Judge: Anne Hwang, Case: 19STCV46099, Date: 2023-10-30 Tentative Ruling

Case Number: 19STCV46099    Hearing Date: October 30, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS

1.      Defendant Yosef Y. Nasseri, M.D.’s Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities; Declaration of Yosef Y. Nasseri; Declaration of David J. Masutani

2.      Separate Statement of Undisputed Facts

3.      Declaration of Keith Beiermeisteer, M.D.

4.      Notice of Lodging of Exhibits

OPPOSITION PAPERS

1.      None filed.

REPLY PAPERS

BACKGROUND

            On December 23, 2019, Plaintiff Fred Kordlar (Plaintiff) filed a complaint against Cedar’s Sinai Medical Center, Yosef T. Nasseri, M.D., and Does 1 to 100 for medical malpractice. The operative first amended complaint (FAC) was filed on February 24, 2020 and similarly alleged a single cause of action for medical malpractice. Plaintiff alleges that he underwent “bowel resection and external ostomy in August 2017 at Cedars-Sinai Medical Center in Los Angeles, California. Defendants were negligent in performing the surgery and subsequent medical care, falling below the standard of care in the community.” (FAC, attach. 1.)

Defendant Yosef T. Nasseri (Defendant) now moves for summary judgment arguing that the action is barred by the statute of limitations.  

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)  Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise.  If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].) 

JUDICIAL NOTICE

Defendant requests judicial notice of certain court documents in the Declaration of David J. Masutani. This was improper since the request was not filed as a separate document. (Cal. Rules Court, rule 3.1350 (c)(5).)

Nevertheless, “[t]he court may in its discretion take judicial notice of any court record in the United States. (Evid. Code § 451.) This includes any orders, findings of facts and conclusions of law, and judgments within court records. [Citations.] However, while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.” (Kilroy v. State of California (2004) 119 Cal.App.4th 140, 145.) “Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.” (Evid. Code § 1220.)

Therefore, the Court takes judicial notice of Plaintiff’s First Amended Complaint (Exh. A); CSMC’s Separate Statement of Undisputed Material Facts (Exh. E); Notice of Lodging (Exh. F); the Notice of Ruling for Summary Judgment filed on October 18, 2021 (Exh. H); and Plaintiff’s initial Complaint filed on December 23, 2019 (Exh. O) as part of the Court’s record. (Evid. Code § 452(d)(1).)

DISCUSSION

“Civil Code section 1714, subdivision (a) establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others.  When applied to medical professionals, this duty of care imposes a duty to use such skill, prudence and diligence as other members of his profession commonly possess and exercise.”  (Flores v. Liu (2021) 60 Cal.App.5th 278, 290 [cleaned up].)  To prevail on a claim for negligence against a medical professional, a plaintiff must demonstrate that: (1) a medical professional had a duty to use the skill, prudence and diligence that members of the profession commonly possess and exercise; (2) breach of that duty; (3) an injury that resulted from the breach of that duty; and (4) actual loss or damage resulting from the breach of that duty.  (Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 612.)

Per Code of Civil Procedure section 340.5, “[i]n an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” (Code Civ. Proc., § 340.5.) The statute of limitations begins to run when the plaintiff has notice or information to put a reasonable person on inquiry. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110–11.)  Under Code of Civil Procedure section 364, “No action based upon the health care provider's professional negligence may be commenced unless the defendant has been given at least 90 days' prior notice of the intention to commence the action.” (Code Civ. Proc., § 364, subd. (a).) “If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.” (Code Civ. Proc., § 364, subd. (d).)

Defendant sets forth the following facts:

-          On August 28, 2017, Dr. Nasseri performed procedures on plaintiff consisting of an exploratory laparotomy, sigmoid colon resection, creation of an end colostomy, abdominal wash, removal of the colonic stent, and flexible sigmoidoscopy. Pathology included segment of colon with diverticulosis, luminal narrowing, and melanosis coli- one benign lymph node. Distal margin of sigmoid colon resection with melanosis coli. Resected specimen had segment of colon with diverticulosis, melanosis coli and hemorrhage, separate fragment of adipose tissue, colonic stent removal. (UMF 4.)

-          On December 4, 2017, Dr. Nasseri performed surgery on plaintiff at CSMC which included: 1. Laparoscopic surgery converted to open procedure for lysis of adhesions lasting more than 2 and 2 and ½ hours., low anterior resection, closure of colostomy, splenic flexure mobilization, flexible sigmoidoscopy. No enterotomies were observed during the surgery and no complications were noted. (UMF 5.)

-          Around this time, Dr. Jamil told him that the Octreotide damaged his gallbladder, he had taken too much of it and his doctor needed to stop it. He said Dr. Nasseri was negligent in that the Octreotide never should have been prescribed to him – that was an error. (UMF 10.)

-          Plaintiff stopped seeing Dr. Nasseri after August 3, 2018. (UMF 13.)

-          On August 16, 2018, Dr. Bilchik told plaintiff that his fistula was caused by a perforation in his intestines that his other physicians did not close in the prior two surgeries. (UMF 14.)

-          Dr. Bilchik also told plaintiff that Dr. Nasseri was negligent in that plaintiff never needed to undergo the first colon surgery. (UMF 15.)

-          On December 23, 2019, plaintiff filed his initial medical malpractice complaint against CSMC and Dr. Nasseri, alleging that in August 2017, Defendants were negligent in performing a bowel resection and external ostomy surgery on plaintiff at CSMC, and in their provision of subsequent medical care. Dr. Nasseri was never served a Notice of Intent to Sue letter pursuant to C.C.P. §364, nor was he ever served with the initial complaint. (UMF 16.)

-          Plaintiff asserts that Dr. Nasseri committed professional negligence from August of 2017 to July 2018. (UMF 17.)

The Court finds that Defendant has met his burden to show that Plaintiff’s claim for professional negligence is time-barred. Defendant argues that the limitations period commenced on August 16, 2018 when Plaintiff was first made aware by his physician, Dr. Bilchek, that his alleged injuries may have been caused by the prior acts of other health care providers including Defendant. Therefore, Defendant argues that Plaintiff had until August 16, 2019 to file his complaint for professional negligence. However, Plaintiff did not file his complaint until December 23, 2019.

The burden shifts to Plaintiff. Plaintiff has not filed an opposition to the motion for summary judgment. As such, Plaintiff has not met his burden to show the existence of a triable issue of fact regarding the timeliness of his complaint. Accordingly, the Court grants the motion for summary judgment.[1]

CONCLUSION AND ORDER

            Based on the foregoing, Defendant Yosef Y. Nasseri, M.D.’s Motion for Summary Judgment is GRANTED. Defendant shall file a proposed judgment within 10 days.

            Defendant shall provide notice of this ruling and file a proof of service of such.