Zarum v. Hoag Memorial Hospital Presbyterian CA2/5

Filed 3/22/23 Zarum v. Hoag Memorial Hospital Presbyterian CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
LORIE ANNE GUNDERSON B307854
ZARUM,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC672741)
v.
HOAG MEMORIAL HOSPITAL
PRESBYTERIAN et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Dennis Landin, Judge. Dismissed.
Lorie Anne Gunderson Zarum, in pro. per., Plaintiff and
Appellant.
Doyle, Schafer McMahon, Daniel W. Doyle and Terrence J.
Schafer for Defendants and Respondents.
__________________________
Plaintiff and appellant Lorie Anne (Gunderson) Zarum
appeals from the denial of a postjudgment motion in a medical
malpractice action she filed against defendants and respondents
Hoag Memorial Hospital and Dr. Andrea Nanci. As we conclude
the order appealed from is a nonappealable order denying a
motion for reconsideration, we dismiss the appeal.
PROCEDURAL BACKGROUND
Zarum’s father died in July 2011. Zarum believes that
defendants’ medical malpractice caused and/or hastened her
father’s death. Specifically, she alleges that Dr. Nanci performed
an unnecessary liver needle biopsy on her father against his
wishes, resulting in the spread of his cancer.
1. Original Malpractice Action
In June 2013, Zarum initially filed suit, in Orange County,
against the hospital and Dr. Nanci. (Zarum v. Hoag Hospital
(Super. Ct. Orange County, 2013, No. 30-2013 00657603).) In
August 2014, Defendants obtained summary judgment on the
basis of the statute of limitations. On appeal, the Fourth
Appellate District, Division Three, affirmed. (Zarum v. Hoag
Memorial Hospital (Aug. 22, 2016, G050952) [nonpub. opn.].)1
2. Current Action
On August 16, 2017, Zarum filed the current action in Los
Angeles Superior Court, on behalf of herself and her father’s
estate, against the same defendants. Defendants demurred on
statute of limitation and res judicata grounds. On December 15,
1 Zarum did not timely seek California Supreme Court
review. In the Court of Appeal, she unsuccessfully moved to
recall the remittitur; then sought California Supreme Court
review of the denial of her motion to recall the remittitur. This,
too, was denied.
2
2017, the court sustained the demurrers, without leave to amend,
based on the statute of limitations. Judgment of dismissal was
entered on January 18, 2018.
Zarum brought numerous challenges to the judgment, both
by notices of appeal and by postjudgment motions. When her
postjudgment motions were unsuccessful, she attempted to
appeal those denials as well. We provide an overview of the
chronology, ending with the current appeal.
A. B290070 – Appeal Dismissed from Judgment
and Four Postjudgment Orders
On May 15, 2018, Zarum filed a notice of appeal purporting
to appeal from: (a) the January 18, 2018 judgment; (b) the
January 30, 2018 denial of a motion for new trial; (c) the
February 28, 2018 denial of a motion to accept late-filed evidence;
(d) the March 12, 2018 denial of a motion to set aside the
judgment; and (e) the May 15, 2018 denial of reconsideration of
the denial of the motion to set aside.
On February 20, 2019, we dismissed Zarum’s appeal from
the judgment as untimely. On April 3, 2019, we dismissed the
other four appeals as taken from nonappealable orders. After the
California Supreme Court denied review, our remittitur issued on
June 20, 2019.
On November 18, 2019, Zarum petitioned the U.S. Supreme
Court for certiorari, challenging not only the dismissal of her
appeals, but also the underlying rulings of both the Orange
County and Los Angeles Superior Courts.2 The U.S. Supreme
Court denied certiorari on January 27, 2020.
2 Zarum’s certiorari petition is attached to her request for
judicial notice. We grant the request in its entirety.
3
B. B304997 – Appeal Dismissed from Amended
Judgment
Following the June 20, 2019 remittitur, Dr. Nanci obtained
an amended judgment awarding her costs. The amended
judgment issued on January 3, 2020.
Zarum filed two more notices of appeal, purporting to
appeal (on behalf of herself and the estate) from the amended
judgment. We dismissed the estate’s appeal on February 8, 2021,
and Zarum’s appeal on November 4, 2021, for procedural
defaults.
C. B307854 – the Current Appeal
On March 5, 2020, Zarum filed one final postjudgment
motion. It was captioned, in full: “(‘RENEWED MOTION’ AS
SUPPLEMENT TO THE APPELLATE RECORD) OF
PLAINTIFF’S NOTICE OF MOTION FOR AN ORDER TO
SET ASIDE AND/OR VACATE DISMISSAL[S]
THROUGHOUT THE CASE DOCTRINE” BASED ON THE
PRINCIPLE OF “NEW LAW” AS EXTRINSIC FRAUD AND
DECEIT PERPETRATED ON; LORIE ANNE GUNDERSON
ZARUM, AND THE ESTATE OF THEODORE LEE
GUNDERSON: THEREBY QUALIFYING AS “RENEWED
MOTION” [UNDER CCP SEC. 1008 (b)] OF PLAINTIFF’S
PREVIOUSLY FILED MOTIONS FROM AUGUST 16, 2017
UNTIL PETITION FOR WRIT OF CERTIORARI, 11/18/2019.”
(Brackets in original.) We note that August 16, 2017, referenced
in the caption, is the date of the complaint in this action; Zarum
was apparently attempting to renew all motions she had
previously filed in this case, up to her petition for certiorari.
4
On September 16, 2020, the court denied the motion,
characterizing it as a “Motion to Set Aside/Vacate Dismissal.”3
According to the hospital’s notice of ruling, the court denied the
motion because it had no jurisdiction to entertain it. The court’s
minute order indicates the court admonished Zarum “not to file
any more motions regarding these same issues and warn[ed] that
she may be subject to monetary sanctions in the future if she does
so.”
On September 25, 2020, plaintiff filed a notice of appeal
from this order. That is the only appeal before us.4
DISCUSSION
The only order on appeal is the September 16, 2020 denial
of Zarum’s March 5, 2020 “renewed” motion to set aside. It is not
entirely clear whether Zarum’s March 5, 2020 motion should be
considered a reconsideration/renewed motion under Code of Civil
Procedure section 1008 or a motion to set aside under section
473.5 We conclude it is the former, the denial of which is not
3 The court’s exact words were: “The Motion to Set
Aside/Vacate Dismissal filed by Lori Anne Gunderson Zarum on
03/05/020 is Denied.”
4 Plaintiff filed four notices of appeal from this order (two on
behalf of the estate and two on behalf of herself). On January 22,
2021, we dismissed two of them as duplicative; on January 12,
2022, we dismissed the estate’s appeal for procedural default.
What remains is the appeal labeled “X2” – Zarum’s (personal)
appeal of the order.
5 All further statutory references are to the Code of Civil
Procedure.
5
appealable. However, even if we consider it as a motion to set
aside, we would affirm the court’s order.
1. Reconsideration/Renewed Motion
Section 1008, subdivision (a) provides for motions for
reconsideration. Subdivision (b) governs the related practice of
renewed motions. A motion for reconsideration requests the
court to “reconsider the matter and modify, amend, or revoke the
prior order,” based “upon new or different facts, circumstances, or
law . . . .” (§ 1008, subd. (a).) A renewed motion is also based
“upon new or different facts, circumstances, or law,” but is made
by a party whose initial application for an order was denied, and
is seeking the same order previously sought. (§ 1008, subd. (b).)
Zarum, in the caption of the motion itself, expressly
characterized the motion as a renewed motion under section
1008. In her papers filed with the trial court, she argued that
there was “new law” which required setting aside the dismissals
in this case and the original Orange County matter.6 This is the
essence of a motion for reconsideration or renewed motion.7
Neither the denial of a motion for reconsideration nor the
denial of a renewed motion is an appealable order. (§ 1008,
subd. (g); Global Protein Products, Inc. v. Le (2019)
42 Cal.App.5th 352, 363-364.) We therefore dismiss the appeal
as having been taken from a nonappealable order.
6 The motion was not based on new law, but, rather, law that
Zarum had recently discovered. As she explained in her reply,
“[t]he new law . . . is actually very old law . . . .”
7 In part, the motion sought to reconsider the prior
dismissals (§ 1008, subd. (a)); and in part, it sought to renew her
previous postjudgment motions (§ 1008, subd. (b)).
6
2. Motion to Set Aside
Even if we were to accept the trial court’s characterization
of Zarum’s motion as a motion to set aside under section 473, it
would not assist Zarum.8 A statutory motion for relief “shall be
made within a reasonable time, in no case exceeding six months,
after the judgment, dismissal, order, or proceeding was taken.”
(§ 473, subd. (b).) Zarum’s motion sought to set aside the
dismissals in this case and the Orange County case. Those
judgments occurred years earlier (in 2018 and 2014,
respectively). A 2020 motion to set them aside would have been
untimely.
The caption of Zarum’s motion suggests she sought to set
aside every ruling in the case from the date of her complaint to
the date of her petition for certiorari, November 18, 2019. As her
motion was filed on March 5, 2020, it could have been timely only
as to orders filed after September 5, 2019 (six months before
March 5, 2020). But there were no trial court orders between
September 5, 2019, and November 18, 2019 (the date identified in
the caption as the end of the motions she sought to renew). If
Zarum’s motion were a motion to set aside, it was necessarily
untimely, and we would affirm the order on that basis.9
8 Zarum’s motion cited section 473.
9 To the extent Zarum seeks a writ of coram vobis, we decline
to treat her appeal as a writ petition. We also reject her request,
at this late hour, for leave to amend.
7
DISPOSITION
The appeal is dismissed. Zarum is to pay defendants’ costs
on appeal.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
KIM, J.
8