Preview
1 Stephen B. Heath - 237622
sheath@heathandyuen.com
2 Steven W. Yuen - 230768
syuen@heathandyuen.com
3 Joshua G. Wong - 306744 ELECTRONICALLY
jwong@heathandyuen.com FILED
4 HEATH & YUEN, APC Superior Court of California,
268 Bush Street, #3006 County of San Francisco
5 San Francisco, CA 94104 03/19/2021
Tel: (415) 622-7004 Clerk of the Court
6 Fax: (415) 373-3957 BY: JUDITH NUNEZ
Deputy Clerk
7 Attorneys for Plaintiffs
GARY R. PRESLEY-NELSON, AND
8 BEVERLY PRESLEY-NELSON
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN FRANCISCO
11 GARY R. PRESLEY-NELSON, AND Case No.: CGC-17-557561
BEVERLY PRESLEY-NELSON,
12 PLAINTIFFS GARY R. PRESLEY-NELSON,
Plaintiffs, AND BEVERLY PRESLEY-NELSON’S EX
13 PARTE APPLICATION FOR ORDER
v. SHORTENING TIME TO HEAR MOTION
14 FOR LEAVE TO FILE THIRD AMENDED
DAVID KING-STEPHENS, M.D., SUTTER COMPLAINT, AND MOTION THEREON
15 HEALTH, SUTTER WEST BAY HOSPITALS
DBA CALIFORNIA PACIFIC MEDICAL Date: March 22, 2021
16 CENTER, AND DOES 1 TO 50, Time: 9:30 a.m.
Judge: Hon Garrett L. Wong
17 Defendants. Dept.: 504
File Date: March 15, 2017
18 Trial Date: March 17, 2021
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PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION
FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT,
AND MOTION THEREON
1 TABLE OF CONTENTS
2 Page
3 I. APPLICATION ........................................................................................................................... 4
4 II. CASE FACTS ............................................................................................................................. 5
5 A. Application for Order Shortening Time Case Facts ........................................................ 5
6 B. Motion for Leave to File, Serve, and Hear A Third Amended Complaint Case
7 Facts ................................................................................................................................ 7
8 1. Murali Ranjithan, M.D.’s Deposition Testimony ............................................... 7
9 2. Defendant’s Deposition Testimony ..................................................................... 7
10 3. Plaintiffs’ Deposition Testimony ........................................................................ 8
11 4. Expert Radiologist Daniel Hightower, M.D.’s Deposition Testimony ............... 8
12 5. Plaintiffs First Received Dr. Ranjithan’s Report on October 31, 2016 ............... 9
13 II. MEMORANDUM OF POINTS AND AUTHORITIES ............................................................ 9
14 A. The Court has Authority to Grant Defendants’ Application to Shorten Time ................ 9
15 B. Good Cause Exists for the Court to Grant Defendants’ Application to Shorten
16 Time ................................................................................................................................ 9
17 C. Leave to Amend is Liberally Granted ........................................................................... 10
18 D. Defendant Is Not Surprised Nor Prejudiced By the Amendment ................................. 11
19 E. Plaintiffs’ Proposed Third Amended Complaint Relates Back to Their
20 March 15, 2017 Complaint............................................................................................ 12
21 IV. CONCLUSION ......................................................................................................................... 14
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PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION
FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT,
AND MOTION THEREON
1 TABLE OF AUTHORITIES
2 Cases Page
3 Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157................................................................ 12
Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal.App.3d 818 ..................................................... 13
4 Brown v. Bleiberg (1982) 32 Cal.3d 426 .............................................................................................. 10
Burks v. Poppy Constr. Co. (1962) 57 Cal.2d 463 ................................................................................ 13
5 Cahill v. Verdier (1921) 54 Cal.App. 465 ............................................................................................... 9
Californians for Disab. Rights v. Mervyn’s (2006) 39 Cal.4th 223 ...................................................... 13
6 City of Stockton v. Superior Court (Civic Partners Stockton, LLC) (2007) 42 Cal.4th 730 ................. 11
Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197................... 13
7 Doe v. City of Los Angeles (2007) 42 Cal.4th 531 ................................................................................ 13
Dunzweiler v. Superior Court (Houff) (1968) 267 Cal.App.2d 569 ..................................................... 11
8 Kittredge Sports Co. v. Superior Court (Marker, U.S.A.) 213 Cal.App.3d 1045 ................................. 11
MacIsaac v. Pozzo (1945) 26 Cal.2d 809.......................................................................................... 5, 11
9 Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841 ............................................ 4
Nelson v. Gaunt (1981) 125 Cal.App.3d 623 ........................................................................................ 10
10 Nogart v. The Upjohn Co. (1999) 21 Cal.4th 383 ................................................................................. 12
Quiroz v. Seventh Ave. Cntr. (2006) 140 Cal.App.4th 1256 ................................................................. 12
11 Stafford v. Schultz (1954) 42 Cal.2d 767 ........................................................................................ 13, 14
Waters v. Superior Court (Hughes Tool Co.) (1962) 58 Cal.2d 885 ...................................................... 9
12 Weingarten v. Block (1980) 102 Cal.App.3d 129 ................................................................................. 10
Wiener v. Superior Court (Scholer) (1976) 58 Cal.App.3d 525 ........................................................... 12
13
Codes
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Civil Procedure Code
15 § 473 .......................................................................................................................................... 10
§ 576 .......................................................................................................................................... 10
16 § 1005(b) ..................................................................................................................................... 9
17 Rules
18 Cal. Rules of Court
Rule 3.1202(a) ............................................................................................................................. 4
19 Rule 3.1202(b) ......................................................................................................................... 4, 5
Rule 3.1204(a)(1) ........................................................................................................................ 4
20 Rule 3.1206 ................................................................................................................................. 4
Rule 3.1300(b) ............................................................................................................................. 9
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PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION
FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT,
AND MOTION THEREON
1 I. APPLICATION
2 Plaintiffs Gary R. Presley-Nelson, and Beverly Presley-Nelson 1 (collectively herein
3 “plaintiffs’) are applying ex parte on March 22, 2021 at 9:30 a.m. in Department 504 of the above
4 captioned court located at 400 McAllister Street, San Francisco, California 94102 for an order
5 shortening time to file, serve, and hear their motion for leave to file a third amended complaint to add
6 two new causes of action: a third cause of action for fraudulent concealment, and fourth cause of
7 action for negligent misrepresentation, which relate back to the ultimate facts alleged in their original
8 March 15, 2017 complaint. Plaintiffs’ application is based on the following points and authorities, and
9 the good cause stated in the declaration of Steven W. Yuen.
10 Defendant David King-Stephens, M.D. (“defendant”) is represented by James M. Goodman,
11 Warren R. Webster, and Erik S. Faussner of Hassard Bonnington LLP, 275 Battery Street, 16th Floor,
12 San Francisco, California 94111, (415) 288-9800, and John L. Supple, Robert R. Deering, and
13 Madeleine Lough-Stevens of J Supple Law, A Professional Corporation, 990 5th Avenue, San Rafael,
14 California 94901-6105, (415) 366-5533. (Exhibit A at ¶ 8; as required by Cal. Rules of Court, rule
15 3.1202(a).) On March 18, 2021, plaintiffs’ counsel e-mailed defendant’s counsel notifying them
16 plaintiffs are appearing ex parte on March 22, 2021 at 9:30 a.m. in department 504 of this court to seek
17 an application for an order shortening time for leave to file, serve, and hear their motion for leave to
18 file a third amended complaint. (Exhibit A at ¶ 8; and Exhibit J.) Defendant requested more
19 information, and is opposing plaintiffs’ application. (Exhibit A at ¶ 8; as required by Cal. Rules of
20 Court, rule 3.1204(a)(1).) Plaintiffs are providing defendant’s requested information within this
21 application. On March 19, 2021, plaintiffs are electronically serving a copy of this ex parte application
22 upon defendant by e-mail. (Exhibit A at ¶ 9; as required by Cal. Rules of Court, rule 3.1206.)
23 Plaintiffs have not previously applied for an order to shorten time to file, serve, and to hear
24 their motion for leave to file a third amended complaint. (Exhibit A at ¶ 10; as required by Cal. Rules
25 of Court, rule 3.1202(b).) The good cause shown hereafter is that plaintiffs will suffer irreparable
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27 1
Plaintiffs’ counsel hereafter refer to plaintiffs individually by their first names only for the sake of
brevity and clarity, and intending no disrespect. (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017)
28 14 Cal.App.5th 841, 846, fn. 1.)
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PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION
FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT,
AND MOTION THEREON
1 harm, and immediate danger if the court denies plaintiffs’ application as they will lose their good
2 causes of action, denies them justice, and the policy of the law is that their case should be tried and
3 decided on the merits. (MacIsaac v. Pozzo (1945) 26 Cal.2d 809, 815-816; as required by Cal. Rules
4 of Court, rule 3.1202(b).)
5 II. CASE FACTS
6 Following are the case facts relevant to this application and motion.
7 A. Application For Order Shortening Time Case Facts
8 On March 15, 2017, plaintiffs filed their original complaint. (Exhibit G.) Plaintiffs alleged the
9 following ultimate facts:
10 1. Defendant was a licensed neurologist physician who provided medical
care services to Gary (¶¶ 3 & 13);
11 2. Gary saw defendant for his neurological conditions (¶ 13);
3. Defendant ordered MRIs of Gary’s brain twice after the removal of a
12 large benign cholesteatoma from his left temporal lobe area (¶ 14);
4. Defendant knew of Gary’s medical history, including his prior surgery,
13 and diagnosis of epilepsy and seizures (¶ 14);
5. Gary’s experience of various concentration and memory problems,
14 dizziness, headaches, seizures, decreased libido, and depression were all reported to
defendant (¶ 15); and
15 6. Though defendant “had ordered the second MRI, he failed to report
evidence of a mass to plaintiff” (¶ 18).
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17 After challenges to the original, and first amended complaint, the second amended complaint
18 became the operative complaint, which alleges the same ultimate facts pled in the original complaint.
19 (Exhibit H at ¶¶ 13-18.) The operative second amended complaint likewise alleged the ultimate fact
20 that defendant “had ordered the second MRI, he failed to report evidence of a mass to plaintiff.”
21 (Id., at ¶ 18).
22 The daily handling of plaintiffs’ case was prosecuted by Joshua G. Wong. (Exhibit A at ¶ 2.)
23 Mr. Wong drafted plaintiffs’ original complaint, and was also handling the challenges to the prior
24 versions of plaintiffs’ complaints. (Id., at ¶ 3.) Managing partner Steven W. Yuen prepared plaintiffs’
25 second amended complaint by essentially deleting words that were required to be deleted after a
26 successful challenge to the prior complaint, leaving only a first cause of action for medical negligence,
27 and a second cause of action for loss of consortium. (Id., at ¶ 3.) When Mr. Yuen prepared the second
28 ///
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PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION
FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT,
AND MOTION THEREON
1 amended complaint, no depositions had yet occurred. (Ibid.) As the managing partner, Mr. Yuen
2 oversees between approximately 150 to 175 cases at any one time. (Exhibit A at ¶ 1.)
3 On November 29, 2019, plaintiffs dismissed former defendant Murali Ranjithan, M.D.
4 (Exhibit A at ¶ 4.) Trial was previously set in this matter for December 2, 2019, and December 14,
5 2020. (Id., at ¶ 5.) Mr. Wong prepared the trial pleadings for the prior trial calls; Mr. Yuen did not.
6 (Ibid.) Mr. Yuen also did not appear at the December 2, 2019 trial call as he was in trial in the matter
7 of Lian Tong v. Wu, et al. venued in San Francisco Superior Court. (Ibid.) At the December 14, 2020
8 trial call, the court continued trial to March 17, 2021. (Ibid.)
9 To prepare for the March 17, 2021 trial, Mr. Yuen began analyzing the trial pleadings Mr.
10 Wong had prepared beginning on March 3, 2021. (Exhibit A at ¶ 6.) In analyzing plaintiffs’ trial
11 pleadings, he noticed it had omitted information relating to Dr. Ranjithan, which was correct, as he was
12 no longer a defendant in this case, having previously been dismissed. (Ibid.) After completing his
13 review of plaintiffs’ trial pleadings, he then started analyzing all of the other case information,
14 including the deposition transcripts of the other now dismissed defendants in which plaintiffs’ claims
15 of negligence against them were no longer at issue. (Ibid.) During Mr. Yuen’s review of
16 Dr. Ranjithan, and Dr. Hightower’s deposition transcripts, he noticed similar testimony that they both
17 opined they saw a cyst on plaintiff Gary Presley-Nelson’s 2008 MRI. (Ibid.) He then analyzed
18 plaintiffs’ original complaint, and the operative second amended complaint to confirm if plaintiffs had
19 previously alleged an ultimate fact that defendant did not report this cyst to plaintiffs, and confirmed it
20 was alleged. (Ibid.) Thus, he began preparing page and line designations of both of these witnesses on
21 March 10, 2021 as required by Local Rule 6.3. (Ibid.) He also modified plaintiffs’ trial pleadings to
22 conform to the previously alleged ultimate fact to provide notice that plaintiffs would be moving to
23 amend their complaint to conform to proof. (Ibid.)
24 Plaintiffs filed and served their trial pleadings on March 17, 2021. (Exhibit A at ¶ 6.) After the
25 trial pleadings were served, Mr. Yuen realized that since trial was bifurcated such that defendant’s one-
26 year statute of limitations affirmative defense was tried first, plaintiffs may be unable to amend their
27 complaint to conform to proof. (Ibid.)
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PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION
FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT,
AND MOTION THEREON
1 B. Motion For Leave to File, Serve, and Hear a Third Amended Complaint Case Facts
2 Defendant’s counsel appeared at the following depositions: (1) Gary’s radiologist Murali
3 Ranjithan, M.D., (2) defendant, (3) Gary, (4) Beverly, and (5) Dr. Ranjithan’s retained expert Daniel
4 Hightower, M.D. (Exhibits B at 14:19-23; C at 3:18-22; D at 2:16-22; E at 2:14-22; and F at 3:17-21.)
5 1. Murali Ranjithan, M.D.’s Deposition Testimony
6 On October 14, 2008, Gary underwent an MRI of his brain. (Exhibit B at Exhibit 2.) Former
7 defendant Murali Ranjithan, M.D. interpreted Gary’s MRIs, and dictated a report. (Exhibit B at 93:2-
8 4, 97:1-10, 97:24-98:2 & 98:12-13.) Dr. Ranjithan’s interpretation included transcribing a “CSF-filled
9 cavity in the left side of Gary’s brain. (Id., at 111:15-19 & Exhibit 2.) Although Dr. Ranjithan did not
10 use the term “benign cyst” in his report, the term “CSF-filled cavity” he described in his report is
11 comparable to being described as a “benign cyst.” (Exhibit B at 128:16-129:7.) Dr. Ranjithan
12 understood the term “benign cyst,” as “what it looks like on a scan” would typically “be a mass or
13 what we call a lesion that has certain characteristics on the MRI. Typically it doesn’t show
14 enhancement, and usually it’s bright on T2-weighted sequence.” (Id., at 145:17-146:5.) Dr. Ranjithan
15 further testified contrast was injected into Gary to enhance the MRI images. (Id., at 184:11-14.) Thus,
16 Dr. Ranjithan described the “structure” he saw, and “measured at 5.0 by 4.7 centimeters” did “not
17 demonstrate contrast enhancement.” (Id., at 184:14-16.) Typically, contrast is circulated through a
18 person’s blood vessels and shows up on the images, but “if it’s a cyst, you typically would not expect it
19 to enhance.” (Id., at 184:21-185:5.) Thus, Dr. Ranjithan did not see contrast in that “5.0 by 4.7”
20 structure. (Id., at 185:6-8.) The absence of contrast indicated to Dr. Ranjithan that a “benign or
21 nonaggressive process” “that’s not an infection or malignant tumor” was present in Gary’s brain. (Id.,
22 at 185:9-15.)
23 2. Defendant’s Deposition Testimony
24 Defendant did not review the actual MRI images like Dr. Ranjithan did. (Exhibit C at 28:6-11.)
25 When he saw Gary on October 27, 2008, 13 days after his October 14, 2008 MRI, he does not recall
26 the conversation or words he may have told Gary regarding his MRI scan results. (Exhibit D at 41:9-
27 11, 41:17-23 & 42:7-10; and Exhibit B at Exhibit 2.) He likewise does not recall Beverly say anything
28 in response to telling Gary his MRI results. (Exhibit D at 42:11-13.) After refreshing his recollection
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PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION
FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT,
AND MOTION THEREON
1 with his October 27, 2008 medical records, defendant testified they talked about “the result of the MRI
2 scan,” but he does not recall the conversation or words he used. (Id., at 41:17-23 & 41:24-52:6.)
3 3. Plaintiffs’ Deposition Testimony
4 Gary saw defendant on October 27, 2008, 13 days after his October 14, 2008 MRI. (Exhibit D
5 at 153:5-8; and Exhibit B at Exhibit 2.) Gary testified his wife probably was with him. (Exhibit D at
6 153:9-10.) Defendant told him “You’ll never need it [an MRI] again.” (Id., at 153:12-20.) In
7 particular, defendant gold Gary “It will never grow back.” (Id., at 153:21-154:2.) Gary responded
8 “Hallelujah.” (Ibid.) Defendant never ordered or prescribed another MRI for Gary again. (Id., at
9 154:4-10.)
10 Beverly testified Gary told her the results of his 2008 MRI “was fine.” (Exhibit E at 85:15-21
11 & 86:3-7.) Beverly further recalls defendant “saying that things were fine, to just keep working on the
12 symptoms and the triggers. (Id., at 86:15-20.)
13 4. Expert Radiologist Daniel Hightower, M.D.’s Deposition Testimony
14 Dr. Murali retained Dr. Hightower as his retained radiologist expert, who testified on all of the
15 opinions he formed and intend to testify to at trial. (Exhibit F at 7:24-8:3.) Dr. Hightower opined Dr.
16 Ranjithan met the standard of care for interpretation of MIR of the brain in 2008.” (Id., at 8:15-17.)
17 This opinion was based on his “35 years or more in diagnostic radiology, [his] experience, [his] current
18 interpretation of MRI’s of the brain ...” (Id., at 8:18-24.) He further opined Dr. Ranjithan’s “report
19 met all the criteria that are necessary to communicate his findings and his interpretation.” (Id., at 9:3-
20 9.)
21 Dr. Hightower also reviewed the MRI images thoroughly and reviewed Dr. Ranjithan’s report.
22 (Exhibit F at 8:25-26:3.) After looking at Gary’s MRI brain images, Dr. Hightower opined he saw that
23 “[t]he cyst was bright on the T2 image and dark on T1 image, thereby supporting a finding of a CSF-
24 filled cavity.” (Id., at 14:4-24, emphasis added.) He provided the bases for this opinion. (Id., at
25 14:25-15:7.) When asked what did he “see in the T2 image that supports [his] use of the words ‘the
26 cyst’?” he responded “the fluid is bright, the same intensity of brightness as cerebrospinal fluid, which
27 we see in the ventirlces and the CSF spaces around the brain. [¶] So it has – it was rounded in
28 shape.” (Id., at 15:8-16, emphasis added.) Notably, “It had the appearance of a cyst. That’s a
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PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION
FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT,
AND MOTION THEREON
1 common area for cysts to occur, subarachnoid cyst. So many times the word ‘cyst’ is used
2 interchangeably with a CSF fluid collection.” (Id., at 15:16-20, emphasis added.)
3 Also important is Dr. Hightower’s testimony on the medical profession’s use of terminology
4 when he opined “the fluid collection that we see was rounded and has the appearance of a cystic fluid
5 collection, so the words are used interchangeably many times. You can say a cyst-like, a cystic
6 fluid collection, a fluid collection, or the cyst. They would communicate the same thing.” (Exhibit
7 F at 16:8-18.)
8 5. Plaintiffs First Received Dr. Ranjithan’s Report on October 31, 2018
9 In opposition to defendant’s first dispositive motion, plaintiffs notified him and his counsel on
10 November 21, 2018 that plaintiffs’ counsel first requested Gary’s medical records on June 6, 2016.
11 (Exhibit I at ¶ 3.) On October 10, 2016, plaintiffs’ counsel had still not received any records in
12 response to their request. (Id., at ¶ 4.) It was not until October 31, 2016 that plaintiffs’ counsel first
13 received Gary’s medical records, including the 2008 MRI report interpreted by Dr. Ranjithan. (Id., at
14 ¶ 8.)
15 III. MEMORANDUM OF POINTS AND AUTHORITIES
16 A. The Court has Authority to Grant Defendants’ Application to Shorten Time
17 The Court is authorized to shorten time to notice motions, and to hear motions. (Civ. Proc.
18 Code § 1005(b) [“[t]he court, or a judge thereof, may prescribe a shorter time”]). “The court ... on
19 application for an order shortening time supported by a declaration showing good cause, may prescribe
20 shorter times for the filing and service of papers than the times specified in Code of Civil Procedure
21 section 1005.” (Cal. Rules of Court, rule 3.1300(b).) “[T]he trial court can, pursuant to the provisions
22 of section 1005, shorten the time prescribed by section 594, it can reduce the period of time from five
23 days to four days, or to one hour.” (Cahill v. Verdier (1921) 54 Cal.App. 465, 467, emphasis added.)
24 B. Good Cause Exists for the Court to Grant Defendants’ Application to Shorten Time
25 “The concept of good cause [is] not [] enshrined in legal formalism; it calls for a factual
26 exposition of a reasonable ground for the sought order. The good cause may be equated to a good
27 reason for a party’s failure to perform that specific requirement from which he seeks to be excused.”
28 (Waters v. Superior Court (Hughes Tool Co.) (1962) 58 Cal.2d 885, 893.)
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PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION
FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT,
AND MOTION THEREON
1 Good cause exists for the court to shorten time as plaintiffs’ counsel had not reviewed the
2 deposition transcripts of former defendant Murali Ranjithan, M.D. and his disclosed expert radiologist
3 Daniel Hightower, M.D. until March 10, 2021 as there appeared to be no need to due to Dr. Ranjithan
4 being previously dismissed on November 22, 2019. Thus, plaintiffs’ counsel’s preparation of the trial
5 pleadings previously prepared in this case did not contain their information due to the dismissal. Only
6 after plaintiffs’ managing trial partner began reviewing all information, including Drs. Ranjithan and
7 Hightower’s deposition transcripts on March 10, 2021 did he realize and confirm a fraud or
8 misrepresentation cause of action existed for plaintiffs. (Exhibit A at ¶ 6.)
9 Granting plaintiffs’ application to shorten time to hear their motion for leave to amend, and
10 then granting their motion preserves their timely pled ultimate facts, and two new causes of action for
11 trial, and their right to trial thereon. (See Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 636, fn. 6 [“a
12 physician, like any other fiduciary, is liable for his fraudulent conduct. We think that the trial court
13 properly concluded here that the longer limitations period of Code of Civil Procedure section 338,
14 subdivision 4 was applicable and that the question was for the jury as to each cause of action” and
15 “The 1975 amendments to Code of Civil Procedure section 340.5, which narrowly define professional
16 negligence, indicate that the Legislature attempted to curb fraud by health care provided by another
17 route”]; see also Brown v. Bleiberg (1982) 32 Cal.3d 426, 431, 437 & fn. 1 [the MICRA statute of
18 limitations applied to the plaintiff’s professional negligence theory, but not to the plaintiff’s battery
19 and breach-of-warranty theories].)
20 C. Leave to Amend is Liberally Granted
21 “The trial court has discretion to allow an amendment to any pleading in furtherance of justice
22 at any time before or after the commencement of trial.” (Weingarten v. Block (1980) 102
23 Cal.App.3d 129, 134, emphasis added, citing Civ. Proc. Code §§ 473 [“The court may likewise, in its
24 discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to
25 any pleading”] & 576 [“Any judge, at any time before or after commencement of trial, in the
26 furtherance of justice, and upon such terms as may be proper, may allow the amendment of any
27 pleading ...”].) “The issue of leave to amend is always open on appeal, even if not raised by the
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PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION
FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT,
AND MOTION THEREON
1 plaintiff.” (City of Stockton v. Superior Court (Civic Partners Stockton, LLC) (2007) 42 Cal.4th 730,
2 746.)
3 “Liberality in permitting amendments is the rule.” (Weingarten, 102 Cal.App.3d at 134.) This
4 is because “there is a strong policy in favor of liberal allowance of amendments.” (Mesler v. Bragg
5 Mgmt. Co. (1985) 39 Cal.3d 290, 296.) Our Supreme Court explained the reason behind our liberal
6 policy as follows: “If plaintiff has a good cause of action, which by accident or mistake he has failed
7 to set out in his complaint, the court, on motion for judgment on the pleadings, should, on his
8 application so to do, permit him to amend.’ ... The granting of the motion without leave to amend
9 would in many cases be an absolute denial of justice, and is directly opposed to the policy of the law
10 that cases should be tried and decided on the merits.” (MacIsaac, supra, 26 Cal.2d at 815-816.)
11 Should a defendant desire to challenge a proposed complaint as futile, this does not affect the liberality
12 of allowing amendments. Instead, the preferable practice would be to permit the amendment and allow
13 the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other
14 appropriate proceedings.” (Kittredge Sports Co. v. Superior Court (Marker, U.S.A.) 213 Cal.App.3d
15 1045, 1048.)
16 D. Defendant Is Not Surprised Nor Prejudiced By the Amendment
17 “[I]t is a rare case in which ‘a court will be justified in refusing a party leave to amend his
18 pleadings so that he may properly present his case.’” (Dunzweiler v. Superior Court (Houff) (1968)
19 267 Cal.App.2d 569, 576-577.) “If the motion to amend is timely made and the granting of the motion
20 will not prejudice the opposing party, it is error to refuse permission to amend and where the
21 refusal also results in a party being deprived of the right to assert a meritorious cause of action or a
22 meritorious defense, it is not only error but an abuse of discretion.” (Id., at 577, emphasis added.)
23 Defendant is not surprised and suffers no prejudice as he conducted discovery on this ultimate
24 fact by receiving former defendant radiologist Murali Ranjithan, M.D.’s report of this cyst.
25 Defendants also appeared at Dr. Ranjithan, and his retained expert Daniel Hightower, M.D.’s
26 depositions, who both testified they saw the cyst on Gary’s MRIs. Of note is Dr. Hightower’s expert
27 opinion that for medical professionals, the words “cyst-like, a cystic fluid collection, a fluid collection,
28 ///
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PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION
FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT,
AND MOTION THEREON
1 or the cyst” “are used interchangeably many times” as they “communicate the same thing.” (Exhibit F
2 at 16:8-18.)
3 Defendants also deposed plaintiffs for two full days each. At plaintiffs’ depositions, defendant
4 confirmed plaintiffs never received a copy of Dr. Ranjithan’s report of the cyst from defendant, and
5 defendant never notified them of the cyst. Should defendant want to depose plaintiffs again on these
6 two new causes of action, they are immediately available subject to adequate notice.
7 Further, defendant was notified during motion practice that the uncontroverted evidence shows
8 defendants’ counsel obtained Dr. Ranjithan’s report of the cyst for the first time on October 31, 2016.
9 Finally, at defendant’s own deposition, he confirmed he never provided Dr. Ranjithan’s report to
10 plaintiffs, and never notified them of the cyst.
11 Thus, defendant is not surprised nor prejudiced as he has conducted discovery on this timely
12 pled ultimate fact, which supports plaintiffs’ motion for leave to amend to add two new causes of
13 action for fraudulent concealment, and negligent representation.
14 E. Plaintiffs’ Proposed Third Amended Complaint Relates Back to Their March 15, 2017
Complaint
15
16 “The relation-back doctrine deems a later-filed pleading to have been filed at the time of an
17 earlier complaint which met the applicable limitations period, thus avoiding the bar.” (Quiroz v.
18 Seventh Ave. Cntr. (2006) 140 Cal.App.4th 1256, 1278.) “[T]he relation-back doctrine requires that
19 the amended complaint must (1) rest on the same general set of facts, (2) involve the same injury, and
20 (3) refer to the same instrumentality, as the original one.” (Nogart v. The Upjohn Co. (1999)
21 21 Cal.4th 383, 408-409, italics in original.) “Cases applying this relation back rule have made it clear
22 that ‘it is the sameness of the facts rather than the rights or obligations arising from those facts that is
23 determinative.” (Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1199-1200.) “It is
24 essential to distinguish between a new cause of action arising out of ‘the same general set of facts’ and
25 a new cause arising out of different facts.” (Wiener v. Superior Court (Scholer) (1976) 58 Cal.App.3d
26 525, 529.)
27 ///
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PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION
FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT,
AND MOTION THEREON
1 “[A] complaint is sufficient if it contains ‘[a] statement of the facts constituting the cause of
2 action, in ordinary and concise language.’” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)
3 “Thus, the complaint ordinarily is sufficient if it alleges ultimate rather than evidentiary facts.” (Ibid.)
4 Thus, “the courts have permitted allegations which obviously included conclusions of law and have
5 termed them ‘ultimate facts’ or ‘conclusions of fact.’” (Burks v. Poppy Constr. Co. (1962) 57 Cal.2d
6 463, 473.) Moreover, though specificity is needed to plead fraud, “[l]ess specificity is required when
7 ‘it appears from the nature of the allegations that the defendant must necessarily possess full
8 information concerning the facts of the controversy,’ (Bradley v. Hartford Acc. & Indem. Co. (1973)
9 30 Cal.App.3d 818, 825, 106 Cal.Rptr. 718); ‘[e]ven under the strict rules of common law pleading,
10 one of the canons was that less particularity is required when the facts lie more in the knowledge of the
11 opposite party ...” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d
12 197, 217, superseded by statute on other grounds as stated in Californians for Disab. Rights v.
13 Mervyn’s (2006) 39 Cal.4th 223, 227-228; see also Burks, 57 Cal.2d at 474 [“less particularity is
14 required where the defendant may be assumed to possess knowledge of the facts at least equal, if not
15 superior, to that possessed by the plaintiff”].)
16 Plaintiffs’ original and operative complaint allege the ultimate fact that a doctor-patient
17 relationship existed between defendant and Gary. (Exhibit G at ¶¶ 3 & 13.) Thus, under the law, a
18 fiduciary relationship existed between them such that defendant owed Gary a fiduciary duty. (Stafford
19 v. Schultz (1954) 42 Cal.2d 767, 777 [“‘Perhaps the most significant feature in the present case which
20 makes inapplicable the doctrine of constructive notice is the existence of the relationship between the
21 parties of physician and patient, which in contemplation of law is a fiduciary one.... As fiduciaries it
22 was the duty of defendants to make a full and fair disclosure to plaintiff of all facts which materially
23 affected his rights and interests. [I]t was said that it was recognized in cases involving a fiduciary
24 relationship that ‘facts which would ordinarily require investigation may not excite suspicion, and that
25 the same degree of diligence is not required’ of the injured person.... [T]he confidence growing out of
26 the relationship of doctor and patient imposed upon the physician the duty of refraining from
27 fraudulent concealment, that is, the duty of disclosure when he had knowledge of the facts. Where
28 ///
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PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION
FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT,
AND MOTION THEREON
1 there is a duty to disclose, the disclosure must be full and complete, and any material concealment or
2 misrepresentation will amount to fraud sufficient to entitle the party injured thereby to an action....”].)
3 Plaintiffs further alleges that “[t]hough Dr. King-Stephens had ordered the second MRI, he
4 failed to report evidence of a mass to plaintiff.” (Second Amended Complaint at ¶ 18, emphasis
5 added.) Thus, “a fraudulent concealment by the defendant of the facts upon which a legal common-
6 law action is based, under the proper circumstances, tolls the statute until discovery, and that upon
7 discovery the statute applicable to that particular action (in this case section 340, subd. 3, of Code Civ.
8 Proc) then commences to run.” (Stafford, supra, 42 Cal.2d at 777.) Thus, plaintiffs’ proposed two
9 new causes of action relate back, and are timely.
10 IV. CONCLUSION
11 For all of the reasons stated herein, defendants respectfully request the court to grant their ex
12 parte application to hear their motion for leave to file and serve a third amended complaint, and to hear
13 it on shortened time on a date and time mutually convenient for the court and the parties.
14 As all of the authorities on plaintiffs’ motion for leave to file, and serve a third amended
15 complaint are also contained within this application, plaintiffs deem this application as their motion.
16 Finally, plaintiffs waive their reply.
17 DATED: March 19, 2021
HEATH & YUEN, APC
18
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By
20 Steven W. Yuen
Attorneys for Plaintiffs
21 GARY R. PRESLEY-NELSON, AND
BEVERLY PRESLEY-NELSON
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PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION
FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT,
AND MOTION THEREON
1 CERTIFICATE OF SERVICE
2 I, Wendy H. Yang, declare:
3 At the time of service I was over 18 years of age, and not a party to this action. My business
4 mailing address is 268 Bush Street, #3006, San Francisco, California 94104.
5 On March 19, 2021, I served the following document(s) on the parties in the within action:
6 PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX
PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION FOR
7 LEAVE TO FILE THIRD AMENDED COMPLAINT, AND MOTION THEREON
8 PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY NELSON’S
EXHIBIT INDEX, AND EXHIBITS FOR EX PARTE APPLICATION FOR ORDER
9 SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED
COMPLAINT, AND MOTION THEREON
10
BY E-MAIL: Based on the parties’ agreement to accept service by e-mail, the court’s order
11 and/or Local Rules ordering mandatory e-filing of all documents for this type of case, Civil
Procedure Code section 1010.6, and California Rules of Court, Rule 2.251(c)(3), I attached
12 X the document(s) to an e-mail message, and invoked the send command to transmit the e-mail
message to the person(s) at the e-mail address(es) listed below. I did not receive within a
13 reasonable time after the transmission any electronic message or other indication that the
transmission was unsuccessful.
14
James M. Goodman Attorneys For Defendant
15 Warren R. Webster DAVID KING-STEPHENS, M.D.
Erik S. Faussner
16 HASSARD BONNINGTON LLP
275 Battery Street, 16th Floor
17 San Francisco, CA 94111
Phone (415) 288-9800 | Fax (415) 288-9801
18 jmg@hassard.com
wrw@hassard.com
19 esf@hassard.com
20 John L. Supple Attorneys For Defendant
Robert R. Deering DAVID KING-STEPHENS, M.D.
21 Madeleine Lough-Stevens
J SUPPLE LAW, A PROFESSIONAL
22 CORPORATION
990 5th Avenue
23 San Rafael, CA 94901-6105
Phone (415) 366-5533 | Fax (415) 480-6301
24 jsupple@jsupplelaw.com
rdeering@jsupplelaw.com
25 mlough-stevens@jsupplelaw.com
26 ///
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PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION
FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT,
AND MOTION THEREON
1 I declare under penalty of perjury under the laws of the State of California the foregoing is a
2 true and correct statement, and this certificate was executed on March 19, 2021.
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4 Wendy H. Yang
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PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION
FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT,
AND MOTION THEREON
Preview
1 Stephen B. Heath - 237622 sheath@heathandyuen.com 2 Steven W. Yuen - 230768 syuen@heathandyuen.com 3 Joshua G. Wong - 306744 ELECTRONICALLY jwong@heathandyuen.com FILED 4 HEATH & YUEN, APC Superior Court of California, 268 Bush Street, #3006 County of San Francisco 5 San Francisco, CA 94104 03/19/2021 Tel: (415) 622-7004 Clerk of the Court 6 Fax: (415) 373-3957 BY: JUDITH NUNEZ Deputy Clerk 7 Attorneys for Plaintiffs GARY R. PRESLEY-NELSON, AND 8 BEVERLY PRESLEY-NELSON 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO 11 GARY R. PRESLEY-NELSON, AND Case No.: CGC-17-557561 BEVERLY PRESLEY-NELSON, 12 PLAINTIFFS GARY R. PRESLEY-NELSON, Plaintiffs, AND BEVERLY PRESLEY-NELSON’S EX 13 PARTE APPLICATION FOR ORDER v. SHORTENING TIME TO HEAR MOTION 14 FOR LEAVE TO FILE THIRD AMENDED DAVID KING-STEPHENS, M.D., SUTTER COMPLAINT, AND MOTION THEREON 15 HEALTH, SUTTER WEST BAY HOSPITALS DBA CALIFORNIA PACIFIC MEDICAL Date: March 22, 2021 16 CENTER, AND DOES 1 TO 50, Time: 9:30 a.m. Judge: Hon Garrett L. Wong 17 Defendants. Dept.: 504 File Date: March 15, 2017 18 Trial Date: March 17, 2021 19 20 21 22 23 24 25 26 27 28 -1- PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT, AND MOTION THEREON 1 TABLE OF CONTENTS 2 Page 3 I. APPLICATION ........................................................................................................................... 4 4 II. CASE FACTS ............................................................................................................................. 5 5 A. Application for Order Shortening Time Case Facts ........................................................ 5 6 B. Motion for Leave to File, Serve, and Hear A Third Amended Complaint Case 7 Facts ................................................................................................................................ 7 8 1. Murali Ranjithan, M.D.’s Deposition Testimony ............................................... 7 9 2. Defendant’s Deposition Testimony ..................................................................... 7 10 3. Plaintiffs’ Deposition Testimony ........................................................................ 8 11 4. Expert Radiologist Daniel Hightower, M.D.’s Deposition Testimony ............... 8 12 5. Plaintiffs First Received Dr. Ranjithan’s Report on October 31, 2016 ............... 9 13 II. MEMORANDUM OF POINTS AND AUTHORITIES ............................................................ 9 14 A. The Court has Authority to Grant Defendants’ Application to Shorten Time ................ 9 15 B. Good Cause Exists for the Court to Grant Defendants’ Application to Shorten 16 Time ................................................................................................................................ 9 17 C. Leave to Amend is Liberally Granted ........................................................................... 10 18 D. Defendant Is Not Surprised Nor Prejudiced By the Amendment ................................. 11 19 E. Plaintiffs’ Proposed Third Amended Complaint Relates Back to Their 20 March 15, 2017 Complaint............................................................................................ 12 21 IV. CONCLUSION ......................................................................................................................... 14 22 23 24 25 26 27 28 -2- PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT, AND MOTION THEREON 1 TABLE OF AUTHORITIES 2 Cases Page 3 Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157................................................................ 12 Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal.App.3d 818 ..................................................... 13 4 Brown v. Bleiberg (1982) 32 Cal.3d 426 .............................................................................................. 10 Burks v. Poppy Constr. Co. (1962) 57 Cal.2d 463 ................................................................................ 13 5 Cahill v. Verdier (1921) 54 Cal.App. 465 ............................................................................................... 9 Californians for Disab. Rights v. Mervyn’s (2006) 39 Cal.4th 223 ...................................................... 13 6 City of Stockton v. Superior Court (Civic Partners Stockton, LLC) (2007) 42 Cal.4th 730 ................. 11 Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197................... 13 7 Doe v. City of Los Angeles (2007) 42 Cal.4th 531 ................................................................................ 13 Dunzweiler v. Superior Court (Houff) (1968) 267 Cal.App.2d 569 ..................................................... 11 8 Kittredge Sports Co. v. Superior Court (Marker, U.S.A.) 213 Cal.App.3d 1045 ................................. 11 MacIsaac v. Pozzo (1945) 26 Cal.2d 809.......................................................................................... 5, 11 9 Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841 ............................................ 4 Nelson v. Gaunt (1981) 125 Cal.App.3d 623 ........................................................................................ 10 10 Nogart v. The Upjohn Co. (1999) 21 Cal.4th 383 ................................................................................. 12 Quiroz v. Seventh Ave. Cntr. (2006) 140 Cal.App.4th 1256 ................................................................. 12 11 Stafford v. Schultz (1954) 42 Cal.2d 767 ........................................................................................ 13, 14 Waters v. Superior Court (Hughes Tool Co.) (1962) 58 Cal.2d 885 ...................................................... 9 12 Weingarten v. Block (1980) 102 Cal.App.3d 129 ................................................................................. 10 Wiener v. Superior Court (Scholer) (1976) 58 Cal.App.3d 525 ........................................................... 12 13 Codes 14 Civil Procedure Code 15 § 473 .......................................................................................................................................... 10 § 576 .......................................................................................................................................... 10 16 § 1005(b) ..................................................................................................................................... 9 17 Rules 18 Cal. Rules of Court Rule 3.1202(a) ............................................................................................................................. 4 19 Rule 3.1202(b) ......................................................................................................................... 4, 5 Rule 3.1204(a)(1) ........................................................................................................................ 4 20 Rule 3.1206 ................................................................................................................................. 4 Rule 3.1300(b) ............................................................................................................................. 9 21 22 23 24 25 26 27 28 -3- PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT, AND MOTION THEREON 1 I. APPLICATION 2 Plaintiffs Gary R. Presley-Nelson, and Beverly Presley-Nelson 1 (collectively herein 3 “plaintiffs’) are applying ex parte on March 22, 2021 at 9:30 a.m. in Department 504 of the above 4 captioned court located at 400 McAllister Street, San Francisco, California 94102 for an order 5 shortening time to file, serve, and hear their motion for leave to file a third amended complaint to add 6 two new causes of action: a third cause of action for fraudulent concealment, and fourth cause of 7 action for negligent misrepresentation, which relate back to the ultimate facts alleged in their original 8 March 15, 2017 complaint. Plaintiffs’ application is based on the following points and authorities, and 9 the good cause stated in the declaration of Steven W. Yuen. 10 Defendant David King-Stephens, M.D. (“defendant”) is represented by James M. Goodman, 11 Warren R. Webster, and Erik S. Faussner of Hassard Bonnington LLP, 275 Battery Street, 16th Floor, 12 San Francisco, California 94111, (415) 288-9800, and John L. Supple, Robert R. Deering, and 13 Madeleine Lough-Stevens of J Supple Law, A Professional Corporation, 990 5th Avenue, San Rafael, 14 California 94901-6105, (415) 366-5533. (Exhibit A at ¶ 8; as required by Cal. Rules of Court, rule 15 3.1202(a).) On March 18, 2021, plaintiffs’ counsel e-mailed defendant’s counsel notifying them 16 plaintiffs are appearing ex parte on March 22, 2021 at 9:30 a.m. in department 504 of this court to seek 17 an application for an order shortening time for leave to file, serve, and hear their motion for leave to 18 file a third amended complaint. (Exhibit A at ¶ 8; and Exhibit J.) Defendant requested more 19 information, and is opposing plaintiffs’ application. (Exhibit A at ¶ 8; as required by Cal. Rules of 20 Court, rule 3.1204(a)(1).) Plaintiffs are providing defendant’s requested information within this 21 application. On March 19, 2021, plaintiffs are electronically serving a copy of this ex parte application 22 upon defendant by e-mail. (Exhibit A at ¶ 9; as required by Cal. Rules of Court, rule 3.1206.) 23 Plaintiffs have not previously applied for an order to shorten time to file, serve, and to hear 24 their motion for leave to file a third amended complaint. (Exhibit A at ¶ 10; as required by Cal. Rules 25 of Court, rule 3.1202(b).) The good cause shown hereafter is that plaintiffs will suffer irreparable 26 27 1 Plaintiffs’ counsel hereafter refer to plaintiffs individually by their first names only for the sake of brevity and clarity, and intending no disrespect. (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 28 14 Cal.App.5th 841, 846, fn. 1.) -4- PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT, AND MOTION THEREON 1 harm, and immediate danger if the court denies plaintiffs’ application as they will lose their good 2 causes of action, denies them justice, and the policy of the law is that their case should be tried and 3 decided on the merits. (MacIsaac v. Pozzo (1945) 26 Cal.2d 809, 815-816; as required by Cal. Rules 4 of Court, rule 3.1202(b).) 5 II. CASE FACTS 6 Following are the case facts relevant to this application and motion. 7 A. Application For Order Shortening Time Case Facts 8 On March 15, 2017, plaintiffs filed their original complaint. (Exhibit G.) Plaintiffs alleged the 9 following ultimate facts: 10 1. Defendant was a licensed neurologist physician who provided medical care services to Gary (¶¶ 3 & 13); 11 2. Gary saw defendant for his neurological conditions (¶ 13); 3. Defendant ordered MRIs of Gary’s brain twice after the removal of a 12 large benign cholesteatoma from his left temporal lobe area (¶ 14); 4. Defendant knew of Gary’s medical history, including his prior surgery, 13 and diagnosis of epilepsy and seizures (¶ 14); 5. Gary’s experience of various concentration and memory problems, 14 dizziness, headaches, seizures, decreased libido, and depression were all reported to defendant (¶ 15); and 15 6. Though defendant “had ordered the second MRI, he failed to report evidence of a mass to plaintiff” (¶ 18). 16 17 After challenges to the original, and first amended complaint, the second amended complaint 18 became the operative complaint, which alleges the same ultimate facts pled in the original complaint. 19 (Exhibit H at ¶¶ 13-18.) The operative second amended complaint likewise alleged the ultimate fact 20 that defendant “had ordered the second MRI, he failed to report evidence of a mass to plaintiff.” 21 (Id., at ¶ 18). 22 The daily handling of plaintiffs’ case was prosecuted by Joshua G. Wong. (Exhibit A at ¶ 2.) 23 Mr. Wong drafted plaintiffs’ original complaint, and was also handling the challenges to the prior 24 versions of plaintiffs’ complaints. (Id., at ¶ 3.) Managing partner Steven W. Yuen prepared plaintiffs’ 25 second amended complaint by essentially deleting words that were required to be deleted after a 26 successful challenge to the prior complaint, leaving only a first cause of action for medical negligence, 27 and a second cause of action for loss of consortium. (Id., at ¶ 3.) When Mr. Yuen prepared the second 28 /// -5- PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT, AND MOTION THEREON 1 amended complaint, no depositions had yet occurred. (Ibid.) As the managing partner, Mr. Yuen 2 oversees between approximately 150 to 175 cases at any one time. (Exhibit A at ¶ 1.) 3 On November 29, 2019, plaintiffs dismissed former defendant Murali Ranjithan, M.D. 4 (Exhibit A at ¶ 4.) Trial was previously set in this matter for December 2, 2019, and December 14, 5 2020. (Id., at ¶ 5.) Mr. Wong prepared the trial pleadings for the prior trial calls; Mr. Yuen did not. 6 (Ibid.) Mr. Yuen also did not appear at the December 2, 2019 trial call as he was in trial in the matter 7 of Lian Tong v. Wu, et al. venued in San Francisco Superior Court. (Ibid.) At the December 14, 2020 8 trial call, the court continued trial to March 17, 2021. (Ibid.) 9 To prepare for the March 17, 2021 trial, Mr. Yuen began analyzing the trial pleadings Mr. 10 Wong had prepared beginning on March 3, 2021. (Exhibit A at ¶ 6.) In analyzing plaintiffs’ trial 11 pleadings, he noticed it had omitted information relating to Dr. Ranjithan, which was correct, as he was 12 no longer a defendant in this case, having previously been dismissed. (Ibid.) After completing his 13 review of plaintiffs’ trial pleadings, he then started analyzing all of the other case information, 14 including the deposition transcripts of the other now dismissed defendants in which plaintiffs’ claims 15 of negligence against them were no longer at issue. (Ibid.) During Mr. Yuen’s review of 16 Dr. Ranjithan, and Dr. Hightower’s deposition transcripts, he noticed similar testimony that they both 17 opined they saw a cyst on plaintiff Gary Presley-Nelson’s 2008 MRI. (Ibid.) He then analyzed 18 plaintiffs’ original complaint, and the operative second amended complaint to confirm if plaintiffs had 19 previously alleged an ultimate fact that defendant did not report this cyst to plaintiffs, and confirmed it 20 was alleged. (Ibid.) Thus, he began preparing page and line designations of both of these witnesses on 21 March 10, 2021 as required by Local Rule 6.3. (Ibid.) He also modified plaintiffs’ trial pleadings to 22 conform to the previously alleged ultimate fact to provide notice that plaintiffs would be moving to 23 amend their complaint to conform to proof. (Ibid.) 24 Plaintiffs filed and served their trial pleadings on March 17, 2021. (Exhibit A at ¶ 6.) After the 25 trial pleadings were served, Mr. Yuen realized that since trial was bifurcated such that defendant’s one- 26 year statute of limitations affirmative defense was tried first, plaintiffs may be unable to amend their 27 complaint to conform to proof. (Ibid.) 28 -6- PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT, AND MOTION THEREON 1 B. Motion For Leave to File, Serve, and Hear a Third Amended Complaint Case Facts 2 Defendant’s counsel appeared at the following depositions: (1) Gary’s radiologist Murali 3 Ranjithan, M.D., (2) defendant, (3) Gary, (4) Beverly, and (5) Dr. Ranjithan’s retained expert Daniel 4 Hightower, M.D. (Exhibits B at 14:19-23; C at 3:18-22; D at 2:16-22; E at 2:14-22; and F at 3:17-21.) 5 1. Murali Ranjithan, M.D.’s Deposition Testimony 6 On October 14, 2008, Gary underwent an MRI of his brain. (Exhibit B at Exhibit 2.) Former 7 defendant Murali Ranjithan, M.D. interpreted Gary’s MRIs, and dictated a report. (Exhibit B at 93:2- 8 4, 97:1-10, 97:24-98:2 & 98:12-13.) Dr. Ranjithan’s interpretation included transcribing a “CSF-filled 9 cavity in the left side of Gary’s brain. (Id., at 111:15-19 & Exhibit 2.) Although Dr. Ranjithan did not 10 use the term “benign cyst” in his report, the term “CSF-filled cavity” he described in his report is 11 comparable to being described as a “benign cyst.” (Exhibit B at 128:16-129:7.) Dr. Ranjithan 12 understood the term “benign cyst,” as “what it looks like on a scan” would typically “be a mass or 13 what we call a lesion that has certain characteristics on the MRI. Typically it doesn’t show 14 enhancement, and usually it’s bright on T2-weighted sequence.” (Id., at 145:17-146:5.) Dr. Ranjithan 15 further testified contrast was injected into Gary to enhance the MRI images. (Id., at 184:11-14.) Thus, 16 Dr. Ranjithan described the “structure” he saw, and “measured at 5.0 by 4.7 centimeters” did “not 17 demonstrate contrast enhancement.” (Id., at 184:14-16.) Typically, contrast is circulated through a 18 person’s blood vessels and shows up on the images, but “if it’s a cyst, you typically would not expect it 19 to enhance.” (Id., at 184:21-185:5.) Thus, Dr. Ranjithan did not see contrast in that “5.0 by 4.7” 20 structure. (Id., at 185:6-8.) The absence of contrast indicated to Dr. Ranjithan that a “benign or 21 nonaggressive process” “that’s not an infection or malignant tumor” was present in Gary’s brain. (Id., 22 at 185:9-15.) 23 2. Defendant’s Deposition Testimony 24 Defendant did not review the actual MRI images like Dr. Ranjithan did. (Exhibit C at 28:6-11.) 25 When he saw Gary on October 27, 2008, 13 days after his October 14, 2008 MRI, he does not recall 26 the conversation or words he may have told Gary regarding his MRI scan results. (Exhibit D at 41:9- 27 11, 41:17-23 & 42:7-10; and Exhibit B at Exhibit 2.) He likewise does not recall Beverly say anything 28 in response to telling Gary his MRI results. (Exhibit D at 42:11-13.) After refreshing his recollection -7- PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT, AND MOTION THEREON 1 with his October 27, 2008 medical records, defendant testified they talked about “the result of the MRI 2 scan,” but he does not recall the conversation or words he used. (Id., at 41:17-23 & 41:24-52:6.) 3 3. Plaintiffs’ Deposition Testimony 4 Gary saw defendant on October 27, 2008, 13 days after his October 14, 2008 MRI. (Exhibit D 5 at 153:5-8; and Exhibit B at Exhibit 2.) Gary testified his wife probably was with him. (Exhibit D at 6 153:9-10.) Defendant told him “You’ll never need it [an MRI] again.” (Id., at 153:12-20.) In 7 particular, defendant gold Gary “It will never grow back.” (Id., at 153:21-154:2.) Gary responded 8 “Hallelujah.” (Ibid.) Defendant never ordered or prescribed another MRI for Gary again. (Id., at 9 154:4-10.) 10 Beverly testified Gary told her the results of his 2008 MRI “was fine.” (Exhibit E at 85:15-21 11 & 86:3-7.) Beverly further recalls defendant “saying that things were fine, to just keep working on the 12 symptoms and the triggers. (Id., at 86:15-20.) 13 4. Expert Radiologist Daniel Hightower, M.D.’s Deposition Testimony 14 Dr. Murali retained Dr. Hightower as his retained radiologist expert, who testified on all of the 15 opinions he formed and intend to testify to at trial. (Exhibit F at 7:24-8:3.) Dr. Hightower opined Dr. 16 Ranjithan met the standard of care for interpretation of MIR of the brain in 2008.” (Id., at 8:15-17.) 17 This opinion was based on his “35 years or more in diagnostic radiology, [his] experience, [his] current 18 interpretation of MRI’s of the brain ...” (Id., at 8:18-24.) He further opined Dr. Ranjithan’s “report 19 met all the criteria that are necessary to communicate his findings and his interpretation.” (Id., at 9:3- 20 9.) 21 Dr. Hightower also reviewed the MRI images thoroughly and reviewed Dr. Ranjithan’s report. 22 (Exhibit F at 8:25-26:3.) After looking at Gary’s MRI brain images, Dr. Hightower opined he saw that 23 “[t]he cyst was bright on the T2 image and dark on T1 image, thereby supporting a finding of a CSF- 24 filled cavity.” (Id., at 14:4-24, emphasis added.) He provided the bases for this opinion. (Id., at 25 14:25-15:7.) When asked what did he “see in the T2 image that supports [his] use of the words ‘the 26 cyst’?” he responded “the fluid is bright, the same intensity of brightness as cerebrospinal fluid, which 27 we see in the ventirlces and the CSF spaces around the brain. [¶] So it has – it was rounded in 28 shape.” (Id., at 15:8-16, emphasis added.) Notably, “It had the appearance of a cyst. That’s a -8- PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT, AND MOTION THEREON 1 common area for cysts to occur, subarachnoid cyst. So many times the word ‘cyst’ is used 2 interchangeably with a CSF fluid collection.” (Id., at 15:16-20, emphasis added.) 3 Also important is Dr. Hightower’s testimony on the medical profession’s use of terminology 4 when he opined “the fluid collection that we see was rounded and has the appearance of a cystic fluid 5 collection, so the words are used interchangeably many times. You can say a cyst-like, a cystic 6 fluid collection, a fluid collection, or the cyst. They would communicate the same thing.” (Exhibit 7 F at 16:8-18.) 8 5. Plaintiffs First Received Dr. Ranjithan’s Report on October 31, 2018 9 In opposition to defendant’s first dispositive motion, plaintiffs notified him and his counsel on 10 November 21, 2018 that plaintiffs’ counsel first requested Gary’s medical records on June 6, 2016. 11 (Exhibit I at ¶ 3.) On October 10, 2016, plaintiffs’ counsel had still not received any records in 12 response to their request. (Id., at ¶ 4.) It was not until October 31, 2016 that plaintiffs’ counsel first 13 received Gary’s medical records, including the 2008 MRI report interpreted by Dr. Ranjithan. (Id., at 14 ¶ 8.) 15 III. MEMORANDUM OF POINTS AND AUTHORITIES 16 A. The Court has Authority to Grant Defendants’ Application to Shorten Time 17 The Court is authorized to shorten time to notice motions, and to hear motions. (Civ. Proc. 18 Code § 1005(b) [“[t]he court, or a judge thereof, may prescribe a shorter time”]). “The court ... on 19 application for an order shortening time supported by a declaration showing good cause, may prescribe 20 shorter times for the filing and service of papers than the times specified in Code of Civil Procedure 21 section 1005.” (Cal. Rules of Court, rule 3.1300(b).) “[T]he trial court can, pursuant to the provisions 22 of section 1005, shorten the time prescribed by section 594, it can reduce the period of time from five 23 days to four days, or to one hour.” (Cahill v. Verdier (1921) 54 Cal.App. 465, 467, emphasis added.) 24 B. Good Cause Exists for the Court to Grant Defendants’ Application to Shorten Time 25 “The concept of good cause [is] not [] enshrined in legal formalism; it calls for a factual 26 exposition of a reasonable ground for the sought order. The good cause may be equated to a good 27 reason for a party’s failure to perform that specific requirement from which he seeks to be excused.” 28 (Waters v. Superior Court (Hughes Tool Co.) (1962) 58 Cal.2d 885, 893.) -9- PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT, AND MOTION THEREON 1 Good cause exists for the court to shorten time as plaintiffs’ counsel had not reviewed the 2 deposition transcripts of former defendant Murali Ranjithan, M.D. and his disclosed expert radiologist 3 Daniel Hightower, M.D. until March 10, 2021 as there appeared to be no need to due to Dr. Ranjithan 4 being previously dismissed on November 22, 2019. Thus, plaintiffs’ counsel’s preparation of the trial 5 pleadings previously prepared in this case did not contain their information due to the dismissal. Only 6 after plaintiffs’ managing trial partner began reviewing all information, including Drs. Ranjithan and 7 Hightower’s deposition transcripts on March 10, 2021 did he realize and confirm a fraud or 8 misrepresentation cause of action existed for plaintiffs. (Exhibit A at ¶ 6.) 9 Granting plaintiffs’ application to shorten time to hear their motion for leave to amend, and 10 then granting their motion preserves their timely pled ultimate facts, and two new causes of action for 11 trial, and their right to trial thereon. (See Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 636, fn. 6 [“a 12 physician, like any other fiduciary, is liable for his fraudulent conduct. We think that the trial court 13 properly concluded here that the longer limitations period of Code of Civil Procedure section 338, 14 subdivision 4 was applicable and that the question was for the jury as to each cause of action” and 15 “The 1975 amendments to Code of Civil Procedure section 340.5, which narrowly define professional 16 negligence, indicate that the Legislature attempted to curb fraud by health care provided by another 17 route”]; see also Brown v. Bleiberg (1982) 32 Cal.3d 426, 431, 437 & fn. 1 [the MICRA statute of 18 limitations applied to the plaintiff’s professional negligence theory, but not to the plaintiff’s battery 19 and breach-of-warranty theories].) 20 C. Leave to Amend is Liberally Granted 21 “The trial court has discretion to allow an amendment to any pleading in furtherance of justice 22 at any time before or after the commencement of trial.” (Weingarten v. Block (1980) 102 23 Cal.App.3d 129, 134, emphasis added, citing Civ. Proc. Code §§ 473 [“The court may likewise, in its 24 discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to 25 any pleading”] & 576 [“Any judge, at any time before or after commencement of trial, in the 26 furtherance of justice, and upon such terms as may be proper, may allow the amendment of any 27 pleading ...”].) “The issue of leave to amend is always open on appeal, even if not raised by the 28 /// - 10 - PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT, AND MOTION THEREON 1 plaintiff.” (City of Stockton v. Superior Court (Civic Partners Stockton, LLC) (2007) 42 Cal.4th 730, 2 746.) 3 “Liberality in permitting amendments is the rule.” (Weingarten, 102 Cal.App.3d at 134.) This 4 is because “there is a strong policy in favor of liberal allowance of amendments.” (Mesler v. Bragg 5 Mgmt. Co. (1985) 39 Cal.3d 290, 296.) Our Supreme Court explained the reason behind our liberal 6 policy as follows: “If plaintiff has a good cause of action, which by accident or mistake he has failed 7 to set out in his complaint, the court, on motion for judgment on the pleadings, should, on his 8 application so to do, permit him to amend.’ ... The granting of the motion without leave to amend 9 would in many cases be an absolute denial of justice, and is directly opposed to the policy of the law 10 that cases should be tried and decided on the merits.” (MacIsaac, supra, 26 Cal.2d at 815-816.) 11 Should a defendant desire to challenge a proposed complaint as futile, this does not affect the liberality 12 of allowing amendments. Instead, the preferable practice would be to permit the amendment and allow 13 the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other 14 appropriate proceedings.” (Kittredge Sports Co. v. Superior Court (Marker, U.S.A.) 213 Cal.App.3d 15 1045, 1048.) 16 D. Defendant Is Not Surprised Nor Prejudiced By the Amendment 17 “[I]t is a rare case in which ‘a court will be justified in refusing a party leave to amend his 18 pleadings so that he may properly present his case.’” (Dunzweiler v. Superior Court (Houff) (1968) 19 267 Cal.App.2d 569, 576-577.) “If the motion to amend is timely made and the granting of the motion 20 will not prejudice the opposing party, it is error to refuse permission to amend and where the 21 refusal also results in a party being deprived of the right to assert a meritorious cause of action or a 22 meritorious defense, it is not only error but an abuse of discretion.” (Id., at 577, emphasis added.) 23 Defendant is not surprised and suffers no prejudice as he conducted discovery on this ultimate 24 fact by receiving former defendant radiologist Murali Ranjithan, M.D.’s report of this cyst. 25 Defendants also appeared at Dr. Ranjithan, and his retained expert Daniel Hightower, M.D.’s 26 depositions, who both testified they saw the cyst on Gary’s MRIs. Of note is Dr. Hightower’s expert 27 opinion that for medical professionals, the words “cyst-like, a cystic fluid collection, a fluid collection, 28 /// - 11 - PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT, AND MOTION THEREON 1 or the cyst” “are used interchangeably many times” as they “communicate the same thing.” (Exhibit F 2 at 16:8-18.) 3 Defendants also deposed plaintiffs for two full days each. At plaintiffs’ depositions, defendant 4 confirmed plaintiffs never received a copy of Dr. Ranjithan’s report of the cyst from defendant, and 5 defendant never notified them of the cyst. Should defendant want to depose plaintiffs again on these 6 two new causes of action, they are immediately available subject to adequate notice. 7 Further, defendant was notified during motion practice that the uncontroverted evidence shows 8 defendants’ counsel obtained Dr. Ranjithan’s report of the cyst for the first time on October 31, 2016. 9 Finally, at defendant’s own deposition, he confirmed he never provided Dr. Ranjithan’s report to 10 plaintiffs, and never notified them of the cyst. 11 Thus, defendant is not surprised nor prejudiced as he has conducted discovery on this timely 12 pled ultimate fact, which supports plaintiffs’ motion for leave to amend to add two new causes of 13 action for fraudulent concealment, and negligent representation. 14 E. Plaintiffs’ Proposed Third Amended Complaint Relates Back to Their March 15, 2017 Complaint 15 16 “The relation-back doctrine deems a later-filed pleading to have been filed at the time of an 17 earlier complaint which met the applicable limitations period, thus avoiding the bar.” (Quiroz v. 18 Seventh Ave. Cntr. (2006) 140 Cal.App.4th 1256, 1278.) “[T]he relation-back doctrine requires that 19 the amended complaint must (1) rest on the same general set of facts, (2) involve the same injury, and 20 (3) refer to the same instrumentality, as the original one.” (Nogart v. The Upjohn Co. (1999) 21 21 Cal.4th 383, 408-409, italics in original.) “Cases applying this relation back rule have made it clear 22 that ‘it is the sameness of the facts rather than the rights or obligations arising from those facts that is 23 determinative.” (Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1199-1200.) “It is 24 essential to distinguish between a new cause of action arising out of ‘the same general set of facts’ and 25 a new cause arising out of different facts.” (Wiener v. Superior Court (Scholer) (1976) 58 Cal.App.3d 26 525, 529.) 27 /// 28 /// - 12 - PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT, AND MOTION THEREON 1 “[A] complaint is sufficient if it contains ‘[a] statement of the facts constituting the cause of 2 action, in ordinary and concise language.’” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) 3 “Thus, the complaint ordinarily is sufficient if it alleges ultimate rather than evidentiary facts.” (Ibid.) 4 Thus, “the courts have permitted allegations which obviously included conclusions of law and have 5 termed them ‘ultimate facts’ or ‘conclusions of fact.’” (Burks v. Poppy Constr. Co. (1962) 57 Cal.2d 6 463, 473.) Moreover, though specificity is needed to plead fraud, “[l]ess specificity is required when 7 ‘it appears from the nature of the allegations that the defendant must necessarily possess full 8 information concerning the facts of the controversy,’ (Bradley v. Hartford Acc. & Indem. Co. (1973) 9 30 Cal.App.3d 818, 825, 106 Cal.Rptr. 718); ‘[e]ven under the strict rules of common law pleading, 10 one of the canons was that less particularity is required when the facts lie more in the knowledge of the 11 opposite party ...” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 12 197, 217, superseded by statute on other grounds as stated in Californians for Disab. Rights v. 13 Mervyn’s (2006) 39 Cal.4th 223, 227-228; see also Burks, 57 Cal.2d at 474 [“less particularity is 14 required where the defendant may be assumed to possess knowledge of the facts at least equal, if not 15 superior, to that possessed by the plaintiff”].) 16 Plaintiffs’ original and operative complaint allege the ultimate fact that a doctor-patient 17 relationship existed between defendant and Gary. (Exhibit G at ¶¶ 3 & 13.) Thus, under the law, a 18 fiduciary relationship existed between them such that defendant owed Gary a fiduciary duty. (Stafford 19 v. Schultz (1954) 42 Cal.2d 767, 777 [“‘Perhaps the most significant feature in the present case which 20 makes inapplicable the doctrine of constructive notice is the existence of the relationship between the 21 parties of physician and patient, which in contemplation of law is a fiduciary one.... As fiduciaries it 22 was the duty of defendants to make a full and fair disclosure to plaintiff of all facts which materially 23 affected his rights and interests. [I]t was said that it was recognized in cases involving a fiduciary 24 relationship that ‘facts which would ordinarily require investigation may not excite suspicion, and that 25 the same degree of diligence is not required’ of the injured person.... [T]he confidence growing out of 26 the relationship of doctor and patient imposed upon the physician the duty of refraining from 27 fraudulent concealment, that is, the duty of disclosure when he had knowledge of the facts. Where 28 /// - 13 - PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT, AND MOTION THEREON 1 there is a duty to disclose, the disclosure must be full and complete, and any material concealment or 2 misrepresentation will amount to fraud sufficient to entitle the party injured thereby to an action....”].) 3 Plaintiffs further alleges that “[t]hough Dr. King-Stephens had ordered the second MRI, he 4 failed to report evidence of a mass to plaintiff.” (Second Amended Complaint at ¶ 18, emphasis 5 added.) Thus, “a fraudulent concealment by the defendant of the facts upon which a legal common- 6 law action is based, under the proper circumstances, tolls the statute until discovery, and that upon 7 discovery the statute applicable to that particular action (in this case section 340, subd. 3, of Code Civ. 8 Proc) then commences to run.” (Stafford, supra, 42 Cal.2d at 777.) Thus, plaintiffs’ proposed two 9 new causes of action relate back, and are timely. 10 IV. CONCLUSION 11 For all of the reasons stated herein, defendants respectfully request the court to grant their ex 12 parte application to hear their motion for leave to file and serve a third amended complaint, and to hear 13 it on shortened time on a date and time mutually convenient for the court and the parties. 14 As all of the authorities on plaintiffs’ motion for leave to file, and serve a third amended 15 complaint are also contained within this application, plaintiffs deem this application as their motion. 16 Finally, plaintiffs waive their reply. 17 DATED: March 19, 2021 HEATH & YUEN, APC 18 19 By 20 Steven W. Yuen Attorneys for Plaintiffs 21 GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON 22 23 24 25 26 27 28 - 14 - PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT, AND MOTION THEREON 1 CERTIFICATE OF SERVICE 2 I, Wendy H. Yang, declare: 3 At the time of service I was over 18 years of age, and not a party to this action. My business 4 mailing address is 268 Bush Street, #3006, San Francisco, California 94104. 5 On March 19, 2021, I served the following document(s) on the parties in the within action: 6 PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION FOR 7 LEAVE TO FILE THIRD AMENDED COMPLAINT, AND MOTION THEREON 8 PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY NELSON’S EXHIBIT INDEX, AND EXHIBITS FOR EX PARTE APPLICATION FOR ORDER 9 SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT, AND MOTION THEREON 10 BY E-MAIL: Based on the parties’ agreement to accept service by e-mail, the court’s order 11 and/or Local Rules ordering mandatory e-filing of all documents for this type of case, Civil Procedure Code section 1010.6, and California Rules of Court, Rule 2.251(c)(3), I attached 12 X the document(s) to an e-mail message, and invoked the send command to transmit the e-mail message to the person(s) at the e-mail address(es) listed below. I did not receive within a 13 reasonable time after the transmission any electronic message or other indication that the transmission was unsuccessful. 14 James M. Goodman Attorneys For Defendant 15 Warren R. Webster DAVID KING-STEPHENS, M.D. Erik S. Faussner 16 HASSARD BONNINGTON LLP 275 Battery Street, 16th Floor 17 San Francisco, CA 94111 Phone (415) 288-9800 | Fax (415) 288-9801 18 jmg@hassard.com wrw@hassard.com 19 esf@hassard.com 20 John L. Supple Attorneys For Defendant Robert R. Deering DAVID KING-STEPHENS, M.D. 21 Madeleine Lough-Stevens J SUPPLE LAW, A PROFESSIONAL 22 CORPORATION 990 5th Avenue 23 San Rafael, CA 94901-6105 Phone (415) 366-5533 | Fax (415) 480-6301 24 jsupple@jsupplelaw.com rdeering@jsupplelaw.com 25 mlough-stevens@jsupplelaw.com 26 /// 27 /// 28 /// - 15 - PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT, AND MOTION THEREON 1 I declare under penalty of perjury under the laws of the State of California the foregoing is a 2 true and correct statement, and this certificate was executed on March 19, 2021. 3 By 4 Wendy H. Yang 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 16 - PLAINTIFFS GARY R. PRESLEY-NELSON, AND BEVERLY PRESLEY-NELSON’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT, AND MOTION THEREON