Motion for Reconsideration; Motion to Vacate Dismissal
notice. Parties who intend to submit on this tentative must send an email to the court at [email protected] indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party's email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.
Facts Plaintiff, Neel Karia filed this action against Defendant, Memorial Care Long Beach Medical Center for medical malpractice and related claims. Plaintiff filed the complaint on 5/09/25. The complaint alleges, on page 14, that he sought care from Defendant on 3/01/24 but then sought care at another facility on 3/03/24 because Defendant had not fixed his issue.
2. 12/11/25 Hearing on Demurrer The Court heard Defendant's demurrer to the complaint on 12/11/25. The Court sustained the unopposed demurrer without leave to amend, ruling as follows: Defendant demurs to the complaint, contending it is barred by the one-year statute of limitations set forth in CCP §340.5. CCP §340.5 provides, "In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first."
As noted above, Plaintiff's complaint alleges he was treated by Defendant and discharged on 3/01/24. He alleges he discovered Defendant's negligence no later than 3/02/24, when he sought care from another facility for the same injury because Defendant had not fixed the injury. The complaint therefore shows, on its face, that it is barred by the statute of limitations. Additionally, Defendant correctly notes that Plaintiff fails to allege he served Defendant with a Notice of Intent to Sue, as required by CCP §364
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Any opposition to the demurrer was due on or before 11/26/25. Plaintiff has not filed timely opposition to the demurrer, and the Court will not consider late-filed opposition.
The complaint, on its face, shows that it is barred by the statute of limitations. The demurrer is therefore sustained. In light of the lack of opposition, leave to amend is denied. Defendant is ordered to prepare a proposed judgment of dismissal for processing.
3. Motion for Reconsideration Plaintiff moves for reconsideration per CCP §1008(b). A motion for reconsideration cannot be entertained once judgment is entered, and the limitation is jurisdictional. See APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4 th 176, 181. The Court entered judgment in this case on 12/15/25 and therefore lacks jurisdiction to rule on the motion for reconsideration.
4. Motion to Vacate Dismissal Plaintiff moves to vacate the dismissal that resulted from the sustaining of the demurrer without leave to amend. Plaintiff moves pursuant to CCP §473(b). §473(b) permits the Court, in its discretion, to vacate a dismissal entered as a result of a party's mistake or excusable neglect. In J.A.T. Entertainment, Inc. v. Reed (1998) 62 Cal.App.4 th 1485, 1492-1494, the Court held that the mandatory provision of §473(b) applicable to attorney neglect applies if a dismissal is entered as a result of the attorney's failure to oppose the dismissal motion.
While not directly on point, the Court is inclined to find §473(b) can be used as a vehicle to vacate a dismissal entered as a result of a self-represented party's excusable neglect. Plaintiff explains a variety of circumstances that caused him to file his opposition to the demurrer both untimely and in the wrong action. The Court is satisfied that the negligence described is excusable. The more difficult issue, however, is whether the negligence caused the dismissal to be entered. As discussed above, the dismissal was entered as a result of the complaint showing, on its face, that it was barred by the statute of limitations, as well as Plaintiff's failure to file the required 90-day notice.
Thus, unless Plaintiff can establish neither defect is fatal to the complaint, then the dismissal was not entered "as a result of" the failure to oppose the demurrer, but instead as a result of the fatal defects in the complaint itself. Plaintiff's argument in this regard is found at page 7 of his motion for reconsideration, which the Court has read and considered in connection with the motion to vacate dismissal. Plaintiff argues that (a) failure to file the 90-day notice is a curable error, (b) failure to file the 90-day notice should result in professional discipline for the attorney who fails to file the notice, not in dismissal of the action, and (c) the SOL was tolled and therefore the statute of limitations does not bar the case.
Plaintiff cites no authority for his first two contentions. CCP §364(a) provides, "No action based upon the health care provider's professional negligence may be commenced unless the defendant has been given at least 90 days' prior notice of intention to commence the action." The language of the statute is mandatory, and nothing in the statute suggests an attorney should be disciplined for failure to comply or the error can be cured. Plaintiff also fails to meaningfully brief his second contention.
He contends the statute of limitations is essentially indefinitely tolled because he has a subdural hematoma and is therefore disabled. Pursuant to Preferred Risk Mutual Ins. Co. v. Reiswig (1999) 21 Cal.4 th 208, 222, when a statute of limitations has specific tolling provisions, no other tolling provisions can be read into the statute. The medical malpractice statute of limitations, found in CCP §340.5, allows for tolling as a result of fraud, intentional concealment, the presence of nontherapeutic and nondiagnostic foreign bodies, or, in limited circumstances, where the plaintiff is a child under the age of eight.
Nothing in the statute contemplates tolling as a result of disability; indeed, many incidents of alleged medical malpractice result in temporary or permanent disability, and the Legislature certainly contemplated this reality when drafting the statute of limitations. The Court finds, therefore, that the dismissal did not result from Plaintiff's failure to oppose the demurrer, but instead from his failure to timely file his complaint in the first instance. The motion to vacate the dismissal is therefore also denied.
Defendant is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at [email protected] indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party's email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.
Case Number: 25LBCV02086 Hearing Date: May 19, 2026 Dept: S27 The Court continued the hearing on various discovery motions to 5/19/26 and ordered the parties to meet and confer and file a joint statement of items remaining in dispute. Defendant filed a status report on 5/04/26. The status report indicates the majority of the parties' issues have been resolved and the parties are working to resolve the remaining issues without the need for a hearing. If the parties submit on the tentative ruling, the motions will be taken off calendar as moot. If issues