Velazquez v. Superior Court

Filed 3/17/06 Velazquez v. Superior Court CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Proceedings in mandate after superior court issued order limiting discovery. Linda B. Quinn, Judge. Petition granted.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2004 Maria Velazquez filed a complaint (an unlimited civil action) against Emergency Care Dynamics, Ltd., Jack J. Springer, M.D., and other defendants for professional negligence, unfair business practices, unfair competition, intentional infliction of emotional distress, and declaratory relief related to the treatment Velazquez received in the emergency room of Sharp Coronado Hospital. Velazquez later dismissed all causes of action without prejudice as to Sharp Coronado Hospital and Healthcare Center ("Sharp") except for her declaratory relief cause of action, and dismissed the entire complaint with prejudice as to Dr. Springer and Emergency Care Dynamics. After the court sustained Sharp's demurrer to Velazquez's declaratory relief cause of action without leave to amend, Sharp served Velazquez with a breach of contract cross-complaint for failure to pay a $672 medical bill. Velazquez answered and cross-complained.

On December 30, 2005, the court granted Velazquez leave to file a first amended cross-complaint seeking injunctive relief, declaratory relief, disgorgement of profits and attorney fees for unfair competition, unfair business practices and improper debt collection.^[1] Velazquez alleged, among other things, she was uninsured when she visited the emergency room and was charged inflated rates for services ("ticket" or "list" prices) instead of the reduced rates paid by insurance companies, Medicare, and other insured or reimbursement programs. On December 30 the court also set dates in the case including expert exchanges, cutoffs, and a May 12, 2006 trial.

On February 16, 2006, Sharp appeared ex parte requesting an "order shortening time to hear a motion for protective order, or alternatively, an order submitting this matter into economic litigation discovery limitations pursuant to [Code of Civil Procedure^[2]] section 94[, subdivision] (a)."^[3] In support of its ex parte application, Sharp complained that Velazquez had served 10 sets of written discovery (with subparts, a total of 116 discovery requests) seeking, among other information, every contract Sharp had with insurance companies and Medicare.

Velazquez's attorney did not appear for the February 16 ex parte hearing. Sharp's counsel represented to the court that (1) he sent a letter by facsimile transmission on February 14 to Velazquez's attorney informing him of the ex parte hearing on February 16, (2) he served the ex parte application by regular mail on February 14 on Velazquez's attorney, and (3) Velazquez's attorney should be receiving the ex parte papers on February 16 (or possibly the day before).^[4] The court denied the order shortening time to hear a motion for protective order but imposed economic litigation limits under section 94, subdivision (a) at the ex parte hearing. Velazquez followed with this petition asserting that the court failed to comply with statutory procedures that require a motion to reclassify a case from unlimited to limited. (§403.040.) She also contends she did not receive proper notice and understood the ex parte application to be a request for a scheduling order, not an application for immediate relief. Sharp filed a response at out request, but omitted any discussion of the requirement of a motion to convert a general jurisdiction case into a limited civil case. We stayed the proceedings and issued Palma notice. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)

DISCUSSION

The order at issue on this petition is in purpose and effect a reclassification order. Sharp plainly intended to convert the action to a limited jurisdiction case, pointing out in its ex parte papers that, at the time Velazquez obtained leave to file her first amended cross-complaint, Sharp's attorney expressly warned that his client would probably need to have discovery limited or "this matter [deemed] within the Court's limited jurisdiction as the amount in controversy is less than $800.00." (Italics added.) At Sharp's urging, the court issued an order restricting Velazquez to 35 written discovery requests under section 94, subdivision (a), the statute that controls discovery in limited jurisdiction cases.

The court may grant reclassification either on a party's motion or the court's own motion. (§403.040, subd. (a).) To assure that reclassification to limited civil case status is not used as a vehicle to clear crowded court calendars or deprive plaintiffs of the greater damages available in unlimited actions, the court must take caution to provide adequate procedural safeguards. (Walker v. Superior Court (1991) 53 Cal.3d 257, 270-271.) A party moving for reclassification should file a noticed motion. (Stern v. Superior Court (2003) 105 Cal.App.4th 223, 230; Andre v. Superior Court (1991) 2 Cal.App.4th 11, 18-19.) A court that is contemplating reclassification on its own motion must also provide notice. (Stern v. Superior Court, supra, 105 Cal.App.4th 223, 230; Kent v. Superior Court (1992) 2 Cal.App.4th 1392, 1394.) Whether the motion for reclassification is by party motion or sua sponte, the court must afford the parties sufficient opportunity to contest reclassification and must create an adequate record for appellate review. (Walker v. Superior Court, supra, 53 Cal.3d at pp. 271-272; Stern v. Superior Court, supra, 105 Cal.App.4th at pp. 230-231; Kent v. Superior Court, supra, 2 Cal.App.4th at p. 1394; Andre v. Superior Court, supra, 2 Cal.App.4th at pp. 18-19.)

Sharp did not file a noticed motion, Velazquez had no meaningful opportunity to present evidence to contest the limited jurisdiction discovery restriction, and there is no record before us sufficient to review Sharp's claim that, notwithstanding the existence of a pending cross-complaint for unfair competition and unfair business practices, the undisputed amount in controversy is less than $800. Under these circumstances, we conclude the court improperly granted limited civil case discovery restrictions under section 94, subdivision (a) by ex parte application. We also reject Sharp's argument that Velazquez's motion for reconsideration defeats the need for writ relief: with the hearing on the motion not calendared until May 5, 2006, only one week before trial, reconsideration provides cold comfort as an available remedy at law.

Because the relevant facts are not in dispute, the law is well-settled and the matter is urgent requiring acceleration, we conclude a peremptory writ in the first instance is proper. (§ 1088; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another ground in Hassan v. Mercy American River Hosp. (2003) 31 Cal.4th 709, 724, fn. 4; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) Accordingly, we deny Sharp's request for argument.

DISPOSITION

Let a peremptory writ of mandate issue directing the superior court to vacate its February 16, 2006 order. The stay issued by this court on March 9, 2006, is vacated. Velazquez is entitled to costs in the writ proceeding. This opinion is made final immediately as to this court. (Cal. Rules of Court, rule 24(b)(3).)

AARON, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.

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^[1] Velasquez named as cross-defendants Sharp, Sharp Healthcare Foundation and R. M. Galicia, Inc.

^[2] Unless otherwise indicated, all statutory references are to the Code of Civil Procedure.

^[3] Sharp also requested that the court calendar a date for hearing a motion Sharp intended to file to disqualify Velazquez's attorney (who is also Velazquez's husband).

^[4] Velazquez has out-of town counsel. Her attorney's office is in Glendale.