requested by any 13 party. 14 10. There will not be any significant prejudice to any party in terms of their pre-trial 15 preparation and scheduling by a continuance of the trial date at this point in time. 16 11. There is no alternative means to address the problem that gave rise to the instant 17 motion. 18 12. The interests of justice are best served by a continuance and the facts and 19 circumstances of this case support granting the continuance requested by Defendant. 20 I declare under penalty of perjury that the foregoing is true and correct and that this 21 declaration was executed on January 27th , 2021, in Bakersfield, CA. 22 23 KEVIN E. THELEN 24 25 26 27 28 {00405782;1} -8- NOTICE OF MOTION AND MOTION TO CONTINUE TRIAL AND RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF KEVIN E. THELEN IN SUPPORT THEREOF PROOF OF SERVICE 1 Miller v. Kaweah Delta Healthcare, et al. Fresno County Superior Court Case No. 19CECG02595 2 STATE OF CALIFORNIA, COUNTY OF KERN 3 I am a citizen of the United States and a resident of the county aforesaid; I am over the age of 4 eighteen years and not a party to the within action; my business address is: 5001 E. Commercenter Drive, Suite 300, Bakersfield, California 93309. On January 27, 2021, I served the 5 within NOTICE OF MOTION AND MOTION TO CONTINUE TRIAL AND RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF 6 KEVIN E. THELEN IN SUPPORT THEREOF on the interested parties in said action: 7 (XX) by placing LJ the original (½X) a true copy thereof as follows: 8 PLEASE SEE ATTACHED SERVICE LIST 9 (XX) (BY MAIL) I am "readily familiar" with the firm's practice of collection and 10 processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Bakersfield, California, in the 11 ordinary course of business. 12 (½X) (BY ELECTRONIC DELIVERY) I caused such document to be delivered by electronic means prior to close of business on this same day to the addressee(s) at the electronic 13 notification addressee( s) provided above. 14 (XX) (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct, and that the foregoing was executed on January 27, 2021, in 15 Bakersfield, California. 16 17 18 19 20 21 22 23 24 25 26 27 28 {00306565;1} 1 SERVICE LIST 2 Edward B. Chatoian, Esq. Richard Salinas, Esq. 3 Law Offices of Edward B. Chatoian Salinas Law Group 2607 Fresno Street, Suite C 8405 N. Fresno Street, Suite 150 4 Fresno, CA 93721 Fresno, CA 93720 Telephone: (559) 485-0101 Telephone: (559) 438-2080 5 Facsimile: (559) 485-7643 Facsimile: (559) 438-8363 Email: chatoianlaw@sbcglobal.net Email: rsalinas@salinaslg.com 6 Attorneys for Plaintiffs Email: cvue@salinaslg.com Attorneys for Defendant Kaweah Delta 7 Healthcare, Inc. dba Kaweah Delta Medical Center 8 James C. Schaeffer, Esq. Mark B. Canepa, Esq. Jennifer B. Saccomano, Esq. Jennifer M. Mele, Esq. 9 Schaeffer Cota Rosen, LLP White I Canepa LLP 500 Esplanade Drive, Suite 950 7690 N. Palm Avenue, Suite 105 10 Oxnard, CA 93036 Fresno, CA 93711 Telephone: (805) 988-9200 Telephone: (559) 439-0800 11 Facsimile: (805) 988-9292 Facsimile: (559) 439-0802 Email: JSchaeffer@scr-legal.com Email: mcane12a@whitecane12a.com 12 Email: JSaccomano@scr-legal.com Email: jmele@whitecane12a.com Email: sfreberg@scr-legal.com Email: kmtu:phy@whitecane12a.com 13 Email: eservice@scr-legal.com Email: pmaffei@whitecanepa.com Attorneys for Defendant CEP America-California Attorneys for Defendant Fresno Community 14 Hospital and Medical Center dba Community Regional Medical Center 15 Jerry D. Casheros, Esq. Jerry D. Jones, Esq. 16 McCormick, Barstow, Sheppard, Abigail Leaf, Esq. Wayte & Carruth, LLP Stammer, McKnight, Barnum & Bailey, LLP 17 7647 North Fresno Street 2540 W. Shaw Lane, Suite 110 Fresno, CA 93720 Fresno, CA 93711 18 Telephone: (559) 433-1300 Telephone: (559) 449-0571 Facsimile: (559) 433-2300 Facsimile: (559) 432-2619 19 Email: jen:y.casheros@mccormickbarstow.com Email: jen:yj@smbblaw.com Attorneys for Defendant Saint Agnes Medical Email: abbyleaf@smbblaw.com 20 Center Email: mkj@smbblaw.com Attorneys for Defendant University Faculty 21 Associates, Inc. 22 23 24 25 26 27 28 (00306565:1}