This case was last updated from Los Angeles County Superior Courts on 11/27/2019 at 18:28:42 (UTC).

JACKIE ROBINSON ET AL VS DIGESTIVE CARE CONSULTANTS ET AL

Case Summary

On 09/12/2016 JACKIE ROBINSON filed a Personal Injury - Medical Malpractice lawsuit against DIGESTIVE CARE CONSULTANTS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MARC D. GROSS, DEIRDRE HILL, MICHELLE WILLIAMS COURT and YOLANDA OROZCO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3550

  • Filing Date:

    09/12/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MARC D. GROSS

DEIRDRE HILL

MICHELLE WILLIAMS COURT

YOLANDA OROZCO

 

Party Details

Plaintiffs and Petitioners

ROBINSON MOZELLA

ROBINSON JACKIE

Defendants and Respondents

DR. CHUNG

BHAYANI NEIL H. M.D.

DIGESTIVE CARE CONSULTANTS

DOES 1 THRU 20

DR. HOOL

TRAN TIMOTHY T. M.D.

TRAN M.D. TIMOTHY T.

NEIL M.D. BHAYANI H.

HUGO M.D. HOOL

CHUNG DR.

HUGO M.D HOOL

CHUNG M.D. DAVID S.

HUGO HOOL M.D

BHAYANI M.D. NEIL H.

BLAKLEY JOHN

MILLER THEODORE

Not Classified By Court

JOHN BLAKEY M.D. SUED HEREIN AS ?DOE 1?

7 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

ODIASE LAW GROUP

ODIASE CHARLES UWA

SHTOFMAN ROBERT SCOTT ESQ.

SHTOFMAN ROBERT SCOTT

Defendant and Respondent Attorneys

KELLY JOHN CHRISTOPHER

SCHWALBACH JON ROY

GREER DENISE HERZOG

KELLY JOHN C. ESQ.

DEANE RYAN PATRICK

SCHMID & VOILES

REBACK MCANDREWS KJAR WARFORD &

MISSHORE BRYAN C.

 

Court Documents

Declaration - DECLARATION OF ALEXANDRA E. BARAFF, ESQ. IN SUPPORT OF NEIL H. BHAYANI, M.D.'S OPPOSITION

9/18/2019: Declaration - DECLARATION OF ALEXANDRA E. BARAFF, ESQ. IN SUPPORT OF NEIL H. BHAYANI, M.D.'S OPPOSITION

Opposition - DEFENDANT JOHN BLAKEY, M.D.S OPPOSITION TO PLAINTIFFS MOTION TO REOPEN DISCOVERY

9/19/2019: Opposition - DEFENDANT JOHN BLAKEY, M.D.S OPPOSITION TO PLAINTIFFS MOTION TO REOPEN DISCOVERY

Notice - NOTICE OF ADVANCEMENT OF DEFENDANT, DR. BLAKEY'S MOTION FOR SUMMARY JUDGMENT

10/17/2019: Notice - NOTICE OF ADVANCEMENT OF DEFENDANT, DR. BLAKEY'S MOTION FOR SUMMARY JUDGMENT

Objection - EVIDENTIARY OBJECTIONS OF DEFENDANT, JOHN BLAKEY, M.D. TO THE DECLARATION OF ROBERT SCOTT SHTOFMAN

11/26/2019: Objection - EVIDENTIARY OBJECTIONS OF DEFENDANT, JOHN BLAKEY, M.D. TO THE DECLARATION OF ROBERT SCOTT SHTOFMAN

Objection - EVIDENTIARY OBJECTIONS OF DEFENDANT, JOHN BLAKEY, M.D. TO THE DECLARATION OF CHARLES U. ODIASE

11/26/2019: Objection - EVIDENTIARY OBJECTIONS OF DEFENDANT, JOHN BLAKEY, M.D. TO THE DECLARATION OF CHARLES U. ODIASE

Notice of Continuance -

8/30/2018: Notice of Continuance -

Notice of Continuance - Notice of Continuance Of Motion No. 1 to Compel The Resumption Of The Deposition Questions

10/26/2018: Notice of Continuance - Notice of Continuance Of Motion No. 1 to Compel The Resumption Of The Deposition Questions

Notice of Case Reassignment and Order for Plaintiff to Give Notice

12/21/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Motion in Limine - MOTION IN LIMINE NO 6

5/8/2019: Motion in Limine - MOTION IN LIMINE NO 6

Motion in Limine - MOTION IN LIMINE MOTION IN LIMINE NO 1

5/8/2019: Motion in Limine - MOTION IN LIMINE MOTION IN LIMINE NO 1

Motion in Limine - MOTION IN LIMINE NO 13

5/8/2019: Motion in Limine - MOTION IN LIMINE NO 13

Declaration - DECLARATION OF MARY OCASIO IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION TO CONTINUE TRIAL

5/28/2019: Declaration - DECLARATION OF MARY OCASIO IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION TO CONTINUE TRIAL

PROOF OF SERVICE SUMMONS -

11/3/2016: PROOF OF SERVICE SUMMONS -

DEFENDANT NEIL H. BHAYANI, M.D.'S ANSWER TO PLAINTIFFS' COMPLAINT

3/6/2017: DEFENDANT NEIL H. BHAYANI, M.D.'S ANSWER TO PLAINTIFFS' COMPLAINT

DEFENDANT NEIL H. BHAYANI, M.D.'S MOTION FOR SUMMARY JUDGMENT; DECLARATION OF JOSHUA ELLENHORN, M.D.; ETC

4/4/2017: DEFENDANT NEIL H. BHAYANI, M.D.'S MOTION FOR SUMMARY JUDGMENT; DECLARATION OF JOSHUA ELLENHORN, M.D.; ETC

DEFENDANT NEIL H. BHAYANI, M.D.'S NOTICE OF MOTION FOR SUMMARY JUDGMENT

4/4/2017: DEFENDANT NEIL H. BHAYANI, M.D.'S NOTICE OF MOTION FOR SUMMARY JUDGMENT

AMENDED PROOF OF SERVICE RE DEFENDANT'S REPLY RE: NEIL H. BHAYANI, M.D'S MOTION FOR SUMMARY JUDGMENT

10/20/2017: AMENDED PROOF OF SERVICE RE DEFENDANT'S REPLY RE: NEIL H. BHAYANI, M.D'S MOTION FOR SUMMARY JUDGMENT

NOTICE OF MOTION AND SUMMARY JUDGMENT MOTION OF DEFENDANT DAVID CHUNG, M.D.; ETC

10/26/2017: NOTICE OF MOTION AND SUMMARY JUDGMENT MOTION OF DEFENDANT DAVID CHUNG, M.D.; ETC

213 More Documents Available

 

Docket Entries

  • 02/14/2020
  • Hearing02/14/2020 at 08:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Hearing on Motion for an Order to Show Cause Re: Contempt (CCP 1209)

    Read MoreRead Less
  • 12/03/2019
  • Hearing12/03/2019 at 08:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Trial Setting Conference

    Read MoreRead Less
  • 12/03/2019
  • Hearing12/03/2019 at 08:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Hearing on Motion for Summary Judgment

    Read MoreRead Less
  • 12/03/2019
  • Hearing12/03/2019 at 08:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Hearing on Motion - Other to Preclude the Testimony of Andrew Schneider, M.D.

    Read MoreRead Less
  • 11/25/2019
  • DocketNotice (of Taking Hearing Off Calendar); Filed by Neil H. Bhayani, M.D. (Defendant)

    Read MoreRead Less
  • 11/22/2019
  • DocketOpposition ( to Defendant Neil H. Bhayani, M.D.'s Motion to Exclude Plaintiff's Expert Andrew Schneider, M.D.); Filed by Mozella Robinson (Plaintiff)

    Read MoreRead Less
  • 11/22/2019
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Clerk

    Read MoreRead Less
  • 11/22/2019
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Clerk

    Read MoreRead Less
  • 11/20/2019
  • DocketDeclaration (Declaration of Attorney Robert Scott Shtofman in Support of Opposition to Defendant John Blakey, M.D.'s Motion for Summary Judgment); Filed by Mozella Robinson (Plaintiff)

    Read MoreRead Less
  • 11/20/2019
  • DocketJackie and Mozella Robinson's evidentiary objections to the declaration of Trevor C. Wong in support of plaintiff opposition to defendant John Blakey, M.D. for motion for summary judgment; Filed by Mozella Robinson (Plaintiff)

    Read MoreRead Less
406 More Docket Entries
  • 11/03/2016
  • DocketProof of Service (DIGESTIVE CARE CONSULTANTS ); Filed by Attorney for Plaintiff/Petitioner

    Read MoreRead Less
  • 11/03/2016
  • DocketProof-Service/Summons; Filed by Attorney for Plaintiff/Petitioner

    Read MoreRead Less
  • 11/03/2016
  • DocketProof of Service (not Summons and Complaint); Filed by Plaintiff/Petitioner

    Read MoreRead Less
  • 11/03/2016
  • DocketPROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 11/03/2016
  • DocketPROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 11/03/2016
  • DocketPROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 09/12/2016
  • DocketCOMPLAINT FOR MEDICAL MALPRACTICE: 1. PROFESSIONAL NEGLIGENCE; ETC

    Read MoreRead Less
  • 09/12/2016
  • DocketComplaint

    Read MoreRead Less
  • 09/12/2016
  • DocketComplaint; Filed by Jackie Robinson (Plaintiff); Mozella Robinson (Plaintiff)

    Read MoreRead Less
  • 09/12/2016
  • DocketSUMMONS

    Read MoreRead Less

Tentative Rulings

Case Number: BC633550    Hearing Date: March 9, 2021    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

JACKIE ROBINSON, et al.,

Plaintiffs,

Case No.:

BC633550

vs.

[Tentative] RULING

DIGESTIVE CARE CONSULTANTS, et al.,

Defendants.

Hearing Date: March 9, 2021

Moving Parties: Defendant John Blakey, M.D.

Responding Party: Plaintiffs Jackie Robinson and Mozella Robinson

Motion for Summary Judgment

The court considered the moving, opposition, and reply papers.

RULING

The motion for summary judgment is GRANTED.

BACKGROUND

On September 12, 2016, plaintiffs Jackie Robinson and Mozella Robinson filed a complaint against Digestive Care Consultants, Dr. Hool, Dr. Chung, Timothy T. Tran, M.D., and Neil H. Bhayani, M.D. for professional negligence, NIED (bystander victim and direct victim), and loss of consortium.

On October 25, 2018, the court denied Dr. Bhayani’s motion for summary judgment, finding that there was a triable issue of material fact as to breach of the standard of care.

On November 8, 2018, the court granted Dr. Hugo Hool’s motion for summary judgment.

LEGAL AUTHORITY

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843. “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519. A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” CCP § 437c(p)(2). “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).

Discussion

Defendant John Blakey, M.D. requests that the court enter summary judgment in his favor and against plaintiffs pursuant to CCP § 437c on the ground that there is no triable issue of material fact and defendant is entitled to judgment as a matter of law.

In the complaint, plaintiffs allege that in 2015, plaintiff Mozella Robinson began to experience some stomach inflammation. When her pain increased, she sought treatment at the hands of the individual defendants. After examination, she was informed on May 4, 2015 by Digestive Care Consultants that cancer had been found in her pancreatic mass and that she would require whipple surgery. She settled her matters with her family and prepared for the worst. Plaintiff presented for her surgery, which required the removal of half of her stomach, the gallbladder, part of the bile duct, the pancreatic head, the duodenum, small intestine, and lymph nodes. She spent approximately six weeks recuperating from surgery and was required to receive post surgery treatment. She went to her post surgery appointment on June 16, 2015 and was informed for the first time that her condition had been misdiagnosed, that she never had pancreatic cancer, and that the surgery that had been performed on her was unnecessary and invasive. She has suffered severe side effects as a result of the surgery.

1st cause of action for medical malpractice

The elements of medical malpractice are: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.” Simmons v. West Covina Medical Clinic (1989) 212 Cal. App. 3d 696, 701-02 (citations omitted). “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.” Avivi, 159 Cal.App.4th at 467.

Thus, in a medical malpractice case, “[w]hen 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, 984-985 (citations omitted). An expert declaration, if uncontradicted, is conclusive proof as to the prevailing standard of care and the propriety of the particular conduct of the health care provider. Starr v. Mooslin (1971) 14 Cal. App. 3d 988, 999.

Evidentiary objections

Plaintiffs’ objections are OVERRULED as to the declarations of Andrew Berg, M.D. and Moses Fallas, M.D.

Defendant’s objections are SUSTAINED as to paras. 12, and 16 of Dr. Pieturszka’s decl. and SUSTAINED as to Exh. 4 (declaration of Andrew Schneider, M.D.).

Defendant presents the declaration of Andrew Burg, M.D., who opines that, based on his education, training, and experience and review of materials to date, Dr. Blakey complied with the applicable standard of care during his involvement with plaintiff’s care. Dr. Burg decl., ¶21. He states that on April 22, 2015, plaintiff presented to TMMC for an EGD/EUS with fine needle aspiration (“FNA”) procedure. She had had recurrent abdominal pain with nausea and vomiting and a CT of the abdomen and pelvis showed a mass. Id., ¶9. The pathology specimens were went to Dr. Blakey. Id., ¶10. On April 23, 2015, Dr. Blakey consulted with Dr. Theodore Miller from the University of San Francisco, Division of Cytopathology, for a second opinion regarding the pathology. Dr. Blakey noted that the specimens showed some mildly to moderately atypical elements but that none of the cells were overtly malignant. Id., ¶11. On April 27, 2015, Dr. Miller reviewed the pathology specimens. He opined that the specimens from the FNA pancreatic head cystic mass and head cystic head were consistent with adenocarcinoma. Id., ¶12. Dr. Blakey’s final diagnosis regarding the specimens were consistent with adenocarcinoma. Id., ¶13. Later that day, Dr. Chung called plaintiff and discussed the FNA results. Plaintiff was informed that cancer was found on biopsy from the pancreatic mass. Surgery and oncology referrals were made. Id., ¶14. On June 3, 2015, Dr. Blakey again consulted with Dr. Miller for a second opinion regarding the pathology from plaintiff’s Whipple procedure. Dr. Blakey noted that he saw no absolutely unequivocal malignancy, although there were some very ragged dutcular elements that raised the possibility of malignancy. Id., ¶17. On June 30, 2015, Dr. Blakey authored his final pathology report from the June 1 procedure. His diagnosis included chronic pancreatitis and negative for metastatic carcinoma. Dr. Blakey noted that “this was obviously an extremely challenging case, and that the pancreas showed extensive fibrosis and atrophy, and many residual ducts were irregular and atypical. These atypical ductal elements reviewed on a cytology specimen, in the context of a large hypoechoic mass and accompanied by necroinflammatory debris, met Dr. Miller’s threshold for a cancer diagnosis. Id., ¶20.

Dr. Burg states that he reviewed plaintiff’s pathology slides from April 22, 2015. Based upon his microscopic analysis of these specimens, it is his professional opinion that the pathology presents clusters of atypical cells with atypical nuclei, which are highly suspicious of malignancy. In addition, there appears to be the presence of necrosis, another possible indication of malignancy. Id., ¶22. Given this suspicion of malignancy, it was reasonable and within the standard of care for Dr. Blakey, a general pathologist, to send the pathology slides to an expert consultant in cytopathology for review. Id., ¶23. Given Dr. Miller’s advanced qualifications and experience in the field of cytopathology, it was reasonable and within the standard of care for Dr. Blakey to incorporate and rely upon Dr. Miller’s impressions in reaching his diagnosis of adenocarcinoma. Id., ¶24. Dr. Blakey’s ultimate interpretation of the April 22 FNA pathology was reasonably notwithstanding the subsequent pathology from June 1, 2015 Whipple procedure showing no evidence of malignancy. The standard of care for a pathologist did not require Dr. Blakey to order or conduct any further testing regarding his interpretation of the FNA pathology such as CEA testing and genetic markers on the aspiration fluid from the pancreas. Id., ¶25.

Defendant Dr. Blakey also presents the declaration of Moses Fallas, M.D. who opines that based on his education, training, and experience, and records, to a reasonable degree of medical probability, Dr. Blakey’s interpretation of the April 22, 2015 pathology specimens was not a substantial factor to plaintiff’s alleged injuries because plaintiff’s Whipple procedure was indicated regardless of the pathology results from her FNA procedure. Dr. Fallas decl., ¶20. Based upon the mortality rate of advanced pancreatic cancer, and the low morbidity and mortality of a Whipple procedure, plaintiff’s Whipple procedure was appropriate. Given plaintiff’s pancreatic mass and clinical representation, it is his professional opinion that aggressive treatment was necessary due to the risk that plaintiff would develop incurable pancreatic cancer. Plaintiff would have been at significant risk of developing incurable pancreatic cancer if she did not proceed with her June 1, 2015 Whipple procedure and waited significant time to perform repeat diagnostics. Id., ¶21.

In opposition, plaintiffs present the declaration of Marvin Pietruszka, M.D., who states that after reviewing the tissue slides, although malignancy was not observed in any of the slides examined, the overall case does appear to be suspicious for the presence of malignant neoplasm. He is in agreement with the diagnoses of both pathologists. Dr. Pietruszka decl., ¶11. He is also in agreement with the initial pathologic diagnosis of Dr. Blakey that the specimen demonstrated cellular atypia and that there was a suspicion of malignancy. He agrees that referral of the slides for a second opinion met the standard of care for a pathologist in this case. However, he believes that Dr. Blakey had the duty to verify that Dr. Bhayani understood the inherent diagnostic error of the findings of plaintiff’s fine needle aspiration examination and that he acted beneath the standard of care by not doing so. Id., ¶12. By not verifying that Dr. Bhanyani understood the inherent diagnostic error of the findings of plaintiff’s fine needle aspiration examination, Dr. Blakey contributed to the events in this case and damages of plaintiff in more than a remote or trivial manner. Id., ¶13. He opines that the probability of a malignancy within the pancreas of such lesions in such cases is extremely low. The great majority of cystic lesions of the pancreas do not change over time and many do not require surgical intervention. Id., ¶14.

He further opines that based on the sensitivity of the EUS-FNA test and the relative paucity of abnormal cells in plaintiff’s sample, to a reasonable degree of medical probability a second EUS-FNA study would have increased the overall predictive value of the test. The results of an additional study would have been of assistance to Dr. Bhayani in that he could have offered plaintiff a core biopsy or a less invasive surgical procedure. Id., ¶16.

Plaintiffs also present the declaration of Andrew M. Schneider, M.D. opines that based on his background training and experience and the materials reviewed, Dr. Blakey and Dr. Miller failed to perform CEA analysis and genetic markers on the aspiration fluid from the pancreas, which was below the standard of care and led to the erroneous diagnosis of pancreatic cancer. Dr. Schneider decl., ¶6.i.

In reply, defendant objects to Dr. Pietruszka’s declaration at para. 12 because Dr. Pietruszka did not establish that a reasonable pathologist would have confirmed Dr. Bhayani’s understanding of the potential of a false-positive result from a FNA procedure and that his declaration ignores the fact that Dr. Bhayani is a board-certified surgeon in his own right. Further, he objects that para. 16 lacks foundation because his declaration does not establish that the standard of care requires a pathologist to act beyond providing a pathological diagnosis; that Dr. Bhayani was ignorant of the possibility of a false-positive finding from a FNA procedure; that Dr. Bhayani would have ordered a repeat FNA procedure had Dr. Blakey informed him of the possibility of a false-positive; and a second FNA would have revealed a different diagnosis and Dr. Bhayani would have offered a different procedure.

Defendant objects to the declaration of Dr. Schneider because he has not established his qualifications to opine on the standard of care of a pathologist. Dr. Schneider also does not state whether he reviewed the pathology slides that are at issue. Further, defendant contends, Dr. Schneider did not state what the CEA analysis and genetic markers would have revealed and does not even claim that this further testing would have led to a different diagnosis. Defendant auges that Dr. Schneider’s opinion on causation is not supported by reasoned explanation.

As stated above, the court sustained defendant’s objections. As such, the court finds that plaintiffs have failed to proffer conflicting expert evidence to raise a triable issue as to whether Dr. Blakey breached the standard of care and caused or contributed to plaintiffs’ damages.

2nd cause of action for NIED

Defendant argues that plaintiffs cannot establish elements under NIED because this claim is premised on the underlying alleged professional negligence of Dr. Blakey. Defendant reiterates that he acted at all times within the standard of care and that his involvement was not a substantial factor to their claimed injuries.

As stated under the 1st cause of action, plaintiffs have failed to proffer conflicting expert evidence to raise a triable issue.

3rd cause of action for loss of consortium

A cause of action for loss of consortium “stands or falls based on whether the spouse of the party alleging loss of consortium has suffered an actionable injury.” Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 746. A loss of consortium claim is “’by its nature, dependent on the existence of a cause of action for tortious injury to a spouse.’” Vanhooser v. Superior Court (2012) 206 Cal. App. 4th 921, 927 (citation omitted).

Defendant reiterates that he acted at all times within the standard of care and that his involvement was not a substantial factor to Mozilla’s claimed injuries and thus, plaintiff Jackie’s claim also fails.

As stated under the 1st cause of action, plaintiffs have failed to proffer conflicting expert evidence to raise a triable issue.

The motion for summary judgment is therefore GRANTED.

Moving defendant is ordered to give notice of this ruling.

Moving party is ordered to give notice.

Case Number: BC633550    Hearing Date: August 05, 2020    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

JACKIE ROBINSON, an individual,

MOZELLA ROBINSON, an individual,

Plaintiffs,

Case No.:

BC633550

vs.

[Tentative] RULING

DIGESTIVE CARE CONSULTANTS, et al.,

Defendants.

Hearing Date: August 5, 2020

Moving Parties: Defendant John Blakey, M.D.

Responding Party: Plaintiffs Jackie Robinson and Mozella Robinson

As to Jackie Robinson and Mozella Robinson:

1. Motion to Compel Further Responses to Demand for Production of Documents, Set One.

As to Jackie Robinson:

1. Motion to Compel Further Responses to Special Interrogatories, Set One.

As to Mozella Robinson:

1. Motion to Compel Further Responses to Form Interrogatories, Set One.

2. Motion to Compel Further Responses to Special Interrogatories, Set One.

The court considered the moving, opposition, and reply papers.

RULING

The motions are GRANTED in part.

Plaintiffs Jackie Robinson and Mozella Robinson are ordered to serve verified responses, without objections, to Defendant John Blakey, M.D.’s Demand for Production of Documents, Set One, within 15 days of this ruling.

Plaintiff Jackie Robinson is ordered to serve verified responses, without objections, to Defendant John Blakey, M.D.’s Special Interrogatories, Set One, Nos. 21 and 22, within 15 days of this ruling.

Plaintiff Mozella Robinson is ordered to serve verified responses, without objections, to Defendant John Blakey, M.D.’s Form Interrogatories, Set One, No. 6.5, and Special Interrogatories, Set One, Nos. 1, 2, 6-8, and 22 within 15 days of this ruling. The motion is DENIED as to No. 23.

Plaintiffs Jackie Robinson and Mozella Robinson are ordered to pay monetary sanctions, jointly and severally, to Defendant John Blakey, M.D. in the amount of $ 1040.00 within 30 days of this ruling.

BACKGROUND

On September 12, 2016, Plaintiffs Jackie Robinson and Mozella Robinson (Plaintiffs) filed a medical malpractice complaint against Defendants Digestive Care Consultants, Dr. Hool, Dr. Chung, Timothy T. Tran, M.D., and Neil H. Bhayani, M.D. (collectively Defendants). The complaint alleges four causes of action: (1) Professional Negligence, (2) N.I.E.D. (Bystander Theory); (3) N.I.E.D. (Direct Victim), and (4) Loss of Consortium.

LEGAL AUTHORITY

45-Day Rule: Motions to compel further responses must be served within 45 days after service of the response in question (extended if served by mail, overnight delivery, or fax; see CCP § 1013); otherwise, the demanding party waives the right to compel any further responses. CCP §§ 2030.300(c), 2031.310(c), 2016.050; see Sperber v. Robinson (1994) 26 Cal. App. 4th 736, 745. The 45-day time limit is mandatory and jurisdictional. Sexton v. Superior Court (1997) 58 Cal. App. 4th 1403, 1410. The parties, however, can also agree in writing on a specific later date by which to file the motion to compel. CCP §§ 2030.300(c), 2031.310(c).

Meet-and-Confer Requirement: The motion to compel further responses must be accompanied by a declaration showing “a reasonable and good faith attempt” to resolve the issues outside of court (so-called “meet and confer”). CCP §§ 2016.040, 2030.300(b), 2031.310(b)(2),

Separate Statement: The motions must also be accompanied by a separate statement containing the requests and the responses, verbatim, as well as reasons why a further response is warranted. CRC, rule 3.1345(a). The separate statement must also be complete in itself; no extrinsic materials may be incorporated by reference. Id., rule 3.1345(c). Trial courts is well within its discretion to deny motion to compel discovery based on the party’s failure to comply with the separate statement requirements of Cal. Rules of Court, rule 3.3145(a). Mills v. U.S. Bank (2008) 166 Cal. App. 4th 871, 893 [holding failure to include separate statements required by California Rules of Court provided justification of trial court’s denial of discovery motion.].

Request for Production of Documents

On receipt of a response to an inspection demand, the demanding party may move for an order compelling further responses to the demand if the demanding party deems that any of the following apply: (1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general. CCP § 2031.310(a). A statement of compliance shall state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production. CCP § 2031.220. “A representation of inability to comply with [a] particular demand for inspection . . . shall affirm that a diligent search and reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. This statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” CCP § 2031.230.

A motion to compel further response to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” CCP § 2031.310(b)(1). “To establish ‘good cause,’ the burden is on the moving party to show both: [1] Relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case); and [2] Specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). The fact that there is no alternative source for the information sought is an important factor in establishing ‘good cause’ for inspection. But it is not essential in every case.” Weil & Brown, Civil Procedure Before Trial, 8:1495.6 (citations omitted). “Declarations are generally used to show the requisite ‘good cause’ for an order to compel inspection. The declarations must contain ‘specific facts’ rather than mere conclusions.” Id. at 8:1495.7 (citation omitted). “The declarations may be on information and belief, if necessary. However, in such cases, the ‘specific facts’ supporting such information and belief (the sources of the information) must also be alleged.” Id. at 8:1495.8 (citation omitted). “Most declarations are made by the attorney for the moving party, who is usually more familiar with the relevancy and ‘specific facts’ constituting ‘good cause’ for inspection.” Id. at 8:1495.9.

“If ‘good cause’ is shown by the moving party, the burden is then on the responding party to justify any objections made to document disclosure (the same as on motions to compel answers to interrogatories or deposition questions. . . ).” Id. at 8:1496 (citation omitted).

Interrogatories

A motion to compel further responses to form or specially prepared interrogatories may be brought if the responses contain: (1) answers that are evasive or incomplete; (2) an unwarranted or insufficiently specific exercise of an option to produce documents in lieu of a substantive response; or (3) unmerited or overly generalized objections. CCP § 2030.300(a).

DISCUSSION

Defendant John Blakey, M.D. (Dr. Blakey) requests that the court compel Plaintiffs to response further to his Demand for Production of Documents, Set One.

Dr. Blakey requests that the court compel Plaintiff Jackie Robinson (Jackie)[1] to response further to his Special Interrogatories, Set One, Nos. 21 and 22.

Dr. Blakey requests that the court compel Plaintiff Mozella Robinson (Mozella) to response further to his Form Interrogatories, Set One, No. 6.5, and Special Interrogatories, Set One, Nos. 1, 2, 6-8, 22, and 23.

In the complaint, Mozella alleges that on May 4, 2015, after examinations, Defendant Digestive Care Consultant informed her that cancer had been found in her pancreatic mass and that she would require whipple surgery. Complaint ¶ 14. Mozella under went surgery, which required the removal of half of her stomach, the gallbladder, part of the bile duct, the pancreatic head, the duodenum, and small intestine and lymph nodes. Complaint ¶ 15. Subsequently, on June 16, 2015, Mozella was informed that her condition had been misdiagnosed, that she had never had pancreatic cancer, and that the surgery was unnecessary and invasive. Complaint ¶ 16. Jackie is Mozella’s husband. Complaint ¶ 25. Jackie joins in the complaint to bring causes of action for negligent infliction of emotional distress and loss of consortium. Complaint ¶ 25-31, 44-46.

On November 2, 2018, Plaintiffs filed an amendment to their complaint, identifying Dr. Blakey as Doe 1.

As to Jackie Robinson and Mozella Robinson

Demand for Production of Documents, Set One

Defendant John Blakey, M.D. (Dr. Blakey) requests that the court compel Plaintiffs to response further to Defendant’s Demand for Production of Documents, Set One.

In the motion, Dr. Blakey’s counsel, Trevor Wong, attests that he propounded Demand for Production and Inspection of Documents, Set One, on Plaintiffs on January 16, 2020. Wong Decl., ¶ 4, Exh. A.

On February 19 and March 4, 2020, Mr. Wong granted Plaintiffs two extensions to provide responses to the outstanding discovery request. Wong Decl., ¶ 5-6, Exh. C. Finally, on March 10, 2020, Mr. Wong granted Plaintiffs a last extension to provide responses to the discovery request by March 17, 2020. Wong Decl., ¶ 7, Exh. D. On March 16, 2020, Plaintiffs again requested an additional two-week extension, which Mr. Wrong declined. Wong Decl., ¶ 8, Exh. E. On March 25, 2020, Plaintiffs untimely served their unverified responses containing only objections. Wong Decl., ¶ 9. To date, Dr. Blakey has not received supplemental responses or verifications from Plaintiffs. Wong Decl., ¶ 12.

In opposition, Plaintiffs contend that Mozella is sick, elderly, and particularly susceptible to COVID-19, and cannot meet with Plaintiffs’ counsel to compile the responsive documents. Plaintiffs’ counsel, Charles Odiase, attests that he is still in isolation and cannot meet with Plaintiffs to compile the requested documents. Odiase Decl., ¶ 11. Moreover, Plaintiffs’ co-counsel, Robert Scott Shtofman, suffers from COVID-19 symptoms, including fever, persistent coughing, and flu-like symptoms. Id. Thus, due to these conditions, Plaintiffs’ counsels could not subject Plaintiffs to a heightened risk of contracting COVID-19 and was not able to provide responses to the discovery requests. Id.

In reply, Dr. Blakey contends that the responses can be prepared remotely, through telephone, email, snail mail, video conference, etc. Moreover, Plaintiffs’ counsel has requested Plaintiffs’ depositions be conducted via Zoom video conference. This fact, Dr. Blakey argues, shows that Plaintiffs’ counsel believes they can provide adequate representation remotely, and that Plaintiffs are capable of using such technology. Reply, p. 2:20, Wong Decl., ¶ 9, Exh. C. Dr. Blakey’s arguments are well-taken.

Dr. Blakey properly propounded Demand for Production of Documents, Set One, upon Plaintiffs on January 16, 2020. After multiple extensions, Plaintiffs untimely served unverified responses on March 25, 2020. The court is sensitive to the current COVID-19 pandemic as well as Plaintiffs and Plaintiffs’ counsel well-being. Nonetheless, as Plaintiffs’ counsel demonstrated, Plaintiffs are available for remote depositions; thus, it is conceivable that these outstanding discovery requests can be compiled remotely.

Accordingly, the court finds good cause to grant Dr. Blakey’s Motion to Compel Further Responses to Demand for Production of Documents, Set One. Plaintiffs are ordered to serve verified responses, without objections, within 15 days of this ruling.

As to Jackie Robinson

Special Interrogatories, Set One

Dr. Blakey request that the court compel Jackie to respond further to his Special Interrogatories, Set One, Nos. 21 and 22.

Similar to the Demand for Production of Documents, Set One, the Special Interrogatories, Set One, was propounded upon Jackie on January 16, 2020. Wong Decl. ¶ 4, Exh. A. After multiple extensions, the instant discovery request was due on March 17, 2020. Wong Decl., ¶ 7, Exh. D. On March 25, 2020, Jackie untimely served his unverified responses. Wong Decl., ¶ 10.

In opposition, Jackie reiterate his arguments based on identical grounds as in his opposition to Dr. Blakey’s Motion to Compel Further Responses to Demand for Production of Documents, Set One. In reply, Dr. Blakey’s contentions are also identical to his Motion to Compel Further Responses to Demand for Production of Documents, Set One.

No. 21: Name, address, and telephone number of each practitioner Plaintiffs consulted or by whom Plaintiffs were treated.

Jackie responded with objections based on grounds that this interrogatory has been asked and answered, and requests information equally available to Dr. Blakey and/or third parties.

No. 22: Does [Jackie] “contend that as a result of the incident in question, plaintiff, Mozella Robinson, suffered any physical, mental or emotional damage or injury which has prevented him/her from engaging in conjugal relations.”

Along with objections, Jackie responded that he would require the services of an expert witness to properly respond to this interrogatory.

The court finds the responses are evasive and incomplete, and the objections are without merits. Moreover, Jackie untimely served responses without verifications.

Accordingly, Dr. Blakey’s Motion to Compel Further Responses to Special Interrogatories, Set One, Nos. 21 and 22, as to Jackie is GRANTED. Jackie is ordered to serve verified responses, without objections, within 15 days of this ruling.

As to Mozella Robinson

As an initial matter, the court notes Dr. Blakey improperly combined two motions to compel further responses into one. The court, however, recognizes Dr. Blakey reserving two separate hearing times for the instant motions.

The sequence of events leading up to the instant motions are the same as in Dr. Blakey’s Motion to Compel Further Responses to Demand for Production of Documents, Set One.

Similarly, Mozella’s oppositions and Dr. Blakey’s replies are also identical to the Motion to Compel Further Responses to Demand for Production of Documents, Set One.

Form Interrogatories, Set One

Dr. Blakey requests that the court compel Mozella to respond further to his Form Interrogatories, Set One, No. 6.5.

No. 6.5: Medications, prescribed or not, as a result of injuries that Mozella attribute to the incident. The name, person who prescribed or furnished the medications, the dates it was prescribed or furnished, the dates Mozella began and stopped taking the medications, and the cost to date.

Along with objections, Mozella referred the propounding party to Mozella’s medical records and to the declaration of expert Andrew Schneider, M.D., dated April 30, 2019. Additionally, Mozella responded that she would produce the responsive documents.

In light of the fact that the responses were served untimely and without verifications, Dr. Blakey’s motion is GRANTED. Mozella is ordered to serve supplemental verified responses, without objections, within 15 days of this ruling.

Special Interrogatories, Set One

Dr. Blakey requests that the court compel Mozella to respond further to his Special Interrogatories, Set One, Nos. 1, 2, 6-8, 22, and 23.

No. 1: Identify with specificity sufficient for service of a subpoena each and every medical facility (including hospitals, rest homes, sanitariums and other medical institutions) from which Mozella have received care within the last seven (7) years. This interrogatory is intended to request information regarding both inpatient and outpatient care.

Mozella objects on ground of overbroad.

No. 2: Identify with specificity sufficient for service of a subpoena each health care provider (including doctors, psychiatrists, therapists and other professional or paraprofessional medical practitioners) from whom Mozella have received care or attention within the last seven (7) years. This interrogatory is intended to request information regarding both examination and treatment.

Mozella objects on ground of overbroad.

No. 6: Identify with specificity sufficient to satisfy a subpoena duces tecum all physical evidence, whether documentary or otherwise, which Mozella claim support her contentions in this action.

Mozella objects on grounds of attorney-client privilege and work-product.

No. 7: Itemize each and every medical expense Mozella have incurred which you claim are related to the accident or occurrence which is the subject of this litigation.

Mozella objects on grounds that the request is equally available to Dr. Blakey and/or third party and is overbroad.

No. 8: Itemize the reimbursements paid by each person or legal entity if someone other than Mozella has paid any of the expenses identified in the preceding interrogatory.

Mozella objects on grounds that the request is equally available to Dr. Blakey and/or third party and is overbroad.

No. 22: Identify each and every health care provider who has made the diagnosis (or otherwise inform Mozella) that Mozella’s contended injury is permanent.

Along with objections, Mozella responded that she would require the services of an expert witness to properly respond to this interrogatory.

No. 23: Identify all health care providers who are presently providing medical care to you for any injuries which you contend are permanent, including the date you most recently received medical care from each health care provider.

Mozella responded that she would provide the responsive documents.

For the same reasons above, the court finds the responses were untimely served, not verified, and the objections without merits. Accordingly, Dr. Blakey’s motion is GRANTED as to Nos. 1, 2, 6-8, and 22. The motion is DENIED as to No. 23.

Mozella is ordered to serve supplemental verified responses, without objections, to Nos. 1, 2, 6-8, and 22, within 15 days of this ruling.

Sanctions

Under CCP § 2023.030(a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  Under CCP § 2023.010, an example of the misuse of the discovery process is “(d) Failing to respond or to submit to an authorized method of discovery.”  

Sanctions are mandatory in connection with motions to compel further responses against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  CCP §2031.310(h). 

Cal. Rules of Court, Rule 3.1348(a) states:  “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”  

Dr. Blakey seeks $1,660.00 in sanctions for each motion. In opposition, Plaintiffs contend that sanctions are unjust because Plaintiffs and their counsel acted with substantial justification due to the current COVID-19 pandemic. Plaintiffs further argue that sanctions are unwarranted because Mr. Wong failed to comply with CCP § 2023.040. Specifically, Plaintiffs contend that Dr. Blakey’s motion failed to identify the person, party, or attorney from whom sanctions are sought. See CCP § 2023.040. The court finds sanctions are warranted. In his motions, Dr. Blakey expressly identifies “Plaintiffs, jointly and severally with their counsel of record” as the parties whom Dr. Blakey is seeking sanctions against. The court finds that $1,040.00 ($200/hr. x 4 hrs., plus $240 in filing fees) is a reasonable amount to be imposed against each Plaintiffs in total for the four motions filed against them.

Accordingly, the motions are GRANTED in part and DENIED in part.

Dr. Blakey is ordered to provide notice of the ruling.


[1] The court refers to each individual Plaintiff by their first name, not as a sign of disrespect, but due to the Plaintiffs having the same last name.

Case Number: BC633550    Hearing Date: December 03, 2019    Dept: SWB

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

JACKIE ROBINSON, et al.,

Plaintiffs,

Case No.:

BC633550

vs.

[Tentative] RULING

DIGESTIVE CARE CONSULTANTS, et al.,

Defendants.

Hearing Date: December 3, 2019

Moving Parties: Defendant John Blakey, M.D. (sued as “DOE 1”)

Responding Party: Plaintiffs Jackie and Mozella Robinson

Motion for Summary Judgment

The court considered the moving, opposition, and reply papers.

RULING

Defendant John Blakey, M.D.’s motion for summary judgment is denied.

BACKGROUND

On September 12, 2016, Plaintiffs Jackie Robinson (“Jackie”) and Mozella Robinson (“Mozella”) (collectively “Plaintiffs”) filed a complaint, asserting causes of action for medical malpractice, negligent infliction of emotional distress, and loss of consortium.

On November 14, 2016, Defendant Hugo Hool, M.D. filed an answer to the complaint.

On December 28, 2016, Defendants David S. Chung, M.D., Digestive Care Consultants, and Timothy T. Tran, M.D. filed an answer to the complaint.

On February 3, 2017, the court sustained Defendant Neil H. Bhayani, M.D.’s (“Dr. Bhayani”) demurrer to the negligent infliction of emotional distress causes of action in the complaint without leave to amend.

On October 25, 2018, the court denied Dr. Bhayani’s motion for summary judgment.

On November 8, 2018, the court granted Defendant Hugo Hool, M.D.’s motion for summary judgment.

On July 3, 2019, the court denied Dr. Bhayani’s motion for summary judgment.

On August 15, 2019, Defendant John Blakey, M.D. (“Dr. Blakey”) filed an answer to the complaint.

On October 10, 2019, the court vacated the trial and FSC dates. A trial setting conference is scheduled for December 3, 2019.

DISCUSSION

Dr. Blakey moves for summary judgment against Plaintiffs in this action. Dr. Blakey argues “no triable issue exists as to any material fact in this case, and Defendant is entitled to a judgment as a matter of law…” (Notice of Motion, pgs. 1-2.)

As a preliminary matter, Plaintiffs argue Dr. Blakey “failed to provide the statutory minimum 75 days notice” for the instant motion. (Opposition, pg. 8.) Plaintiffs appear to take issue with Dr. Blakey’s service of the amended declaration of Trevor C. Wong, amended separate statement, and amended request for judicial notice. The proofs of service submitted by Dr. Blakey suggest Plaintiffs’ attorneys were served with the amended documents via personal service on September 19, 2019, which is 75-days before the hearing on the instant motion for summary judgment. Plaintiffs’ attorneys submitted declarations challenging personal service of the amended documents. (Declaration of Odiase ¶12.) (Declaration of Shtofman ¶¶3-7.) In light of the declarations submitted by Plaintiffs’ attorneys, the court will not consider Dr. Blakey’s amended documents.

Dr. Blakey’s request for judicial notice (filed on September 18, 2019) is granted. However, the court will not take judicial notice of the truth of the matters asserted within the motions and declarations. (RJN, Exhibits D, E, G, and H.)

Plaintiffs’ evidentiary objections (filed on November 20, 2019) are overruled as to Nos. 2,[1] 3, 7, 8, 9, 10, 11, 12, and 13, and sustained as to Nos. 4, 5, and 6.

Dr. Blakey’s evidentiary objections to the declaration of Charles U. Odiase (filed on November 26, 2019) are overruled as to Nos. 4,[2] 5, 9, 10, 11, and 12, and sustained as to Nos. 2, 3 (in part),[3] 6 (in part),[4] 7, and 8 (in part).[5]

Dr. Blakey’s evidentiary objections to the declaration of Robert Scott Shtofman (filed on November 26, 2019) are overruled as to Nos. 5-7.[6]

C.C.P. §437c(p)(2) provides, as follows:

A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.

Dr. Blakey argues Plaintiffs’ complaint is barred by the statute of limitations set forth in C.C.P. §340.5.

C.C.P. §340.5 provides, in pertinent part, as follows:

In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.

“The relevant statute of limitations for actions against health care providers, section 340.5, contains two periods of limitation -- a three-year period and a one-year period, both of which must be met. [Citations] The three-year period begins to run when the plaintiff discovers the harmful effect, i.e., the physical manifestation of the wrongful act. The negligent cause of that effect is not a concern for the three-year period. [Citation]” (Rose v. Fife (1989) 207 Cal.App.3d 760, 767-768.) “The one-year period commences when the plaintiff is aware of both the physical manifestation of the injury and its negligent cause. [Citations]” (Id. at 768.) “Our Supreme Court has often discussed the one-year rule’s requirement of discovery of the negligent cause of injury. When a plaintiff has information which would put a reasonable person on inquiry, when a plaintiff's ‘reasonably founded suspicions [have been] aroused’ and the plaintiff has ‘become alerted to the necessity for investigation and pursuit of her remedies,’ the one-year period commences. ‘Possession of ‘presumptive’ as well as ‘actual’ knowledge will commence the running of the statute.’ [Citations] The plaintiff's ignorance of the identity of the defendant wrongdoer does not toll the one-year period. [Citation]” (Id.)

Dr. Blakey argues “Plaintiffs were on inquiry notice of [his] involvement at the time Plaintiff Mozella Robinson was told she was misdiagnosed with pancreatic cancer on June 16, 2015, and certainly by the time Plaintiffs filed their Complaint on September 12, 2016.” (Motion, pg. 6.) Dr. Blakey contends “a reasonable person would suspect that when there was an alleged misdiagnosis of pancreatic cancer, the pathologist who both originally diagnosed Plaintiff with adenocarcinoma and then later determined Plaintiff did not have cancer, would be involved in the misdiagnosis.” (Motion, pg. 6.) According to Dr. Blakey, “Plaintiff stated in her Complaint that she first discovered her misdiagnosis during her June 16, 2015 post-surgery follow-up with Dr. Bhayani who specifically discussed Dr. Blakey’s finding of no malignancy from the June 1, 2015 procedure.” (Motion, pg. 6.) Dr. Blakey argues Plaintiff, at this point, was “on inquiry of Dr. Blakey’s involvement in the matter, and this information required Plaintiff and/or her attorney…to seek out facts including Dr. Blakey’s identity, if it was not already known to Plaintiff.” (Motion, pg. 6.)

Dr. Blakey did not meet his burden of showing Plaintiffs’ causes of action are time-barred under C.C.P. §340.5. There can be no dispute the one-year period set forth in C.C.P. §340.5 began to run on June 16, 2015. In the complaint, Plaintiffs alleged that “Plaintiff went to her post surgery appointment on June 16, 2015 and was informed for the first time that her condition had been misdiagnosed, and that she had in fact never had pancreatic cancer and also that the surgery that has been performed on her was unnecessary and invasive.” (Complaint ¶16.) Plaintiffs filed the instant action on September 12, 2016, more than one year after they discovered, or through the use of reasonable diligence should have discovered, the injury. However, Dr. Blakey did not address the role of C.C.P. §364 in the statute of limitations analysis. In the complaint, Plaintiffs alleged that, on June 14, 2016, pursuant to C.C.P. §364(a), they “caused to be served on all defendants 90 days written notice of their intention to commence action against the named defendants for professional negligence as it is related to the medical care they provided Ms. Robinson.” (Complaint ¶19; Exhibit A.) Dr. Blakey did not submit admissible evidence disputing Plaintiffs’ claim that they served the written notices on (June 10, 2016 or) June 14, 2016.[7] Service of the notices (within 90 days of the expiration of the statute of limitations) tolled the limitations period as to the individuals/entities named in the notices, as well as, all unknown individuals/entities, for 90 days. (See C.C.P. §364(a) and (d).) (See also Woods v. Young (1991) 53 Cal.3d 315, 328 (“For the reasons given above, we hold that when a plaintiff gives the 90-day notice of intent to sue required by section 364(a) in the last 90 days of the 1-year statute of limitations that statute is tolled for 90 days.”)[8] and Camarillo v. Vaage (2003) 105 Cal.App.4th 552, 557 (“We conclude that section 364, subdivisions (d) and (e), and section 474, read together, provide a workable and commonsense rule that serves to extend the applicable statute of limitations against an unknown defendant when a section 364, subdivision (a) notice is appropriately served, according to the overall statutory scheme, upon known potential defendants in the medical malpractice context. Moreover, the Grimm, supra, 188 Cal. App. 3d 866, case authority survived its partial disapproval in this respect.).)

Plaintiffs filed the instant action on September 12, 2016, within one year and ninety days after they discovered, or through the use of reasonable diligence should have discovered, the injury (on June 16, 2015). Plaintiffs’ complaint names DOE defendants. (Complaint ¶¶7-8.) Dr. Blakey concedes Plaintiffs amended the complaint “to identify Dr. Blakey as DOE 1…[on] February 22, 2019…” (Motion, pg. 10.)[9] Thus, the statute of limitations does not appear to be an issue. (See McOwen v. Grossman (2007) 153 Cal.App.4th 937, 943 (“The error in this case, as it was in Fuller v. Tucker, is in identifying the issue in terms of the statute of limitations. The issue, however, is not when the cause of action against the newly named defendant accrued, i.e., whether the statute of limitations bars the action against respondent. This cannot be the issue since the complaint was filed within the statute of limitations and because the complaint, as filed, named Doe defendants. The statute of limitations is not at issue under these circumstances. As the court put it in Fuller: ‘Fuller timely filed her initial complaint. However, after the statute of limitations had expired, Fuller brought in Dr. Tucker as a Doe defendant. In such situations, Code of Civil Procedure section 474 permits plaintiffs to bring in defendants if the requirements of section 474 are met. If so, that defendant is considered a party to the action from its commencement.’ [Citation]”).)

“A medical malpractice action must be commenced three years after the date of the injury ‘or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.’ [Citation] While reasonable diligence may be material to the determination of the accrual of a cause of action, reasonable diligence is not germane to determining whether a Doe amendment was timely. [Citation]” (Id. at 944.) Dr. Blakey’s claim that Plaintiffs were “on inquiry of [his] involvement in the matter, and this information required Plaintiff and/or her attorney…to seek out facts including Dr. Blakey’s identity, if that was not already known to Plaintiff,” misses the mark. (Id.) As set forth above, the information before the court suggests Plaintiffs filed the complaint within the limitations period (i.e. within one-year and ninety days after alleged discovery of the misdiagnosis and unnecessary surgery). (See Id. (“Thus, the trial court's conclusion that the amputation of appellant's leg put him on notice and that, inferentially, appellant should have exercised due diligence based on that fact and named respondent earlier than he did, misses the mark. The fact is that appellant filed the complaint in March 2004, well within one year after the amputation that took place in July 2003.”).)

Dr. Blakey also challenges the DOE amendment. Dr. Blakey argues “plaintiffs and their counsel were not ignorant of [his] identity and of facts giving rise to the action against him at the time they filed the complaint” and, as a result, “the filing of the DOE amendment on February 22, 2019 does not relate back to the date the Complaint was filed on September 12, 2016.” (Motion, pgs. 6-7.) Dr. Blakey contends the “date of the commencement of this action against [him] for purposes of the statute of limitations is February 22, 2019, the date he was DOED in” and, as “that was more than one year after Patient discovered she was misdiagnosed with pancreatic cancer, the action against [him] is barred by the statue of limitations.” (Motion, pg. 7.) Dr. Blakey contends the “medical records clearly identify Dr. Blakey as the pathologist who interpreted the results of the fine needle aspiration performed by Dr. Chung” and “clearly identify Dr. Blakey as the pathologist who interpreted the results from the June 1, 2015 Whipple procedure performed by Dr. Bhayani.” (Motion, pg. 7.) Dr. Blakey also contends that both “Dr. Chung and Dr. Bhayani specifically discussed with Plaintiff Dr. Blakey’s findings.” (Motion, pg. 7.) Dr. Blakey argues that “[r]egardless of whether Dr. Bhayani or Dr. Chung mentioned Dr. Blakey by name or not, Plaintiff and her counsel had a duty to seek and learn the facts necessary to bring a cause of action against Dr. Blakey.” (Motion, pg. 7.) Additionally, Dr. Blakey argues Plaintiffs unreasonably delayed in identifying him as a real party in interest. (Motion, pg. 8.) Dr. Blakey contends his identity and involvement in this matter are demonstrated during multiple instances in the litigation, including the expert declaration of Dr. Ellenhorn filed in support of Dr. Bhayani’s motion for summary judgment on April 4, 2017, Dr. Miller’s deposition testimony on September 13, 2017, and Dr. Spirts’ declaration filed in support of Dr. Chung’s motion for summary judgment on October 26, 2017. (Motion, pgs. 9-10.)

C.C.P. §474 provides, in pertinent part, as follows:

When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly…

Section 474 contains two mandatory requirements, each of which must be met before the benefits of the statute may be claimed by a plaintiff. The first requirement is that of ignorance of the true name of the defendant. There are not many instances in the law where absolute ignorance is vital and may serve to advance a litigant's cause, but section 474 contains one. The decided cases have made it clear that a plaintiff's ignorance, to satisfy the statute, must be genuine, that is, real and not feigned. [Citations]… [¶] The second requirement of section 474 is that a plaintiff make a clear statement in his pleading that he is ignorant of the true name of the defendant sued by a fictitious name. [Citation]” (Stephens v. Berry (1967) 249 Cal.App.2d 474, 477.)

“‘Section 474…is restricted to the knowledge of the plaintiff at the time of the filing of the complaint.’ [Citations] ‘The lack of knowledge of the true name of the defendant…must be ‘real and not feigned.’ [Citation.]… ‘Ignorance of the facts is the critical issue, and whether it be due to misinformation or negligence is not relevant.’ [Citations.]’ [Citations] Under section 474, therefore, a plaintiff has no duty ‘to exercise reasonable diligence prior to filing the complaint to discover the defendant's identity.’ [Citation]” (Balon v. Drost (1993) 20 Cal.App.4th 483, 487-488.)

“[I]f the plaintiff is actually ignorant of the defendant's identity, the section 474 relation-back doctrine applies even if that ignorance is the result of the plaintiff's negligence. [Citations]” (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 177.) (Emphasis Added.)[10]

C.C.P. §474 “includes an implicit requirement that a plaintiff may not ‘unreasonably delay’ his or her filing of a Doe amendment after learning of defendant’s identity” and unreasonable delay “includes a prejudice element, which requires a showing by the defendant that he or she would suffer prejudice from plaintiff’s delay in filing the Doe amendment.” (A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1066-1067.)

Dr. Blakey did not meet his burden of showing Plaintiffs’ DOE amendment (for Dr. Blakey) was somehow improper and/or does not relate back to the filing of the complaint. Specifically, Dr. Blakey failed to submit admissible evidence showing Plaintiffs were not truly ignorant of Dr. Blakey’s identity at the time they filed the instant action. As set forth above, Plaintiffs did not have a duty to exercise reasonable diligence prior to filing the complaint to discover Dr. Blakey’s identity. Dr. Blakey also did not submit admissible evidence showing Plaintiffs unreasonably delayed in filing the DOE Amendment. Plaintiffs filed a DOE Amendment on November 2, 2018, albeit for John Blakely, M.D., and Dr. Blakey concedes “he was named in place of DOE 1 in an amendment to the complaint filed on February 22, 2019.” (Motion, pg. 6.) Additionally, Dr. Blakey did not submit admissible evidence showing he was prejudiced by any delay.

Based on the foregoing, Dr. Blakey’s motion for summary judgment is denied.


[1] No. 1 does not contain any objections.

[2] No. 1 does not contain any objections.

[3] No. 3 is sustained only to the extent the statement refers to what Plaintiffs were or were not aware of.

[4] No. 6 is sustained only as to the following: “and the Plaintiffs had no way to discover this fact unless and until they or their counsel were informed of this fact by a medical expert.”

[5] No. 8 is only sustained as to the following: “Thus, if I had named Dr. Blakey in the initial complaint for medical malpractice before then, I would have exposed my clients to a malicious prosecution action.”

[6] Nos. 1-4 do not contain any objections.

[7] The court notes that the notices attached to the complaint are dated June 10, 2016.

[8] In Woods, the California Supreme Court stated:

As we noted at the outset, in enacting MICRA the Legislature sought to "reduce the cost and increase the efficiency of medical malpractice litigation" by, among other things, changing the legal rules governing such litigation. [Citation] One such change was to impose, through section 364(a), a 90-day "waiting" period on the plaintiff in an effort to encourage negotiated resolution of the medical malpractice dispute outside the formal litigation process. [Citation]

That legislative purpose is best effectuated by construing section 364(d) as tolling the one-year statute of limitations when section 364(a)'s ninety-day notice of intent to sue is served during, but not before, the last ninety days of the one-year limitations period. Because the statute of limitations is tolled for 90 days and not merely extended by 90 days from the date of service of the notice, this construction results in a period of 1 year and 90 days in which to file the lawsuit. In providing for a waiting period of at least 90 days before suit can be brought, this construction achieves the legislative objective of encouraging negotiated resolutions of disputes.

(Id. at 325.)

[9] Plaintiffs filed an Amendment to Complaint on November 2, 2018, naming John Blakely, M.D. as DOE 1. Dr. The November 2018 Amendment to Complaint contains an improper spelling of Dr. Blakey’s name. In support of the instant motion, Blakey submitted an Amendment to Complaint, dated February 22, 2019, naming Dr. Blakey as DOE 1. (Declaration of Wong ¶9, Exhibit F.) It is unclear whether Plaintiffs’ filed the February 2019 Amendment to Complaint with the Court.

[10] “Whether ‘the requirements of section 474 are met’ [Citation] is different from deciding when the cause of action accrued for the purposes of the statute of limitations. If the identity of the Doe defendant is known but, at the time of the filing of the complaint the plaintiff did not know facts that would cause a reasonable person to believe that liability is probable, the requirements of section 474 are met. ‘Section 474 allows a plaintiff in good faith to delay suing particular persons as named defendants until he has knowledge of sufficient facts to cause a reasonable person to believe liability is probable.’ [Citation] ‘The fact that the plaintiff had the means to obtain knowledge is irrelevant.’ [Citation] ‘In short, section 474 does not impose upon the plaintiff a duty to go in search of facts she does not actually have at the time she files her original pleading.’ [Citation]” (Woods at 943-944.) (Emphasis Added.)

related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where Chung aka Vu H Chung, Vu is a litigant

Latest cases where DIGESTIVE CARE CONSULTANTS is a litigant

Latest cases represented by Lawyer SHTOFMAN ROBERT SCOTT