Case Number: BC607569??? Hearing Date: October 20, 2016??? Dept: 92
IVETTE ROSALES, ET AL.,
Plaintiff(s),
vs.
NORTHEAST COMMUNITY CLINIC, ET AL.,
Defendant(s).
CASE NO: BC607569
[TENTATIVE] ORDER DENYING MOTION FOR AN ORDER PERMITTING APPEAL ON SETTLED STATEMENT1. Background Facts
Plaintiffs, Ivette Rosales and Donald Brown filed this action against Defendants, Northeast Community Clinic, David N. Steinberg, M.D., and Thomas Cachur, M.D. for medical malpractice arising out of care and treatment that allegedly led to the miscarriage of Plaintiffs? fetus.
On 5/19/16, the Court heard and granted Defendants? motion for judgment on the pleadings, finding that, under established California law, Plaintiffs cannot properly assert a claim for wrongful death arising out of the death of a fetus. The Court denied Plaintiffs? request to amend their complaint to state an individual claim for medical malpractice, finding that the claim would vary from the original complaint in a manner that does not ?relate back,? and would therefore be barred by the statute of limitations.
2. Motion for an Order Permitting Appeal on Settled Statement
At this time, Plaintiffs move for an order permitting her to set forth the oral proceedings of the 5/19/16 hearing via a settled statement in lieu of a court reporter?s transcript. Plaintiffs move per CRC 8.137, which provides, in pertinent part:
(1) An appellant intending to proceed under this rule must serve and file in superior court with its notice designating the record on appeal under rule 8.121 a motion to use a settled statement instead of a reporter’s transcript or both reporter’s and clerk’s transcripts.
(2) The motion must be supported by a showing that:
(A) A substantial cost saving will result and the statement can be settled without significantly burdening opposing parties or the court;
(B) The designated oral proceedings were not reported or cannot be transcribed; or
(C) The appellant is unable to pay for a reporter’s transcript and funds are not available from the Transcript Reimbursement Fund (see rule 8.130(c)). A party proceeding in forma pauperis is deemed unable to pay for a transcript.
(3) If the court denies the motion, the appellant must file a new notice designating the record on appeal under rule 8.121 within 10 days after the superior court clerk sends, or a party serves, the order of denial.
Defendants oppose the motion, correctly noting that review of a ruling on a motion for judgment on the pleadings is de novo, meaning the court of appeal reviews the parties? positions as a matter of law and does not give deference to the trial court?s ruling. Defendants also correctly note that it is not clear, from the moving papers, what Plaintiffs wish to present that was argued at the hearing but not included in the papers. Defendants therefore contend Plaintiffs failed to meet their burden to show that a settled statement is necessary and will not significantly burden the parties and/or the court.
The Court agrees with Defendants. It is not clear, from the moving papers, what Plaintiffs intend to present in a settled statement that is not already included in the parties? papers. Plaintiffs repeatedly state that there is a ?gap in the record,? and that they intend to present an argument that requires consideration of the oral proceedings. They fail, however, to articulate what the gap in the record is or what aspect of the oral proceedings needs to be preserved for the court of appeal.
The Court has reviewed the papers in connection with the motion for judgment on the pleadings, and finds that both parties briefed all material issues presented by way of the motion, such that the court of appeal will be able to rule based on the parties? original and appellate briefs.