In re Infusion Pump Cases CA4/3

Filed 8/20/14 In re Infusion Pump Cases CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

G048748 IN RE INFUSION PUMP CASES. (Super. Ct. No. JCCP 4615)

OPINION

Appeal from a judgment of the Superior Court of Orange County, Gail Andler, Judge. Affirmed. Hodes Milman Liebeck, Jeffrey A. Milman and Jason M. Caruso for Plaintiff and Appellant Susan Ziots. Sedgwick, Ralph A. Campillo, Hall R. Martson and Christopher P. Norton for Respondents Stryker Corporation and Stryker Sales Corporation.

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In this coordinated proceeding, plaintiff Susan Ziots appeals from an order denying her motion to amend her individual complaint by identifying two Doe defendants. Ziots originally brought suit against I-Flow, LLC (I-Flow), on several tort claims after suffering an injury from a pain pump used to inject an anesthetic to her shoulder joint following an orthopedic surgery. More than three years after filing her complaint, Ziots learned that the true manufacturer of the pain pump was not the named defendant, but rather respondents, Stryker Corporation and Stryker Sales Corporation (collectively Stryker). After this discovery, Ziots dismissed all claims brought against I-Flow and sought leave to amend her complaint to identify Stryker as two of the fictitious defendants named in the complaint, Does 1 and 2. The court denied the motion to amend because the identification of Stryker was outside the three-year limitation for service on 1 parties. (See Code Civ. Proc., §§ 583.210, subd. (a), 583.250, subd. (a).) Ziots appealed from a “Judgment of dismissal,” and identified the hearing at which leave to amend was denied, though no dismissal was ever entered. Because the court’s denial of leave to amend eliminates all issues between Ziots and Stryker, the order was equivalent to a final, appealable judgment, and we have jurisdiction to consider the merits of the appeal. And despite Ziots’s identification of a nonexistent dismissal, her notice of appeal, liberally construed, is adequate. But Ziots’s appeal is procedurally deficient for another reason: the record Ziots designated is inadequate to address her contention that her failure to identify Stryker for three years was because of a partial stay of discovery. The record does not contain the partial stay order. To the extent the scope of the stay order is described indirectly in the record, it suggests the partial stay was no obstacle to Ziots discovering the true manufacturer. Accordingly, we affirm.