Judge: Daniel M. Crowley, Case: 20STCV42570, Date: 2023-04-27 Tentative Ruling

Case Number: 20STCV42570    Hearing Date: April 27, 2023    Dept: 207

Background

Plaintiff Indiana Retana (“Plaintiff”) brings this action against Defendants Jonathan Nissanoff, M.D. (“Dr. Nissanoff”) and Advanced Orthopedic Center, Inc. (“AOC” or, collectively with Dr. Nissanoff, “Defendants”) for medical malpractice stemming from a fall which Plaintiff alleges was caused by Defendants’ medical treatment. Defendants now bring a motion for sanctions under Code Civ. Proc. § 128.7, arguing the claims asserted against them in Plaintiff’s Complaint are frivolous. Plaintiff opposes Defendants’ motion.

Legal Standard

Code Civ. Proc. § 128.7 states that a court may impose sanctions on a party or attorney that presents a pleading, petition, motion, or other similar papers in the following circumstances:

(1)        the document is presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

(2)       the claims, defenses, and other legal contentions therein are not warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

(3)       the allegations and other factual contentions have no evidentiary support;

(4)       the denials of factual contentions are not warranted on the evidence.

Code Civ. Proc. § 128.7 permits the Court to impose monetary sanctions on an attorney or an unrepresented party that violates any one of these requirements. (Eichenbaum v. Alon (2003) 106 Cal App 4th 967, 976.) In addition, section 128.7 does not require a finding of subjective bad faith; instead, it requires only that the Court find that the conduct be objectively unreasonable. (In re Marriage of Reese & Guy (1999) 73 Cal. App. 4th 1214, 1221.)

Under section 128.7, a court may impose sanctions if it concludes a pleading was filed for an improper purpose or was indisputably without merit, either legally or factually. (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 189–190.) A claim is factually frivolous if it is “not well grounded in fact” and is legally frivolous if it is “not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” (Ibid.) In either case, to obtain sanctions, the moving party must show the party’s conduct in asserting the claim was objectively unreasonable. (Ibid.) A claim is objectively unreasonable if “any reasonable attorney would agree that [it] is totally and completely without merit.” (Ibid.) However, “section 128.7 sanctions should be ‘made with restraint’ [Citation], and are not mandatory even if a claim is frivolous.” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 448.)

The Legislature enacted section 128.7 based on rule 11 of the Federal Rules of Civil Procedure (28 U.S.C.), as amended in 1993 (rule 11). (Musaelian v. Adams (2009) 45 Cal.4th 512, 518, fn. 2.) As a result, federal case law construing rule 11 is persuasive authority on the meaning of section 128.7. (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 168.) Under rule 11, even though an action may not be frivolous when it is filed, it may become so if later-acquired evidence refutes the findings of a prefiling investigation and the attorney continues to file papers supporting the client’s claims. (Childs v. State Farm Mut. Auto. Ins. Co. (5th Cir.1994) 29 F.3d 1018, 1025.) As a result, a plaintiff’s attorney cannot “just cling tenaciously to the investigation he had done at the outset of the litigation and bury his head in the sand.” (Ibid.) This requires an attorney to conduct a reasonable inquiry to determine if his or her client’s claim was well-grounded in fact and to take into account the adverse party’s evidence. (Ibid.)

Code Civ. Proc. § 128.7(c)(1) requires that a motion for sanctions under section 128.7 be “made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). Notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” This 21-day time period is known as a “safe harbor” period and its purpose is to permit an offending party to avoid sanctions by withdrawing the improper pleading during the safe harbor period. (Li v. Majestic Industry Hills LLC (2009) 177 Cal. App. 4th 585, 591.) This permits a party to withdraw a questionable pleading without penalty, thus saving the court and the parties time and money litigating the pleading as well as the sanctions request. (Ibid.)

Analysis

Plaintiff brings this action for medical malpractice. Her Complaint alleges she went to visit AOC on October 25, 2019, to obtain a back brace. (Complaint at ¶14.) She alleges that while she was there, Dr. Nissanoff gave her a shot to her elbow which she did not request. She claims that this shot caused her to feel dizzy and fall, resulting in a fracture to her hip. (Id. at ¶¶15-17.) While Defendants’ notice states they are seeking sanctions pursuant to Code Civ. Proc. § 128.7 stemming from Plaintiff’s refusal to withdraw a “Fee Motion,” (Motion at 2), it appears Defendants’ motion is based on the filing of the Complaint itself. Indeed, as part of their motion, Defendants ask the Court to enter summary judgment in their favor on all of Plaintiff’s claims: “there is no triable issue of material fact as to any of Plaintiffs’ causes of action against Dr. Nissanoff; accordingly, Dr. Nissanoff respectfully requests that judgment be entered in his favor and against Plaintiff as to the entirety of her Complaint against him.” (Motion at 6.)

Defendants argue Plaintiff’s Complaint was unreasonably filed because it is meritless. Defendants assert “Dr. Nissanoff’s care and treatment provided to Indiana Retana was performed within the applicable standard of care, and did not cause any of her alleged injuries. Prior to her fall at Dr. Nissanoff’s office on October 15, 2019, Plaintiff had been suffering from dizziness and falls for many years. It is clear that Plaintiff fell as a result of her own pre-existing medical condition and not because of any lidocaine injection to her elbow.” (Motion at 3.) Defendants’ motion is based on medical records and deposition testimony showing Plaintiff had a history of dizziness and falling before the injection was given. Thus, Defendants argue, the injection could not have caused the dizziness or fall described in Plaintiff’s Complaint. However, Defendants provide no support for this claim that an injection may, as a matter of law, never be the cause of dizziness in a patient who has a prior history of dizziness.

At most, Defendants’ evidence establishes that Plaintiff may have been unusually susceptible to experiencing dizziness and/or falling. It is settled that this does not absolve Defendants of liability. “The tortfeasor takes the person he injures as he finds him. If, by reason of some preexisting condition, his victim is more susceptible to injury, the tortfeasor is not thereby exonerated from liability.” (Rideau v. Los Angeles Transit Lines (1954) 124 Cal.App.2d 466, 471.)

Defendants state in conclusory terms that their actions fell within the standard of care and did not cause Plaintiff’s injury. It is settled that, absent circumstances which are not present here, “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.” (Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1542.) Defendants’ motion is devoid of any expert evidence on these points, and thus Defendants have not carried their burden to show as a matter of law that Plaintiff cannot establish any of her claims against them. In other words, Defendants have failed to show Plaintiff’s claims are meritless, much less that they are so “totally and completely without merit” such as to trigger the imposition of sanctions under Code Civ. Proc. § 128.7. (Bucur, supra, 244 Cal.App.4th at 189.)

Defendants’ motion is DENIED. The Court in its discretion DENIES Plaintiff’s request for the imposition of monetary sanctions against Defendants for bringing this motion.

Conclusion

Defendants’ motion for sanctions is DENIED.