1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GABRIELLA FRANCESCA GRECO Case No.: 21cv155-GPC(MSB)

D.O.; KENNETH WARREN LARUE,

12

ORDER RE MOTION TO VACATE

Plaintiff, 13 ORDER GRANTING JOINT v. MOTION TO DISMISS WITH 14

PREJUDICE

MATTHEW TODD AHERN D.O.;

15

STEVEN MICHAEL KURIYAMA M.D.;

[Dkt. No. 66.] 16 DANIEL KIM CHO, M.D.; SARAH JEAN McMURRAY, D.O.; ENCINITAS 17

HOSPITALIST ASSOCIATES, A

18 MEDICAL GROUP, INC.; SCOTT

ALAN EISMAN, M.D.; KEVIN DANIEL

19

SHAW, M.D.; ANDREW YI-TZU

20 HSING, M.D.; MARISA M. MAGANA,

M.D.; COASTAL PULMONARY

21

ASSOCIATES; OANA M. MISCHIU,

22 M.D.; TIMOTHY J. CORBIN, M.D.;

SCRIPPS MERCY PHYSICIAN

23

PARTNERS, A MEDICAL

24 CORPORATION; INEZ E. ROZAR, RN;

ELENOR N. HIMAYA, RN; SCRIPPS

25 HEALTH dba SCRIPPS MEMORIAL 26 HOSPITAL ENCINITAS; and DOES 1 through 30, Inclusive, 27 Defendant. 28 1 Before the Court is Plaintiff Gabriella Francesca Greco, D.O.’s (“Plaintiff”) motion 2 to vacate, pursuant to Federal Rule of Civil Procedure (“Rule”) 60(b), the order granting 3 joint motion to dismiss with prejudice and withdrawing the notice of stipulation of the 4 parties to dismiss the entire case with prejudice. (Dkt. No. 66.) Defendants Scripps 5 Health d/b/a Scripps Memorial Hospital Encinitas, Inez E. Rozar, R.N., and Elenor N. 6 Himaya, R.N. (“Scripps Defendants”) filed an opposition. (Dkt. No. 69.) Defendants 7 Timothy Corbin, M.D.; Scott Eisman, M.D.; Andrew Hsing, M.D.; Kevin Shaw, M.D.; 8 Marisa Magana, M.D.; Daniel Cho, M.D.; Sarah McMurray, D.O.; Encinitas Hospitalists 9 Associates, Inc.; and Coastal Pulmonary Associates and Acute Care Associates, Inc. 10 (“Physician Defendants”) filed a notice of joinder in Scripps Defendants’ opposition. 11 (Dkt. No. 70.) Defendants Matthew Todd Ahern, D.O.; Krista Mason, N.P; and Encinitas 12 Emergency Medicine, Inc. also filed a notice of joinder in Scripps Defendants’ 13 opposition. (Dkt. No. 71.) Plaintiff filed a reply on October 29, 2021. (Dkt. No. 72.) 14 On November 2, 2021, Scripps Defendants filed an objection to the new evidence 15 Plaintiff submitted in support of her reply. (Dkt. No. 73.) The other Defendants joined in 16 Scripps Defendants’ objection. (Dkt. Nos. 74, 75.) Plaintiff filed a motion to strike 17 Defendant’s objection. (Dkt. No. 77.) 18 Background 19 On June 1, 2021, Plaintiff and Kenneth Warren La Rue (“Mr. La Rue”), husband 20 and wife, filed a first amended complaint against a number of medical professionals and 21 medical groups for professional negligence, medical battery, false imprisonment, loss of 22 consortium and bystander emotional distress. (Dkt. No. 34, FAC1) 23 Because Plaintiff sought damages for mental and emotional injuries for her claims, 24 on April 16, 2021 all Defendants asked her to execute authorizations for the release of 25 certain mental health and psychiatric records from her prior providers. (Dkt. No. 69-3, 26 27 28 1 Low Decl., Ex. B.) Four months later on August 4, 2021, Plaintiff’s counsel served 2 defense counsel with a proposed stipulated protective order concerning the signed 3 document release authorizations with an “Attorneys’ Eyes Only” designation. (Dkt. No. 4 69-4, Low Decl., Ex. C.) Defendants objected to the “Attorneys’ Eyes Only” 5 designation; therefore, a discovery conference was held on August 16, 2021 before 6 Magistrate Judge Michael S. Berg. (Dkt. No. 58.) After the hearing and on the same 7 day, the Magistrate Judge’s chambers emailed the parties informing them that Magistrate 8 Judge Berg ruled that the “Confidential-Attorneys’ Eyes Only” designations should be 9 dropped and directed the parties to file a final version of the protective order. (Dkt. No. 10 69-5, Low Decl., Ex. D.) That day, the parties submitted a joint motion for entry of 11 stipulated protective order which the Magistrate Judge granted on August 17, 2021. (Dkt. 12 Nos. 59-60.) The Order provided that, “By the end of business day on August 17, 13 2021, Plaintiffs shall execute and deliver the previously served confidential record 14 authorizations to respective Defendants.” (Dkt. No. 60 at 22 (emphasis in original).) 15 On August 17, 2021, Plaintiff’s counsel telephoned Scripps Defendants’ counsel 16 stating that Plaintiffs were prepared to voluntarily dismiss the case with prejudice as long 17 as defense counsel agreed not to provide copies of records already obtained to counsel for 18 the co-defendants. (Dkt. No. 69-1, Low Decl. ¶ 7.) Counsel for Scripps Defendants 19 indicated that he could not accept the proposal because he had agreed with other defense 20 counsel to gather and share relevant records in order to avoid duplication of efforts. (Id.) 21 Later that day, Plaintiff’s counsel called back and informed Scripps Defendants’ counsel 22 that instead of providing the court-ordered authorizations by day’s end, Plaintiffs would 23 agree to dismiss the entire case with prejudice with a waiver of costs by Defendants. 24 (Id.) During the conversation, Scripps Defendants’ counsel accepted the offer and sent 25 an email correspondence to all counsel confirming full and final resolution of the action 26 27 28 1 on August 17, 2021. (Dkt. No. 69-6, Low Decl., Ex. E.) On August 18, 2021, the 2 parties filed a “notice and stipulation of the parties to dismiss the entire case with 3 prejudice.” (Dkt. No. 61.) The stipulation states, “IT IS HEREBY STIPULATED by 4 and between the parties to this action through their designated counsel that the above- 5 captioned action be and hereby is dismissed with prejudice pursuant to FRCP 41(a)(1).” 6 (Id.) On August 19, 2021, the Court granted the joint motion to dismiss with prejudice 7 pursuant to Rule 41(a)(1). (Dkt. No. 62.) 8 On August 19, 2021, Plaintiff emailed Scripps Defendants’ counsel stating that 9 she was no longer represented by counsel and requested a call to discuss “the dismissal of 10 the case.” (Dkt. No. 69-7, Low Decl., Ex. F.) Counsel responded on August 20, 2021 11 stating that under the situation, he did not wish to speaker to her directly and confirmed 12 that all efforts to serve subpoenas or otherwise obtain copies of her records from all 13 sources were suspended and all records previously obtained were deleted. (Dkt. No. 69- 14 8, Low Decl., Ex. G.) Later that day, Plaintiff responded writing, “Thank you sir. But 15 this does not address the subpoenas already served. There needs to be an affirmative 16 effort by your copy service to notify each and every recipient of a served subpoena to 17 instruct them to not respond. The lawsuit has ended and your firm has no authority to 18 continue to obtain my or my husband’s personal information. Failure to immediately 19 quash and recall all outstanding subpoenas in light of the dismissal of the lawsuit is abuse 20 of your subpoena powers.” (Dkt. No. 69-9, Low Decl., Ex. H.) 21 On August 23, 2021, Plaintiff sent another email to counsel for Scripps Defendants 22 after having contacted three entities that received subpoenas and none of them were 23 informed that the subpoenas had been cancelled and recalled. (Dkt. No. 69-10, Low 24 Decl., Ex. I.) She then “deman[ed] a list of ALL subpoenas that were sent out and proof 25 that [counsel] affirmatively acted to recall each and every subpoena.” (Id.) She then 26 claimed that she was bullied into dismissing her case. (Id.) She also stated that she was 27 no longer represented by Attorney Hart. (Id.) That same day, counsel responded 28 informing Plaintiff that he notified his copy service the prior week that the case had been 1 dismissed and to stop all efforts to obtain copies of her records. (Dkt. No. 69-11, Low 2 Decl., Ex. J.) 3 On August 25, 2021, Scripps Defendants’ counsel received a voicemail from Mr. 4 Brown of the Lake County State’s Attorney’s Office, the former employer of Mr. La Rue. 5 (Dkt. No. 69-12, Low Decl., Ex. K.) Mr. Brown stated that Mr. La Rue informed him 6 that the lawsuit had settled and was calling counsel just to confirm the settlement and that 7 the subpoena materials were no longer needed. (Id.) 8 On August 26, 2021, Plaintiff emailed Scripps Defendants’ counsel inquiring as to 9 the agreement for the cost waiver and noting it was not included in the stipulation or the 10 order granting joint motion to dismiss. (Dkt. No. 69-13, Low Decl., Ex. L.) She further 11 reiterated that she did not agree to the dismissal with prejudice and was not aware of the 12 stipulation. (Id.) She wrote, “[i]n fact, I had communicated to Attorney Hart on 13 Thursday, August 12, 2021 to ‘stop communicating with Scripps or anyone else on this 14 case about me. Period… You are done with this case.’ He promised that he would 15 substitute me in the next day. Then I was told I was going to have to wait for the 16 substitution until ‘next week.’” (Id.) 17 In her reply, Plaintiff presents a declaration asserting that she terminated her 18 counsel on August 12, 2021 through a text message and attaches a copy of the screenshot 19 of her text message to her counsel. (Dkt. No. 72-1, Greco Decl. ¶ 4; id., Ex. A.) She also 20 states that, on August 13, 2021, she left a message with the secretary for Scripps 21 Defendants’ counsel informing him that she was representing herself and did not know 22 what her attorney was doing. (Id. ¶ 5.) Counsel for Scripps Defendants did not call her 23 back. (Id.) 24 On September 3, 2021, Plaintiff filed an ex parte request to substitute in as a pro 25 per plaintiff in place of her attorney, Hoyt E. Hart II. (Dkt. No. 63.) On September 7, 26 2021, the Court granted the request for substitution. (Dkt. No. 64.) On September 17, 27 2021, Plaintiff filed the instant motion to vacate the order granting joint motion to 28 1 dismiss with prejudice and withdraw the notice and stipulation of the parties to dismiss 2 the case with prejudice which is fully briefed. (Dkt, Nos. 66, 69-75.) 3 Discussion 4 Plaintiff3 moves to vacate under Rule 60(b)(1) and Rule 60(b)(6) arguing that she 5 did not consent to the filing of the dismissal with prejudice, did not settle the matter with 6 any of the Defendants or sign a settlement agreement, and seeks to vacate the prior order 7 to prevent manifest injustice. (Dkt. No. 66.) She claims that she was not aware that her 8 counsel agreed to the joint dismissal of the case with prejudice. (Dkt. No. 66-1 at 6.) 9 This circumstance, she claims, is extraordinary, unusual and extreme justifying relief 10 under Rule 60(b). 11 In response, all Defendants argue that Plaintiff has “buyer’s remorse” and wants to 12 renege on the terms of the dismissal she agreed to. (Dkt. No. 69.) They claim she clearly 13 assented to the terms of the parties’ stipulation and took affirmative steps afterwards to 14 make sure Defendants were in compliance. (Id. at 4.) Moreover, Plaintiff is bound by 15 the actions of her former attorney and any alleged attorney malpractice is not a basis to 16 set aside a judgment under Rule 60(b). In reply, Plaintiff argues that she terminated her 17 attorney on August 12, 2021; therefore, he had no authority to consent to dismissal of the 18 case. (Dkt. No. 72.) 19 A Federal Rule of Civil Procedure 60(b) 20 Rule 60(b)(1) provides that the “the court may relieve a party . . . from a final 21 judgment, order or proceeding” for “mistake, inadvertence, surprise, or excusable 22 neglect.” Fed. R. Civ. P. 60(b)(1). Rule 60(b)(6) provides that “the court may relieve a 23 party . . . from a final judgment, order or proceeding” for “any other reason that justifies 24 relief.” Fed. R. Civ. P. 60(b)(6). 25 26 27 28 1 “As a general rule, parties are bound by the actions of their lawyers, and alleged 2 attorney malpractice does not usually provide a basis to set aside a judgment pursuant to 3 Rule 60(b)(1).” Casey v. Albertson's, Inc., 362 F.3d 1254, 1260 (9th Cir. 2004). 4 However, a claim that an attorney lacked authority to agree to a settlement is a ground for 5 relief under Rule 60(b). Surety Ins. Co. of Cal. v. Williams, 729 F.2d 581, 582 (8th Cir. 6 1984); Harrop v. W. Airlines, Inc., 550 F.2d 1143 (9th Cir. 1977) (Rule 60(b) relief may 7 be available when an attorney enters into a settlement agreement without the express 8 permission of the client); Smith v. Widman Trucking & Excavating, Inc., 627 F.2d 792 9 (7th Cir. 1980) (“a consent judgment shown to have been entered without express 10 authority from the client or without the client's actual consent may be the subject of Rule 11 60(b) relief.”) “Although an attorney is presumed to possess authority to act on behalf of 12 the client, ‘a judgment entered upon an agreement by the attorney may be set aside on 13 affirmative proof that the attorney had no right to consent to its entry.’” Surety Ins. Co., 14 729 F.2d at 582-83 (citing Bradford Exchange v. Trein's Exchange, 600 F.2d 99, 102 (7th 15 Cir. 1979) (per curiam); Thomas v. Colorado Trust Deed Funds, Inc., 366 F.2d 136, 139 16 (10th Cir. 1966)). In Surety, the court vacated the district court’s order denying Rule 17 60(b) relief and remanded the case to the district court for an “evidentiary hearing to 18 determine whether or not the Williamses' attorney possessed actual, implied, or apparent 19 authority to consent to the judgment.” Id. at 583. 20 Similarly, in Harrop, the district court denied the plaintiff’s Rule 60(b) motion to 21 vacate the order dismissing the case. Harrop, 550 F.2d at 1144. The Ninth Circuit 22 remanded the case to the district court for further inquiry because there was no showing 23 that “the plaintiffs had agreed to the settlement, or that the attorneys had authority to 24 settle the suit and dismiss the action,.” Id. 25 In another case involving a similar issue, the defendant sought to enforce a 26 stipulation and order for dismissal while the plaintiff argued that his counsel did not have 27 authority to dismiss the case. Zogheib v. U.S. Bancorp., No. 2:05–CV–1354 JCM (LRL), 28 2007 WL 1612145, at *1 (D. Nev. June 1, 2007). After an evidentiary hearing, the | || district court ultimately found that the plaintiff's explanation lacked credibility. /d. at *1, 2 ||4. These cases demonstrate that where there is a claim that an attorney acted to settle or 3 || dismiss a case without the consent of the client, further inquiry is necessary to determine 4 || the plaintiff has provided “affirmative proof that the attorney had no right to consent to 5 entry.” See Surety Ins. Co., 729 F.2d at 582-82. 6 Here, based on the record presented, there are disputed facts as well as an absence 7 || of facts concerning Mr. Hoyt’s role and actions during this case. In the objection, 8 || Defendants seek an order that Plaintiff has waived the attorney-client privilege and the 9 || opportunity to conduct discovery regarding Plaintiff's communications with her former 10 ||counsel. (Dkt. No. 73.) The Court agrees that additional discovery is necessary to 11 || provide a fuller understanding of what transpired. Thus, the Court REFERS this matter 12 || to the Magistrate Judge for a report and recommendation on whether Plaintiff's motion to 13 || vacate should be granted. The Magistrate Judge shall address any attorney-client 14 || privilege issues, any discovery necessary to resolve this question, and conduct an 15 || evidentiary hearing, if necessary.* 16 The hearing set on November 19, 2021 shall be vacated. 17 IT IS SO ORDERED. 18 || Dated: November 16, 2021 <=

20 United States District Judge 21 22 23 24 25 26 27 28 Based on the ruling, the Court DENIES Plaintiffs motion to strike the objection. °