Case Number: BC572917??? Hearing Date: July 18, 2016??? Dept: 37
CASE NAME: Sarkar, et al. v. Beverly Community Hospital, et al.
CASE NO.: BC572917
HEARING DATE: 7/18/16
DEPARTMENT: 37
CALENDAR NO.: 10
TRIAL DATE: 9/27/16
NOTICE: OK
SUBJECT: Motion to File Cross-Complaint
MOVING PARTY: Defendants Beverly Hospitalist Group, Inc.; Dr. Mohammad Chaudhry; and Dr. Khalid Nur
OPPOSING PARTY: Plaintiffs Dr. Soumitra Sarkar; Dr. Jagan Bansal; Dr. Po-Zen Chen; Dr. Nagasumudra Ashok; Dr. Martin R. Zapata; Dr. Mohan Rao; and Dr. Vijay Dhawan
COURT?S TENTATIVE RULING
The motion is denied. Counsel for Plaintiffs to give notice.
STATEMENT OF THE CASE
The factual background to this case is set forth in the court?s February 8, 2016 ruling on the demurrer and motion to strike. The action arises out of a hospital?s decision to change the manner in which it provides care to patients in its emergency department. Until 2014, patients who presented to the emergency department at Beverly Community Hospital (Hospital) were treated by physicians participating in the Hospital?s call panel. In 2014, the Hospital decided to change the governance of its emergency department, and appointed Beverly Hospitalist Group, Inc. (Beverly Hospitalist) the exclusive contractor in charge of the call panel.1 The result was that physicians who previously had elected to participate on the call panel were no longer guaranteed access to new patients.
DISCUSSION
Beverly Hospitalist and Drs. Chaudhry and Nur now move to file a cross-complaint against three plaintiffs?Drs. Sarkar, Chen, and Zapata. The gist of the allegations in the proposed Cross-Complaint is that these three physicians caused the Hospital to prematurely terminate the 2014 contract with Beverly Hospitalist. Cross-Complainants allege that in July 2014?in connection with Beverly Hospitalist?s contract to take charge of the Hospital?s emergency department?Beverly Hospitalist entered into consultant agreements with Drs. Sarkar, Chen, and Zapata. Pursuant to the consultant agreements, the physicians were obligated to provide certain services in exchange for payment. The physicians allegedly breached the agreements by, among other things, refusing to appear at their designated shifts, failing to perform the
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1 Drs. Mohammad Chaudhry and Khalid Nur are the principals of Beverly Hospitalist.
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enumerated services within the agreements, and failing to provide the requisite manner and notice of termination of the agreements. The physicians also allegedly made certain defamatory statements, including that Beverly Hospitalist entered into a ?secret deal? with the Hospital and its chief of staff, Dr. Gautum Ganguly; was ?self-referring patients back to their own group?; and created a monopoly in the nursing homes and bullied themselves into directorships and other paid positions at surrounding facilities.
The proposed Cross-Complainant alleges that on March 30, 2016, the Hospital prematurely terminated the contract with Beverly Hospitalist, and awarded the contract to a third party on May 27, 2016. Cross-Complainants attribute the Hospital?s decision to low performance figures for the first quarter report?i.e., July to September 2014?when Drs. Sarkar, Chen, and Zapata breached their consulting agreements. Based on these allegations, Cross-Complainants propose to assert the following six causes of action: 1) breach of contract; 2) breach of the implied covenant of good faith and fair dealing; 3) intentional interference with contract; 4-5) intentional and negligent interference with prospective economic advantage; and 6) defamation.
Cross-complaints fall into two categories?permissive and compulsory. Compulsory cross-complaints consist of those causes of action, existing at the time of service of the answer, that the defendant must bring against the plaintiff or else forfeit the right to bring them in any other action. (Code Civ. Proc., ? 426.30, subd. (a).) As the parties note in their respective papers, Cross-Complainants did not ?have? the proposed causes of action against Drs. Sarkar, Chen, and Zapata at the time they served their answer to the First Amended Complaint on February 11, 2016. According to Cross-Complainants, the causes of action did not accrue until at least March 30, 2016, when the Hospital terminated the services contract with Beverly Hospitalist.2 Thus, Drs. Sarkar, Chen, and Zapata conclude that the cross-complaint is not compulsory but permissive. The court agrees.
Claims arising after service of the answer are permissive, not compulsory, even if the subject matter is related to the complaint. (Crocker Nat. Bank v. Emerald (1990) 221 Cal.App.3d 852, 864.) As a result, the proposed Cross-Complaint is governed by Code of Civil Procedure section 428.50, subdivision (c), which provides, ?A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of the action.? The decision to grant permission to file a permissive cross-complaint rests within the sound discretion of the trial court. (Orient Handel v. United States Fid. & Guar. Co. (1987) 192 Cal.App.3d 684, 701.)
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2 The court notes that Cross-Complainants contend the causes of action did not accrue until May 2016, when it discovered that the Hospital had a board meeting to evaluate Beverly Hospitalist?s performance during the first quarter of the services contract. Cross-Complainants maintain that it was not until May 2016 it learned of the harm resulting from the conduct of Drs. Sarkar, Chen, and Zapata.
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The Plaintiffs acknowledge that the proposed Cross-Complaint is permissive, and for the reasons set forth above, the court agrees. (Opposition, p. 1.) In the reply, the moving parties acknowledge that they may bring these claims in a new lawsuit. (Reply, p. 4.) While the policy of liberally allowing permissive cross-complaints could support a grant of the motion, there are countervailing considerations that lead the court to conclude that a denial is the more appropriate result. As pointed out by the Plaintiffs, there are four plaintiffs and four defendants who are not parties to the proposed Cross-Complaint. These parties would become involved in a dispute broader than that alleged in the operative complaint. In addition, the pleadings are currently settled after two rounds of demurrers, and the case is set for trial on September 27, 2016. Plaintiffs point out that if the proposed pleading were allowed in this action, they could invoke their right to file an anti-SLAPP motion and/ or demurrer (Opposition, p. 4, fn. 1), which would inevitably lead to a substantial delay in the proceedings. Since the moving parties would suffer no prejudice by proceeding by way of a separate lawsuit, the court concludes that a denial of the motion is warranted. Accordingly, the motion is denied.
CASE NAME: Sarkar, et al. v. Beverly Community Hospital, et al.
CASE NO.: BC572917
HEARING DATE: 7/18/16
DEPARTMENT: 37
CALENDAR NO.: 10
TRIAL DATE: 9/27/16
NOTICE: OK
SUBJECT: Motion To Be Relieved as Counsel
MOVING PARTY: Kevin S. Dicker of Leonard, Dicker & Schreiber LLP, counsel for Plaintiffs
OPPOSING PARTY: None
MOTION TO BE RELIEVED AS COUNSEL
DECLARATION: Counsel states that Plaintiffs have failed to maintain consistent communications or cooperate with counsel in preparing the case for trial, making it unreasonably difficult for counsel to continue the representation. Counsel also states that Plaintiffs have failed to pay for attorney fees and costs incurred in prosecuting this action.
MC-053 ORDER: None.
Next Scheduled
Hearing: 9/19/16 (Final Status Conference)
Trial Date: 9/27/16
PROOF OF SERVICE: Yes.
OBJECTIONS: None.
TENTATIVE RULING: GRANT the motion pending the filing of proof of service of the court?s order on counsel?s client.