The opinion
Filed 4/9/26 Ghobrial v. Long Beach Memorial Medical Center CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION THREE
GERGIS R. GHOBRIAL, B340397
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 20STCV42444)
v.
LONG BEACH MEMORIAL
MEDICAL CENTER, et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of
Los Angeles County, Lynne M. Hobbs, Judge. Affirmed.
Gergis R. Ghobrial, in pro. per., for Plaintiff and Appellant.
Gordon Rees Scully Mansukhani, Debra Ellwood Meppen,
Raymond Gill, and Darryl C. Hottinger for Defendant and
Respondent Lynnette A. Scherer.
Godes & Preis, Joseph M. Preis, and Oliver B. Dreger for
Defendants and Respondents Ikenna Mmeje and Long Beach
Memorial Medical Center.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
This appeal is one of several filed by Dr. Gergis Ghobrial
against his former employer and related parties. The present
appeal concerns Ghobrial’s claims against two individuals,
Dr. Lynette Scherer and Dr. Ikenna Mmeje. As to these
individuals, Ghobrial contends the trial court erred by
(1) denying his application to consider his motion for leave to file
a fifth amended complaint concurrently with demurrers to the
fourth amended complaint, (2) denying him an adequate
opportunity to be heard at a June 24, 20241 hearing, (3) denying
his motion for leave to file a fifth amended complaint to add
causes of action against Mmeje, (4) denying his motion for leave
to file a fifth amended complaint to add causes of action against
Scherer, (5) denying his motion to compel Scherer to serve
further responses to a request for production of documents,
(6) denying his motion to compel Scherer to serve further
responses to requests for admissions, (7) granting a motion for a
protective order limiting the scope of Ghobrial’s deposition of
Mmeje, (8) sustaining Scherer’s demurrer to the fourth amended
complaint without leave to amend, and (9) sustaining Scherer’s
demurrer without leave to amend to a cause of action for
retaliation alleged in the second amended complaint.
1 All further date references are to 2024 until otherwise
indicated.
2
As we discuss, Ghobrial’s notice of appeal identified just
one order from which appeal was taken: a June 24 order2 that
denied Ghobrial’s motion to file a fifth amended complaint and
denied Ghobrial’s motion to compel Scherer to serve further
responses to a request for production of documents. Only the
June 24 order is properly before us, and thus we will not address
on the merits Ghobrial’s challenges to prior orders. With regard
to the June 24 order, we perceive no abuse of discretion, and thus
we affirm in full.
FACTUAL AND PROCEDURAL BACKGROUND
I. Facts relevant to Scherer.
A. Complaints; demurrers; dismissal of Scherer
from the action.
Ghobrial, a trauma surgeon, initiated this action in
November 2020 against several medical groups and health care
providers alleging discrimination based on age and national
origin and retaliation for reporting safety concerns. In October
2021, Ghobrial filed a second amended complaint and, sometime
thereafter, he substituted Scherer, the chief executive officer of
2 Ghobrial’s notice of appeal stated that appeal was taken
from an order after judgment entered “June 28, 2024.” No order
was entered on June 28, but notice of entry of the June 24 order
was served and filed on June 28. We therefore construe the
notice of appeal to be from the June 24 order. (See Cal. Rules of
Court, rule 8.100(a)(2) [notice of appeal “must be liberally
construed”]; K.J. v. Los Angeles Unified School Dist. (2020)
8 Cal.5th 875, 882 [same].)
3
defendants Surgical Affiliates Management Group, Inc. and
Acute Care Surgery Medical Group, Inc., for a Doe defendant.3
Scherer demurred to the three causes of action alleged
against her in the second amended complaint—(1) retaliation in
violation of Health and Safety Code section 1278.5,
(2) harassment based on national origin, and (3) intentional
infliction of emotional distress. The trial court sustained
Scherer’s demurrer without leave to amend as to the retaliation
claim, and with leave to amend as to the claims for harassment
and intentional infliction of emotional distress.
Ghobrial filed a third amended complaint in June 2023,
realleging causes of action against Scherer for harassment and
intentional infliction of emotional distress. In October 2023, the
trial court sustained Scherer’s demurrer with leave to amend.
Ghobrial filed a fourth amended complaint in
November 2023, realleging causes of action against Scherer for
harassment and intentional infliction of emotional distress, and
alleging a new claim for retaliation in violation of Labor Code
section 1102.5. Scherer filed a demurrer in December 2023,
which the trial court sustained without leave to amend on
March 8. The court found that the complaint failed to allege
harassment or outrageous conduct by Scherer, and failed to
allege a causal relationship between Ghobrial’s complaints of
workplace wrongdoing and any action taken by Scherer
individually. The court further noted that the fourth amended
complaint was Ghobrial’s “third attempt to plead claims against
Scherer in her personal capacity, the third demurrer to such
3 Neither the initial complaint nor the Doe amendment
appear in the appellate record.
4
attempts, and the second attempt to plead retaliation.” The court
thus concluded that no further amendments were warranted.
The trial court entered a dismissal order as to Scherer on
March 28. The court served notice of the dismissal order the
following day.
B. Ghobrial’s motions to file a fifth amended
complaint and to compel further discovery
responses.
1. Motion to file a fifth amended complaint.
In January 2024—after Scherer filed a demurrer to the
fourth amended complaint, but before the hearing on the
demurrer—Ghobrial filed a motion for leave to file a fifth
amended complaint. The proposed fifth amended complaint
added new causes of action against Scherer and others for breach
of contract, breach of the implied covenant of good faith and fair
dealing, and fraud in the inducement, and it named Scherer in
the fourth cause of action for wrongful termination.
On April 4, about a week after she was dismissed from the
action, Scherer filed an opposition to the motion, urging that
Ghobrial should not be allowed to “drag her back in as an
individual defendant.” Scherer also urged that Ghobrial’s long
delay in asserting the three new causes of action was unjustified
and the proposed claims lacked merit.
2. Motion to compel further discovery
responses from Scherer.
On March 26, several weeks after the trial court sustained
Scherer’s demurrer without leave to amend, Ghobrial filed a
motion to compel Scherer to serve further responses to his
request for production of documents. Scherer opposed the
5
motion, noting that she had been dismissed from the action and
thus the motion was moot. Scherer’s counsel represented
Ghobrial had refused his request to take the motion off calendar.
Counsel therefore requested sanctions in the amount of $1,625,
representing five hours of legal work at counsel’s billing rate of
$325 per hour.
3. June 24 order.
On June 24, the trial court entered an order (1) denying
Ghobrial’s motion for leave to file a fifth amended complaint,
(2) denying Ghobrial’s motion to compel further discovery
responses from Scherer, and (3) granting Scherer’s request for
sanctions of $1,625. As to the proposed fifth amended complaint,
the court found that leave to amend was not proper because none
of the proposed causes of action had merit. Specifically, the court
found Scherer could not be liable for wrongful termination
because she was not alleged to be Ghobrial’s employer; Ghobrial’s
contract claims against Scherer failed because Scherer signed the
relevant contract in a representative capacity only; Ghobrial
failed to allege any breach of the contract at issue; and Ghobrial
failed to plead fraud with particularity.
As to the motion to compel further discovery responses, the
court concluded that the motion was defective because Scherer
had been dismissed from the case and thus was no longer subject
to party discovery. The court explained: “On March 8, 2024, this
court sustained Scherer’s demurrer without leave to amend as to
the second, third, and fifth causes of action, respectively for
Labor Code § 1102.5 retaliation, FEHA harassment, and
intentional infliction of emotional distress—i.e., the only claims
alleged against Scherer personally. A judgment of dismissal was
entered for Scherer on March 29, 2024. And because requests for
6
production as [Ghobrial] seeks to compel here are instruments of
discovery against another party to the action . . . , no further
responses may be compelled from Scherer, who has been
dismissed therefrom.”
Finally, as to Scherer’s request for sanctions, the court
noted that the Code of Civil Procedure4 provides for the
imposition of sanctions against a party who unsuccessfully makes
or opposes a motion to compel discovery without substantial
justification. The court found such substantial justification
lacking, and it awarded Scherer sanctions of $1,625, representing
five hours of attorney work at $325 per hour.
On August 19, 2024, Ghobrial filed a notice of appeal from
the June 24, 2024 order.
II. Facts relevant to Mmeje.
A. Deposition subpoena; motion for protective
order.
Mmeje was the chief operating officer (COO) of defendant
Long Beach Memorial Medical Center (Long Beach Memorial).
When Ghobrial filed a complaint with the Department of Fair
Employment and Housing (DFEH) in October 2020, he identified
Mmeje as a “hospital administrator[ ] or physician supervisor[ ]”
who “aided, conspired or colluded in unlawful harassment,
discrimination, and retaliation” against Ghobrial. However,
Ghobrial did not name Mmeje as a defendant in the original or
amended complaints.
4 All subsequent undesignated statutory references are to
the Code of Civil Procedure.
7
In September 2023, Ghobrial served Mmeje with a
deposition subpoena. Long Beach Memorial and Mmeje filed a
motion for a protective order seeking to limit the topics on which
Ghobrial could examine Mmeje. The trial court granted the
motion on December 7, 2023, ordering the parties to meet and
confer to choose a mutually convenient date for Mmeje’s
deposition and identifying specific topics on which Mmeje could
be deposed.
B. Doe amendment; Mmeje’s motion to quash
service of summons.
While Mmeje’s motion for a protective order was pending,
Ghobrial filed and served an amendment to the fourth amended
complaint substituting Mmeje for a Doe defendant. Mmeje filed a
motion to quash service of the summons and to strike the Doe
amendment, urging that the amendment was procedurally
improper because Ghobrial had not obtained court permission to
file it and, in any event, it was substantively defective because
Mmeje had been known to Ghobrial since at least November
2020.
On January 4, while Mmeje’s motion to quash was pending,
Ghobrial filed a motion for leave to file a fifth amended complaint
adding Mmeje as a defendant. Mmeje opposed the motion.
On March 8, the trial court granted Mmeje’s motion to
quash service of the summons and to strike the Doe amendment.
The court explained: “From the first iteration of the complaint,
Mmeje (the COO of Defendant Long Beach Memorial Medical
Center) was listed as one of the final persons to whom Plaintiff
made his complaints before his termination. Plaintiff accordingly
suspected Mmeje’s involvement from the outset of this case, going
so far as to list him among the individual wrongdoers in his
8
DFEH complaint. Plaintiff offers no explanation for his inclusion
in the DFEH charge, or the delay that followed, to the point of
extending beyond all applicable limitations period. Mmeje’s
addition to this case therefore comes too late.”
Subsequently, on June 24, the trial court denied Ghobrial’s
motion for leave to file a fifth amended complaint alleging claims
against Mmeje. The court noted that Ghobrial had previously
substituted Mmeje for a Doe defendant, and the court had
granted Mmeje’s motion to quash on March 8. Accordingly,
“allowing [Mmeje’s] reentry into this case upon theories already
presented in [Ghobrial’s] opposition to the motion to quash would
be futile.” On August 6, the trial court entered an order
dismissing Mmeje without prejudice.
DISCUSSION
I. Ghobrial’s appeal as to Scherer.
As noted above, Ghobrial asserts seven claims of error as to
Scherer. Three of these claims concern the June 24 order from
which Ghobrial appealed. The remaining claims concern prior
orders—namely, an order sustaining Scherer’s demurrer without
leave to amend to a cause of action alleged in the second amended
complaint (May 10, 2023); an order denying Ghobrial’s motion to
compel Scherer to serve further responses to requests for
admissions (November 14, 2023); orders continuing the hearing
on Ghobrial’s motion for leave to file a fifth amended complaint
and denying Ghobrial’s request to hear that motion concurrently
with demurrers to the fourth amended complaint (January 16
and February 9); and an order sustaining Scherer’s demurrer
without leave to amend to the fourth amended complaint
(March 8).
9
Ghobrial’s claims of error relating to the orders entered
prior to June 24 are not properly before us. “The right to appeal
in California is ‘entirely statutory and subject to complete
legislative control.’ ” (Meinhardt v. City of Sunnyvale (2024)
16 Cal.5th 643, 651 (Meinhardt).) Pursuant to statute, an appeal
may be taken from a final “judgment” (§ 904.1, subd. (a)) or from
a written dismissal order signed by the court and filed in the
action (§ 581d). An appeal also may be taken from “an order
made after a[n] [appealable] judgment.” (§ 904.1, subd. (a)(2).)
Most prejudgment orders are not separately appealable, but are
reviewable as part of an appeal from a final judgment if they
“involve[ ] the merits or necessarily affect[ ] the judgment or
order appealed from or . . . substantially affect[ ] the rights of a
party.” (§ 906; see also Deck v. Developers Investment Co., Inc.
(2023) 89 Cal.App.5th 808, 825 [discovery orders]; Hamilton v.
Green (2023) 98 Cal.App.5th 417, 422 [order sustaining
demurrer]; Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684,
1695 [same].)
As to Scherer, the trial court’s March 28 dismissal order—
which was in writing, signed by the court, and entered in the
action—constituted an appealable final judgment. (§§ 904.1,
subd. (a)(1), 581d).) Therefore, as to Scherer, the June 24 order
was “an order made after a[n] [appealable] judgment” (§ 904.1,
subd. (a)(2)), and also was appealable.
The orders entered before March 28 that sustained
demurrers to the second and fourth amended complaints, denied
a request for further discovery responses, and denied Ghobrial’s
request to consolidate motions for hearing were not separately
appealable, but could have been reviewed as part of an appeal
from the March 28 dismissal order. However, Ghobrial did not
10
appeal from the March 28 order, and thus he forfeited the right to
review of the prejudgment orders. (See Meinhardt, supra,
16 Cal.5th at p. 653 [if orders are not statutorily appealable, “an
appeal must therefore be taken from a ‘judgment’ before the trial
court’s decision may be reviewed”]; In re Baycol Cases I & II
(2011) 51 Cal.4th 751, 761, fn. 8 [California “follows a ‘one shot’
rule under which, if an order is appealable, appeal must be taken
or the right to appellate review is forfeited”].)
For the foregoing reasons, we lack jurisdiction to consider
on the merits Ghobrial’s challenges to the orders entered before
March 28. We therefore will limit our review as to Scherer to the
June 24 order, and specifically to Ghobrial’s contentions that the
trial court abused its discretion by (1) failing to provide a written
tentative and giving him only five minutes to argue at the
June 24 hearing, (2) denying his motion to file a fifth amended
complaint, and (3) denying his motion to compel further
responses to his request for production of documents and
awarding Scherer sanctions.
A. The trial court did not violate Ghobrial’s due
process rights at the June 24 hearing.
Ghobrial asserts that the trial court violated his due
process rights by failing to issue a written tentative decision and
giving him only five minutes to argue at the June 24 hearing.
The contentions lack merit.
“It is well established, in California and elsewhere, that a
court has both the inherent authority and responsibility to fairly
and efficiently administer all of the judicial proceedings that are
pending before it, and that one important element of a court’s
inherent judicial authority in this regard is ‘the power . . . to
control the disposition of the causes on its docket with economy of
11
time and effort for itself, for counsel, and for litigants.’ ” (People
v. Engram (2010) 50 Cal.4th 1131, 1146; see also California
Crane School, Inc. v. National Com. for Certification of Crane
Operators (2014) 226 Cal.App.4th 12, 22.) Pursuant to its
inherent authority, trial courts “retain extensive discretion
regarding how the hearing is to be conducted, including imposing
time limits and adopting tentative ruling procedures . . . .”
(Mediterranean Construction Co. v. State Farm Fire & Casualty
Co. (1998) 66 Cal.App.4th 257, 265).) We review the trial court’s
exercise of its authority for an abuse of discretion. (California
Crane, at p. 22.)
The California Rules of Court provide that judges are “not
require[d] . . . to issue tentative rulings.” (Cal. Rules of Court,
rule 3.1308(e).) If a court elects to issue a tentative ruling, it may
do so—as the trial court did in this case—by “announcing the
tentative ruling at the time of oral argument.” (Id.,
rule 3.1308(b)(2).) The trial court thus did not abuse its
discretion by giving an oral tentative, rather than a written one.
(See Karnazes v. Ares (2016) 244 Cal.App.4th 344, 356 [no error
in failing to provide appellant with a written tentative prior to a
motion hearing].)
The trial court also did not abuse its discretion by limiting
Ghobrial’s time to argue at the June 24 hearing, but placing “[n]o
similar limit” on defendants. In fact, the court gave Ghobrial five
minutes to argue and told defendants’ attorneys that it “[didn’t]
believe that the court needs to hear from you at this time.” After
Ghobrial presented his argument, the court allowed defendants’
attorney a very brief response before ruling. Indeed, it is clear
from the reporter’s transcript that defendants’ counsel spoke for
less time than Ghobrial did. Although a court may not refuse
12
entirely to hear oral argument, it “has substantial discretion to
impose reasonable limitations, including to limit the time and
subject matter of the argument.” (Brannon v. Superior Court
(2004) 114 Cal.App.4th 1203, 1211.) We perceive no abuse of
discretion in the trial court’s imposition of time limits in this
case.
B. The trial court did not err by denying
Ghobrial’s motion to file a fifth amended
complaint adding new causes of action against
Scherer.
Ghobrial contends the trial court abused its discretion by
denying his motion to file a fifth amended complaint adding new
claims against Scherer. He urges that California has a liberal
amendment policy to ensure that cases are decided on their
merits, and his fifth amended complaint adequately alleged
claims against Scherer for wrongful termination, breach of
contract, breach of the implied covenant of good faith and fair
dealing, and fraud. He further asserts that the amendment did
not prejudice Scherer, and thus “ ‘the liberal rule of allowing
amendments prevails.’ ”
Section 473 gives trial courts discretion to allow a party to
amend his pleading “ ‘in furtherance of justice.’ ” (See Garcia v.
Roberts (2009) 173 Cal.App.4th 900, 909.) “ ‘Leave to amend a
complaint is thus entrusted to the sound discretion of the trial
court. “. . . The exercise of that discretion will not be disturbed on
appeal absent a clear showing of abuse. More importantly, the
discretion to be exercised is that of the trial court, not that of the
reviewing court. Thus, even if the reviewing court might have
ruled otherwise in the first instance, the trial court’s order will
yet not be reversed unless, as a matter of law, it is not supported
13
by the record.” ’ ” (Branick v. Downey Savings & Loan Assn.
(2006) 39 Cal.4th 235, 242.)
“Generally, once judgment has been rendered, a plaintiff
cannot amend a complaint unless the judgment is first vacated or
a motion for a new trial is granted (Young v. Berry Equipment
Rentals, Inc. (1976) 55 Cal.App.3d 35, 38; 5 Witkin, Cal.
Procedure (3d ed. 1985) Pleading, § 1135, p. 550.)” (M.B. v. City
of San Diego (1991) 233 Cal.App.3d 699, 707; see also Young v.
Berry Equipment Rentals, Inc., at p. 38 [amendments proffered
after judgment is rendered “are allowed only if the judgment is
vacated as by granting a motion for new trial”]; La Forge v.
Groendyke (1952) 108 Cal.App.2d 522, 525 [“Ordinarily
amendments after judgment are allowed only on an application
for relief, and after the judgment has been vacated”].) Thus,
unless a previously entered judgment has been set aside by the
rendering court or on appeal, amendment of the underlying
complaint “is unavailable.” (M.B. v. City of San Diego, at p. 707.)
As noted above, the March 28 dismissal order constituted
an appealable final judgment as to Scherer. (§§ 904.1,
subd. (a)(1), 581d).) Accordingly, the complaint could have been
amended to add new claims against Scherer only if Ghobrial had
either appealed from the March 28 order and succeeded in having
it reversed, or had successfully sought to have the March 28 order
set aside in the trial court. Neither happened here. The order
denying Ghobrial’s motion to file a fifth amended complaint as to
Scherer therefore manifestly was not an abuse of discretion.
Ghobrial asserts that the order denying him leave to amend
violates California’s policy “favoring liberal amendment of
pleadings at any stage of litigation to ensure that cases are
decided on their merits.” But the policy of liberal amendment
14
does not control where, as here, it conflicts with competing
concerns of repose. (See Engel v. Pech (2023) 95 Cal.App.5th
1227, 1238 [balancing “public policy favor[ing] liberal amendment
of pleadings in order to effectuate the resolution of lawsuits on
their merits” against competing policy “favor[ing] finality and
repose once a limitations period for a particular potential liability
has passed”]; Cano v. Glover (2006) 143 Cal.App.4th 326, 330
[“After four unsuccessful attempts to state a cause of action
against him, defendant should have repose”].) The trial court did
not err in so concluding.
C. The trial court did not err by denying
Ghobrial’s motion to compel Scherer’s further
discovery responses and imposing sanctions.
Ghobrial contends that the trial court erred by denying his
motion to compel Scherer’s further responses to his request for
production of documents and imposing monetary sanctions. The
contention lacks merit.
“ ‘ “[T]he standard of review for a discovery order is abuse
of discretion, because management of discovery lies within the
sound discretion of the trial court.” ’ (Gonzales v. Superior Court
(2024) 108 Cal.App.5th.Supp. 36, 55.)” (People v. Superior Court
(Lalo) (2025) 114 Cal.App.5th 707, 711.) Our review of discovery
sanctions is also for an abuse of discretion. (Atlas v. Davidyan
(2025) 113 Cal.App.5th 1086, 1095.)
Section 2031.010 permits a party to demand “that any other
party produce and permit the party making the demand, or
someone acting on the demanding party’s behalf, to inspect and
to copy a document that is in the possession, custody, or control of
the party on whom the demand is made.” (Italics added.)
Pursuant to the statute’s plain language, therefore, a
15
section 2031.010 demand “may be made only between parties to
the action.” (Zerne et al., Cal. Practice Guide: Personal Injury
(The Rutter Group 2025) ¶ 6:269.) Section 2031.010 may not be
used to demand production of documents by nonparties, from
whom documents may be obtained only by subpoena. (Zerne,
supra, ¶ 6:270; see also § 2020.020, subd. (b).)
In the present case, Ghobrial filed the motion to compel
Scherer to serve further responses to the request for production of
documents on March 26, two and a half weeks after the trial
court sustained Scherer’s demurrer without leave to amend. By
June 24, the date the trial court denied the motion to compel, the
trial court had entered a final dismissal order as to Scherer. The
trial court thus lacked discretion to grant the motion to compel
because Scherer was no longer a party to the action, and thus she
was not subject to party discovery.5
The trial court also did not abuse its discretion by awarding
Scherer sanctions.6 Section 2023.030, subdivision (a) provides for
the award of sanctions against a party who has misused the
5 Ghobrial suggests that Scherer took inconsistent positions
by “claim[ing] immunity from the court’s jurisdiction while
asking that same court to exercise its jurisdiction to impose
sanctions in her favor.” But as Scherer correctly notes, she never
claimed she was not subject to the court’s jurisdiction—she urged
only she was no longer subject to party discovery after she was
dismissed from the action.
6 Contrary to Ghobrial’s contention, the trial court did not
award sanctions “sua sponte.” As noted above, Scherer requested
sanctions in her opposition to Ghobrial’s motion to compel.
Ghobrial had an opportunity “to contest the amount [and] basis”
of the sanctions award in his reply brief.
16
discovery process or has unsuccessfully asserted that another has
engaged in the misuse of the discovery process. If a monetary
sanction is authorized under this section, the trial court “shall
impose that sanction unless it finds that the one subject to the
sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.”
(Ibid.) The sanctioned party bears the burden of establishing it
acted with substantial justification, or that other circumstances
make the sanctions unjust. (Rodriguez v. WNT, Inc. (2025)
116 Cal.App.5th 791, 810; Padron v. Watchtower Bible & Tract
Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1269.)
“ ‘Substantial justification means clearly reasonable justification
that is well grounded in both law and fact.’ ” (Rodriguez, at
p. 810.)
In the trial court, Ghobrial contended that Scherer was still
subject to party discovery because the trial court had not yet
ruled on his motion for leave to file a fifth amended complaint.
But as we have explained, once the trial court entered a
judgment of dismissal in Scherer’s favor, it lacked discretion to
permit Ghobrial to file additional claims against Scherer.
Scherer therefore was no longer a party to the action and was not
subject to party discovery. Ghobrial’s contrary contention was
not substantially justified, and thus the trial court did not abuse
its discretion in awarding sanctions against him.
II. Ghobrial’s appeal as to Mmeje.
Ghobrial’s opening brief asserts two claims of error as to
Mmeje—namely, that the trial court abused its discretion by
(1) denying Ghobrial’s motion to file a fifth amended complaint
adding Mmeje as a defendant, and (2) granting Mmeje’s motion
for a protective order. Mmeje urges that neither claim is
17
reviewable because the trial court has not yet entered a final
judgment as to him. Specifically, Mmeje contends that the only
order dismissing him from the litigation was without prejudice,
and thus it was not a “final and complete disposition of the entire
matter of controversy as to any potential, ‘renewed,’ ” claims
against Mmeje.
Although Mmeje is correct that the August 6 order
dismissing him was without prejudice, he errs in suggesting that
it therefore was not a final judgment. To the contrary, case law
is clear that an order dismissing an action without prejudice—if
unaccompanied by an agreement to toll the statute of
limitations—is an appealable final judgment. (See, e.g., Shehyn
v. Ventura County Public Works Agency (2025) 108 Cal.App.5th
1254, 1258 [“ ‘A voluntary dismissal, “unaccompanied by any
agreement for future litigation, does create sufficient finality as
to that cause of action so as to allow appeal from a judgment
disposing of the other counts” ’ ”]; Alaama v. Presbyterian
Intercommunity Hospital, Inc. (2019) 40 Cal.App.5th 55, 63
[same]; Van Buskirk v. Van Buskirk (2020) 53 Cal.App.5th 523,
530 [order granting a motion to quash and dismissing a case
without prejudice is appealable].)
In any event, Ghobrial’s right to appeal from the June 24
order did not depend on the subsequent entry of a dismissal
order. An order denying leave to amend is immediately
appealable if it eliminates all issues between a plaintiff and a
defendant. (Diliberti v. Stage Call Corp. (1992) 4 Cal.App.4th
1468, 1470, fn. 1 [order denying motion to amend to substitute
new plaintiff was appealable “because it effectively terminates
the action as to the ‘true’ plaintiff”]; Randle v. City and County of
San Francisco (1986) 186 Cal.App.3d 449, 454 [orders denying
18
leave to amend a complaint, “although ordinarily not appealable,
are appealable where the orders ‘have the effect of eliminating
issues between a plaintiff and defendant so that nothing is left to
be determined . . . .’ ”]; Ingram v. Superior Court (1979)
98 Cal.App.3d 483, 489 [order denying leave to amend is
appealable if it “ha[s] the effect of eliminating issues between a
plaintiff and defendant so that nothing is left to be determined”];
Dominguez v. City of Alhambra (1981) 118 Cal.App.3d 237, 241
[“Although ordinarily the denial of a motion for leave to file an
amended complaint is not an appealable order, there is an
exception . . . where the order was, in effect, a final determination
of” the rights between the parties].) In the present case, the
June 24 order denying Ghobrial’s request to add Mmeje as a
defendant was effectively a final determination as to Ghobrial’s
claims against Mmeje. It thus was appealable.
We reach a different conclusion as to the December 7, 2023
protective order limiting the scope of Ghobrial’s deposition of
Mmeje. There is no statutory provision permitting an appeal
from a discovery order (Tedesco v. White (2023) 96 Cal.App.5th
1090, 1097; Doe v. United States Swimming, Inc. (2011)
200 Cal.App.4th 1424, 1432), and while a court may review an
interim discovery order on appeal from a judgment if the order
“necessarily affects the judgment” (§ 906), there is no indication
here that the protective order affected the final order denying
Ghobrial’s motion to add Mmeje as a defendant. (See, e.g., Oiye
v. Fox (2012) 211 Cal.App.4th 1036, 1060 [declining to review on
the merits a discovery order unrelated to the merits of a separate
appealable order].) We therefore will limit our review as to
Mmeje to Ghobrial’s claim that the trial court erred by denying
his motion for leave to add Mmeje as a defendant.
19
Section 474 “allows a plaintiff who is ignorant of a
defendant’s identity to designate the defendant in a complaint by
a fictitious name (typically, as a ‘Doe’), and to amend the pleading
to state the defendant’s true name when the plaintiff
subsequently discovers it.” (McClatchy v. Coblentz, Patch, Duffy
& Bass, LLP (2016) 247 Cal.App.4th 368, 371 (McClatchy); Hahn
v. New York Air Brake LLC (2022) 77 Cal.App.5th 895, 897–898.)
If the statute’s requirements are met, the amendment relates
back and the substituted defendant is considered to have been a
party from the action’s start. (McClatchy, at p. 371; Hahn, at
pp. 897–898.)
Section 474 applies only when the plaintiff “is actually
ignorant of the facts establishing a cause of action against the
party to be substituted for a Doe defendant. [Citations.] ‘The
question is whether [the plaintiff] knew or reasonably should
have known that he had a cause of action against [the
defendant].’ ” (McClatchy, supra, 247 Cal.App.4th at pp. 371–
372; see also McOwen v. Grossman (2007) 153 Cal.App.4th 937,
943 [“If the identity of the Doe defendant is known but, at the
time of the filing of the complaint the plaintiff did not know facts
that would cause a reasonable person to believe that liability is
probable, the requirements of section 474 are met”].) We review
the trial court’s factual findings regarding the plaintiff’s
knowledge for substantial evidence. (San Diego Navy Broadway
Complex Coalition v. California Coastal Com. (2019)
40 Cal.App.5th 563, 579; Fuller v. Tucker (2000) 84 Cal.App.4th
1163, 1169.)
On appeal, Ghobrial asserts that the allegations concerning
Mmeje in the proposed fifth amended complaint were “based on
new information about Mmeje’s involvement that emerged during
20
Dr. Glenn Koh’s deposition on September 13, 2023.” Ghobrial
describes this information as “Mmeje’s personal involvement in
the discriminatory and retaliatory actions against [Ghobrial],
including that Mmeje personally directed [Ghobrial’s] removal
from the call panel, in effect made the final termination decision,
personally made negative comments about [Ghobrial], and
directed the retaliatory actions.” But Ghobrial does not explain
why the information previously known to him and alleged in his
October 2020 DFEH complaint did not give him reason to know
that he had a cause of action against Mmeje.7 He thus has failed
to demonstrate that the trial court erred. (See Benach v. County
of Los Angeles (2007) 149 Cal.App.4th 836, 852 [appellate review
limited to arguments supported by reasoned argument and
citations to legal authority]].)
7 Plaintiff’s DFEH complaint alleged that Mmeje “aided,
conspired or colluded in . . . unlawful harassment, discrimination
and retaliation of Plaintiff,” including by “sabotaging Plaintiff’s
medical practice by not allowing him to perform certain
procedures while allowing other less qualified physicians to
perform those same procedures; reprimanding Plaintiff based on
false information, falsifying Plaintiff’s medical notes, pressuring
him to sign contracts against his will, asking Plaintiff
impermissible non-job-related questions in [an] effort to
embarrass or insult him, undermining Plaintiff’s experience,
double booking Plaintiff for multiple surgeries and operations so
as to make it impossible for him to competently practice
medicine, denying him promotions and training while offering it
to other medical staff members, cutting Plaintiff’s shift hours as a
result of his complaint with the hospital medical practices and
patient care, and more.”
21
Ghobrial also asserts that the trial court abused its
discretion by “rel[ying] on its March 8, 2024 ruling regarding the
Fourth Amended Complaint without independently evaluating
the merits of the [fifth amended complaint].” Not so. The trial
court had already determined in connection with Mmeje’s motion
to quash that Mmeje could not be added as a Doe defendant. The
trial court was not required to revisit that determination in
connection with Ghobrial’s subsequent attempt to add Mmeje as
a defendant in the fifth amended complaint.
Finally, Ghobrial asserts the trial court abused its
discretion by providing a detailed rationale for its order only after
the hearing, thus denying Ghobrial an opportunity to address the
court’s concerns during oral argument. But Ghobrial cites no
authority for the proposition that the trial court was required to
give Ghobrial prior notice of the specifics of its order before
issuing it, and we are not aware of any such authority. The
contention, therefore, is forfeited. (Benach v. County of Los
Angeles, supra, 149 Cal.App.4th at p. 852.)
22
DISPOSITION
The June 24, 2024 order is affirmed. Defendants are
awarded their appellate costs.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
ADAMS, J.
HANASONO J.
23