Filed 9/9/14 In re Infusion Pump Cases CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE



                                                                       G048748
IN RE INFUSION PUMP CASES.
                                                                       (Super. Ct. No. JCCP 4615)

                                                                       ORDER MODIFYING OPINION
                                                                       NO CHANGE IN JUDGMENT
                   It is ordered that the opinion filed herein on August 20, 2014, be modified
as follows:
                   On page 1, in the third editorial paragraph delete the last name “Martson”
and replace it with “Marston” so that the attorney name reads “Hall R. Marston.”
                   There is no change in the judgment.


                                                                   IKOLA, J.

WE CONCUR:


BEDSWORTH, ACTING P. J.


THOMPSON, J.
Filed 8/20/14 In re Infusion Pump Cases CA4/3 (unmodified version)




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE



                                                                       G048748
IN RE INFUSION PUMP CASES.
                                                                       (Super. Ct. No. JCCP 4615)

                                                                       OPINION


                   Appeal from a judgment of the Superior Court of Orange County, Gail
Andler, Judge. Affirmed.
                   Hodes Milman Liebeck, Jeffrey A. Milman and Jason M. Caruso for
Plaintiff and Appellant Susan Ziots.
                   Sedgwick, Ralph A. Campillo, Hall R. Martson and Christopher P. Norton
for Respondents Stryker Corporation and Stryker Sales Corporation.


                                             *               *               *
              In this coordinated proceeding, plaintiff Susan Ziots appeals from an order
denying her motion to amend her individual complaint by identifying two Doe
defendants. Ziots originally brought suit against I-Flow, LLC (I-Flow), on several tort
claims after suffering an injury from a pain pump used to inject an anesthetic to her
shoulder joint following an orthopedic surgery. More than three years after filing her
complaint, Ziots learned that the true manufacturer of the pain pump was not the named
defendant, but rather respondents, Stryker Corporation and Stryker Sales Corporation
(collectively Stryker).
              After this discovery, Ziots dismissed all claims brought against I-Flow and
sought leave to amend her complaint to identify Stryker as two of the fictitious
defendants named in the complaint, Does 1 and 2. The court denied the motion to amend
because the identification of Stryker was outside the three-year limitation for service on
                                                                             1
parties. (See Code Civ. Proc., §§ 583.210, subd. (a), 583.250, subd. (a).) Ziots appealed
from a “Judgment of dismissal,” and identified the hearing at which leave to amend was
denied, though no dismissal was ever entered.
              Because the court’s denial of leave to amend eliminates all issues between
Ziots and Stryker, the order was equivalent to a final, appealable judgment, and we have
jurisdiction to consider the merits of the appeal. And despite Ziots’s identification of a
nonexistent dismissal, her notice of appeal, liberally construed, is adequate.
              But Ziots’s appeal is procedurally deficient for another reason: the record
Ziots designated is inadequate to address her contention that her failure to identify
Stryker for three years was because of a partial stay of discovery. The record does not
contain the partial stay order. To the extent the scope of the stay order is described
indirectly in the record, it suggests the partial stay was no obstacle to Ziots discovering
the true manufacturer. Accordingly, we affirm.

1
              All statutory references are to the Code of Civil Procedure.

                                              2
                                          FACTS


              Ziots underwent an orthopedic procedure on her shoulder in October 2005.
After the procedure, a postoperative pain pump was attached to her shoulder to deliver a
steady dose of anesthetic directly to the joint. The medical records from the surgery
described the pain pump as a “PainBuster catheter,” which is a brand Ziots believed was
manufactured by I-Flow. Ziots suffered injury to the cartilage in her shoulder joint,
allegedly from the pump.
              On October 2, 2009, Ziots filed a complaint in the Los Angeles County
Superior Court asserting tortious conduct resulting in injury. In her complaint she
identified I-Flow and 15 Doe defendants as the manufacturers of the pain pump or of the
anesthetic used in the pump. More than eight months later, in May 2010, the Los
Angeles County Superior Court coordinated the case with those of similarly situated
plaintiffs in Orange County. The case was moved to the Orange County Superior Court.
              In a series of joint case management statements, the parties in the
coordinated proceeding suggested to the court that a “Short Form Complaint” be filed
containing each plaintiff’s individual allegations within 20 days of the filing of a “Master
Complaint.” In August 2010, the court, “[b]ased on agreement of counsel,” approved the
“Master Complaint” and the “Short Form Complaints” filed by the plaintiffs. The court
then ordered the plaintiffs to serve product identification fact sheets within 90 days of
August 31, 2010, and ordered defendants to serve product identification fact sheets within
30 days of receiving plaintiffs.
              Ziots’s “Short Form Complaint” identified the manufacturer of her pain-
pump again as I-Flow, not Stryker, and the model of the pain pump as I-Flow’s
“Painbuster.” In March 2011, I-Flow responded to Ziots’s complaint and product
identification sheet, stating, “The documentation provided by Plaintiff does not include a
Reference Number/Model Number, Lot Number, chart sticker, or other information

                                              3
confirming that the pump used during Susan Ziot’s [sic] October 25, 2005 surgery was
manufactured by I-Flow. The words and phrases contained in the documents such as
‘PainBuster catheter’ do not confirm product ID as to I-Flow.”
              It was not until March 2013 that Ziots obtained the information that
identified Stryker as the true manufacturer of the pain pump through a subpoena and a
deposition notice served on Dixie Regional Medical Center, where Ziots had received her
surgery.
              One week later, after Ziots identified Stryker, she dismissed I-Flow from
the case without prejudice. On the same day Ziots sought leave of court to amend her
complaint to identify Does 1 and 2 as Stryker Corporation and Stryker Sales Corporation.
In her motion to amend, Ziots argued the attached “Amended Complaint” related back to
the original complaint but made no mention of a stay on discovery affecting her ability to
identify Stryker.
              Stryker opposed the motion on the grounds it had not been served within
three years of the original filing as required by section 583.210, subdivision (a), and that
Ziots failed to account for an “unreasonable delay” in identifying Stryker. Ziots filed a
reply, arguing that a stay order limiting discovery had prevented her from identifying
Stryker within the three year period. However, she offered no evidence describing the
scope of the stay or explaining why she could not have earlier learned the name of the
true manufacturer.
              The court denied Ziots’s motion on the ground that Stryker had not been
served within three years of filing the complaint. (See §§ 583.210, subd. (a), 583.250,
subd. (a), 581, subd. (b)(4).) Ziots timely appealed from the “Judgment of dismissal
under Code of Civil Procedure sections 581d, 583.250, 583.360, or 583.430,” identifying
the date of the dismissal as May 20, 2013, the day the court denied leave to amend.
However, no dismissal was ever filed.



                                              4
                                       DISCUSSION

Because the Trial Court’s Order Denying Leave to Amend Leaves No Issues to be Tried
or Determined, it Constitutes a Final, Appealable Judgment
              Because the question of appealability goes to a reviewing court’s
jurisdiction, we are “duty-bound” to assess the issue on our own motion. (Olson v. Cory
(1983) 35 Cal.3d 390, 398.) “An order denying leave to amend a complaint is not
appealable.” (Figueroa v. Northridge Hospital Medical Center (2005) 134 Cal.App.4th
10, 12.) One exception to this rule of nonappealability is an order denying substitution of
parties that has the effect of eliminating all issues between the plaintiff and a defendant.
(Ingram v. Superior Court (1979) 98 Cal.App.3d 483, 489 (Ingram).) “Although an
order denying leave to amend a complaint is not an appealable order [citation], nor are
orders denying substitution of parties [citation] and granting a motion to strike parts of a
pleading [citation], when such orders have the effect of eliminating issues between a
plaintiff and defendant so that nothing is left to be determined, the order is a final
judgment.” (Ibid.) Here, the order denying leave fits the exception described in Ingram.
The court denied Ziots the opportunity to substitute parties, a decision that ordinarily is
not appealable. But the court’s order denying leave meant there were no pending claims
against Stryker. In other words, the order denying substitution of parties left no issues to
be tried or determined between Ziots and Stryker, giving it the effect of a final judgment.


Appellant’s Notice of Appeal, Liberally Construed, Confers Jurisdiction to Review the
Denial of the Motion for Leave to Amend
              Stryker contends the appeal should be dismissed because the notice of
appeal was defective in that it identified a nonexistent dismissal order. We disagree.
              Rule 8.100(2) of the California Rules of Court requires that notices of
appeal be “liberally construed.” The liberal construction rule, created due to the “‘strong
public policy in favor of hearing appeals on the merits’” (Unilogic, Inc. v. Burroughs


                                              5
Corp. (1992) 10 Cal.App.4th 612, 624 (Unilogic)), is intended to “protect the right of
appeal” (D’Avola v. Anderson (1996) 47 Cal.App.4th 358, 361). This right warrants
protection so long as the grounds for appeal are reasonably clear and a respondent is
unlikely to have been prejudiced or misled by the notice of appeal. (Ibid.) In
determining whether the grounds for appeal are reasonably clear “a reviewing court may
consider the contents of the designation of record,” which, in this case, was primarily
directed toward the motion for leave to amend. (Id. at p. 362.)
              Stryker contends the notice of appeal does not deserve a liberal
construction because it is “clear and unmistakable,” not “‘mere misdescription’” as set
forth in Unilogic, supra, 10 Cal.App.4th at page 625. We find Unilogic distinguishable.
              In Unilogic the appellant had intended to appeal the trial court’s judgment
on a fraud claim. (Unilogic, supra, 10 Cal.4th at p. 623.) However, the notice of appeal
listed the judgment on the 10th cause of action (willful and malicious misappropriation of
trade secrets) and on the 11th cause of action (injunctive relief to prevent appellant from
disclosing trade secrets) but not the eighth cause of action — the claim regarding fraud.
(Id. at p. 624-625.) The court concluded it was without jurisdiction to hear an appeal on
the fraud claim: “‘The rule favoring appealability in cases of ambiguity cannot apply
where there is a clear intention to appeal from only part of the judgment or one of two
separate appealable judgments or orders.’” (Id. at p. 625.)
              Here, by contrast, Ziots’s notice of appeal does not identify a separate,
distinct ruling by the lower court; it only incorrectly describes the judgment being
appealed. It identifies the correct hearing date. And the designation of record includes
only one hearing date for the reporter’s transcript: “Hearing on Susan Ziots’ Motion for
Leave to Amend.” Similarly, the documents designated to be included in the clerk’s
transcript are almost all directed toward the motion for leave to amend. “‘[M]ere
misdescription’” of this form calls for the application of the rule of liberal construction.



                                              6
(Unilogic, supra, 10 Cal.4th at p. 625.) Accordingly, we interpret the notice of appeal as
being from the order denying leave to amend Ziots’s complaint.

The Record is Inadequate to Disturb the Order by the Trial Court Denying Ziots Leave to
Amend
              Stryker also contends Ziots failed to provide an adequate record to review
her contentions on appeal. We agree.
               It is the appellant’s burden to overcome the presumption of correctness
afforded to orders and judgments by providing an adequate record to show affirmative
error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) This presumption is “‘an
ingredient of the constitutional doctrine of reversible error.’” (Ibid.) If an appellant fails
to provide an adequate record, the order appealed must be affirmed. (Hernandez v.
California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.)
              Ziots contends the court erred in applying the three year dismissal statutes.
(§§ 583.210, subd. (a), 583.250, subd. (a).) Ziots acknowledges that more than three
years elapsed between the filing of the complaint and the service on Stryker. Ziots
contends, however, that most of that three year period should be excluded pursuant to
section 583.240, which provides, “In computing the time within which service must be
made pursuant to this article, there shall be excluded the time during which any of the
following conditions existed:” “(b) The prosecution of the action or proceedings in the
action was stayed and the stay affected service.” “(d) Service, for any other reason, was
impossible, impracticable, or futile due to causes beyond the plaintiff’s control. Failure
to discover relevant facts or evidence is not a cause beyond the plaintiff’s control for the
purpose of this subdivision.” Ziots contends both of these subdivisions apply due to a
stay of discovery that precluded Ziots from identifying the true manufacturer of her pain
pump.




                                              7
               The record designated by Ziots suffers a fundamental flaw: it does not
include the stay order that allegedly precluded Ziots from serving the discovery she
needed to identify Stryker. Although the reporter’s transcript makes several allusions to a
partial stay, not once in the reporter’s transcript or all six volumes of the clerk’s transcript
does there appear a description of exactly what was prohibited by the stay on discovery.
Ziots’s brief itself offers no clarification. It only states, “During the initial stages of this
case, the parties were only allowed to engage in limited discovery.”
               What the record does reveal suggests Ziots was not limited by the stay. In
argument on the motion to amend the complaint, the court described the stay as follows:
“The court had previously indicated that the discovery stay would not limit the ability of
the parties to do limited third party discovery to determine product identification by
sending subpoenas and conducting limited depositions of those facilities and hospitals
and other organizations and entities, but not treating physicians who had information
about the products that were used in the surgery.” “So it was the court’s previous order,
and the court still maintains the order that plaintiffs may serve deposition subpoenas to
third parties, such as hospitals, surgical centers and similar types of entities and
organizations for purposes of product identification, as long as proper notice is given.”
Ziots admits in her opening brief that the information ultimately identifying Stryker as
the pain pump’s manufacturer was revealed “[t]hrough the use of an additional subpoena
and deposition notice,” which suggests the partial stay was no obstacle to Ziots obtaining
this information.
               It is certainly possible the information Ziots needed to identify Stryker
Corporation and Stryker Sales Corporation was legitimately cloaked by the partial stay’s
curtain. But possibility is not enough. In order to show error in the trial court’s denial of
leave to amend, Ziots needed to designate a record with sufficient evidence to
demonstrate that identifying Stryker was impeded by the discovery stay — evidence
conspicuously absent from the record.

                                                8
                                     DISPOSITION


              The judgment is affirmed. Respondents Stryker Corporation and Stryker
Sales Corporation shall recover their costs incurred on appeal.




                                                 IKOLA, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



THOMPSON, J.




                                             9
