EMERGENCY MOTION FORRECONSIDERATION

DENISE CHAVEZ; MIGUEL R LUNA SR

11755 STAR ST

ADELANTO CALIFORNIA 92301

(760)980-5715

LUNAD8551@GMAIL.COM

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

TO THE COURT, ALL INTERESTED PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on _______________ at _________AM., or as soon after that as the matter can be heard, Department ________ of the above-entitled court located at

________________________________________ will and does move this Court ex-parte pursuant to Code of Civil Procedure § 1008 for and order granting reconsideration of plaintiffs’ ex parte application for temporary restraining order.

This motion is based on this notice, the pleadings, records, and files in this action, the attached memorandum of points and authorities, the attached.

Good cause exists to grant this motion because Defendants performed unauthorized unnecessary surgical procedure to Miguel Luis Luna ii and removed a whole lymph node by way of an incision that was made through Miguel’s right cheek above his lip. THE DEFENDANTS ARE GIVING MIGUEL DIPHENHYDRAMINE, an antihistamine whose side effects may be potentially FATAL TO CHILDREN UNDER the age of 2 AND LIDOCAINE, an anesthetic, whose side effects include potential damage to the brain of an infant. It is not being indicated on MIGUELS CHART precisely HOW MUCH LIDOCAINE IS BEING ADMINISTERD THROUGH intravenous therapy. Defendants continue to administer lidocaine despite revocation of consent by the Plaintiffs. Allowing Defendants to continue their UNAUTHORIZED UNECISSARY MEDICAL SURGICAL PROCEDURES OR PRESCRIPTIONS will result in irreparable harm to the infant if this honorable court does not intervene.

Dated: [insert date]

By: ______________________________

DENISE CHAVEZ 

[insert address]

[insert contact]

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

INTRODUCTION & FACTUAL BACKGROUND

Miguel Luis Cruz Heriberto Luna ii, just turned one year old. he initially went to the hospital for an unknown insect bite on his right cheek. at the hospital, the doctors performed an ultrasound and discovered no fluids, cyst or mass on his right cheek. (see exhibit #2)

contrary to the earlier diagnosis, the doctors are now claiming that Miguel has a mass on his face and that he requires immediate medical attention and that he has tested positive for covid-19.

On February 6, 2022, Miguel was restrained from consuming anything as he was scheduled to undergo a biopsy procedure on February 7, 2022 (see Exhibit #4). However, on February 7, the doctor missed the appointment with Miguel. However, upon further consultation, the Plaintiffs discovered that it is not a requirement to restrict meals when awaiting to undergo a biopsy.

Concerned for the safety of the child’s safety, the Plaintiffs sought to have the child removed and transferred to another hospital. However, the social worker placed at the hospital restrained the Plaintiffs from removing the child from the hospital. At some point, the mother of the child was escort away from the child under the custody of four security personnel.

Consequently, the mother has been alienated and kept away from her child.

Despite the mother having revoked her consent for the Defendants to treat the child, the doctors proceeded to state Miguel could have rhabdomyosarcoma of right cheek (see exhibit #3).

The records indicate that Miguel was an out-patient, which is in fact not true. (see exhibit #7). Miguel was supposed to have been released after the diagnosis indicated that there are no fluids and thus Miguel could not have an abscess (see Exhibit #9). Miguel, to this day has not been discharged. No antibiotics or medication was given to Miguel on the first day to suggest Miguel be admitted because the medication was not effective (see Exhibit #*).

The Plaintiffs are frustrated and worried for the best interest of the child. It is not clear what the Defendants intend to as the parents have revoked consent yet the Defendants continue to act.

ARGUMENT

When deciding whether to issue a temporary restraining order, “a court must weigh two ‘interrelated’ factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or no issuance of the injunction.” Butt v. California, 4 Cal.4th 668, 677–78 (1992). The court’s determination is “guided by a ‘mix’ of the potential-merit and interim-harm factors; the greater the plaintiff’s showing on one, the less must be shown on the other to support an injunction.” Id. at 678.

1. Reconsideration

Plaintiffs file this motion for reconsideration of the motion seeking restraining order against the Defendants herein. This motion is premised on the fact that Plaintiff was unable to upload the requisite supporting evidence through the court online portal.

“if they have additional evidence … not presented at the special hearing,” upon a showing of “good cause at the trial why such evidence was not presented at the special hearing and why the prior ruling at [6 Cal. App. 4th 1589] the special hearing should not be binding. …” (Madril, supra, 15 Cal.3d at p. 75, italics in original.) The court held “haste and inadvertence” did not constitute the requisite good cause for the People’s failure to present the additional evidence at the special hearing.

The court rejected the notion trial courts have the inherent power to reconsider section 1538.5 rulings during the 30-day period for review by writ, as suggested in People v. Leighter (1971) 15 Cal. App. 3d 389, 393-395 [93 Cal. Rptr. 136], and in dictum in People v. Krivda (1971) 5 Cal. 3d 357, 363-364 [96 Cal. Rptr. 62, 486 P.2d 1262]. The court concluded the purpose of the statute, namely, to reduce time spent in relitigating the legality of a search, would be better served by following the decisions in People v. Superior Court (Green) (1970) 10 Cal. App. 3d 477 [89 Cal. Rptr. 223], and People v. Dubose (1971) 17 Cal. App. 3d 43 [94 Cal. Rptr. 376], in which the courts announced a strict rule of law with respect to a defendant’s right to only one pretrial motion to suppress.

Other states’ courts share the view judicial economy is best served by allowing a trial court to reconsider a ruling when it has applied an incorrect legal standard. As stated in People v. Lewis (Colo. 1983) 659 P.2d 676, 679-680: “The judge presiding over the trial of a case is necessarily responsible for the admission of evidence during the trial and any judgment that might ultimately be entered in the case.

1. Plaintiffs Are Likely to Succeed on the Merits of Their Claim

minors generally were considered to lack the legal capacity to give valid consent to medical treatment or services, and consequently a parent, guardian, or other legally authorized person generally was [16 Cal. 4th 315] required to provide the requisite consent. In the absence of an emergency, a physician who provided medical care to a minor without such parental or other legally authorized consent could be sued for battery.

The requirement that medical care be provided to a minor only with the consent of the minor’s parent or guardian remains the general rule, both in California and throughout the United States. (See, e.g., Cobbs v. Grant (1972) 8 Cal. 3d 229, 243-244 [104 Cal. Rptr. 505, 502 P.2d 1]; Rainer v. Community Memorial Hosp. (1971) 18 Cal. App. 3d 240, 251, fn. 14 [95 Cal. Rptr. 901]; see generally, Annot. (1989) 67 A.L.R.4th 511, 516-517.) Over the past half-century, however, a number of significant statutory developments in California have modified the general rule relating to the provision of medical care to minors.

Plaintiffs first learned of Defendants’ actions on February 3, 2022 and contacted who they believed to be Defendants ON February 7, February 8, February 9, and February 10. Plaintiffs equally issued a cease and desist letter via email detailing the damages suffered by Plaintiffs as a result of Defendants actions and demanding that Defendants cease and desist. It is apparent from this conduct that the Parents to the child expressly and repeatedly revoked consent for the Defendants to provide medical services to the child.

1. The Balance of Harms Tips Strongly in Plaintiffs’ Favor

Due to Plaintiffs’ likelihood of success on the merits, they need only demonstrate that a denial of injunctive relief will result in greater harm to Plaintiffs than to Defendants. See Butt, 4 Cal.4th at 693–94. “[T]he trial court must determine which party is the more likely to be injured by the exercise of its discretion and it must then be exercised in favor of that party.” Family Record Plan, Inc. v. Mitchell, 172 Cal.App.2d 235, 242 (1959) (citation omitted).

plaintiffs have already suffered and certainly will suffer substantial irreparable harm as a result of defendants’ actions in that:

defendants performed unauthorized unnecessary surgical procedure to Miguel Luis Luna ii and removed a whole lymph node by way of an incision that was made through Miguel’s right cheek above his lip.

the defendants are giving Miguel diphenhydramine, an antihistamine whose side effects may be potentially fatal to children under 2 and lidocaine, an anesthetic, whose side effects include potential damage to the brain of an infant.

it is not being indicated on Miguel’s chart precisely how much lidocaine is being administered through intravenous therapy. (see exhibit #1).

plaintiffs seek orders directing the defendants to immediately cease and desist all procedures being conducted without parental consent and to stay any pending procedures to be conducted without parental consent.

defendants continue to administer lidocaine despite revocation of consent by the plaintiffs.

allowing defendants to continue their unauthorized unnecessary medical surgical procedures or prescriptions will result in irreparable harm to the infant if this honorable court does not intervene.

irreparable harm to be suffered includes, but is not limited to severe side effects in babies, including rapid heart rate, neurological injury, convulsions, seizures, trouble breathing, or even sudden infant death in infants.

CONCLUSION

For the foregoing reasons, the Court should enter Plaintiffs’ requested to reconsider temporary restraining order and award treble damages.

Dated: March 3, 2022 Respectfully submitted,

By:  ___/s/ Denise Chavez___

DENISE CHAVEZ 

[insert address]

[insert contact]

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