Judge: William A. Crowfoot, Case: 21STCV27325, Date: 2022-07-25 Tentative Ruling

Case Number: 21STCV27325    Hearing Date: July 25, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. INTRODUCTION

On July 26, 2021, Plaintiff Allison Paige Edwards (“Plaintiff”) filed this action against Defendants Advanced Pain Medical Group, Inc., Advanced Pain Surgical Center, Goonjan Shah, M.D. (“Dr. Shah”), Michael Blum, M.D. (“Dr. Blum”), All Ages Chiropractic Center, Inc., Brian Lai, M.D. (“Dr. Lai”), and Shira Bizaoui (“Bizaoui”) for professional negligence.

On June 14, 2022, Defendant Dr. Lai filed a motion for judgment on the pleadings.  No opposition has been filed.

1. LEGAL STANDARDS

“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.  [Citations.]”  (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064.)  The court must assume the truth of all properly pleaded material facts and allegations, but not conteionts or conclusions of fact or law.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Wise v. Pacific Gas and Elec. Co. (2005) 132 Cal.App.4th 725, 738.)  “A judgment on the pleadings in favor of the defendant is appropriate when the complaint fails to allege facts sufficient to state a cause of action.  (Code Civ. Proc., § 438, subd. (c)(3)(B)(ii).)”  (Kapsimallis v. Allstate Ins. Co. (2002) 104 Cal.App.4th 667, 672.)  “Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings.  [Citation.]”  (Cloud v. Northrup Grumman Corp. (1998) 67 Cal.App.4th 995, 999.)

1. REQUEST FOR JUDICIAL NOTICE

Defendant Dr. Lai requests judicial notice of the Court’s April 28, 2022 order deeming the truth of the matters specified in Dr. Lai’s Requests for Admissions admitted and the admissions made as a result of the court order.

The Court notes that Defendant’s request is made within the motion itself and is thus improper.  (See Cal. Rules of Court, rule 3.1113(l) (requiring any request for judicial notice to be made in a separate document).)  Notwithstanding this issue, the Court will consider the merits of the request for judicial notice.

Evidence Code section 452(d) provides that judicial notice may be taken of records of any court of this state.  Defendant’s request for judicial notice of the April 28, 2022 court order is thus GRANTED.

As for the request for judicial notice of the matters that were admitted, generally, the Court may not take judicial notice of discovery responses.  (TSMC North America v. Semiconductor Mfg. Intern. Corp. (2008) 161 Cal.App.4th 581, 594.)  However, the Court may take judicial notice of discovery responses “to the extent ‘they contain statements of the [party] or his agent which are inconsistent with the allegations of the pleading before the court.”  (Bounds v. Superior Court (2014) 229 Cal.App.4th 468, 477 (quoting Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605).)  Further, pursuant to Bockrath v. Aldrich Chem. Co., Inc. (1999) 21 cal.4th 71, 83, when ruling on a demurrer (or, by logical extension, a motion for judgment on the pleadings), the Court can take judicial notice of a party’s discovery responses that directly contradict the allegations of the complaint; this is true so long as the party whose responses are being relied upon has personal knowledge of the facts asserted therein.

As discussed below, the matters that were deemed admitted contradict the allegations in the complaint.  Therefore, the matters that were deemed admitted may be judicially noticed in this case and Defendant’s request for judicial notice of these matters is GRANTED.

1. DISCUSSION

1. Meet and Confer

“Before filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings.”  (Code Civ. Proc., § 439, subd. (a).)

Defendant’s counsel declares that a meet and confer correspondence was sent to Plaintiff on May 20, 2022 in which counsel informed Plaintiff of the intent to file this motion and that this motion is based on the April 28, 2022 ruling issued by the court where Defendant’s requests for admissions were deemed admitted.  (Motion, Saccomano Decl., ¶ 5, Ex. D.)  Plaintiff was asked to advise Defendant’s counsel’s office as to whether there was anything she would like their office to consider prior to the filing of this motion, but never contacted Defendant’s counsel to discuss the matter.  (Id.)

As Defendant did not meet and confer in person or by telephone, Defendant has not sufficiently complied with the meet and confer requirements.  Nonetheless, as an insufficient meet and confer is not grounds to deny this motion, the Court will consider the merits of this motion.  (Code Civ. Proc., § 439, subd. (a)(4).)

1. Motion for Judgment on the Pleadings

Defendant Dr. Lai moves for judgment on the pleadings on grounds that Plaintiff cannot maintain the professional negligence cause of action because Plaintiff’s allegations have been contradicted by the judicially noticed admissions.

“[A] deemed admitted order establishes, by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained therein.”  (Wilcox v. Birtwhistle (1999) 21 Cal.3th 973, 979.)  Requests for admissions “differs fundamentally from the other five discovery tolls (depositions, interrogatories, inspection demands, medical examinations, and expert witness exchanges) . . . [because] admission requests seek to eliminate the need for proof: ‘The purpose of the admissions procedure . . . is to limit the triable issues and spare the parties the burden and expense of litigating undisputed issues.’  Sometimes, the admissions obtained will even leave the party making them vulnerable to summary judgment.”  [Citations.]  Matters that are admitted or deemed admitted through RFA discovery devices are conclusively established in the litigation and are not subject to being contested through contrary evidence.  [Citation.]”  (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 775.)

          The elements of a cause of action for professional negligence are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.”  (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.) 

          Here, Plaintiff alleges that Defendant Dr. Lai assisted co-defendant Dr. Shah in administering the second dose of steroid injection to Plaintiff on May 7, 2020.  (Complaint, ¶ 15.)  Plaintiff alleges that, if Defendant had been performing to the standard of care, Defendant would have identified Plaintiff’s weight gain and stretch marks as exhibited on May 7, 2020 and thereafter as symptoms of ad adverse reaction to steroid injections received and would have discontinued steroid treatment.  (Id., ¶ 19.)  Plaintiff alleges that Defendant fell below the standard of care by failing to recognize the symptoms of Plaintiff’s adverse steroid injection reaction, failing to change the course of Plaintiff’s treatment, and continuing to administer steroid injections despite the symptoms manifested by Plaintiff.  (Id.)  Plaintiff alleges that, as a result of Defendant’s failure, Plaintiff suffered damages.  (Id., ¶ 20.)

          Despite Plaintiff’s allegations, through the Court’s April 28, 2022 order, it has been deemed established that Dr. Lai administered anesthesia for the procedures on April 9, 2020 and May 7, 2020; that Dr. Lai did not provide any additional medical care to Plaintiff in any capacity other than as an anesthesiologist; that Dr. Lai did not perform an epidural procedure; that Dr. Lai was not negligent in providing anesthesiology services to Plaintiff during the procedures; that the anesthesiology care provided by Dr. Lai did not cause Plaintiff to sustain any injuries and was not a substantial cause of any injury alleged by Plaintiff; and that none of the medical care that was provided by Dr. Lai in any capacity was a substantial cause of any injury alleged by Plaintiff.  (Motion, Saccomano Decl., ¶ 3, Ex. B, Motion for Order Deeming the Truth of the Matters Specified in Request for Admissions, Set One, as Admitted, Ex. A, Defendant Brian Lai, M.D.’s Request for Admissions, Set One, Propounded to Plaintiff, Request for Admission (“RFA”) Nos. 1-12, 16; id., Saccomano Decl., ¶ 4, Ex. C.)  As these admissions contradict Plaintiff’s allegations that Defendant Dr. Lai fell below the standard of care and that Plaintiff suffered damages as a result, the complaint is rendered meritless.  The motion for judgment on the pleadings is thus granted.

          Given that the admissions contradict Plaintiff’s allegations and there are no indications Plaintiff has moved to set aside the admissions, the Court finds Plaintiff cannot successfully amend the complaint to state the professional negligence cause of action against Defendant Dr. Lai.  As such, the Court will not grant leave to amend.

VI.     CONCLUSION

          In light of the foregoing, Defendant Dr. Lai’s Motion for Judgment on the Pleadings is GRANTED without leave to amend.

Moving party to give notice. 

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.