Turner v. Meskin
Filed 4/18/06 Turner v. Meskin CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
| BARRY TURNER et al., Plaintiffs and Appellants, v. BARRY MESKIN, Defendant and Respondent. | A111706 (San Francisco County Super. Ct. No. 04-435879) |
Appellants, Barry Turner and Joyce Turner, filed two identical medical malpractice actions against respondent, Barry Meskin, D.P.M. After denying appellants' motion to consolidate the actions, the trial court sustained a demurrer to the first complaint, without leave to amend, on the ground that another action between the parties was pending. (Code Civ. Proc., § 430.10, subd. (c).)[1] Appellants appeal from the judgment dismissing their first action, contending that the trial court erred in: (1) failing to consolidate the two actions; (2) denying leave to amend; and (3) failing to issue an interlocutory judgment staying the first action. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND[2]
On or about October 29, 2003, respondent undertook to act as Barry Turner's treating podiatrist. As a result of respondent's negligent treatment, Barry was required to have a below-the-knee amputation of his right foot and a portion of his right leg.
On October 8, 2004, appellants' attorney personally served a notice of intent to commence action (§ 364) on an individual identifying himself as respondent. Thereafter, on October 28, 2004, appellants filed the instant action against respondent, alleging a single cause of action for medical malpractice. On November 1, 2004, appellants' counsel received a letter from respondent's counsel, stating that his office was authorized to accept service of process on behalf of respondent. Appellants, however, delayed service of the instant action, prompting the trial court to issue an order to show cause.
On January 20, 2005, the same day the trial court issued an order to show cause for failure to serve the instant action, appellants filed an identical complaint against respondent. Appellants served the subsequent complaint on February 17, 2005, and respondent filed his answer on March 9, 2005, which raised, among other things, a statute of limitations defense.
Then, on April 1, 2005, appellants' counsel served a copy of the complaint in the instant action, along with a letter indicating that appellants would dismiss the instant action if respondent waived his statute of limitations defense to the later-filed complaint. In a letter dated April 15, 2005, respondent's counsel demanded that appellants dismiss the instant action or else respondent would file a demurrer.
On May 3, 2005, respondent filed a demurrer to the complaint in the instant action on the ground that another action was pending between the parties. Thereafter, appellants moved to consolidate the two actions. In opposing the demurrer to the complaint in the instant action, appellants conceded there was another action pending between the parties, but argued that the demurrer would become moot upon consolidation of the two cases.
The trial court denied the motion to consolidate and sustained the demurrer to the complaint in the instant action, without leave to amend. This timely appeal followed.
DISCUSSION
One of the grounds for a demurrer is that â€
