Free Response in Opposition to Motion - District Court of California - California

Case 3:07-cv-02432-H-LSP

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GIOVANNIELLO & MICHELS, LLP Alexander F. Giovanniello (CSB# 125562) Karen A. Bocker (CSB #213764) 1470 South Valley Vista Drive, Suite 200 Diamond Bar, California 91765 Email: [email protected] Ph: (909) 396-1964 Fax (909) 396-0885 Attorneys for DEFENDANT THC ORANGE COUNTY, INC. dba KINDRED HOSPITAL ­ SAN DIEGO UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) UNITED STATES OFFICE OF PERSONNEL ) ) MANAGEMENT; THC- ORANGE ) COUNTY, INC., dba KINDRED HOSPITAL ) SAN DIEGO ) ) ) Defendants. ) ) ) ) ) ) ) ARNOLD SCHIMSKY, as Trustee of THE ANN P. SHIMSKY TRUST and representative of ANN P. SHIMSKY, deceased Plaintiffs, vs. I, Karen A. Bocker, declare: 1. I am an attorney duly licensed to practice before this court and am a partner of Case No.: 07 CV2432-H(LSP) DECLARATION OF KAREN A. BOCKER IN SUPPORT OF THC ORANGE COUNTY, INC., dba KINDRED HOSPITAL SAN DIEGO'S OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER CONTINUING THE HEARING ON DEFENDANT'S MOTION TO DISMISS AND ALLOWING PLAINTIFF TO FILE OPPOSITION IN DUE COURSE; OR IN THE ALTERNATIVE FOR AN ORDER ALLOWING PLAINTIFF TO FILE A LATE OPPOSITION; OR FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT COURTROOM: JUDGE: 13 Hon. Marilyn L. Huff

the law office of GIOVANNIELLO & MICHELS, LLP, counsel for Defendant, THC
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DECLARATION OF KAREN A. BOCKER IN SUPPORT OF THC ORANGE COUNTY, INC., dba KINDRED HOSPITAL SAN DIEGO'S OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION 07 CV2432-H(LSP)

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ORANGE COUNTY, INC. dba KINDRED HOSPITAL ­ SAN DIEGO in this matter. I make this declaration in support of Defendant's opposition to Plaintiff's Ex Parte application for an order continuing the hearing on Defendant's motion to dismiss and allowing Plaintiff to file opposition in due course, or in the alternative for an order allowing plaintiff to file a late opposition by close of business on August 27, 2008; or in the alternative, to grant Plaintiff leave to file a second amended complaint. I have personal knowledge of the facts stated herein, and except for those matters stated upon information and belief, and as to those matters I believe them to be true, and if called to testify, could and would competently testify thereto. Plaintiff has been engaged in litigation with Defendant, THC ORANGE COUNTY, INC. dba KINDRED HOSPITAL ­ SAN DIEGO over the past several years concerning, among other things, the failure on Mr. Schimsky's part to meet his fiduciary duty ensure that the bills for the care and treatment provided to his mother by Kindred Hospital ­ San Diego were paid. A case is currently pending between Mr. Schimsky and Kindred Hospital ­ San Diego in the Court of Appeal, Fourth Appellate District, Division One, in San Diego. Plaintiff filed an action against United States Office of Personnel Management and Kindred Hospital ­ San Diego on December 31, 2007. The complaint was filed purportedly to preserve the statute of limitations for a case against OPM. Plaintiff waited until April 21, 2008 to serve the complaint on Defendant. On May 9, 2008 Kindred Hospital ­ San Diego timely filed a Motion to Dismiss pursuant to Rule 12 and thereafter a Rule 11 motion for sanctions. Plaintiff opposed the motion. This Court granted Defendant's Motion to Dismiss by Kindred Hospital- San Diego on June 12, 2008, giving Plaintiff 30 leave to amend his complaint and giving Defendant 20 days to file and answer or other responsive pleading. A true and accurate copy of this Court's

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DECLARATION OF KAREN A. BOCKER IN SUPPORT OF THC ORANGE COUNTY, INC., dba KINDRED HOSPITAL SAN DIEGO'S OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION 07 CV2432-H(LSP)

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order Granting Defendant's motion to Dismiss, dated June 12, 2008 is attached hereto as Exhibit A. Plaintiff filed his amended complaint and served Defendant on July 11, 2008. Once again, pursuant to Rule 12 and this Court's order, Kindred Hospital ­ San Diego timely filed its Motion to Dismiss on July 30, 2008. A true and accurate copy of Defendant's motion to Dismiss, with proof of service (excluding exhibits) is attached hereto as Exhibit B. Nothing would lead Plaintiff's counsel to believe that Kindred Hospital would not file either an answer or other responsive pleading as this Court had ordered. Simple calculation would allow Yale & Baumgarten to expect either an answer or other response from Kindred Hospital ­ San Diego on or before July 31, 2008. On July 29, 2008, before filing the Motion to Dismiss and in anticipation of once again filing a Motion for Sanctions pursuant to Rule 11, a meet and confer letter was sent to Yale & Baumgarten via fax and first class mail, setting forth Kindred Hospital's position and requesting Yale & Baumgarten to dismiss the claims brought against Kindred Hospital-San Diego. I specifically wrote, "We must receive confirmation that Mr. Schimsky has dismissed the claims against Kindred Hospital ­ San Diego with prejudice by July 31, 2008 or we will have no alternative but to move to dismiss the action against Kindred Hospital ­ San Diego." (underlined emphasis added). A true and accurate copy of the letter to Yale & Baumgarten, dated July 29, 2008 is attached hereto as Exhibit C. On July 30, 2008 Kindred Hospital ­ San Diego filed and duly served its Rule 12 Motion to Dismiss. Proof of service indicates the moving papers were sent the address of Yale & Baumgarten. The moving papers were not returned to this office as undeliverable. On August 4, 2008 we contacted John at Yale & Baumgarten regarding a meeting planned between Mr. Baumgarten, Mr. Yale, Mr. Giovanniello and myself that had been set

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DECLARATION OF KAREN A. BOCKER IN SUPPORT OF THC ORANGE COUNTY, INC., dba KINDRED HOSPITAL SAN DIEGO'S OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION 07 CV2432-H(LSP)

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for August 5, 2008. Because Mr. Giovanniello was not available, the meeting was continued to August 20, 2008. On August 19, 2008 Mr. Baumgarten sent a letter, responding to my correspondence of July 29, 2008. Specifically, he writes, "Reference your letter of July 29, 2008." accurate copy of Mr. Baumgarten's letter is attached hereto as Exhibit D. Now, Mr. Baumgarten suggests some subterfuge on the part of Kindred Hospital ­ San Diego in that the motion to dismiss was not discussed between paralegals for our respective offices during a telephone conversation wherein the August 20, 2008 meeting had to be continued for calendaring reasons. And, incredibly, Mr. Baumgaten states that he had no idea that BOTH defendants, Kindred Hospital ­ San Diego and OPM had filed dismissals to the complaint, despite the fact that it had been more than 20 days since Plaintiff's counsel filed and served the complaint and despite the fact that in his letter of August 19, 2008, he acknowledges receipt of my July 29, 2008 letter advising him that I would be filing a motion to dismiss should his client refuse to dismiss the action against Kindred Hospital ­ San Diego. He even suggests that the Motions to Dismiss were not served on his office, stating in his declaration that the "alleged dates of the motion" coincide with his being out of town, suggesting some wrongdoing on the part of defense counsel in sneaking the motions past him. Kindred Hospital ­ San Diego properly served Plaintiff's counsel with the Motion to Dismiss as evidenced by its proof of service indicating that the Motion was sent to the same address that all other correspondence has been sent to without issue. Now faced with dismissal of the case without leave to amend, Plaintiff seeks more than his share of relief. He seeks a unilateral extension to oppose the motions to dismiss by defendants; or in the alternative to prejudice defendants by shortening the statutory time frame within which defendants have to file and serve a reply to his opposition for a hearing set a
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A true and

DECLARATION OF KAREN A. BOCKER IN SUPPORT OF THC ORANGE COUNTY, INC., dba KINDRED HOSPITAL SAN DIEGO'S OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION 07 CV2432-H(LSP)

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week from today; or in the alternative, for another bite at the apple to file yet another complaint, having now seen the arguments of defendants in their motions to dismiss. Such

application was without proper notice to defense counsel. The application was faxed to this office at 13:12 today with request for relief by tomorrow. A true and accurate copy of the fax report for our office is attached hereto as Exhibit E. In light of the foregoing, Defendant respectfully requests that Plaintiff's application for relief be denied in its entirety. Date: August 26, 2008 GIOVANNIELLO & MICHELS, LLP

By:

_s/Karen A. Bocker _________ Alexander F. Giovanniello Karen A. Bocker Attorneys for DEFENDANT, THC ORANGE COUNTY, INC. dba KINDRED HOSPITAL ­ SAN DIEGO

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DECLARATION OF KAREN A. BOCKER IN SUPPORT OF THC ORANGE COUNTY, INC., dba KINDRED HOSPITAL SAN DIEGO'S OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION 07 CV2432-H(LSP)

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