Ayele v. Kaiser Foundation Health Plan

 

 

 

 

 

 

 

 

 

 

Filed 1/30/07  Ayele v. Kaiser Foundation Health Plan CA1/2

 

 

 

 

 

NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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

 

FIRST
APPELLATE DISTRICT

 

DIVISION
TWO

 

 

GINBINEH T. AYELE,             Plaintiff and Appellant, v. KAISER FOUNDATION HEALTH PLAN, INC., et al.,             Defendants and Respondents.	A110691         (San Francisco County       Super. Ct. No. 404360)
GINBINEH T. AYELE,             Plaintiff and Appellant, v. GENEVA PHARMECEUTICALS, INC., et al.,             Defendants and Respondents.	A111346         (San Francisco County       Super. Ct. No. 404359)

 

INTRODUCTION

            Plaintiff Ginbineh T. Ayele, in propria persona, appeals from orders of
the San Francisco Superior Court entering judgment against him and in favor of
defendants Permanente Medical Group, Inc., Kaiser Foundation Hospitals and
Kaiser Foundation Health Plan, Inc. (collectively Kaiser) in superior court
cases No. 404360 and No. 404359.  These judgments were entered based
upon an arbitration award against
appellant and in favor of Kaiser.  We shall conclude that having failed to
challenge the arbitrator's award within the 100-day period provided by Code of
Civil Procedure section 1288[1] for
vacating an arbitration award, appellant may not challenge it on appeal.  We
therefore shall affirm the judgment.

PROCEDURAL
BACKGROUND

            On February 7, 2002, plaintiff filed a
complaint (Super. Ct. S.F. City and County, 2002, No. 404360) against
various Kaiser defendants alleging medical malpractice in
connection with the prescription of Haloperidol.  On June 3, 2002, Kaiser petitioned to compel arbitration of plaintiff's claims.  On July 26, 2002, the trial court entered an order granting Kaiser's petition.

            Also on February 7, 2002, plaintiff filed a
separate action for product
liability against Geneva Pharmaceuticals, Inc. (Geneva), the manufacturer
of Halperidol.  (Super. Ct. S.F. City and County, 2002, No. 404359).  Geneva
demurred to the complaint and plaintiff requested leave to amend the complaint
in case No. 404359 to substitute Kaiser Foundation Health Plan, Inc. as a
Doe defendant.  The amendment was filed on August 9, 2002.

            Pursuant to the trial court's order granting
arbitration of plaintiff's claims as to Kaiser, the Office of the Independent
Administrator (OIA) appointed retired judge Allan J. Bullhoffer as arbitrator.

In December 2002, Kaiser moved
to stay the product liability action in case No. 404359 as to Kaiser,
pending the arbitration in case No. 404360, because the claims as to Kaiser
were the same:  that Kaiser wrongfully treated the plaintiff with Haloperidol. 
On March 18, 2003, the superior court entered an order granting Kaiser's motion to stay on condition that
plaintiff be allowed to prosecute his product liability claim against Kaiser in
the same arbitration as his malpractice
claims.  Meanwhile, by order entered February 21, 2003, the trial court granted summary judgment to Geneva in case No. 404359.

            In March and April 2003, Kaiser filed and
served a summary judgment motion in the arbitration.

            After the trial court ordered arbitration of
plaintiff's product liability claims as to Kaiser, the OIA sometime after May 19, 2003, consolidated the arbitration of these claims with the pending
arbitration of the medical malpractice claims.  After several continuances,
hearing on the summary judgment motion in the arbitration was held on July 18, 2003.

The arbitrator's July 23, 2003 order granting Kaiser's motion for summary judgment stated the motion
was granted on â€