This case was last updated from Los Angeles County Superior Courts on 07/04/2019 at 05:58:03 (UTC).

DEE ANN ABELAR ET AL VS JOHN R DINGILIAN M.D. ET AL

Case Summary

On 12/19/2016 DEE ANN ABELAR filed a Personal Injury - Medical Malpractice lawsuit against JOHN R DINGILIAN M D. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judge overseeing this case is CURTIS A. KIN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1637

  • Filing Date:

    12/19/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

CURTIS A. KIN

 

Party Details

Plaintiffs and Petitioners

ABELAR BRIAN

ABELAR DEE ANN

Defendants and Respondents

SIMI VALLEY HOSPITAL & HEALTH CARE SVCS

ANAND WAYNEINDER S. M.D.

TRIVEDI MAYUR M.D.

PROVIDENCE HEALTH SYSTEM-SOUTHERN CALIFOR

DINGILIAN JOHN R. M.D.

PROVIDENCE SAINT JOSEPH MEDICAL CENTER

ADVENTIST HEALTH SYSTEM/WEST

DOES 1 THROUGH 100

LEE JOUNG H. M.D.

BADIEI PEJMAN M.D.

PEJMAN BADIEI M.D. INC.

ADVENTIST HEALTH SIMI VALLEY HOSPITAL

TILLES M.D. CORPORATION

TILLES IRA M.D.

HAKIMISAFET BABAK D.O.

MORA JEFFREY M.D.

Not Classified By Court

PEJMAN BADIEI M.D.; PEJMAN BADIEI M.D. INC.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

RAND GARY ESQ.

RAND-LEWIS SUZANNE ELIZABETH ATTORNEY AT LAW

Defendant Attorneys

HESTER CECILLE LOUISE

BLESSEY RAYMOND LESLIE

TROTTER MICHAEL

GONZALEZ MICHAEL DALE

BARRON JOHN DANIEL

NEIGHBORS JESSICA M.

SCHAEFFER JAMES CRAIG

DOBSON MITZIE LEGREID

SULENTOR WILLIAM ANTHONY

WEND CHRISTOPHER P

SACCOMANO JENNIFER BICKNELL

 

Court Documents

Motion for Terminating Sanctions

6/18/2019: Motion for Terminating Sanctions

Separate Statement

6/25/2019: Separate Statement

Motion for Summary Judgment

7/1/2019: Motion for Summary Judgment

Complaint

12/19/2016: Complaint

Proof of Service of Summons and Complaint

9/17/2018: Proof of Service of Summons and Complaint

Reply

10/16/2018: Reply

Minute Order

10/23/2018: Minute Order

Order

10/23/2018: Order

Notice of Continuance

12/12/2018: Notice of Continuance

Notice of Case Reassignment and Order for Plaintiff to Give Notice

1/28/2019: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Notice

2/6/2019: Notice

Notice

2/6/2019: Notice

Opposition

2/7/2019: Opposition

Notice of Ruling

2/15/2019: Notice of Ruling

Minute Order

2/22/2019: Minute Order

Answer

4/10/2019: Answer

Case Management Statement

5/9/2019: Case Management Statement

CoverSheet

12/19/2016: CoverSheet

220 More Documents Available

 

Docket Entries

  • 07/01/2019
  • Declaration (of Jeffrey P. Salberg, M.D. in Support of Motion for Summary Judgment on behalf of Defendants Pejman Badiei, M.D. and Pejman Badiei, M.D., Inc.); Filed by Pejman Badiei, M.D. (Defendant); Bejman Badiei, M.D. Erroneously Sued As Pejman Badiei M.D., Inc. (Defendant)

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  • 07/01/2019
  • Motion for Summary Judgment; Filed by Pejman Badiei, M.D. (Defendant); Bejman Badiei, M.D. Erroneously Sued As Pejman Badiei M.D., Inc. (Defendant)

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  • 07/01/2019
  • Separate Statement; Filed by Pejman Badiei, M.D. (Defendant); Bejman Badiei, M.D. Erroneously Sued As Pejman Badiei M.D., Inc. (Defendant)

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  • 07/01/2019
  • Declaration (of Andrea D. Vazquez and Exhibits in Support of Motion for Summary Judgment of Defendants Pejman Badiei, M.D. and Pejman Badiei, M.D., Inc.); Filed by Pejman Badiei, M.D. (Defendant); Bejman Badiei, M.D. Erroneously Sued As Pejman Badiei M.D., Inc. (Defendant)

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  • 06/26/2019
  • Notice (Of Errata And Correction); Filed by Wayneinder S. Anand, M.D. (Defendant); Babak Hakimisafet, D.O. (Defendant)

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  • 06/25/2019
  • Motion to Compel (Dee Ann Abelar's Further responses); Filed by Wayneinder S. Anand, M.D. (Defendant); Babak Hakimisafet, D.O. (Defendant)

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  • 06/25/2019
  • Motion to Compel (Brian Abelar's further responses); Filed by Wayneinder S. Anand, M.D. (Defendant); Babak Hakimisafet, D.O. (Defendant)

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  • 06/25/2019
  • Separate Statement; Filed by Wayneinder S. Anand, M.D. (Defendant); Babak Hakimisafet, D.O. (Defendant)

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  • 06/25/2019
  • Separate Statement; Filed by Wayneinder S. Anand, M.D. (Defendant); Babak Hakimisafet, D.O. (Defendant)

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  • 06/21/2019
  • Notice of Posting of Jury Fees; Filed by John R. Dingilian, M.D. (Defendant)

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286 More Docket Entries
  • 08/30/2018
  • Demurrer; Filed by Wayneinder S. Anand, M.D. (Defendant); Babak Hakimisafet, D.O. (Defendant)

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  • 08/30/2018
  • Motion to Strike; Filed by Wayneinder S. Anand, M.D. (Defendant); Babak Hakimisafet, D.O. (Defendant)

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  • 08/30/2018
  • Demurrer; Filed by Wayneinder S. Anand, M.D. (Defendant); Babak Hakimisafet, D.O. (Defendant)

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  • 06/04/2018
  • at 10:00 AM in Department 4; Final Status Conference (Final Status Conference; Off Calendar) -

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  • 06/04/2018
  • Minute order entered: 2018-06-04 00:00:00; Filed by Clerk

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  • 06/04/2018
  • Minute Order

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  • 12/19/2016
  • Civil Case Cover Sheet

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  • 12/19/2016
  • Complaint

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  • 12/19/2016
  • Summons; Filed by Dee Ann Abelar (Plaintiff); Brian Abelar (Plaintiff)

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  • 12/19/2016
  • Complaint; Filed by Dee Ann Abelar (Plaintiff); Brian Abelar (Plaintiff)

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Tentative Rulings

Case Number: BC641637    Hearing Date: April 9, 2021    Dept: E

MOTION TO TAX COSTS

[CRC 3.1700(b)]

Date: 4/9/21 (8:30 AM)

Case: Dee Ann Abelar, et al. v. John R. Dingilian, M.D., et al. (BC641637)

Plaintiffs’ Motion to Tax Defendant Jeffrey Mora, M.D.’s Memorandum of Costs is GRANTED IN PART. Defendant Mora’s costs are taxed in the amount of $495.

Pursuant to Mora’s concession that plaintiffs paid $420 in filing fees as monetary sanctions (Opp. at 3), the filing fees are taxed in the amount of $420.

The Court also taxes the filing fees in the additional amount of $60 because the Motion to Compel Deposition heard on May 24, 2019 was denied based on Mora’s failure to serve all parties who appeared in this action. Accordingly, thAT cost was not reasonably necessary to the conduct of the litigation. (CCP § 1033.5(c)(2).)

Pursuant to Mora’s concession that he does not have the $15 invoice supporting ordinary witness fees for Keck Hospital (Opp. at 7), the ordinary witness fees are taxed in the amount of $15.

The Court finds that the other costs disputed by plaintiffs are reasonably necessary and therefore recoverable.

With respect to the ex parte applications for continuance of Mora’s Motion for Summary Judgment, given the lack of a statutory requirement to meet and confer before seeking a continuance via ex parte application, as well as plaintiffs’ intransigence in refusing to allow the deposition of their expert, Dr. Leslie Rand-Luby, it was reasonable for Mora to file ex parte applications without first seeking a stipulation from plaintiffs. (Liu Decl. ¶¶ 22, 28.)

With respect to the ordinary witnesses pertaining to the subpoenas duces tecum served on co-defendants, serving deposition subpoenas to parties is not unreasonable on its face and indeed seems reasonable under the circumstances.

With respect to expert witness fees, defendant Mora’s CCP § 998 offers of waiver of costs were reasonable under the circumstances. “Where, as here, the offeror obtains a judgment more favorable than its offer, the judgment constitutes prima facie evidence showing the offer was reasonable and the offeror is eligible for costs as specified in section 998. The burden is therefore properly on plaintiff, as offeree, to prove otherwise.” (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 700.)

As the prevailing party in his motion for summary judgment, defendant Mora is entitled to recover his costs, which exceed the waiver of costs that he offered in his CCP § 998 offers to plaintiffs. (CCP § 1032(b); Liu Decl. ¶¶ 36, 37, Exs. F, G.) Up to the point of the offers, defendant incurred filing and motion fees. Courts have held that a waiver of costs can be considered to have significant monetary value. (Jones v.Dumrichob (1998) 63 Cal.App.4th 1258, 1263.) At the time Mora served the CCP § 998 offers, Mora served a letter indicating that his experts found no breach of the standard of care. (Liu Decl. ¶ 39 & Ex. I.) It was within plaintiffs’ ability to have an expert review medical records to determine whether Mora complied with the standard of care. It was also within plaintiffs’ ability to conduct any depositions or other discovery to establish Dr. Mora’s breach of the standard of care. Notably, this case was filed on December 19, 2016, and the 998 offers were served on May 13, 2019, a period of almost two and a half years. Accordingly, at the time plaintiffs received the CCP § 998 offers, they had reason to know defendant Mora’s offers were reasonable and could be expected to accept them. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 135-36.) Indeed, it is hard to ignore that defendant Mora’s motion for summary judgment was granted as a direct result of plaintiffs’ decision not to make their expert available for deposition as ordered by the Court. Given the multiple opportunities plaintiffs were afforded to comply with the Court’s order to produce their expert Dr. Rand-Luby for deposition, it is reasonable to infer plaintiffs decided not to do so because they well knew that expert could not provide evidence to raise a disputed issue as to Dr. Mora’s liability.

Pursuant to CCP §1032(b), defendant Jeffrey Mora, M.D. is entitled to $13,483.63 in costs.

Case Number: BC641637    Hearing Date: February 26, 2021    Dept: E


Case Number: EC064933    Hearing Date: February 26, 2021    Dept: E

MOTION TO TAX COSTS

[CRC 3.1700(b)]

Date: 2/26/21 (10:00 AM)

Case: Cesar Romero et al. v. Li-Chuan Shih, et al. (EC064933)

TENTATIVE RULING:

On February 2, 2021, the Court issued a tentative ruling continuing plaintiffs/cross-defendants Cesar Romero and Tatana Romero’s Motion to Tax Costs to allow defendants/cross-complainants Li-Chuan Shih and Tun-Jen Ko (“Shih-Kos”) to submit evidence that the persons who performed service of process were registered pursuant to Business and Professions Code § 22350 et seq.

As a preliminary matter, the Court notes the Shih-Kos’ purported reservation of the “right to address the remainder of the issues referenced in the Tentative Ruling at the time of the hearing.” (Humphrey Decl. ¶ 2.) However, the Court adopted the tentative ruling on February 2, 2021, including the taxing of $16,015.79 in costs. The Shih-Kos forfeited any argument concerning these taxed costs by failing to appear at the February 2, 2021 hearing.

As pertinent to this motion, the service of process costs specified in the February 2, 2021 ruling were taxed including Items 5oo-5qq and 5r-t, y-ff, ii, jj, ll, and mm (erroneously referenced as Items 6r-t, y-ff, ii, jj, ll, and mm). (2/2/21 Minute Order at 4.) Accordingly, with respect to the remaining service of process costs, the Court has reviewed the Shih-Kos’ supplemental documentation to ascertain whether service was performed by registered process servers.

With respect to Items 5eee, 5hhh, and 5iii, the Court finds that the multiple attempts required to serve David Gribin were reasonably necessary to the conduct of the litigation. However, with respect to Item 5ggg, the Declaration re Diligence cited to support the attempted service of a trial subpoena does not contain any amount on it. (Supp. Humphrey Decl. ¶ 4 & Ex. A at 050.) Accordingly, the service of process costs are further taxed in the amount of $399.00.

With respect to Items 5jjj concerning the trial subpoena of David Shewmake, the Romeros argue that the surveillance charges were billed after the service of process. (Humphrey Decl. ¶ 6 & Ex. 3 at 116.) The Court recognizes the possibility that the detective agency billed the surveillance charges later and actually conducted the surveillance before service. However, David Shewmake was served the trial subpoena by Juan Alarcon. (Supp. Humphrey Decl. ¶ 4 & Ex. A at 053.) On the proof of service, Alarcon represented that he is the employee or an independent contractor of a registered process server, not a registered process server himself. Accordingly, the service of process costs are further taxed in the amount of $1,496.00.

With respect to Item 5kkk, David Wall, California Licensed Private Detective for Orange County Detective Agency, indicates that Juan Alarcon and Anthony Palacios attempted to serve Brenda Wendt. (Supp. Humphrey Decl. ¶ 4 & Ex. A at 055-056, ¶¶ 3, 5.) However, the Declarations re Diligence executed by Alarcon and Palacios indicate that Alarcon and Palacios are employees of a registered process server, not registered process servers themselves. (Supp. Humphrey Decl. ¶ 4 & Ex. A at 057-058 [signed in care of registered process server “Silverado”].) The service of process costs are taxed in the amount of $1,595.00.

With respect to Items 5g, h, p, r, s, v, x, ii, ll, nn, xx, and ccc, the Court finds that the declaration of Ricardo Moreno is sufficient to establish that the individuals who performed the service of process were registered. (Moreno Decl. ¶¶ 3, 4.)

With respect to Items 5q ($85.25), 5u ($85.25), 5aaa ($448.12), and 5bbb ($31.50), the Shih-Kos admit that the individuals who performed the service of process were not registered. (Supp. Humphrey Decl. ¶ 4.) Accordingly, the service of process costs are further taxed in the amount of $650.12.

Otherwise, the Court finds that all other costs claimed by the Shih-Kos shall be allowed as reasonably necessary to the conduct of the litigation. (CCP § 1033.5(c)(2).) This includes the entirety of Item 11 concerning models, enlargements, and photocopies of exhibits. It was not unreasonable for the Shih-Kos’ counsel to each have a copy of exhibits.

For the foregoing reasons, in addition to the $16,015.79 taxed for the reasons set forth in the Court’ tentative ruling adopted February 2, 2021, the Court further taxes the service of process costs in the amount of $4,140.12 ($399.00 + $1,496.00 + $1,595.00 + $650.12).

Accordingly, the motion is GRANTED IN PART. Defendants/cross-complainants Li-Chuan Shih and Tun-Jen Ko’s claim of $46,197.95 in costs is reduced by $20,155.91. Accordingly, costs are allowed in the amount of $26,042.04.

Case Number: BC641637    Hearing Date: February 19, 2021    Dept: E

MOTION TO COMPEL PLAINTIFFS’ FURTHER RESPONSES TO REQUESTS FOR PRODUCTION, SET THREE AND SUPPLEMENTAL DEMAND FOR PRODUCTION OF DOCUMENTS, SET ONE

Date: 2/19/21 (8:30 AM)

Case: Dee Ann Abelar et al. v. John R. Dingilian, M.D. et al. (BC641637)

TENTATIVE RULING:

Defendants Wayneinder Anand, M.D. and Babak Hakimisefat, D.O. Second Motion to Compel Plaintiffs’ Further Responses to Requests for Production, Set Three and Supplemental Demand for Production of Documents, Set One is DENIED.

On March 26, 2020, moving defendants served Request for Production, Set Three and Supplemental Demand for Production of and Inspection of Documents, Set One on both plaintiffs collectively. (Gunther Decl. ¶ 4 & Exs. A, B.) On October 23, 2020, the Court granted defendants’ motion to compel further responses to these document requests, finding that plaintiffs’ objections were improper. (Gunther Decl. ¶ 5 & Ex. C.)

In supplemental responses to each of the subject document requests, plaintiffs responded: “The Defendants have subpoenaed all evidence, medical records, insurance records, and social security records. This response incorporates the subpoenas and all records produced pursuant to same.” (Gunther Decl. ¶ 6 & Exs. D, E.)

The Court finds that this response is adequate. Plaintiffs are not obligated to produce responsive documents because plaintiffs state that the documents are equally available to defendants. (Rand-Lewis Decl. ¶ 13 [averring that “Defendants have all relevant documentation about Plaintiffs’ claims and damages, and Defendants continue to issue subpoenas to obtain updated medical records from Plaintiffs’ providers”].) Documents that are equally available to defendants, including documents retrievable by subpoena, do not have to be produced. (Bunnell v. Superior Court (1967) 254 Cal.App.2d 720, 724 [“[W]hen the material to be ‘discovered’ consists, as here, solely of information available to both parties, it defeats the purpose of the Discovery Act to compel one party to perform another party's research, whether such be laborious or not.”].) The burden of research is placed on the propounding party when the records from which the research is to be done are equally available to the propounding party. (Bunnell, 254 Cal.App.2d at 724.)

Because defendants can review the documents retrieved pursuant to subpoenas and determine which documents support plaintiffs’ case, the motion is DENIED.

Case Number: BC641637    Hearing Date: November 20, 2020    Dept: E

BC641637 MOTION FOR SUMMARY JUDGMENT

[CCP § 437c; CRC 3.1350 et seq.]

Date: 11/20/20 (2:00 PM)

Case: Dee Ann Abelar, et al. v. John R. Dingilian, M.D., et al. (BC641637)

TENTATIVE RULING:

Defendant Jeffrey Mora, M.D.’s Motion for Summary Judgment is GRANTED.

Plaintiffs’ evidentiary objections are OVERRULED.

To establish that defendant Jeffrey Mora, M.D. complied with the standard of care in his care and treatment of plaintiff Dee Ann Abelar, Dr. Mora submits the declaration of Michael Gold, M.D.

The declaration adequately establishes Dr. Gold’s qualification to testify as an expert, as Dr. Gold is a physician with appropriate education, training and professional experience, board certified in neurology and has been in medical practice for more than thirty years. (Gold Decl. ¶¶ 2, 3.) Dr. Gold is familiar with the standard of care required of neurologists in the Southern California area. (Gold Decl. ¶ 4.)

The declaration also establishes that Dr. Gold reviewed the complaint in this matter and appropriate patient medical records, including the records from Simi Valley Hospital, Providence St. Joseph Medical Center, Valley Neurosurgical Institute, John Dingilian, M.D., Keck Hospital of USC, and Barbara Yates, M.D. (Gold Decl. ¶ 5.) Dr. Gold also reviewed plaintiff's radiological imaging studies from Simi Valley Hospital and Keck Hospital of USC, as well as Dr. Mora Curriculum Vitae. (Gold Decl. ¶ 5.)

Accordingly, Dr. Gold has presented sufficient foundation for his declaration.

Dr. Gold opines that, when Dr. Mora first saw plaintiff, he had reason to attribute plaintiff’s seizures to her recent brain surgery. (UMF 26-27 and evidence cited.) Dr. Mora ordered the proper laboratory studies, MRIs, and EEGs to monitor plaintiff’s seizures and prescribed appropriate anti-epilepsy medications based on plaintiff’s EEGs and symptoms. (UMF 28-30 and evidence cited.) Based on plaintiff’s vital signs, white blood cell count, supple neck, and MRI studies, Dr. Mora had no reason to suspect plaintiff had an infection during her stay at Simi Valley Hospital. (UMF 31-32 and evidence cited.) Dr. Mora also had no reason to transfer plaintiff to Keck Hospital of USC earlier, because he appropriately monitored her condition before the transfer and properly decided to transfer her to a place with a dedicated epilepsy team upon deciding that he did all he could for plaintiff. (UMF 33 and evidence cited.)

Dr. Gold also opines that plaintiff’s seizures were equally likely to have been caused by irritation from her brain surgery, as opposed to an untreated infection. (UMF 36, 38 and evidence cited.) Dr. Gold further opines that Dr. Mora’s care and treatment of plaintiff did not cause her seizures or neurological damage. (UMF 39 and evidence cited.) Dr. Gold notes that plaintiff began having seizures before Dr. Mora started treating her. (UMF 39 and evidence cited.) Plaintiff’s neurological condition did not worsen while she was a patient at Simi Valley Hospital. (UMF 36, 39 and evidence cited.) Any infection that plaintiff may have had at Simi Valley Hospital would not have changed the need for plaintiff to have a second brain surgery and further anti-epileptic treatment. (UMF 40 and evidence cited.)

Based on the foregoing, Dr. Gold concludes that, to a reasonable degree of medical probability, Dr. Mora’s care and treatment of plaintiff conformed with the operable standard of care for a neurosurgeon and that nothing Dr. Mora did or failed to do caused plaintiff to suffer injury. (UMF 41 and evidence cited.) The declaration of Dr. Gold sufficiently establishes that the conduct of Dr. Mora fell within the applicable standard of care, and the burden shifts to plaintiffs to raise triable issues of material fact.

In opposition to the motion, citing Garibay v. Hemmat (2008) 161 Cal.App.4th 735, plaintiffs object to the declaration of Dr. Gold on the ground that Dr. Mora did not include the entirety of plaintiff’s medical records. The Garibay Court never stated that the entirety of the medical records needed to be before the Court. Here, Dr. Mora submitted relevant portions of the records for Valley Neurosurgical Institute, Providence St. Joseph Medical Center, Simi Valley Hospital, and Keck Hospital of USC supporting Dr. Gold’s declaration. The medical records were supported by custodian of records declarations. (Liu Decl. ¶¶ 3-6 & Exs. A-D.)

To oppose Dr. Gold’s declaration, plaintiffs filed the declaration of Dr. Leslie Rand-Luby on January 10, 2020. On March 13, 2020, the Court granted Dr. Mora’s motion to compel the deposition of Dr. Rand-Luby to allow Dr. Mora to ascertain the foundation of Dr. Rand-Luby’s declaration. (3/13/20 Minute Oder at 4.) On October 26, 2020, during an OSC re: Sanctions, the Court struck the declaration of Dr. Rand-Luby, because plaintiffs failed to comply with the Court’s March 13, 2020 and June 30, 2020 orders for plaintiffs to present Dr. Rand-Luby for deposition no later than September 16, 2020. (10/26/20 Minute Order at 10.)

Accordingly, because plaintiffs do not have an admissible expert declaration to dispute Dr. Gold, plaintiffs do not present any triable issues of material fact as to whether Dr. Gold breached the standard of care. (Munro v. Regents of University of California (1989) 215 Cal. App. 3d 977, 985 [“When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence”].) Brian Abelar’s averment regarding Dr. Mora’s purported admission that he and Simi Valley Hospital were unable to care for plaintiff is insufficient to defeat summary judgment because Brian Abelar is not an expert in the standard of care applicable to neurologists. Further, Dr. Mora’s purported admission is not inconsistent with his eventual determination to transfer Dee Ann Abelar to a facility with a dedicated specialty epilepsy team. (Compare Brian Abelar Decl. ¶ 9 with Gold Decl. ¶¶ 20-22.) Nor does it create a triable issue of fact as to whether Dr. Mora’s treatment caused any injury to plaintiffs. (See Gold Decl. ¶¶ 31.34.)

As to the loss of consortium claim, because the Professional Negligence claim fails, plaintiff Brian Abelar’s Loss of Consortium claim also fails. (Blain v. Doctor's Co. (1990) 222 Cal.App.3d 1048, 1067.)

Accordingly, defendant Jeffrey Mora, M.D.’s Motion for Summary Judgment is GRANTED.

Case Number: BC641637    Hearing Date: October 23, 2020    Dept: E

MOTION TO COMPEL:

(1) PLAINTIFF DEE ANN ABELAR’S FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET THREE;

(2) PLAINTIFF BRIAN ABELAR’S FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET THREE; AND

(3) PLAINTIFFS DEE ANN ABELAR AND BRIAN ABELAR’S FURTHER RESPONSES TO REQUESTS FOR PRODUCTION, SET THREE

Date: 10/23/20 (2:30 PM)

Case: Dee Ann Abelar, et al. v. John R. Dingilian, M.D., et al. (BC641637)

TENTATIVE RULING:

Defendants Wayneinder Anand, M.D. and Babak Hakimisefat, D.O.’s (1) Motion to Compel Plaintiff Dee Ann Abelar’s Further Responses to Special Interrogatories, Set Three; (2) Motion to Compel Plaintiff Brian Abelar’s Further Responses to Special Interrogatories, Set Three; and (3) Motion to Compel Plaintiffs Dee Ann Abelar and Brian Abelar’s Further Responses to Requests For Production, Set Three are GRANTED.

On March 26, 2020, defendants Anand and Hakimisefat served separate Special Interrogatories, Set Three on plaintiffs Dee Ann Abelar and Brian Abelar and Request for Production, Set Three and Supplemental Demand for Production of and Inspection of Documents, Set One on both plaintiffs collectively. (Robinson Decls. ¶ 6 & Exs. A [all three motions], B [requests for production].) Moving defendants granted plaintiffs an extension of time up to May 29, 2020 to respond to the subject discovery. (Robinson Decls. ¶ 7.) On May 29, 2020, for the subject discovery, plaintiffs served an omnibus objection asserting various objections and indicating that they will provide further responses on June 10, 2020. (Robinson Decls. ¶ 8 & Exs. C [special interrogatories], D [requests for production].) Moving defendants met and conferred with plaintiffs about the objections. (Robinson Decls. ¶ 9.) As of the date the motions were filed, despite plaintiffs’ representation that they would serve further responses by June 10, 2020 and despite moving defendants’ subsequent request for the responses, plaintiffs had not provided further responses. (Robinson Decls. ¶¶ 10, 11.)

The Court acknowledges counsel for plaintiffs’ assertion that she was prevented from responding to discovery because she had to self-isolate since October 5, 2020 due to purported exposure to someone with COVID-19. (Rand-Lewis Decl. ¶¶ 3-5.) However, the responses to the discovery at issue here have been pending since March 26, 2020 when they were served. Further, counsel does not state why she could not prepare the responses while in quarantine or whether materials and information necessary to prepare the responses have been inaccessible while in isolation. To the contrary, counsel appears to concede such materials are available to her, albeit with “limited access.” (Rand-Lewis Decl. ¶ 3.) Furthermore, counsel does not explain why someone else in her law practice could not prepare the responses; indeed, the Court notes that court records in this matter reflect that Timothy Rand-Lewis, Esquire, has made the bulk of the appearances in this matter for plaintiffs.

As for the omnibus objection, it is improper. As moving defendants argue, plaintiffs failed to respond separately to each interrogatory or request, set forth the set number in the first paragraph of the responses, and failed to direct objections to particular interrogatories or requests, as required by the Code of Civil Procedure. (CCP §§ 2030.210(a), (a)(3), (b); 2031.210(a), (a)(3), (b) [requests for production].) Because plaintiffs’ responses to the subject discovery are not Code-compliant, the Court deems these motions as seeking initial responses under CCP §§ 2030.290 and 2031.300 instead of as motions to compel further responses under CCP §§ 2030.300 and 2031.310. Because plaintiffs failed to serve responses by the agreed upon deadline of May 29, 2020, all objections are waived. (CCP §§ 2030.290(a), 2031.300(a).)

Even if the Court were to treat these motions as motions to compel further responses, the result is the same. “[I]f a timely motion to compel has been filed, the burden is on responding party to justify any objection.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255, citing Coy v. Superior Court (1962) 58 Cal.2d 210, 220-21.) The motions were filed on June 25, 2020, within 45 days of May 29, 2020, when plaintiffs served their omnibus objection. (CCP §§ 2030.300(c); 2031.310(c).) Plaintiffs’ counsel filed an opposing declaration indicating that plaintiffs intend to provide full substantive responses. (Rand-Lewis Decl. ¶ 5.) That declaration in opposition does not justify any of plaintiffs’ asserted objections.

Accordingly, the motions are GRANTED. Plaintiff Dee Ann Abelar is ordered to serve further responses, without objection, to Special Interrogatories, Set Three, Nos. 61-87. Plaintiff Brian Abelar is ordered to serve further responses, without objection, to Special Interrogatories, Set Three, Nos. 45-58. Plaintiffs Dee Ann Abelar and Brian Abelar are ordered to serve further responses, without objection, to Requests for Production, Set Three, Nos. 1-12 and Supplemental Demand for Production of and Inspection of Documents, Set One. Responses shall be served on defendants Wayneinder Anand, M.D. and Babak Hakimisefat, D.O. within fifteen (15) days hereof.

For failing to comply with their discovery obligations and thereby forcing moving defendants to file these three (3) motions, the Court imposes monetary sanctions as follows:

· $1,660 against plaintiff Dee Ann Abelar and counsel of record, jointly and severally, for failure to respond to Special Interrogatories, Set Three (8 hours requested, at an hourly rate of $200, plus $60 for the filing fee of the motion).

· $1,660 against plaintiff Brian Abelar and counsel of record, jointly and severally, for failure to respond to Special Interrogatories, Set Three (8 hours requested, at an hourly rate of $200, plus $60 for the filing fee of the motion).

· $1,560 against plaintiffs Dee Ann Abelar, Brian Abelar, and counsel of record, jointly and severally, for failure to respond to and Request for Production, Set Three and Supplemental Demand for Production of and Inspection of Documents, Set One (7.5 hours requested, at an hourly rate of $200, plus $60 for the filing fee of the motion).

All monetary sanctions are payable to counsel for defendants Wayneinder Anand, M.D. and Babak Hakimisefat, D.O. within fifteen (15) days hereof.

The Court does not find that further sanctions should be imposed at this time. To be sure, plaintiffs have demonstrated a pattern of not responding to discovery until being ordered by the Court, but the Court will afford plaintiffs an opportunity to comply with the instant court-ordered discovery requests. In connection with this particular discovery dispute, the Court does not find at this juncture that evidence, issue, and/or terminating sanctions would not be proportional to the instant misuse of the discovery process by plaintiffs. (See Siry Investment, L.P. v. Farkhondehpour (2020) 45 Cal.App.5th 1098, 1117 [“When faced with a party’s misuse of the discovery process, a trial court ‘should’ impose ‘[t]he penalty ... appropriate to the dereliction.’ . . . Proportionality is critical when it comes to terminating sanctions because they altogether deny the non-compliant party a hearing on the merits and thus implicate due process”].) However, continued failures to timely and completely comply with discovery obligations, or the failure to comply with this Court’s discovery orders, may merit more serious sanctions, particularly in light of plaintiffs and their counsels’ established history of discovery abuse during this action.

MOTION FOR PROTECTIVE ORDER

ORDER TO SHOW CAUSE RE: SANCTIONS

Date:     10/23/20 (2:30 PM)

Case: Dee Ann Abelar, et al. v. John R. Dingilian, M.D., et al. (BC641637)

 

TENTATIVE RULING:

Plaintiffs Dee Ann Abelar and Brian Abelar’s Motion for Protective Order is DENIED.

On October 29, 2019, Defendant Jeffrey Mora, M.D. filed a motion for summary judgment.  In support of the opposition, plaintiffs submitted the declaration of Dr. Leslie Rand-Luby.  Defendant Mora thereafter requested to take the deposition of Dr. Rand-Luby regarding the foundational basis of her declaration. Plaintiffs moved for a protective order prohibiting the deposition of Dr. Rand-Luby until expert discovery under the time proscribed by Code of Civil Procedure sections 2034.210 et seq. commences.

On March 13, 2020, the Court denied plaintiffs’ motion for protective order. The Court granted defendant Mora’s concurrently heard motion to compel deposition and ordered the deposition to take place on March 24, 2020.

Due to the COVID-19 pandemic, the deposition did not go forward on March 24. On April 8, 2020, pursuant to the parties’ stipulation, the Court entered an order modifying the briefing schedule for the reply and sur-reply for Mora’s summary judgment motion.

On June 30, 2020, pursuant to the parties’ stipulation, the Court ordered plaintiffs to produce Dr. Rand-Luby for her Court-ordered deposition by no later than September 16, 2020. The Court also continued the hearing on the motion for summary judgment to October 23, 2020.

On September 1, 2020, prior to the deadline of September 16, 2020, plaintiffs notified Mora that Dr. Rand-Luby was only available for deposition on September 22 and 24, 2020. (Liu Decl. ¶ 36 & Ex. F.) Plaintiffs have characterized Dr. Rand-Luby’s inability to attend deposition before September 16, 2020 as the result of “unexpected calendar conflicts.” (Rand-Lewis OSC Decl. ¶ 12.) Defendant Mora agreed to take the deposition of Dr. Rand-Luby on September 24, 2020. (Liu Decl. ¶ 36 & Ex. F.) On September 8, 2020, Mora served a deposition notice for the deposition to take place on September 24, 2020. (Liu Decl. ¶ 38 & Ex. H.)

On September 22, 2020, plaintiffs served and filed a second motion for protective order. Plaintiffs set the motion for December 11, 2020. Mora told plaintiffs that the deposition would go forward and that, if Dr. Rand-Luby did not appear, Mora would file a motion to compel the deposition. (Liu Decl. ¶ 44 & Ex. N.) Plaintiffs responded that they would not appear because the motion for protective order was filed. (Liu Decl. ¶ 44 & Ex. N.) On September 24, 2020, Mora and other defendants appeared, but plaintiffs and Dr. Rand-Luby did not. (Liu Decl. ¶ 45 & Ex. O.)

On October 1, 2020, pursuant to Mora’s ex parte application to set the deposition of Dr. Rand-Luby, the Court advanced the hearing on the motion for protective order to October 23, 2020 and set an OSC re: sanctions, ordering plaintiffs to show cause why monetary sanctions should not be imposed, why the declaration of Dr. Rand-Luby should not be stricken, and/or why plaintiffs’ claims against Mora should not be dismissed.

In the motion for protective order, plaintiffs argue that the deposition notice Mora served on September 8, 2020 indicates that Mora intends to conduct a premature expert deposition. (Rand-Lewis Motion Decl. ¶ 7 & Ex. A.) In the deposition notice, Mora asks for production of specified documents at least three business days before the deposition pursuant to CCP § 2034.415. Plaintiffs do not adequately explain how defendant’s deposition notice seeks a premature expert deposition. The deposition notice states that the deposition of Dr. Rand-Luby will be taken “pursuant to the Court's March 13, 2020 order and ruling as well as the Court's June 30, 2020 order.” (Rand-Lewis Motion Decl. ¶ 7 & Ex. A.) The March 13, 2020 ruling stated that Mora presented good cause to depose Dr. Rand-Luby “concerning the foundation of her declaration prior to preparing a reply in support of his motion for summary judgment.” (3/13/20 Minute Order at 4.) Accordingly, the deposition is already limited to questions about the foundation of Dr. Rand-Luby’s declaration. Defendant Mora is entitled to ask about Dr. Rand-Luby’s qualifications and training, her practice and the patients she has treated, and her experience and expertise as part of ascertaining the foundation, or lack thereof, of Dr. Rand-Luby’s opposing declaration. (Motion at 8.) Further, plaintiffs demand the timely payment of an “expert witness fee.” (Motion at 6.)  Further, each and every request for documents in the deposition notice is explicitly linked to Dr. Rand-Luby’s opinion with respect to plaintiffs’ opposition to the motion for summary judgment.  (See Liu Decl. ¶ 38 & Ex. H.)  From this, it is hard to see how plaintiffs could reasonably conclude Mora intends to embark upon a so-called premature expert deposition beyond what the Court has ordered.

Plaintiffs also seek a protective order that the terms of the remote deposition, including the “provision of the remote video link for the proceedings, how exhibits will be handled and marked, whether exhibits will be provided electronically or hard copy, and whether the Court Reporter will be at a remote location or in the presence of Dr. Rand-Luby during the deposition” will be provided seven days before the deposition. (Motion at 2.) Plaintiffs cite no authority that requires defendant Mora to provide plaintiff information about the mechanics of the deposition by a certain time.  Indeed, there is no reasonable or logical basis for these fabricated conditions for Dr. Rand-Luby to submit to a remote deposition.  In any event, sufficiently in advance of the deposition scheduled for September 24, 2020, counsel for Mora forwarded a Zoom deposition link to all counsel in this case on September 22, 2020. (Liu Decl. ¶ 17.)

Plaintiffs also have no basis for seeking to restrict the deposition to two hours.  The Court never ordered or imposed such a time limitation, and there appears to be no good reason for it.  Nonetheless, on September 21, 2020, defendant Mora sent a check for $1,980 (or $990 per hour) to plaintiffs’ counsel by overnight courier, essentially acknowledging that they reasonably anticipated the deposition would last no longer than two hours. (Liu Decl. ¶ 40 & Ex. J.) Plaintiffs received the check on September 22, 2020. (Liu Decl. ¶ 41 & Ex. K.) But defendant Mora’s estimate of a two-hour deposition in no way entitles plaintiffs to limit it to such.  Indeed, if the deposition were to take longer than two hours, then Mora would simply pay the balance of the expert fee after the deposition. (CCP § 2034.450(c) [“If the deposition of the expert takes longer than anticipated, the party giving notice of the deposition shall pay the balance of the expert’s fee within five days of receipt of an itemized statement from the expert”].)

Plaintiffs also seek an order that Dr. Rand-Luby will not be required to produce any expert witness documents pursuant to CCP § 2034.415. The deposition of Dr. Rand-Luby was ordered pursuant to Mora’s motion to compel deposition filed on February 5, 2020. Mora did not ask for documents to be produced, either in the notice of motion or memorandum of points and authorities, but the deposition notice attached to the motion contained document requests.  The Court’s March 13, 2020 Order did not explicitly order production of the documents requested in the deposition notice.  Arguably, there is some ambiguity as to whether Dr. Rand-Luby was required to produce documents in connection with the court-ordered deposition.  However, as of September 21, 2020, before the instant motion for protective order was filed, defendant Mora agreed in an email that the deposition could proceed without document production. (Liu Decl. ¶ 42 & Ex. L.) Plaintiffs acknowledged this concession, stating: “Great, let’s get it done.” (Liu Decl. ¶ 42 & Ex. L.)  Plaintiffs thus are not entitled to a protective order on the ground that Mora is not entitled to document production, as that issue was resolved prior to the scheduled deposition and prior to the filing of the motion for a protective order.  Insofar as plaintiffs have articulated a concern that Mora would adjourn the deposition to seek production of documents, that stated concern is entirely speculative and, in any event, would not constitute a valid basis to prevent the commencement of the deposition in the first instance.

Plaintiffs also seek an order requiring Mora to pay Dr. Rand-Luby’s expert witness fee no later than seven days before the deposition. Plaintiffs contend that Dr. Rand-Luby requires such advance payment so as to avoid Dr. Rand-Luby having to cancel surgeries on short notice. This issue is moot; Mora paid the anticipated witness fees by plaintiffs’ unilaterally imposed deadline of September 22, 2020 set forth in their objection to Mora’s deposition notice. (Liu Decl. ¶¶ 39, 41 & Exs. I, K.) In any event, there was no basis for such a demand.  CCP § 2034.450 allows Mora to tender an expert witness fee “at the commencement of the deposition.” Plaintiffs are not entitled to require the fee to be paid seven days before. Pursuant to the deposition notice served on September 8, 2020, Dr. Rand-Luby was required to make herself available for deposition on September 24, 2020, notwithstanding any lack of payment prior to commencement of the deposition. 

Plaintiffs also seek an order setting the deposition of Dr. Michael Gold, M.D. the physician who filed a declaration in support of Mora’s motion for summary judgment.  This is an issue entirely unrelated as to whether Dr. Rand-Luby’s deposition should go forward.  The fact that Mora has made the requisite showing to depose Dr. Rand-Luby in connection with her declaration in opposition to Mora’s motion for summary judgment does not automatically entitle plaintiffs to depose Mora’s expert about his declaration.  (See St. Mary Medical Center v. Superior Court (1996) 50 Cal.App.4th 1531, 1534 [“We conclude that where a party presents evidence that raises a significant question relating to the foundation of an expert's opinion filed in support of or in opposition to a motion for summary judgment or summary adjudication, a deposition limited to that subject should be allowed”].)  Plaintiffs must make the requisite showing, which they have not.  Plaintiffs have made no showing that Dr. Gold’s declaration may lack foundation. In the reply, plaintiffs contend Dr. Gold failed to cite specific portions of the records upon which he based his opinion that Mora complied with the standard of care (Reply at 8), but Dr. Gold listed the records that he reviewed as part of his review of the case. (Gold Decl. ¶ 5.)  Moreover, plaintiffs’ assertion of their desire and need to depose Dr. Gold is belied by the timing and circumstances of their eleventh-hour request.  Plaintiffs could have sought the deposition of Dr. Gold before opposing the motion for summary judgment pursuant to CCP § 437c(h).  Notably, in plaintiffs’ January 10, 2020 opposition to Mora’s motion for summary judgment, they made no such request for any continuance of the motion due to lack of necessary discovery, i.e. the deposition of Mora’s expert.  Accordingly, there is no basis to order the deposition of Dr. Gold, as plaintiffs fail to raise any significant question relating to the foundation for the expert opinion in his declaration.  (See St. Mary Medical Center, 50 Cal.App.4th at 1534.)

The Court also notes that plaintiffs failed to meet and confer on all of the issues presented in the instant motion before filing this second motion for protective order. (CCP § 2025.420(a), 2016.040.) Although plaintiffs raised the issue of document production and the expert witness fee (Liu Decl. ¶¶ 40, 42 & Exs. J, L), which Mora addressed (as discussed above), there is no showing that, prior to filing the second motion for protective order, plaintiffs requested defendant Mora to limit the deposition to 2 hours or that the terms and logistics of the remote deposition be provided seven days before the deposition. Indeed, plaintiffs did not object to the deposition on these grounds. (Liu Decl. ¶ 39 & Ex. I.) Their assertion in the instant motion without any prior meet and confer effort suggests these grounds are merely post hoc justifications for plaintiffs’ backing out of their agreement to a deposition on September 24, 2020.

Because, for all the reasons discussed above, the second motion for protective order is entirely frivolous, plaintiffs’ motion for protective order is DENIED.  Indeed, the timing of the motion and the unmeritorious positions asserted therein lead to but one conclusion—that plaintiffs made the motion in bad faith and as subterfuge for their apparent strategic decision to avoid the court-ordered deposition of Dr. Rand-Luby.  Relatedly, with respect to the Order to Show Cause Re: Sanctions, the Court finds that plaintiffs fail to show cause why an appropriately tailored evidence sanction should not be imposed. The Court notes that plaintiffs were aware as of June 30, 2020 that the deadline for the deposition was September 16, 2020. (Rand-Lewis OSC Decl. ¶ 11.)  Simply put, it did not go forward, in violation of this Court’s explicit orders.  The Court is mindful that the COVID-19 global pandemic and accompanying shutdown of operations in the community may have necessitated delay and rescheduling of the deposition since the time it was first ordered by the Court on March 13, 2020.  The Court also acknowledges that Dr. Rand-Luby’s noble service as a health care professional during these uncertain times required a certain level of accommodation of her schedule.  But the Court also finds that the record reflects counsel for Dr. Mora reasonably accounted for and accommodated these factors for over six months, only to be met by plaintiffs’ delay and unsupported excuses for avoiding the court-ordered deposition, culminating in the instant bad-faith motion for a protective order.

Accordingly, pursuant to CCP § 2025.480(k), due to plaintiffs’ failure to comply with the 3/13/2020 and 6/30/2020 orders requiring them to produce Dr. Rand-Luby for deposition before September 16, 2020, the Court imposes an evidence sanction and strikes the declaration of Dr. Rand-Luby filed on January 10, 2020 in support of plaintiffs’ opposition to defendant Mora’s motion for summary judgment.  Having stricken such declaration, there is no longer any need for Dr. Mora to depose Dr. Rand-Luby about the foundation for it.  Nor is there any need for a modified briefing schedule or further delay in setting Dr. Mora’s summary judgment motion for hearing.  Mora’s motion for summary judgment is thus set for hearing on November 20, 2020, at 2:00 PM, in Department E of the Glendale Courthouse.  Mora’s reply to plaintiffs’ January 10, 2020 opposition shall be filed and served in accordance with the newly scheduled hearing date.  No other briefing in connection therewith shall be permitted without further leave of Court.

In addition, pursuant to CCP § 2025.420(h), for making the motion for protective order without substantial justification, the Court imposes monetary sanctions based on

3 hours preparing the ex parte application to advance the hearing on the motion for protective order, 1 hour attending the hearing on the ex parte application to advance the hearing on the motion for protective order, 3 hours for the opposition, and 1 hour to attend the hearing on the motion for protective order, for a total of 8 hours, instead of the 25.5 hours requested.

Monetary sanctions are not imposed for the non-appearance at the deposition on September 24, 2020. Plaintiffs had already filed the motion for protective order on September 22, 2020. Defendants were aware before proceeding with the deposition that plaintiffs had filed a motion for protective order. (Liu Decl. ¶¶ 43, 44 & Exs. M, N.) Plaintiffs also notified defendants on September 23, 2020, that they would not appear for deposition due to the filing of the motion for protective order. (Liu Decl. ¶ 44 & Ex. N.)

Contrary to plaintiffs’ contention in the reply, defendant Mora included a notice he would seek monetary sanctions against plaintiffs and counsel in his notice to the opposition and the memorandum of points and authorities. Mora’s notice of his request for monetary sanctions is adequate.

Accordingly, monetary sanctions in the amount of $1,600 are imposed against plaintiffs Dee Ann Abelar and Brian Abelar and their counsel of record, jointly and severally, payable to counsel for Jeffrey Mora, M.D. within 30 days hereof. 

Case Number: BC641637    Hearing Date: July 17, 2020    Dept: E

DISCOVERY MOTIONS

OF DEFENDANTS ANAND AND HAKIMISEFAT (10)

Date: 7/17/20 (8:30 AM)

Case: Dee Ann Abelar, et al. v. John R. Dingilian, M.D., et al. (BC641637)

TENTATIVE RULING:

The following motions filed by defendant Wayneinder S. Anand, M.D. are GRANTED:

· Motion to Compel Responses to Form Interrogatories, Set Two from Plaintiff Dee Ann Abelar

· Motion to Compel Responses to Form Interrogatories, Set Two from Plaintiff Brian Abelar

The following motions filed by defendant Wayneinder S. Anand, M.D. are DENIED:

· Motion to Deem Requests for Admission, Set Two, Propounded on Plaintiff Dee Ann Abelar

· Motion to Deem Requests for Admission, Set Two, Propounded on Plaintiff Brian Abelar

The following motions filed by defendant Babak Hakimisefat, D.O. are GRANTED:

· Motion to Compel Responses to Form Interrogatories, Set Two from Plaintiff Dee Ann Abelar

· Motion to Compel Responses to Form Interrogatories, Set Two from Plaintiff Brian Abelar

The following motions filed by defendant Babak Hakimisefat, D.O. are DENIED:

· Motion to Deem Requests for Admission, Set Two, Propounded on Plaintiff Dee Ann Abelar

· Motion to Deem Requests for Admission, Set Two, Propounded on Plaintiff Brian Abelar

The following motions filed by defendants Wayneinder S. Anand, M.D. and Babak Hakimisefat, D.O. are GRANTED:

· Motion to Compel Responses to Requests for Production, Set Two from Plaintiff Dee Ann Abelar

· Motion to Compel Responses to Requests for Production, Set Two from Plaintiff Brian Abelar

The discovery at issue was served on plaintiffs by mail on January 24, 2020. (3/26/20 Robinson Decl. ¶ 4 & Exs. A.) Accordingly, the deadline to serve responses to such discovery was February 28, 2020. (CCP §§ 2030.260(a), 2031.260(a), 2033.250(a) [discovery responses due 30 days after service]; 1013(a) [five calendar days added for mailing).) Moving defendants maintain plaintiffs never responded to the subject discovery. (3/26/20 Robinson Decl. ¶ 6.) In their combined opposition to the motions, plaintiffs maintain they responded by February 28, 2020. (Rand-Lewis Decl. ¶ 4.) According to the proofs of service attached to the discovery responses submitted with plaintiffs’ opposition to the motions, such responses were served by mail on February 28, 2020. (Rand-Lewis Decl. ¶¶ 5-10 & Exs. A, B, C, D, E, F.)

Based on the record before the Court, it is not at all clear that plaintiffs served any discovery responses by February 28, 2020, as claimed. What is clear, however, is that, moving defendants never received such discovery. Indeed, it would appear none of the defendants received these responses with which they were purportedly served. (Compare Rand-Lewis Decl. Exs. A, B, C, D, E, F [service lists for plaintiffs’ responses] with 7/10/20 Robinson Decl. ¶ 7 & Exs. F, G [correspondence by counsel on service lists indicating no receipt of responses].) What is also clear is that, contrary to plaintiffs’ assertion that moving defendants never attempted to meet and confer about the missing discovery, moving defendants sent a letter on March 9, 2020 to plaintiffs’ counsel by mail and fax inquiring about the missing responses. (3/26/20 Robinson Decl. ¶ 5 & Ex. B.) Plaintiffs conspicuously do not mention this letter in their opposition to the motions. Rather, counsel for plaintiff merely states in conclusory fashion that defendants did not meet and confer about plaintiffs’ responses. (Rand-Lewis Decl. ¶ 11.) To being with, because defendants never received plaintiffs’ responses, defendants had no reason to meet and confer regarding the responses. But more to the point, plaintiffs could have potentially avoided the filing of these motions by responding to moving defendants’ inquiries about the discovery responses. This would seem particularly so if such responses had actually been served on February 28, 2020 as plaintiffs’ counsel claims.

Due to the uncertainty regarding the service of the responses, plaintiffs are ordered to serve responses to the second sets of Requests for Production, Form Interrogatories, and Requests for Admission within 5 days of this ruling. Because it is possible plaintiffs could have served responses to the Requests for Admission by the deadline, the matters set forth in Requests for Admission, Set Two, propounded on plaintiffs Dee Ann Abelar and Brian Abelar are not deemed admitted.

Moving defendants seek $440 in monetary sanctions for each motion. The sanctions are reduced because the motions are largely duplicative. For failing to respond to defendants’ March 9, 2020 letter and attempts to procure plaintiffs’ responses to discovery, which forced defendants to file the instant discovery motions, the Court imposes monetary sanctions on plaintiff Dee Ann Abelar and plaintiffs’ counsel of record in the amount of $1,300 (1 hour per motion against Dee Ann Abelar at $200/hr + $60 filing fee for 5 motions) and monetary sanctions on plaintiff Brian Abelar and plaintiffs’ counsel of record in the amount of $1,300 (1 hour per motion against Brian Abelar at $200/hr + $60 filing fee for 5 motions), all of which is payable to counsel for moving defendants within 30 days hereof. Plaintiffs’ request for sanctions is denied.

MOTION FOR SUMMARY JUDGMENT

(DEFENDANT PROVIDENCE)

[CCP § 437c; CRC 3.1350 et seq.]

Date: 7/17/20

Case: Dee Ann Abelar, et al. v. John R. Dingilian, M.D., et al. (BC641637)

TENTATIVE RULING:

Defendant Providence Health System – Southern California dba Providence Saint Joseph Medical Center’s Motion for Summary Judgment is DENIED.

Plaintiffs’ request for judicial notice of the November 22, 2019 order denying defendants Wayneinder S. Anand, M.D. and Babek Hakimisafet, D.O.’s motion for summary judgment is GRANTED, pursuant to Evidence Code § 452(d). All evidentiary objections are OVERRULED.

To support its argument that plaintiffs cannot show that Providence breached the standard of care, Providence submits the declaration of Mary Ransbury, RN, BSN, PHN. The declaration adequately establishes Ransbury’s qualification to testify as an expert, as Ransbury is a licensed nurse with the appropriate education, training, and professional experience and has been licensed as a nurse for 30 years. (Ransbury Decl. ¶ 1 & Ex. A.) Nurse Ransbury is familiar with the standard of care required of nurses working in an acute care hospital. (Ransbury Decl. ¶ 1.) Ransbury’s CV is attached to her declaration as Exhibit A.

Ransbury opines that, since the first day of plaintiff Dee Ann Abelar’s admission to Providence on October 6, 2015, the nursing staff developed and implemented timely care plans, which were tailored to plaintiff’s specific needs. (Ransbury Decl. ¶¶ 8, 19.) Plaintiff’s temperature remained in normal range during her stay at Providence. (Ransbury Decl. ¶¶ 8, 19.) Ransbury also recounts Drs. Babak Hakimisafet, Joung Lee, and Wayneinder Anand’s examinations of plaintiff after her surgery up to her discharge. (Ransbury Decl. ¶¶ 7, 9-14, 20.)

Based on the foregoing, Ransbury concludes that, to a reasonable degree of medical probability, Providence’s care and treatment of plaintiff, through its nursing and ancillary staff, conformed with the operable standard of care. (UMF 17, 24 and evidence cited.) The nursing and ancillary staff followed all physician orders, performed appropriate monitoring and care of plaintiff, and created and implemented appropriate plans of care to meet plaintiff’s needs. (UMF 8, 18-19 and evidence cited.) Providence’s nursing staff appropriately attended to plaintiff’s surgical wound. (UMF 18 and evidence cited.) Ransbury also avers there was no change in plaintiff’s medical condition that required additional reporting by nursing to plaintiff’s physicians. (UMF 21 and evidence cited.) Nursing and ancillary staff are not charged with diagnosing medical conditions, including infections, in patients like plaintiff. (UMF 22 and evidence cited.)

The declaration of Nurse Ransbury sufficiently establishes that the conduct of the nursing and ancillary staff at Providence fell within the applicable standard of care, thereby shifting the burden to plaintiffs to raise triable issues of material fact. (Munro v. Regents of University of California (1989) 215 Cal. App. 3d 977, 985.)

To dispute Ransbury’s declaration, plaintiffs present the declaration of Dr. Leslie Rand-Luby. The declaration of Dr. Rand-Luby does not have a Curriculum Vitae attached, even though it is referenced in paragraph 1 her declaration. Interpreting the evidence in the light most favorable to plaintiffs, the Court takes judicial notice of the declaration of Dr. Rand-Luby filed on November 13, 2019 containing her Curriculum Vitae to establish foundation. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 [“In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn therefrom, and must view such evidence and such inferences in the light most favorable to the opposing party”].)

Plaintiffs argue that Providence breached the standard of care due to Providences alleged failure: (1) to diagnose plaintiff’s meningitis infection; (2) to obtain informed consent; and (3) to provide an overview of the craniotomy procedure. (Rand-Luby Decl. ¶¶ 6, 7.)

With respect to the first ground, plaintiffs fail to recognize, let alone rebut, the proposition that nurses do not diagnose medical conditions. (See Ransbury Decl. ¶ 22.) Although Dr. Rand-Luby clumsily lumps together physicians, hospitalists, intensivists, and nursing staff in failing to have “identified, diagnosed, and treated” plaintiff’s condition here, the underlying assumption that nurses have any obligation or ability to have diagnosed plaintiff is contrary to law. (See Bus. & Prof. Code § 2052(a) [declaring unlawful the unlicensed practice of medicine, including the diagnosis of any physical or mental condition].) Insofar as Dr. Rand-Luby posits the nurses and staff of Providence “were required by the standard of care to obtain an evaluation of and treatment of this condition,” Dr. Rand-Luby implicitly acknowledges that evaluation and treatment of plaintiff actually occurred, as Dr. Rand-Luby sets forth the purported failures by Drs. Anand and Hakimisefat to diagnose plaintiff as they evaluated and treated her. (Compare Rand-Luby Decl. ¶ 6 with Rand-Luby Decl. ¶ 7.) Thus, to extent there was any failure to diagnose plaintiff’s meningitis, Providence is only liable for that failure insofar as Providence may be found liable for the actions of Drs. Anand and Hakimisefat, as discussed below.

Likewise, with respect to the second and third grounds (see Compl. ¶¶ 8, 47), plaintiffs fail to recognize that obtaining informed consent by providing relevant material information to the patient, including information regarding the craniotomy to be performed, was the responsibility of the physicians, not the nurses employed by Providence. (See Cobbs v. Grant (1972) 8 Cal.3d 229, 240–41.) The fact that page 166 of plaintiff’s Providence medical records may indicate that plaintiff’s care plan includes providing her with any overview of the craniotomy procedure (Dee Ann Abelar Decl. ¶ 11 & Ex. A) does not mean Providence’s nursing staff was charged with providing plaintiff with all material and relevant information concerning the medical procedure that the physician would perform. Rather, the physician is charged with providing material information regarding the treatment. (Cobbs, supra 8 Cal.3d at pp. 240-41.)

Thus, because plaintiffs have failed to establish any triable issue of liability with respect to its nursing staff’s conduct, Providence can only be liable to plaintiffs to the extent it is responsible for any liability on the part of the physicians who treated plaintiff at Providence. “A hospital is liable for a physician's malpractice when the physician is actually employed by or is the ostensible agent of the hospital.” (Whitlow v. Rideout Memorial Hospital (2015) 237 Cal.App.4th 631, 635 [quoting Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 103].) Ostensible agency may be shown when the following two elements are satisfied: “(1) conduct by the hospital that would cause a reasonable person to believe that the physician was an agent of the hospital, and (2) reliance on that apparent agency relationship by the plaintiff.” (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1453.) As to the first element of ostensible agency, “[U]nless the patient had some reason to know of the true relationship between the hospital and the physician—i.e., because the hospital gave the patient actual notice or because the patient was treated by his or her personal physician—ostensible agency is readily inferred.” (Id. at pp. 1454–55.)

With respect to Providence’s liability for the doctors’ conduct, Providence presents the declaration of Dena Decker, RN, BSN, CPHQ, Providence’s Director of Clinical Quality, Regulatory Compliance and Risk Management. (Decker Decl. ¶ 1.) Decker declares that Drs. Lee, Anand, and Hakimisafet were and are independent contractors of Providence, not employees. (Decker Decl. ¶ 3.) Further, Providence’s “Conditions of Admission,” which appears on its face to be signed by plaintiff Dee Ann Abelar, specifically states that “all physicians, physician assistants, and surgeons furnishing service to the patient, including the radiologist, pathologist, anesthesiologist, emergency room physician, physician assistants, and the like, are independent contractors and are not employees or agents of the hospital.” (UMF 4, 33 and evidence cited.) Such evidence demonstrates plaintiff had reason to know the physicians were not employed by the hospital or were not agents of the hospital. Providence has thus shifted the burden to plaintiffs to show a triable issue of material fact as to ostensible agency.

Plaintiff Dee Ann Abelar disputes that she signed the Conditions of Admission form. (UMF 4; Dee Ann Abelar Decl. ¶¶ 3, 4.) In addition, both Dee Ann and Brian Abelar declare that “all of the personnel, nurses and doctors” that they saw at the hospital “identified themselves as Providence personnel, as did their clothing, records, and the other things at the hospital including paper work and signs.” (Dee Ann Abelar Decl. ¶ 10; Brian Abelar Decl. ¶ 11.) These averments are sufficient to create a triable issue of fact as to whether plaintiffs knew the treating physicians were not employed by the hospital or were not agents of the hospital. Thus, triable issues exist as to whether plaintiff’s physicians at Providence were ostensible agents of Providence.

With respect to the doctors’ conduct, the conduct of co-defendant Joung Lee, M.D. is not relevant to Providence’s liability because Dr. Lee was dismissed on summary judgment on February 14, 2019. As for Drs. Anand and Hakimisafet, Dr. Rand-Luby notes in her declaration that Providence’s expert admits that plaintiff’s medical records showed an elevated white blood cell count, which indicated an infection and necessitated specialist care in Dr. Rand-Luby’s opinion. (Rand-Luby Decl. ¶ 6; cf. Ransbury Decl. ¶¶ 7, 9 [acknowledging Drs. Anand and Hakimisefat noted plaintiff’s white blood cell count was elevated].) The fact that plaintiffs did not provide the underlying medical records does not prevent Dr. Rand-Luby from proffering such opinion, because Providence provided these records in support of its motion for summary judgment. (Nessel Decl. ¶ 2 & Ex. 1; Shugart v. Regents of University of California (2011) 199 Cal.App.4th 499, 506 [“The Garibay [v. Hemmat] case does not require a party opposing summary judgment to file duplicate copies of the medical records on which the opposing expert relied in forming a disputed expert opinion if they are already before the court in support of the motion”].) Thus, there remains a triable issue of fact as to whether Drs. Anand and Hakimisafet were negligent in failing to diagnose and/or treat plaintiff’s infection, as well as whether any such liability may be imputed to Providence.

As to the loss of consortium claim, because the Professional Negligence claim is triable, plaintiff Brian Abelar’s Loss of Consortium claim is also triable. (Blain v. Doctor's Co. (1990) 222 Cal.App.3d 1048, 1067.)

The motion for summary judgment is DENIED.

PLAINTIFFS’ MOTION TO TAX COSTS

(BADIEI DEFENDANTS)

[CRC 3.1700(b)]

Date: 7/17/20 (8:30 AM)

Case: Dee Ann Abelar, et al. v. John R. Dingilian, M.D., et al.  (BC641637)

TENTATIVE RULING:

Plaintiffs’ Motion to Tax Defendants Pejman Badiei, M.D. and Pejman Badiei, M.D, Inc.’s Memorandum of Costs is DENIED.

Cal. Rule of Court 3.1700(b)(1) states, “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013.”  The cost memorandum was served by mail on October 9, 2019.  Thus, the motion to tax costs was initially due by October 29, 2019. 

On October 30, 2019, the Court entered an order pursuant to the parties’ stipulation stating that the motion to strike/tax costs was due on November 5, 2019.  (See Cal. Rules of Court, rule 3.1700(b)(3) [allowing parties to stipulate to extension of time to file and serve motion to tax costs].)  Although the motion was filed on November 5, 2019, according to the proof of service attached to the motion, Badiei’s counsel was not served.  (Vazquez Decl. ¶¶ 4, 6, 7 & Ex. C.)  Indeed, there is no competent proof before this Court that the Badiei defendants were ever served with the instant motion, as it appears they instead learned of it through happenstance and obtained a copy of the motion from the Court on their own.  (Vazquez Decl. ¶¶ 5-9 & Ex. D.)

Under the timing requirements for service of the motion to tax costs set forth in Cal. Rule of Court 3.1700(b)(1), plaintiffs’ motion is barred.  Pursuant to the agreement of the parties and the order of the Court, the deadline to file and serve the motion to tax costs was November 5, 2019.  That plaintiffs, as the moving party, were able to unilaterally move the original hearing date from February 7, 2020 to April 17, 2020 through the Court’s automated reservation system (see Vazquez Decl. ¶ 10 & Ex. E), still does not render the motion timely in accordance with rule 3.1700.  (See Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 261 [finding that untimely filed motion to tax costs should be disregarded].)  Accordingly, the motion is DENIED. 

The Badiei defendants also seek to add the $37.40 cost for having to retrieve a copy of the motion to tax costs from the Court’s website.  (Vazquez Decl. ¶ 6 & Ex. D.)  This cost is not expressly allowable under CCP § 1033.5(a).  Defendants make no showing that plaintiffs’ counsel was contacted so that a copy of the motion could otherwise be obtained. 

Defendants Pejman Badiei, M.D. and Pejman Badiei, M.D, Inc. are entitled to $10,243.79 in costs as claimed in the Memorandum of Costs, filed October 9, 2019.

PLAINTIFFS’ MOTION TO VACATE JUDGMENT (LEE)

[CCP §473(b)]

Date: 7/17/20 (8:30 AM)

Case: Dee Ann Abelar, et al. v. John R. Dingilian, M.D., et al. (BC641637)

TENTATIVE RULING:

Plaintiffs Dee Ann Abelar and Brian Abelar’s Motion to Vacate Judgment in Favor of Defendant Juong H. Lee is DENIED.

Plaintiff moves to vacate the summary judgment in favor of defendant Juong H. Lee, M.D., entered on February 14, 2020, based on attorney mistake, inadvertence, surprise, or excusable neglect, pursuant to CCP § 473(b). Plaintiffs claim their failure to file any opposition to Dr. Lee’s summary judgment motion was due to their counsel’s family emergency. (Rand-Lewis Decl. ¶ 15.) According to the declaration of plaintiffs’ counsel Suzanne E. Rand-Lewis, on January 31, 2020, which was the date plaintiffs’ opposition was due (see CCP § 437c(b)(2) [oppositions to summary judgment motions due 14 days from hearing date]), Rand-Lewis’s mother “was extremely ill and in the emergency room” and “there was no other attorney available to complete the Opposition.” (Rand-Lewis Decl. ¶ 15.)

Based on the Rand-Lewis declaration, plaintiffs seek mandatory relief under CCP § 473(b). Such mandatory relief is not available to plaintiffs here. (English v. IKON Business Solutions (2001 94 Cal.App.4th 130, 133 [“[M]andatory provision of section 473(b) does not apply to summary judgments because a summary judgment is neither a ‘default,’ nor a ‘default judgment,’ nor a ‘dismissal’ within the meaning of section 473(b)”].)

As for discretionary relief under CCP § 473(b), the Court finds plaintiffs’ request is untimely. “In order to qualify for [discretionary] relief under section 473, the moving party must act diligently in seeking relief and must submit affidavits or testimony demonstrating a reasonable cause for the default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 234.) Here, plaintiffs did not act with reasonable diligence in bringing the instant motion. Although this motion was filed within six months of the entry of summary judgment on February 14, 2020, which is the outermost permissible time frame within which such motion could be brought, plaintiffs inexplicably waited more than four months before they filed this motion on June 22, 2020. (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1422, initial quotations omitted [“While six months—the longest time allowable—represents the outside limit of the court's jurisdiction to grant relief in any event, the “reasonable time” test stands as an independent consideration and in any given situation, its determination, within the maximum six-month period, depends upon the circumstances of that particular case”].)

It is noteworthy that, on March 2, 2020, plaintiffs also filed a motion for reconsideration of this Court’s grant of summary judgment, arguing that motions for judgment on the pleadings brought by co-defendants Drs. Wayneinder S. Anand, M.D. and Babak Hakimisefat, D.O. necessitated reconsideration of the grant of summary judgment in favor of defendant Lee. When filing that motion for reconsideration several months before bringing the instant motion, plaintiffs were certainly aware they had failed to file any opposition to defendant Lee’s motion for summary judgment and could have brought this motion to vacate at or near the same time as their motion for reconsideration. Plaintiffs chose not to do so, and they provide no reasoned explanation for the delay. The Court thus finds Plaintiffs failed to bring the instant motion within a “reasonable time,” as is required for discretionary relief under CCP § 473(b). Accordingly, the motion must be denied as untimely.

In addition, even if the motion were timely filed, it must be denied on the separate and independent ground that plaintiffs have not demonstrated their counsel’s error was excusable. “A party seeking discretionary relief on the ground of attorney error must demonstrate that the error was excusable, since the attorney’s negligence is imputed to the client.” (Huh, 158 Cal.App.4th at 1419.) “Neglect is excusable only if a reasonably prudent person in similar circumstances might have made the same error.” (Id. at 1423.) In the instant motion, plaintiffs contend the failure to oppose Dr. Lee’s summary judgment motion was due to their counsel’s family emergency, as well as the inability to depose Dr. Lee. Plaintiffs’ counsel, however, could have sought appropriate relief (but did not) on either or both grounds, including, for example, by seeking to continue the hearing on the motion for summary judgment, arguing the motion should be denied, and/or requesting leave to file a late opposition or a court-ordered modified briefing schedule. (See CCP § 473c(h) [authorizing continuance or denial of summary judgment motion if “facts essential to justify opposition may exist but cannot, for reasons stated, be presented”].) In fact, plaintiffs’ counsel never filed any ex parte application, opposition (timely or untimely), or sworn declaration or affidavit with competent proof of these stated reasons for the inability to oppose the summary judgment motion.

Rather, as stated in the declaration of Suzanne E. Rand Lewis submitted with the instant motion, “On February 14, 2020, at the hearing on Defendant Lee’s motion for summary judgment, I argued that Defendant Lee’s motion should be denied and/or continued based upon my family emergency that prevented the filing of a timely Opposition, and pursuant to Code of Civil Procedure § 473c(h) due to Defendant Lee’s failure to appear for his properly noticed deposition on multiple occasions.” (Rand-Lewis Decl. ¶ 16 [emphasis added].) An unsworn, oral request by counsel raising issues in a conclusory fashion for the first time at the hearing on the motion for summary judgment was plainly insufficient. Indeed, even on this motion, there is no competent proof before the Court that plaintiffs’ counsel meaningfully raised such issues at the summary judgment hearing, as the Court takes notice that, contrary to Ms. Rand-Lewis’s declaration, she did not even appear at such hearing. (See 2/14/20 Minute Order [appearance for plaintiffs by Timothy Rand-Lewis].)

Moreover, even if one were to fully credit Ms. Rand Lewis’s erroneous declaration regarding what was communicated to the Court on plaintiffs’ behalf at the hearing on the motion for summary judgment, the error by plaintiffs’ counsel is still inexcusable. Failing to respond to a summary judgment motion due to an unspecified “family emergency” is not excusable neglect, in the absence of any additional information or greater showing. (See Huh, 158 Cal.App.4th at 1424 [“[A]n exceptional workload generally must be accompanied by some factor outside the attorney's control that makes the situation unmanageable, such as a mistake caused by a glitch in office machinery or an error by clerical staff”].) Likewise, it is unclear, without more, why plaintiffs would necessarily require the deposition of Dr. Lee to raise a triable issue of material fact to defeat Dr. Lee’s own motion for summary judgment.

Having failed to demonstrate grounds for mandatory or discretionary relief from judgment in favor of Juong H. Lee, M.D., plaintiffs’ motion is DENIED.

(DEFENDANTS ANAND/HAKIMISEFAT/TRIVEDI)

[CCP §438]

Date: 7/17/20  (8:30 AM)

Case: Dee Ann Abelar, et al. v. John R. Dingilian, M.D., et al. (BC641637)

 

TENTATIVE RULING:

Defendant Wayneinder S. Anand, M.D.’s Motion for Judgment on the Pleadings is DENIED.  Defendant Babak Hakimisefat, D.O.’s Motion for Judgment on the Pleadings is DENIED.

Defendants Anand and Hakimisefat, joined by defendant Mayur Trivedi, M.D., separately move for judgment on the pleadings as to all causes of action based on identical arguments.  The motions are discussed below simultaneously.

As a preliminary matter, moving and joining defendants’ requests for judicial notice are GRANTED as to Exhibit A, but only for the existence of the Complaint, not the truth of the matters asserted therein. (See Evid. Code § 452(d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-69.)  Moving and joining defendants’ requests for judicial notice as to Exhibits B and C are GRANTED pursuant to Evidence Code § 452(d).

On November 22, 2019, the Court denied moving defendants Anand and Hakimisefat’s respective motions for summary judgment on the ground that plaintiff demonstrated triable issues regarding whether moving defendants satisfied the standard of care.  On December 6, 2019, the Court denied joining defendant Trivedi’s motion for summary judgment for the same reason.

On February 14, 2020, the Court granted Dr. Juong H. Lee’s unopposed motion for summary judgment, finding that Dr. Lee’s expert had established that “the conduct of Dr. Lee fell within the applicable standard of care” and that plaintiffs submitted no evidence to “present any triable issues of material fact as to whether Dr. Lee breached the standard of care.”  (Request for Judicial Notice Ex. B at p. 2.)  Among other facts and opinions undisputed by plaintiffs, Dr. Lee’s expert concluded that “Dr. Lee had no reason to suspect plaintiff [Dee Ann Abelar] had an infection prior to December 14, 2015, when plaintiff was already admitted to USC Keck Hospital.”  (Request for Judicial Notice Ex. B at p. 2.) 

Moving defendants contend in their separate motions that the Court’s findings regarding Dr. Lee collaterally estop plaintiff from asserting that they had any liability.  Joining defendant contends the same.  “Traditionally, collateral estoppel has been found to bar relitigation of an issue decided at a previous proceeding ‘if (1) the issue necessarily decided at the previous [proceeding] is identical to the one which is sought to be relitigated; (2) the previous [proceeding] resulted in a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior [proceeding].’ [¶] It is implicit in this three-prong test that only issues actually litigated in the initial action may be precluded from the second proceeding under the collateral estoppel doctrine. [Citation.] An issue is actually litigated ‘[w]hen [it] is properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined . . . .’” (People v. Carter (2005) 36 Cal.4th 1215, 1240.)

In connection with Dr. Lee’s motion for summary judgment, the Court found Dr. Lee had established the undisputed fact that Dr. Lee—not moving or joining defendants—had no reason to suspect plaintiff had an infection.  (See 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.”].)  However, a finding that Dr. Lee had no reason to suspect an infection is not a determination that no other physician monitoring or treating plaintiff at Providence Saint Joseph Medical Center (i.e., moving defendants Anand and Hakimisefat) or Simi Valley Hospital (i.e., joining defendant Trivedi) had reason to suspect plaintiff had an infection.  This is so, even though Dr. Lee may have observed or treated plaintiff Dee Ann Abelar more than moving or joining defendants.

Simply put, the issue decided in Dr. Lee’s motion for summary judgment was not identical to the issue of whether moving or joining defendants themselves met the standard of care in their treatment of plaintiff.  Accordingly, plaintiffs are not collaterally estopped from claiming that moving or joining defendants should have identified plaintiff Dee Ann Abelar’s infection.

The motions are DENIED. 

PLAINTIFFS’ MOTION FOR RECONSIDERATION

(SUMMARY JUDGMENT FOR LEE)

[CCP §1008(a)]

Date:    7/17/20  (8:30 AM)

Case: Dee Ann Abelar, et al. v. John R. Dingilian, M.D., et al.   (BC641637)

TENTATIVE RULING:

Plaintiffs Dee Ann Abelar and Brian Abelar’s Motion for Reconsideration of the Court’s February 14, 2020 Order Granting Defendant Joung H. Lee’s Motion for Summary Judgment is DENIED.

“A court may reconsider its order granting or denying a motion and may even reconsider or alter its judgment so long as judgment has not yet been entered. Once judgment has been entered, however, the court may not reconsider it and loses its unrestricted power to change the judgment. It may correct judicial error only through certain limited procedures such as motions for new trial and motions to vacate the judgment.”  (Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1606.) 

On February 14, 2020, after hearing Dr. Lee’s motion for summary judgment, the Court entered judgment in favor of Dr. Lee.  (Neighbors Decl. ¶ 8 & Exs. B, C.)  The Court, therefore, has no jurisdiction to entertain the instant motion.  (APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 181-182.)

Even if the Court were to consider the motion on the merits, the subsequent filing of motions for judgment on the pleadings by Drs. Wayneinder S. Anand, M.D. and Babak Hakimisefat, D.O. do not constitute new facts that warrant reconsideration. The outcome of Drs. Anand and Hakimisefat’s motions for judgment on the pleadings is irrelevant to whether summary judgment in favor of Dr. Lee should have been entered. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500 [“[W]e cannot accept respondent's implicit interpretation of section 1008 that a “new” or “different” fact or circumstance wholly collateral to the merits of the initial motion is sufficient to warrant reconsideration”].) The Court granted Dr. Lee’s motion because plaintiffs failed to submit any opposing expert declaration, or any opposition at all, to refute Dr. Lee’s expert’s conclusion that Dr. Lee complied with the standard of care. (Neighbors Decl. ¶ 7 & Ex. A.) The subsequent filing of motions for judgment on the pleadings by other defendants are not pertinent to this failure.

Plaintiffs’ purported inability to depose Dr. Lee is also not a new fact or circumstance because plaintiffs were aware of such inability prior to having the opportunity to oppose the motion for summary judgment. Plaintiffs could have requested a continuance of the motion in a filed opposition or through an ex parte application, but they failed to do so.

Accordingly, plaintiff’s Motion is DENIED.

PLAINTIFFS’ MOTION TO TAX COSTS (LEE)

[CRC 3.1700(b)]

Date: 7/17/20 (8:30 AM)

Case: Dee Ann Abelar, et al. v. John R. Dingilian, M.D., et al. (BC641637)

TENTATIVE RULING:

Plaintiffs’ Motion to Tax Defendant Juong H. Lee, M.D.’s Memorandum of Costs is GRANTED IN PART. Defendant Lee’s cots are taxed in the amount of $4,251.59.

The Court finds that the following costs claimed by defendant Lee are not reasonable and accordingly unrecoverable pursuant to CCP § 1033.5(c)(2) and (c)(3):

I. $1,334.70 for Filing Fees

Plaintiffs meet their initial burden to demonstrate that the claimed filing fees may not be reasonable or necessary. As an example, defendant Lee claims $638.25 for filing of the Answer, but the first appearance fee is $435.00. Defendant also seeks filing fees for papers that do not have filing fees under the Los Angeles Superior Court fee schedule, including $148.25 for filing of a Notice of Non-Opposition to Jeffrey Mora, M.D.’s Motion to Compel Plaintiffs’ Depositions. The burden is shifted to defendant Lee to show that the claimed costs are reasonable or necessary. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)

Defendant does not provide invoices of the filing fees attacked by plaintiff. Defendant purports to attach the invoices supporting the filing fees as Exhibit G to counsel’s declaration. (Neighbors Decl. ¶ 13 & Ex. G.) The attached invoices concern the depositions of plaintiffs and service of subpoenas for medical records. The table listing details of invoices provided by defendant contains only invoice numbers and the total amount for each invoice; it does not provide sufficient detail for the Court to determine the reasonableness of incurring the filing fees. Defendant therefore does not meet his burden to show that the filing fees were reasonable. The filing fees are taxed in the amount of $1,334.70, as set forth by plaintiffs in the notice of motion.

II. $9.79 for Deposition Costs

Part of the $662.29 defendant Lee seeks for videotaping of Dee Ann Abelar’s deposition is for $9.79 in interest. (Neighbors Decl. ¶ 10 & Ex. D, Invoice No. 51422.) Defendant would not have incurred this cost had he paid the invoice within 30 days of the date of the invoice. The deposition costs are taxed in the amount of $9.79.

III. $2,907.10 for Service of Process Costs

Defendant Lee agrees to withdraw these costs.

The Court finds that all other costs disputed by plaintiffs are reasonably necessary and therefore recoverable. The Court notes that, as to the expert fees, defendant Lee’s CCP § 998 offers of waiver of costs were reasonable under the circumstances. “Where, as here, the offeror obtains a judgment more favorable than its offer, the judgment constitutes prima facie evidence showing the offer was reasonable and the offeror is eligible for costs as specified in section 998. The burden is therefore properly on plaintiff, as offeree, to prove otherwise.” (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 700.)

As the prevailing party in his motion for summary judgment, defendant Lee is entitled to recover his costs, which exceed the waiver of costs that he offered in his CCP § 998 offers to plaintiffs. (CCP § 1032(b); Neighbors Decl. ¶¶ 7, 8 & Exs. A, B.) Up to the point of the offer, defendant incurred filing and motion fees, the costs of deposing plaintiffs, and expert fees for Lee’s motion for summary judgment. Courts have held that a waiver of costs can be considered to have offered significant monetary value. (Jones v.Dumrichob (1998) 63 Cal.App.4th 1258, 1263.) Further, defendant Lee’s motion for summary judgment was granted because plaintiffs failed to present a competing expert declaration demonstrating a triable issue as to whether defendant complied with the standard of care. (See 2/14/20 Minute Order.) Plaintiffs had the ability to have an expert review Dee Ann Abelar’s medical records before the offers were served on January 30, 2020. Plaintiffs were also able to conduct any depositions before opposing the motion, as more than three years elapsed between commencement of the case on December 19, 2016 and service of the CCP § 998 offers on January 30, 2020. Accordingly, at the time plaintiffs received the CCP § 998 offers, they had reason to know defendant Lee’s offers were reasonable and could be expected to accept them. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 135-36.)

Pursuant to CCP § 1032(b), defendant Juong H. Lee, M.D. is entitled to $13,935.05 in costs.

Case Number: BC641637    Hearing Date: March 13, 2020    Dept: E

(1) MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION

(2) MOTION FOR PROTECTIVE ORDER

(3) MOTION TO COMPEL DEPOSITION

Date: 3/13/20

Case: Dee Ann Abelar, et al. v. John R. Dingilian, M.D., et al. (BC641637)

TENTATIVE RULING:

I. DEFENDANTS SIMI VALLEY HOSPITAL AND ADVENTIST HEALTH SYSTEMS/WEST’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

With respect to Issue No. 1, Simi Valley Hospital dba Adventist Health Simi Valley and Adventist Health Systems/West (collectively, “Simi”) argue that the causes of action for professional negligence and loss of consortium fail because plaintiffs will be unable to establish that Simi breached any duty of care.

In support, Simi submits the declarations of Janet Geier, RN, BSN and Samantha St. Omar Roy, RN. Plaintiffs object that the declarants do not establish that they are qualified to testify as expert witnesses because the curricula vitae referenced in the declarations are not attached. This contention is well taken. “In order to testify as an expert in a medical malpractice case, a person must have enough knowledge, learning and skill with the relevant subject to speak with authority, and he or she must be familiar with the standard of care to which the defendant was held.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

Here, Nurse Geier declares: (1) she obtained her nursing education in 1976; (2) received a certificate in Critical Care Nursing in 1978; (3) and is currently the Emergency Room Supervisor at Marina Del Rey Hospital. (Geier Decl. ¶ 2.) From this, the declaration establishes that Greier underwent some form of unknown education in nursing over four decades ago, obtained a certificate in nursing around that same time, and was employed as an ER supervisor on October 17, 2019, the date she signed her declaration. What the declaration does not establish is what type of nursing education she has had, how long she has been practicing as a nurse, or what relevant experience (if any) she has as a practicing nurse. The Court is thus unable to determine whether Nurse Geier is qualified to opine on any nursing standard of care.

Similarly, Nurse Omar Roy declares that she obtained her nursing education in 2013 and that she is currently a Clinical Nurse II at the University of California Los Angeles Neuroscience/Trauma Intensive Care Unit. (Omar Roy Decl. ¶ 3.) From this, the declaration only conveys that she underwent some sort of education in nursing in 2013 and worked as a nurse on October 20, 2019, the date she signed her declaration. This declaration does not establish what type of nursing education she has had, how long she has been practicing as a nurse, or what relevant experience (if any) she has as a practicing nurse. The Court is thus also unable to determine whether Nurse Omar Roy is qualified to opine on any nursing standard of care.

In Reply, Simi makes no attempt to rebut plaintiffs’ objections that the expert declarations lack foundation, but rather stands by its moving papers. (See Reply at 2 [“[D]efendants refer to the papers submitted and do not further Reply (i.e., whether defendants have meet [sic] their burden . . . .”].) Because Nurses Geier and Omar Roy do not provide a sufficient basis or foundation to opine on the relevant nursing standard of care, plaintiff’s Objection Nos. 1 and 30 are SUSTAINED, thus rendering the two declarations inadmissible in their entirety.

Without any competent evidence, defendants fail to meet their initial burden as to Issue No. 1, and, accordingly, summary adjudication on this ground must be DENIED.

With respect to Issue No. 2, Simi contends that it cannot be held vicariously liable for the conduct of any co-defendant physician, because none of the physicians at issue were employees, agents, or ostensible agents of defendants. The conduct of co-defendants Ira Tilles, M.D. and Pejman Badiei, M.D. are not relevant because they were dismissed on summary judgment. The remaining co-defendant physicians are Jeffrey Mora, M.D. and Mayur Trivedi, M.D., who treated plaintiff during her admission from November 30, 2015 to December 11, 2015. Simi provides the declaration of Ann Marie Svolos, Simi’s Director of Risk Management. Svolos declares that physicians that admit patients and follow them during their admission, such as Dr. Mora, are not employees or agents of Simi. (UMF 44-46 and evidence cited.) Simi also points to plaintiff’s deposition testimony indicating that she has no memory of her admission to Simi, or of her experiences with Dr. Mora and Trivedi while at Simi. (UMF 47-50 and evidence cited.)

“A hospital is liable for a physician's malpractice when the physician is actually employed by or is the ostensible agent of the hospital.” (Whitlow v. Rideout Memorial Hospital (2015) 237 Cal.App.4th 631, 635.) Ostensible agency may be shown when the following two elements are satisfied: “(1) conduct by the hospital that would cause a reasonable person to believe that the physician was an agent of the hospital, and (2) reliance on that apparent agency relationship by the plaintiff.” (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1453.) As to the first element of ostensible agency, “[U]nless the patient had some reason to know of the true relationship between the hospital and the physician—i.e., because the hospital gave the patient actual notice or because the patient was treated by his or her personal physician—ostensible agency is readily inferred.” (Id. at pp. 1454–55.)

Here, Simi does not present any evidence indicating plaintiff had reason to know the physicians were not employed by the hospital or are agents of the hospital, such as, for example, an admissions agreement signed by plaintiff indicating that physicians were independent contractors. Svolos merely declares in a conclusory fashion that, while physicians at Simi have medical staff privileges, they are not employees or agents of Simi. Thus, based on the evidence presented by Simi, Drs. Mora and Trivedi, ostensible agency may be “readily inferred” such that a triable issue exists as to whether Simi may be held vicariously liable for their conduct.

The motion for summary adjudication as to Issue No. 2 is DENIED.

Accordingly, the motion for summary judgment and summary adjudication is DENIED.

II. DEPOSITION OF DR. RAND-LUBY

Plaintiffs move for a protective order prohibiting the deposition of Dr. Leslie Rand-Luby, who submitted a declaration in opposition to defendant Jeffrey Mora, M.D.’s motion for summary judgment. Defendant Mora, joined by defendants Wayneinder S. Anand, M.D. and Babak Hakimisefat, D.O., move to compel the deposition of Dr. Rand-Luby.

When “a party presents evidence that raises a significant question relating to the foundation of an expert’s opinion filed in support of or in opposition to a motion for summary judgment or summary adjudication, a deposition limited to that subject should be allowed.” (St. Mary Medical Center v. Superior Court (1996) 50 Cal.App.4th 1531, 1534.)

Defendant Mora contends that there is a significant question as to the foundation of Dr. Rand-Luby’s declaration because Dr. Rand-Luby is a general surgeon, but is opining as to a standard of care by defendant Mora, a neurologist. (Rand-Luby Decl. ¶¶ 1, 2.) Dr. Rand-Luby also does not list the medical records and medical literature she reviewed in forming her opinions, or specify the infectious disease physicians she consulted. (Id. ¶ 4.) Dr. Mora also argues that Dr. Rand-Luby avers that the “medical records are purposefully misstated,” which is vague considering that Dr. Rand-Luby does not point to specific medical records she contends are misstated. (Id. ¶ 7.) Although Dr. Rand-Luby lists the symptoms plaintiff had when she presented to Simi Valley Hospital, Dr. Rand-Luby does not indicate how she knows that Dr. Mora was aware, as opposed to should have been aware, that plaintiff had an infection. (Id. ¶ 10.) Contending that plaintiff’s labs were within normal range, Dr. Mora wishes to inquire about Dr. Rand-Luby’s averment that the lab reports were “not normal.” (Id. ¶ 11; Liu Decl. ¶ 21.)

The foregoing is sufficient to establish good cause for defendant Mora to depose Dr. Rand-Luby concerning the foundation of her declaration prior to preparing a reply in support of his motion for summary judgment.

The Court rejects plaintiffs’ contention that Dr. Mora’s request is untimely. Even though defendant Mora may have known Dr. Rand-Luby submitted declarations in opposition to other defendants’ previously filed motions for summary judgment, Dr. Mora was not obligated (or likely permitted) to request Dr. Rand-Luby’s deposition until she executed a declaration to oppose his motion. Thus, Dr. Mora was not dilatory in noticing Dr. Rand-Luby’s declaration. Dr. Mora sent notice of Dr. Rand-Luby’s deposition one business day after plaintiffs filed their opposition to Dr. Mora’s motion for summary judgment with the accompanying declaration of Dr. Rand-Luby in support thereof. (Liu Decl. ¶ 4 & Ex. B.)

Further, the Court’s findings that Dr. Rand-Luby’s declarations submitted in support of previous motions for summary judgment contained sufficient foundation are not binding with respect to the issue of whether defendant Mora is entitled to depose Dr. Rand-Luby. With respect to Drs. Anand and Hakimisefat, the Court considered their contention that Dr. Rand-Luby’s declaration in opposition to their motion lacked foundation but ultimately determined Dr. Rand-Luby was qualified to opine on those defendants’ obligation to diagnose plaintiff’s alleged post-surgery infection as a general surgeon. (Robinson Decl. Ex. D.) Although those defendants made a request, in the alternative, to depose Dr. Rand-Luby in connection with their motion, the arguments they made and the manner in which they presented their request did not cause this Court to conclude granting such request was warranted when made. Drs. Anand and Hakimisefat do not state new facts, circumstances, or law that warrant reconsideration of the denial of their motion, even on the Court’s own motion. While defendants argue that allowing Dr. Mora, but not other defendants, to depose Dr. Rand-Luby would result in potential inconsistencies, the possibility that other co-defendants may be dismissed, thereby preventing defendants from arguing those dismissed defendants are liable for plaintiff’s injury under CCP § 437c(l), existed at the time defendants’ motion was heard. Furthermore, even after months of discovery and less than three months from trial, Drs. Anand and Hakimisefat concede they have no basis to seek indemnification from Dr. Mora. (See Joinder at p.8, n.5.)

In plaintiffs’ opposition to the motion to compel, plaintiffs note that Dr. Rand-Luby may be subject to duplicative depositions if Dr. Rand-Luby provides declarations in opposition to future motions for summary judgment. The Court can and will address only the matters before it. The record does not show that any defendant other than Mora noticed Dr. Rand-Luby’s deposition.

Contrary to plaintiffs’ argument, defendant Mora offered to pay Dr. Rand-Luby a reasonable expert witness fee in the deposition notice. There is no indication that Mora does not intend to pay an expert fee to Dr. Rand-Luby in accordance with CCP § 2034.450(a).)

For the foregoing reasons, the motion to compel deposition is GRANTED as to defendant Mora only. Plaintiffs’ motion for protective order is DENIED.

Defendant Jeffrey Mora, M.D.’s deposition of Dr. Leslie Rand-Luby is to take place on March 24, 2020, at 10:00 a.m., at counsel for defendant Mora’s office, located at 355 S. Grand Avenue, Suite 1750, Los Angeles, CA 90071. No other defendant may depose Dr. Rand-Luby.

Case Number: BC641637    Hearing Date: February 14, 2020    Dept: E

MOTION FOR SUMMARY JUDGMENT

[CCP § 437c; CRC 3.1350 et seq.]

Date: 2/14/20

Case: Dee Ann Abelar, et al. v. John R. Dingilian, M.D., et al. (BC641637)

TENTATIVE RULING:

Defendant Juong H. Lee M.D.’s UNOPPOSED Motion for Summary Judgment is GRANTED.

Defendant’s expert, Jon Yu, M.D., explains that Dr. Lee correctly recommended a craniotomy for removal of plaintiff’s meningoma tumor because plaintiff was losing her vision. (UMF 76 and evidence cited.) Prior to the October 6, 2015 craniotomy, Dr. Lee complied with the standard of care in deciding to perform the surgery, as plaintiff’s slightly elevated white blood count was the natural result of the already existing meningoma tumor, and plaintiff’s primary care physician, Dr. Dingilian, had cleared plaintiff for surgery. (UMF 87-88 and evidence cited.)

Dr. Lee did not breach the standard of care during the October 6, 2015 craniotomy because seizures and infection experienced by plaintiff commonly occur absent negligence. (UMF 83 and evidence cited.) Infections, strokes, headaches, seizures, nausea, and vomiting are accepted risks and complications with a craniotomy. (UMF 77-78 and evidence cited.) Dr. Lee correctly detailed the risks of infection after the craniotomy to plaintiff. (UMF 81-83 and evidence cited.) Dr. Lee had no reason to suspect plaintiff had an infection prior to December 14, 2015, when plaintiff was already admitted to USC Keck Hospital. (UMF 86, 89-97 and evidence cited.) In addition, use of foreign objects was required after a craniotomy to place plaintiff’s skull back into place. (UMF 79-80 and evidence cited.)

Based on the foregoing, Dr. Yu concludes that to a reasonable degree of medical probability, Dr. Lee’s care and treatment of plaintiff conformed with the operable standard of care for a neurosurgeon and that nothing Dr. Lee did or failed to do caused plaintiff to suffer an infection, injury from infection, or seizures. (UMF 98-101 and evidence cited.)

The declaration of Dr. Yu sufficiently establishes that the conduct of Dr. Lee fell within the applicable standard of care, and the burden shifts to plaintiffs to raise triable issues of material fact. Because plaintiffs do not submit an expert declaration to dispute Dr. Yu, plaintiffs do not present any triable issues of material fact as to whether Dr. Lee breached the standard of care. (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 985 [“When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless plaintiff comes forward with conflict expert evidence”].)

As to the loss of consortium claim, because the professional negligence claim fails, so too must plaintiff Brian Abelar’s claim based thereon. (Blain v. Doctor's Co. (1990) 222 Cal.App.3d 1048, 1067.)

Case Number: BC641637    Hearing Date: January 31, 2020    Dept: E

MOTION FOR SUMMARY JUDGMENT

[CCP § 437c; CRC 3.1350 et seq.]

Date: 1/31/20

Case: Dee Ann Abelar, et al. v. John R. Dingilian, M.D., et al. (BC641637)

TENTATIVE RULING:

I. EVIDENTIARY RULINGS

Plaintiffs’ requests for judicial notice as to Exhibits A and B are GRANTED, pursuant to Evidence Code § 452(d). Defendant John Dingilian M.D.’s request for judicial notice as to the declaration of John Yu, M.D. is GRANTED, but for the existence of the document, not for the truth of the matters asserted therein. (Evid. Code § 452(d) (court records); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-69.)

Plaintiffs’ and defendant’s evidentiary objections are OVERRULED. With respect to plaintiffs’ objection to the Declaration of Mark Needham, M.D. based on Garibay v. Hemmat (2008) 161 Cal.App.4th 735, the Court notes that the Garibay Court never stated that the entirety of the medical records needed to be before the Court. Here, defendant submitted relevant portions of the Progress Notes prepared by Dr. Dingilian, as well as records for Joung Lee, M.D. and Adventist Health Simi Valley, and the transcript of plaintiff’s deposition. The medical records were supported by custodian of records declarations. [Solmayor Decl. ¶¶ 24-26, Exs. R-T]. The submitted records are sufficient to support Dr. Needham’s declaration, and the Court otherwise overrules plaintiffs’ objections to his conclusions therein.

II. MOTION FOR SUMMARY JUDGMENT

Defendant John Dingilian, M.D.’s Motion for Summary Judgment is GRANTED.

Defendant’s expert, Mark Needham, M.D., explains that Dr. Dingilian was not obligated to refer plaintiff Dee Ann Abelar to a vision specialist during her pregnancy because pregnancy-related vision changes are common and many physiologic hormonal changes affecting vision occur near the end of a pregnancy. [UMF 14 and evidence cited.] Plaintiff also had vision changes during her prior pregnancy 14 years earlier and that they went away after she gave birth. [UMF 15; Solmayor Decl. ¶ 13, Ex. G, p. 38:7-17]. Because meningiomas are slow growing tumors and plaintiff was pregnant, plaintiff’s course of treatment would not have changed had the meningoma been detected in October 2014. [UMF 17-18 and evidence cited]. According to Dr. Needham, no physician would remove the meningoma during pregnancy or in the immediate post-partum period. [UMF 23 and evidence cited.] Plaintiff also did not have any infection from September 28, 2015 when she was cleared for surgery to November 30, 2015 when she was hospitalized. [UMF 24-26 and evidence cited]. The expert concludes that Dr. Dingilian did not contribute to plaintiff’s brain infection diagnosed at Keck/USC Medical Center during her December 11, 2015 admission and that Dr. Dingilian complied with the standard of care. [Needham Decl., ¶¶ 28, 29].

The declaration of Dr. Needham sufficiently establishes that the conduct of Dr. Dingilian fell within the applicable standard of care, and the burden shifts to plaintiffs to raise triable issues of material fact. Because plaintiffs do not submit an expert declaration to dispute Dr. Needham, plaintiffs do not present any triable issues of material fact as to whether Dr. Dingilian breached the standard of care with respect to plaintiffs’ professional negligence claim (second cause of action). (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 985 [“When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless plaintiff comes forward with conflict expert evidence”].) As to the loss of consortium claim (seventh cause of action), because the professional negligence claim fails, so too must plaintiff Brian Abelar’s claim based thereon. (Blain v. Doctor's Co. (1990) 222 Cal.App.3d 1048, 1067.)

Finally, the Court denies plaintiffs’ request that the Court continue the hearing on Dr. Dingilian’s motion for summary judgment so that plaintiffs can depose Dr. Lee, who purportedly failed to appear for deposition noticed for January 6, 2020. (Rand-Lewis Decl. ¶ 3.) Notably, plaintiffs do not state specific facts why Dr. Lee’s testimony is essential to rebut the declaration of Dr. Needham. (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 715.) Nor to plaintiffs provide an explanation for why they did not seek the deposition of Dr. Lee earlier. (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 257.) The motion for summary judgment was filed on October 11, 2019. Plaintiffs did not serve the notice of deposition of Dr. Lee until December 13, 2019. (Rand-Lewis Decl. ¶ 3, Ex. A.) Further, even if this motion were continued to allow for Dr. Lee to be deposed, plaintiffs make no showing that Dr. Lee’s testimony would constitute expert evidence sufficient to rebut Dr. Needham’s declaration. (Munro, 215 Cal.App.3d at 985; Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

Accordingly, Defendant John R. Dingilian, M.D.’s Motion for Summary Judgment is GRANTED.

Case Number: BC641637    Hearing Date: December 06, 2019    Dept: E

MOTION FOR SUMMARY JUDGMENT

[CCP § 437c; CRC 3.1350 et seq.]

Date: 12/6/19

Case: Dee Ann Abelar, et al. v. John R. Dinglian, M.D., et al. (BC 641637)

TENTATIVE RULING:

Defendant Mayur Trivedi, M.D.’s Motion for Summary Judgment is DENIED.

“When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 985.) Here, defendant has submitted the declaration of Dr. Ostroff.

Dr. Ostroff’s declaration adequately establishes his qualifications to testify as an expert. He is a licensed physician with the appropriate education, training, and professional experience, is board certified in general internal medicine and gastroenterology subspecialty, and has been in medical practice in California for over thirty years. [Ostroff Decl. ¶¶ 2, 3, & Ex. A.] Dr. Ostroff is familiar with the standard of care required of physicians under the same or similar circumstances such as Mayur Trivedi, M.D. [Ostroff Decl. ¶ 2.] Further, Dr. Ostroff reviewed the complaint in this matter, and appropriate patient medical records, including the records from Adventist Health Simi Valley Hospital and Keck Hospital of USC. [Ostroff Decl. ¶ 4.] Based on the foregoing, Dr. Ostroff states that, to a reasonable degree of medical probability, the care and treatment provided to plaintiff Dee Ann Abelar by Dr. Trivedi met the standard of care required of a gastroenterology physician. [Ostroff Decl. ¶¶ 13.] Dr. Ostroff explains that Dr. Trivedi saw plaintiff Dee Ann Abelar on December 9, 2015, due to plaintiff’s few episodes of coffee-ground emesis earlier that day and complaints of some epigastric abdominal pain. Dr. Ostroff further states that Dr. Trivedi properly evaluated the routine lab results; appropriately planned to monitor liver function tests, amylase and lipase; placed Dee Ann Abelar on a protonix drip and clear liquid diet; monitored her hemoglobin and hematocrit; and ordered a transfuse if needed to keep hemoglobin greater than 8, as well as possible performance of EGD if symptoms persisted. [Ostroff Decl. ¶¶ 7-9.] Dr. Trivedi also instructed Dee Ann Abelar’s other treating physicians to call with any questions or concerns, but never received any such call. [Ostroff Decl. ¶¶ 9, 15.] Dr. Trivedi conducted a follow-up examination the next morning, noting plaintiff was without further episodes of vomiting and that tests were all normal. Dr. Trivedi continued with the drip and transfuse orders, advanced the patient to an as tolerated diet, and canceled the order for an EGD because plaintiff’s gastroenterology symptoms were not persisting. [Ostroff Decl. ¶ 10]. Dr. Ostroff thus concludes that Dr. Trivedi took the appropriate steps to treat plaintiff Dee Ann Abelar’s gastroenterology needs in the acute hospital setting, keeping close observation of plaintiff, documenting his concerns upon consultation, and ordering the appropriate medication, testing, and procedures over the two-day course of treatment. [Ostroff Decl. ¶¶ 14, 15.] Dr. Ostroff further explains that it was not Dr. Trivedi’s role or responsibility, nor his skill set, to diagnose an infection. [Ostroff Decl. ¶ 14].

The declaration of Dr. Ostroff is sufficient to establish that the conduct of Dr. Trivedi fell within the applicable standard of care, thereby shifting the burden to plaintiffs to raise triable issues of material fact. In a medical malpractice case, if a plaintiff’s expert declaration in opposing summary judgment sets forth specific factual breaches of duty, the defendant doctor’s motion should be denied. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607.) Here, in opposition to the motion, plaintiffs submit the expert declaration of Leslie Rand-Luby, M.D.

Dr. Rand-Luby’s declaration indicates that Dr. Rand-Luby is a medical doctor and general surgeon, with a practice in treating problems such as those presented by plaintiff Dee Ann Abelar in her care and treatment. Further, Dr. Rand-Luby states she is familiar with the standard of care for physicians, hospitalists, surgeons, and hospitals in the care and treatment of patients with the conditions presented by plaintiff, including consulting gastroenterologists in hospital departments. [Rand-Luby Decl. ¶¶ 1-3.] Dr. Rand-Luby also states she has reviewed the pertinent medical records, as well as deposition testimony and discovery responses. [Rand-Luby Decl. ¶ 4.] Ultimately, Dr. Rand-Luby concludes that Dr. Trivedi breached the standard of care because he “was to assess the Plaintiff overall” and should have requested a specialist’s treatment and consultation for her condition. [Rand-Luby Decl. ¶¶ 12, 15.] Specifically, Dr. Rand-Luby states her disagreement with Dr. Ostroff’s conclusion that Dr. Trivedi had no role or responsibility to diagnose Dee Ann Abelar’s post-surgical infection simply because Dr. Trivedi was a gastroenterologist. [Rand-Luby Decl. ¶ 16.] Rather, according to Dr. Rand-Luby, Dr. Trivedi was not permitted to “ignore” whether Dee Ann Abelar had a surgical complication, would have been required to take a complete history, and should have conducted an overall assessment to diagnose the cause of her symptoms, including obtaining tests to diagnose her infection and ruling out infection as an underlying cause of her problems. [Rand-Luby Decl. ¶ 16.] Further, to the extent Dr. Trivedi lacked the skill set to do so as a gastroenterologist, Dr. Rand-Luby opines that he should have obtained a specialist consultation in infectious disease as needed. [Rand-Luby Decl. ¶ 16.] Dr. Rand-Luby thus concludes that Dr. Trivedi’s failure to diagnose or treat Dee Ann Abelar’s infection or obtain specialist care fell below the standard of care and was a substantial factor in causing her injury. [Rand-Luby Decl. ¶¶ 19-20.]

The declaration of Dr. Rand-Luby sufficiently sets forth specific factual breaches of duty to raise triable issues of fact with respect to whether the conduct of Dr. Trivedi fell within the standard of care. Accordingly, the motion for summary judgment must be denied.

Plaintiffs’ Objections to Defendant Mayur Trivedi, M.D.’s Evidence Submitted in Support of Defendant’s Motion for Summary Judgment are OVERRULED.

Case Number: BC641637    Hearing Date: November 22, 2019    Dept: E

MOTIONS FOR SUMMARY JUDGMENT (2)

[CCP § 437c; CRC 3.1350 et seq.]

Date: 11/22/19

Case: Abelar, et al. v. Dinglian, M.D., et al. (BC 641637)

 

TENTATIVE RULING:

Defendants Wayneinder S. Anand, M.D. and Babak Hakimisefat, D.O. have each moved for summary judgment as to the two remaining causes of action against them, namely, the second cause of action for professional negligence and seventh cause of action for loss of consortium. Although the parties’ motion papers, declarations, and evidence with respect to both motions are largely similar (indeed, identical with respect to plaintiffs’ filings), the Court will address each motion separately, as the declarations of Andrew S. Wachtel, M.D. submitted in support of each defendant’s motion are tailored to each such motion.

I. SUMMARY JUDGMENT MOTION OF DEFENDANT ANAND

 

In support of his motion, Dr. Anand has submitted the declaration of Dr. Wachtel, which adequately establishes Dr. Wachtel’s qualifications to testify as an expert. Dr. Wachtel is a licensed physician with the appropriate education, training and professional experience. He is board certified in pulmonology, critical care, and internal medicine, and has been in private practice in Los Angeles as a pulmonologist, critical care physician, internist and hospitalist for over 25 years. [Wachtel Decl. ¶¶ 1, 4, Ex. 1.] Dr. Wachtel is familiar with the standard of care for physicians serving as hospitalists, such as Dr. Anand. [Wachtel Decl. ¶ 4.] Dr. Wachtel’s CV is attached as Exhibit 1. The declaration also establishes that Dr. Wachtel has reviewed the complaint in this matter, as well as appropriate patient medical records, including the records from Simi Valley Hospital, Providence St. Joseph Medical Center, and Valley Neurosurgical Institute. [Wachtel Decl. ¶ 5.] Copies of the medical records relied on are attached to the Notice of Lodging of Exhibits. The records include declarations from the custodians of records. [Exs. D-Q].

Dr. Wachtel’s declaration also provides substantial testimony setting forth an understanding of the facts and the reasons for Dr. Wachtel’s opinions. Specifically, Dr. Wachtel states that the care and treatment provided to plaintiff Dee Ann Abelar by Dr. Anand met the standard of care and that, to a reasonable degree of medical certainty, nothing Dr. Anand did or did not do caused any of the injuries alleged by plaintiffs. [Wachtel Decl. ¶¶ 24, 25, 27-29]. Dr. Wachtel explains that Dr. Anand saw plaintiff Dee Ann Abelar on October 6, 2015, who performed a history and physical, with the physical examination being normal, and that since he saw plaintiff post-surgery, he had no obligation to obtain appropriate consent to the surgery performed by Dr. Lee after the fact. [Wachtel Decl. ¶¶12, 25.] Dr. Wachtel also explains that Dr. Anand appropriately noted plaintiff Dee Ann Abelar’s condition and vital signs, reviewed available laboratory data and imaging studies, ordered SCD’s for secondary bleeding risk, and formulated an appropriate assessment and plan for a patient who had just undergone neurosurgery. [Wachtel Decl. ¶ 26.] Dr. Wachtel states: that Dee Ann Abelar suffered no obvious signs of symptoms of meningitis or infection following the surgery on October 6, 2015, such as fever, chills, fatigue, lethargy, loss of appetite, malaise or shivering; that such symptoms would not have in any case appeared in the first 24-48 hours postoperatively; and that Dee Ann Abelar presented to Dr. Lee a full ten days later with no signs or symptoms of infection of meningitis. [Wachtel Decl. ¶ 28.] Dr. Wachtel indicates that at the time of Dee Ann Abelar’s care by Dr. Anand, there were no signs or symptoms for Dr. Anand to appreciate. Thus, there were no negligent acts or omissions to act on the part of Dr. Anand that caused or contributed to plaintiffs’ claimed injuries or damages. [Wachtel Decl. ¶¶ 28, 29.]

“When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Munro v. Regents of University of California (1989) 215 Cal. App.3d 977, 985.) Here, the declaration of Dr. Wachtel sufficiently establishes that the conduct of Dr. Anand fell within the applicable standard of care and did not cause or contribute to plaintiffs’ harm, thereby shifting the burden to plaintiffs to raise a triable issue of material fact. (See Hanson v. Grode (1999) 76 Cal.App.4th 601, 607 [if plaintiff’s expert declaration in opposing summary judgment in medical malpractice case sets forth specific factual breaches of duty, the defendant doctor’s motion for summary judgment should be denied].

Here, in opposition, plaintiffs submit the declaration of Dr. Leslie Rand-Luby, M.D. Dr. Rand-Luby’s declaration indicates that Dr. Rand-Luby is a medical doctor and general surgeon, with a practice in treating problems such as those presented by plaintiff and her care and treatment. Dr. Rand-Luby states she is familiar with the standard of care for physicians, hospitalists, surgeons, and hospitals in the care and treatment of patients with the conditions presented by plaintiff, including surgical site infections. [Rand-Luby Decl. ¶¶ 2, 3.]

Dr. Rand-Luby also states she has reviewed the pertinent medical records, as well as deposition testimony and discovery responses, thereby forming the opinion that Dr. Anand breached the standard of care by not diagnosing or treating plaintiff Dee Ann Abelar’s infection. Notably, Dr. Rand-Luby states that, when Dr. Anand examined plaintiff on October 6, 2015, he “did not diagnose or treat Plaintiff’s infection, even though the medical records show objective signs of infection in lab results and imaging results.” [Rand-Luby Decl. ¶ 10.] In furtherance of that conclusion, Dr. Rand-Luby notes that the medical records “showed an elevated whit [sic] blood count” and “imaging showing infection.” [Rand-Luby Decl. ¶ 10.] Dr. Rand-Luby further opines that Dr. Anand did not obtain the appropriate and necessary specialist care. [Rand-Luby Decl. ¶ 10.] Dr. Rand-Luby also claims “defendants” could and should have treated plaintiff Dee Ann Abelar when she “presented with a post surgical infection” because, in addition to her medical records and imaging reports, Dee Ann Abelar “reported decreased vision, fever, vomiting and pain.” [Rand-Luby Decl. ¶ 13.] While it is unclear from Dr. Rand-Luby’s declaration whether Dr. Anand is among the “defendants” to whom Dee Ann Abelar reported such purported symptoms of a post-surgical infection, plaintiff Dee Ann Abelar states in her declaration that she told Dr. Anand “of my pain, decreased vision and double vision, fever and nausea with vomiting.” [Dee Ann Abelar Decl. ¶ 3.] In sum, Dr. Rand-Luby concludes that on the dates Dr. Anand had contact with plaintiff Dee Ann Abelar, there were lab reports, CT, and MRI reports which were not normal, and indicated the presence of post-surgical infection and that the standard of care required treating this infectious disease process and obtaining specialist treatment. [Rand-Luby Decl. ¶ 16].

On their face, the declarations submitted by plaintiffs appear to sufficiently raise triable issues of fact with respect to whether the conduct of Dr. Anand fell within the standard of care and was the medical cause of plaintiffs’ claimed injuries and damages. The problem, however, is that neither declaration is signed. Both the declarations of Dr. Rand-Luby and plaintiff Dee Ann Abelar merely contain a typed “/s/” where the declarant’s signature should be. While an electronic signature for a declarant may be permissible (see Cal. Rules of Court, rule 2.257), the Court cannot find under the circumstances that the electronic signature should be attributable to the purported declarant. (See Civ. Code § 1633.9.) As such, the Court finds that the declarations of Dr. Rand-Luby and plaintiff Dee Ann Abelar are not valid. (See CCP §§ 98, 2015.5.)

Accordingly, the Court is inclined to SUSTAIN moving defendants’ Objections Nos. 1 and 26 to the declarations of Dr. Rand-Luby and plaintiff Dee Ann Abelar in their entirety. For the same reason, the Court would SUSTAIN Objection No. 37 to plaintiff Brian Abelar’s declaration in its entirety. All other objections by the parties’ are OVERRULED.

If the declarations of Dr. Rand-Luby and plaintiff Dee Ann Abelar are found invalid, the Court must grant Dr. Anand’s motion for summary judgment, as plaintiffs will not have presented any evidence to meet their shifted burden to raise a triable issue of material fact. If, however, the submitted declarations of Dr. Rand-Luby and plaintiff Dee Ann Abelar were made under penalty of perjury by the declarants and properly brought before this Court for consideration, then the Court would deny the motion for the reasons set forth above.

For the reasons the Court found above with respect to the motion by Dr. Anand, the declaration of Dr. Wachtel submitted in support of Dr. Hakimisefat’s motion for summary judgment sufficiently sets forth his qualifications to provide expert testimony in this matter, as well as the basis for his conclusions. [See Wachtel Decl. ¶¶ 1, 4, 5 & Ex. 1; Ex. D-Q.]

As for the conclusions concerning Dr. Hakimisefat’s conduct, Dr. Wachtel states that the care and treatment provided to plaintiff Dee Ann Abelar by Dr. Hakimisefat met the standard of care and that, to a reasonable degree of medical certainty, nothing Dr. Hakimisefat did or did not do caused any of the injuries alleged by plaintiffs. [Wachtel Decl. ¶¶ 24, 25, 27-29.] Dr. Wachtel explains that Dr. Hakimisefat saw plaintiff Dee Ann Abelar on October 7 and 8, 2015, and examined her, with the physical examination being normal, and that since he saw plaintiff post-surgery, he had no obligation to obtain appropriate consent to the surgery performed by Dr. Lee after the fact. [Wachtel Decl. ¶¶13, 16, 26.] Dr. Wachtel also explains that Dr. Hakimisefat appropriately examined Dee Ann Abelar following her surgical procedure, that she had pain which was being controlled by medications, that her vital signs were within normal limits, that there was no indication of any ongoing infection, and that Dr. Hakimisefat appropriately discharged plaintiff and gave appropriate discharge instructions. [Wachtel Decl. ¶ 27, 28.] In addition, Dr. Wachtel states: that Dee Ann Abelar suffered no obvious signs of symptoms of meningitis or infection following the surgery on October 6, 2015, such as fever, chills, fatigue, lethargy, loss of appetite, malaise or shivering; that such symptoms were not present at the time of discharge; and that Dee Ann Abelar presented to Dr. Lee a full ten days later with no signs or symptoms of infection of meningitis. [Wachtel Decl. ¶ 30.] Dr. Wachtel indicates that, at the time of Dee Ann Abelar’s care by Dr. Hakimisefat, there were no signs or symptoms for him to appreciate. Accordingly, there were no negligent acts or omissions to act on the part of Dr. Hakimisefat that caused or contributed to plaintiffs’ claimed injuries or damages. [Wachtel Decl. ¶¶ 30, 31].

The declaration of Dr. Wachtel is sufficient to shift the burden to plaintiffs to raise a triable issue of fact. (Munro, 215 Cal.App.3d at 985.) For the reasons discussed above with respect to Dr. Anand’s motion for summary judgment, the Court finds that the declarations of Dr. Rand-Luby and plaintiff Dee Ann Abelar might meet that burden. (See Hanson, 76 Cal.App.4th at 607.) As is also discussed above, however, those declarations are invalid, such that Dr. Hakimisefat’s motion should be granted for plaintiffs’ failure to submit any evidence to raise a triable issue of material fact. If, however, the submitted declarations of Dr. Rand-Luby and plaintiff Dee Ann Abelar were made under penalty of perjury by the declarants and properly brought before this Court for consideration, then the Court would deny Dr. Hakimiseafat’s motion for the reasons already stated herein.

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