Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS in mandate. Wendy L. Kohn, Judge. Petition granted. L.A.S.C. No. 09E10918
Carpenter & Zuckerman and John C. Carpenter for Petitioner.
No appearance for Respondent.
Berman, Berman, Berman, Stephanie Berman Schneider and Sabra E. Purifoy for Real Parties in Interest.
OPINION AND ORDER GRANTING PEREMPTORY WRIT OF MANDATE
Where the plaintiff suffers permanent scarring and discoloration; claims medical expenses totaling at least $1,500, and lost wages of approximately $11,000; and where the plaintiff seeks damages for pain and suffering, we hold that a judgment in excess of $25,000 would not be “virtually unattainable,” and, thus, the matter should proceed as an unlimited civil action.
FACTS
In his complaint, filed in a court of unlimited jurisdiction, Bong Chil Lee alleges that, while a patron at Mandarin Pavilion in 2007, a faulty “lazy susan” caused hot tea to spill on his lap, resulting in second degree burns in his groin area (including his testicles and penis) and permanent scarring and discoloration.
Lee was born on May 21, 1940.
At a September 17, 2009 status conference, the Honorable Bert Glennon, Jr., transferred the matter to a court of limited jurisdiction on the court’s own motion. The matter was transferred on September 23, and, on November 23, Lee moved to transfer the matter back to a court of unlimited jurisdiction. On December 29, the Honorable Wendy L. Kohn denied the motion.
In support of his motion to transfer his case to a court of unlimited jurisdiction, Lee provided copies of his medical bills and the report of Robert M. Applebaum, M.D., stating that Lee’s burn is completely healed and that the burn left discoloration and scarring on his thigh, and discoloration (but no scar) on his knee, groin and penis. There is no treatment to repair the damage, and the doctor does not anticipate further treatment.
Lee included a letter from Chuck C. Chang, his employer, stating that Lee, a carpenter for Chang’s construction company, earns $6,500 per month and was off work from June 27, 2007, through August 18, 2007 (totaling approximately $11,000).
In its opposition, Mandarin Pavilion minimizes Lee’s injuries, characterizing the aftereffects of the spilling of the hot tea as resulting in minor discoloration of the head of the penis and of the area just above the pubic hair line on Lee’s left side. Mandarin Pavilion contends that Lee’s real loss totals about $500, the amount he spent on medical bills immediately after the accident. Mandarin Pavilion also states that Lee did not seek the advice of a plastic surgeon until two years after the accident, and that the plastic surgeon does not recommend any surgery. Mandarin Pavilion also challenges Lee’s claim of lost wages. Mandarin Pavilion points out that Lee supported his claim for lost wages via a declaration from his employer, rather than through providing copies of his pay stubs.
DISCUSSION
Factors that determine whether a matter proceeds in a court of limited or unlimited jurisdiction are set forth in Code of Civil Procedure sections 85 and 86.
Code of Civil Procedure section 85 provides, in pertinent part: “An action or special proceeding shall be treated as a limited civil case if all of the following conditions are satisfied, and, notwithstanding any statute that classifies an action or special proceeding as a limited civil case, an action or special proceeding shall not be treated as a limited civil case unless all of the following conditions are satisfied:
“(a) The amount in controversy does not exceed twenty-five thousand dollars ($25,000). As used in this section, ‘amount in controversy’ means the amount of the demand, or the recovery sought, or the value of the property, or the amount of the lien, that is in controversy in the action, exclusive of attorneys’ fees, interest, and costs.
“(b) The relief sought is a type that may be granted in a limited civil case.”
Code of Civil Procedure section 86 provides, in pertinent part:
“(a) The following civil cases and proceedings are limited civil cases:
“(1) Cases at law in which the demand, exclusive of interest, or the value of the property in controversy amounts to twenty-five thousand dollars ($25,000) or less.”
Code of Civil Procedure section 403.040, subdivision (b), provides a party may file a motion for reclassification after the initial pleading and response period, and the court shall grant the motion and order reclassification if “(1) [t]he case is incorrectly classified[; and] (2) the moving party shows good cause for not seeking reclassification earlier.”
The standard for reviewing an order transferring a case to a court of limited jurisdiction is the same standard that was used to review an order transferring a case to the municipal court from the superior court—abuse of discretion. (Walker v. Superior Court (1991) 53 Cal.3d 257, 272; Singer v. Superior Court (1999) 70 Cal.App.4th 1315, 1320; Ytuarte v. Superior Court (2005) 129 Cal.App.4th 266, 276; Stern v. Superior Court (2003) 105 Cal.App.4th 223, 231.)
“Prior to 1998, California counties had two major designations of civil courts—the superior courts and the municipal courts, and each court system had separate subject matter jurisdiction. Among other matters, the municipal court had jurisdiction over cases where the amount in controversy was $25,000 or less and the superior court had jurisdiction over cases above $25,000. A case filed in the superior court whose amount in controversy did not meet the jurisdictional minimum was subject to ‘transfer’ of jurisdiction under [former Code of Civil Procedure] section 396 from superior court to the municipal court. [Citation.]
“In 1998 the California Constitution was amended to permit unification of the municipal and superior courts in each county into a single superior court system having original jurisdiction over all matters formerly designated as superior court and municipal court actions. [Citation.] After unification, the municipal courts ceased to exist. [Citation.] Now civil cases formerly within the jurisdiction of the municipal courts are classified as ‘limited’ civil cases, while matters formerly within the jurisdiction of the superior court’s are classified as ‘unlimited’ civil action. [Citation.]
“Notwithstanding the new labels the ‘amount in controversy’ distinctions remain. Whether an action qualifies as a limited or unlimited civil action is determined initially from the prayer or demand for relief in the plaintiff’s complaint. Once classified as limited or unlimited that classification normally continues throughout the litigation. If, however, a matter has been designated as an unlimited action, and yet the amount of controversy is $25,000 or less, the statutory scheme authorizes ‘reclassification’ of the case as a ‘limited’ action and transfer of the matter to a superior court presiding over such actions. [Citation.]” (Ytuarte v. Superior Court, supra, 129 Cal.App.4th at p. 274.)
The inquiry is “whether damages over $25,000 ‘could be proven’ [citation][or] whether such damages ‘could not be obtained’[citation]. Even more appropriately,... the test [is] whether ‘lack of jurisdiction is clear’[citation] [or] ‘virtually unattainable.’” (Walker v. Superior Court, supra, 53 Cal.3d at p. 269.) The Supreme Court explained in Walker: “‘The [trial] court may believe it highly unlikely that plaintiff will recover the amount demanded, but this is not enough to defeat jurisdiction, unless it appears to a legal certainty that plaintiff cannot recover the amount which he has demanded.’” (Id. at p. 270.) “[C]aution is called for in this context” (id. at pp. 270-271) and “the transfer power [should not be used] as ‘an unfettered means of clearing crowded... calendars....’” (Id. at p. 271.)
In Maldonado v. Superior Court (1996) 45 Cal.App.4th 397, Division Three of the Fourth District determined that a transfer was not proper when the plaintiff’s medical bills totaled over $7,000 and the doctors’ reports described disc herniation and protrusion. One doctor’s opinion was that there was a “good chance” the plaintiff would have to undergo more surgery. The Maldonado court concluded: “The unlikeliness of a judgment in excess of $25,000 is not the test. The trial court reviews the record to determine whether the result is obtainable. Simply stated, the trial court looks to the possibility of a jurisdictionally appropriate verdict, not to its probability.” (Id. at p. 402, original italics.)
“[A] transfer to municipal court must not be made unless the lack of jurisdiction is clear. A transfer deprives the plaintiff of the forum of original choice, and, unless set aside on review, precludes the plaintiff from proving damages greater than those available in an inferior court. [Citations.] A decision to transfer made without proper evaluation of the facts and circumstances of the case, or motivated by a desire to diminish court caseloads, would violate a plaintiff’s interests.” (Campbell v. Superior Court (1989) 213 Cal.App.3d 147, 152-153.) Note that the Campbell plaintiff sought $1 million in punitive damages, but alleged no physical injury. (Id. at pp. 149–150.)
In Singer v. Superior Court, supra, 70 Cal.App.4th 1315, Division Four stated that a trial court must not ignore the issue of pain and suffering, the calculation of which is within the province of the jury: “[T]he trial court abused its discretion in transferring plaintiff’s case to the municipal court.... [P]laintiff experienced pain and emotional suffering both as the result of the two dog bites and as a result of defendants’ failure to advise whether Sunny had been inoculated against rabies. ‘“Pain and suffering are not subject to precise measurement by any scale, and their translation into money damages is peculiarly the function of the trier of the facts.” [Citation.]’ [Citation.]” (Id. at p.1320.)
In Ytuarte v. Superior Court, supra, 129 Cal.App.4th at page 271, the trial court had transferred the matter to a court of limited jurisdiction. In a motion to have her case reclassified as a case of unlimited jurisdiction, the plaintiff alleged she “had incurred medical bills and expenses attributed to the accident in excess of $6,200, that she had lost about $25,000 in income and neither defendant had taken responsibility for the property damage to her vehicle. She also attached various exhibits (i.e., medical billing, medical reports and employment and income-related documents) which purportedly demonstrated the damage claims.” The trial court denied Ytuarte’s motion. Division Seven vacated the trial court’s decision and ordered it to reconsider Ytuarte’s motion and explained the plaintiff’s burden: “Ytuarte is not required to show ‘the high level of certainty... the damage award will exceed $25,000’ to obtain reclassification. Instead, Ytuarte must present evidence to demonstrate a possibility the damages will exceed $25,000. The trial court, without adjudicating the merits of the underlying case, should review the record to determine whether a judgment in excess of $25,000 is obtainable. If a jurisdictionally appropriate verdict may result, (i.e., if such a verdict is not virtually unobtainable) the court should grant the motion to reclassify the case as ‘unlimited.’ Concomitantly, the court may deny the motion only where it appears to a legal certainty that the plaintiff’s damages will necessarily be $25,000 or less.” (Ytuarte v. Superior Court, supra, 129 Cal.App.4th at p. 279, fn. omitted, italics in original.)
Lee’s claim of medical bills totaling $1,500; his claim of lost wages of approximately $11,000; his claim for pain and suffering and his claim of permanent scarring and discoloration, are sufficient to require that the case proceed in a court of unlimited jurisdiction because it cannot be said that a judgment in excess of $25,000 would be virtually unobtainable.
As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate “in the first instance.” (Code Civ. Proc., § 1088; Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1237–1238; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240–1241; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222–1223; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) Opposition was requested and the parties were notified of the court’s intention to issue a peremptory writ. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)
DISPOSITION
THEREFORE, let a peremptory writ issue, commanding respondent superior court to vacate its order of December 29, 2009, denying petitioner’s motion for reclassification, and to issue a new and different order granting same, in Los Angeles Superior Court case No. 09E10918, entitled Bong Chil Lee v. Mandarin Pavilion et al.
All parties shall bear their own costs.
MALLANO, P.J. ROTHSCHILD, J. CHANEY, J.