Martinez v. Lucero CA2/3

Filed 4/2/15 Martinez v. Lucero CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

NOLVIA K. MARTINEZ, B250875

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC491928) v.

PETER LUCERO et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County, Teresa Beaudet, Judge. Affirmed. Law Offices of Charles O. Agege and Charles O. Agege for Plaintiff and Appellant. Berman Berman Berman Schneider & Lowary, Evan A. Berman and Howard Smith for Defendants and Respondents Peter A. Lucero and Walt Jay Medical Corporation. Horvitz & Levy, Lisa Perrochet, Katherine Perkins Ross; Law Offices of Jamie Skebba and Roy D. Goldstein for Defendant and Respondent Victor Navarro. _________________________

INTRODUCTION Plaintiff Nolvia Martinez appeals from the dismissal of her complaint against defendants Victor Navarro, Peter A. Lucero, M.D., and Walt Jay Medical Corporation, doing business as Integrative Industrial & Family Practice Medical Clinics because she failed to amend when given leave. The record shows that plaintiff presented an amended complaint 85 days after the time to amend had expired and a month after defendants had served their motions to dismiss, without requesting permission to file (Code Civ. Proc., § 473, subd. (a)(1))1 and without an explanation for her delay. Therefore, the trial court did not abuse its discretion in dismissing the action (§ 581, subd. (f)(2)). Accordingly, we affirm. FACTUAL AND PROCEDURAL BACKGROUND On September 10, 2012, plaintiff in propria persona, filed her judicial council form complaint. Plaintiff checked the box entitled “other,” to identify her cause of action, and typed in the word, “Malpractice.” Under “Other allegations,” plaintiff wrote, “Severe pain from Severe Pressure Applied to Torn Rotator Cuff, Cry spells, Sleep Disruption, Psyche, Falsifying Documents for Monetary gain, Pain and Suffering.” She prayed for $100,000 in damages. On the attached civil action cover sheets, plaintiff identified her action as medical and legal malpractice. Defendants demurred to the complaint for failure to allege any facts supporting a claim for medical malpractice. Plaintiff filed a first amended complaint on December 17, 2012. While the form complaint remained unchanged, plaintiff attached a two and a half page, double-spaced narrative that described the events on which she based her cause of action. The court scheduled a case management hearing with a notation that it was reserving a date for a hearing of all challenges to the first amended complaint. Defendants again demurred for failure to allege sufficient facts to state a cause of action for medical malpractice. Plaintiff filed no opposition.