Judge: Daniel M. Crowley, Case: 20STCV37781, Date: 2022-10-21 Tentative Ruling
Case Number: 20STCV37781 Hearing Date: October 21, 2022 Dept: 28
Motion for Summary Judgment of Defendant Thomas L. Johnson, M.D.
Having considered the moving papers, the Court rules as follows. No opposing papers were filed.
BACKGROUND
On October 1, 2020, Plaintiff Jens Frederick Larsen (Plaintiff) filed a complaint against Defendant Thomas L. Johnson, M.D. (Defendant) and various other co-defendants. Plaintiff alleges medical malpractice.
On April 21, 2021, Plaintiff filed a first amended complaint (FAC).
On July 5, 2022, Plaintiff filed a motion for leave to file a second amended complaint (“SAC”).
On August 4, 2022, Defendant filed a motion for summary judgment pursuant to California Code of Civil Procedure section 473c.
Trial is set for March 27, 2023.
PARTY’S REQUESTS
Defendant asks the Court to enter summary judgment in its favor for two reasons. First, the undisputed facts of this case establish that the care and treatment Defendant rendered to Plaintiff was at all times appropriate and complied with the standard of care. Second, nothing Defendant did or failed to do caused or contributed to any injury alleged by Plaintiff.
LEGAL STANDARD
The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)
“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c(p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Id.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)
“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)
DISCUSSION
Medical Negligence
A cause of action for professional negligence is based on a breach of a physician’s duty to possess and exercise, in diagnosis and treatment, that reasonable degree of knowledge and skill that is ordinarily possessed and exercised by other members of the physician’s profession in similar circumstances. (See Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36; Burgess v. Superior Court (1992) 2 Cal. 4th 1064, 1077; County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318; Hahn v. Mirda (2007) 147 Cal.App.4th 740, 746-747; Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122; see also Flowers v. Torrance Mem’l Hosp. Medical Ctr. (1994) 8 Cal.4th 992, 1000 [“whether the cause of action is denominated ‘ordinary’ or ‘professional’ negligence … ultimately only a single standard can obtain under any given set of facts and any distinction is immaterial….”]; Massey v. Mercy Medical Center Redding (2009) 180 Cal.App.4th 690, 694 [“Medical negligence is one type of negligence, to which general negligence principles apply.”].)
Standard of Care
“As a general rule, the testimony of an expert witness is required in every professional negligence case to establish the applicable standard of care, whether that standard was met or breached by the defendant, and whether any negligence by the defendant caused the plaintiff's damages. A narrow exception to this rule exists where ‘ “ ‘ … the conduct required by the particular circumstances is within the common knowledge of the layman.’ … [Citations.]” ’ This exception is, however, a limited one. It arises when a foreign object such as a sponge or surgical instrument, is left in a patient following surgery and applies only when the plaintiff can invoke the doctrine of res ipsa loquitur. ‘The “common knowledge” exception is generally limited to situations in which … a layperson “ … [can] say as a matter of common knowledge … that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised.” …’ ” (Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1542–1543 (footnote and internal citations omitted).)
Defendant provides the expert testimony of Karyn S. Eliber, M.D., who is board-certified in urology and has substantial experience practicing in Southern California. (Dr. Eilber Decl. ¶ 2.) Dr. Eilber declares she is familiar with the standard of care applicable to Defendant and that she otherwise possesses the professional education, training, and experience necessary to qualify to render expert opinions in this case, including a determination of compliance or non-compliance with the applicable standard of care, causation and damages. (Dr. Eilber Decl. ¶¶ 2-4.; Exh. A.) Defendant claims this case involves issues outside the expertise of lay people and expert testimony is conclusive on the standard of care since the allegations are negligent medical care and medical decisions. (Mot. p. 11.). Dr. Eilber declares that Defendant’s care and treatment of Plaintiff complied with the standard of care. (Dr. Eilber Decl. ¶¶ 6, 8-14; Undisputed Material Facts (UMF) Nos. 5-31.)
Given that Plaintiff has not provided controverting evidence, the Court finds that Dr. Eilber’s declaration is entitled to dispositive consideration and Defendant has complied with the standard of care concerning the care and treatment of Plaintiff.
Causation
“Liability for medical malpractice is predicated upon a proximate causal connection between the negligent conduct and the resulting injury. [Citation.] ‘[C]ausation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [Citations.].’” (Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1603.)
Dr. Eilber opines to a medical probability that no negligent act or omission of Dr. Johnson caused or contributed to injury or damage to Plaintiff. (Dr. Eilber Decl. ¶¶ 15-21; UMF Nos. 33-38.)
The Court notes that Plaintiff has not provided controverting evidence. Thus, the Court finds Defendant’s evidence sufficient to disprove causation and resultant damages. Therefore, there is no triable issue of material fact regarding Plaintiff’s medical malpractice cause of action.
CONCLUSION
The motion for summary judgment is GRANTED.
Motion for Leave to File Second Amended Complaint
Having considered the moving papers, Defendants Thomas L. Johnson, M.D. and Southern California Healthcare System’s opposition papers, the Court rules as follows. No reply papers have been filed.
BACKGROUND
On October 1, 2020, Plaintiff Jens Frederick Larson filed a complaint against Defendants Prime Healthcare Services – Sherman Oaks, LLC; Edmond V. Derederian, M.D.; Thomas L. Johnson, M.D.; Southern California Healthcare System, Inc.; Prospect Medical Holdings, Inc.; and Mathew Lublin, M.D., alleging medical malpractice.
On April 21, 2021, Plaintiff filed a first amended complaint (FAC).
On July 5, 2022, Plaintiff file a motion for leave to file second amended complaint (SAC), to add additional defendants and a second cause of action.
Trial is set for March 23, 2023.
PARTY’S REQUESTS
Plaintiff asks the Court for leave to file a SAC to add additional defendants and to allege an additional cause of action for dependent adult abuse and neglect.
LEGAL STANDARD
Under California Rules of Court Rule, rule 3.1324, subdivision (a), a motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.
Under California Rule of Court, rule 3.1324, subdivision (b), a separate declaration must accompany the motion and must specify (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier.
California Code of Civil Procedure section 473, subdivision (a)(1) provides, in relevant part: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”
“This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature. The court, however, does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment. (See California Casualty General Ins. Co., supra, 173 Cal.App.3d at p. 281 [overruled on other grounds by Kransco, supra, 23 Cal.4th 390].)
DISCUSSION
Timeliness
Civil Code of Procedure section 425.13(a) states: “The court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed within two years after the complaint or initial pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier.”
Here, the Complaint was filed on October 1, 2020, and this motion for leave to amend to file a SAC was filed on July 5, 2022. Trial was initially set for April 1, 2022. Although this motion was filed within two years after the complaint, the date the motion was filed was not less than nine months before the date the matter is first set for trial. Thus, Plaintiff’s motion is untimely and he may not add punitive damages to the SAC.
Requirements for Motion for Leave to Amend
Plaintiff fails to comply with the requirements for a motion for leave to amend because his motion does not state what allegations he proposes be added or deleted, or where such proposed additions and deletions are located by page, paragraph, and line number per California Rules of Court 3.1324(a).
Plaintiff’s declaration in support of the motion fails to satisfy the requirements under California Rules of Court 3.1324(b) because he does not state when the facts giving rise to the amended allegations were discovered or the reasons why the request for amendment was not made earlier. He only states that he seeks to add a new cause of action and that there are new facts; the reference to the proposed second amended complaint does not identify what are the new facts that support the proposed dependent adult abuse claim. (Larsen Decl. ¶¶ 4-5, 8:14-17.) The Court finds that Plaintiff’s motion fails to comply with CRC 3.1324.
Punitive Damages
“Thus, the gravamen of section 425.13(a) is that the plaintiff may not amend the complaint to include a punitive damages claim unless he both states and substantiates a legally sufficient claim. In other words, the court must deny the section 425.13(a) motion where the facts asserted in the proposed amended complaint are legally insufficient to support a punitive damages claim. (See §§ 430.10, 436–437.) The court also must deny the motion where the evidence provided in the ‘supporting and opposing affidavits’ either negates or fails to reveal the actual existence of a triable claim. (See § 437c, subd. (c).) The section 425.13(a) motion may be granted only where the plaintiff demonstrates that both requirements are met. This test is largely consistent with the ‘prima facie’ approach formulated by the Courts of Appeal.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 719, as modified (Nov. 23, 1994).)
Here, Plaintiff has not provided any evidence to support his claim for punitive damages. Plaintiff has not offered any medical expert opinion to support his allegation that Dr. Johnson breached the standard of care or that anything he did or failed to do was a substantial factor in injuring plaintiff to a reasonable degree of medical probability. Additionally, the Court finds that Plaintiff fails to allege facts that show malice, oppression, or fraud which would support a claim for punitive damages. Plaintiff has also failed to identify what allegations are proposed to be added to the previous pleading, and where, by page, paragraph, and line number, the additional allegations are located. Thus, Plaintiff fails to allege sufficient facts to support a claim for punitive damages.
Dependent Adult Abuse
To state a cause of action for elder abuse, the plaintiff must plead facts showing two elements: (1) the defendant has subjected an elder to statutorily-defined physical abuse, neglect or financial abuse; and (2) the defendant acted with recklessness, malice, oppression, or fraud in the commission of the abuse. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 407 [“the facts constituting the neglect and establishing the causal link between the neglect and the injury ‘must be pleaded with particularity,’ in accordance with the pleading rules governing statutory claims.”]; see CACI 3100, et seq.) “[T]he statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 783.)
The Court finds that Plaintiff fails to plead negligence with particularity and Plaintiff’s disagreement with the treatment does not constitute statutory neglect which is considered as the failure to provide medical care. As discussed earlier, Plaintiff provides no facts to support Defendant Dr. Johnson acted with recklessness, malice, oppression, or fraud. Finally, there are no facts to support that Plaintiff was in Dr. Johnson’s “care or custody” to support the finding of a custodial relationship. Thus, Plaintiff fails to allege facts to support a claim for dependent adult abuse.
Prejudice
Defendant Dr. Johnson claims that he will be severely prejudiced if leave to amend is granted since his summary judgment motion is set to be heard the same day as this motion which if granted, the summary judgment motion will be rendered moot. Dr. Johnson claims he expended great time and resources ordering medical records, consulting with experts, attending depositions, and drafting his summary judgment motion. Defendant Southern California Hospital at Culver City (SCHCC) also joins in Dr. Johnson’s Opposition to Plaintiff’s Motion for Leave to Amend. Defendant SCHCC also argues that this case has been pending for two years and that the defense has relied upon and developed their case solely on the Medical Negligence cause of action. Defendant SCHCC argues that Plaintiff’s motion is brought in the midst of all the motions for summary judgment which is in attempt to deprive the defense of their right to a timely and speedy resolution of this matter.
The Court agrees with Defendants claims and finds that the grant of Plaintiff’s motion would be highly prejudicial to Defendants.
CONCLUSION
The motion for leave to file a SAC is DENIED.
Defendants Thomas L. Johnson, M.D. and Southern California Healthcare System are ordered to give notice of these rulings.
Defendants Thomas L. Johnson, M.D. and Southern California Healthcare System are ordered to file the proof of service of these rulings with the Court within five days.
The parties are directed to the header of this tentative ruling for further instructions.