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

  • Court:

    Los Angeles County Superior Courts

  • 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)

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

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  • 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

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  • 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.

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

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  • 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)

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

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

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  • 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)

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  • 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)

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

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

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

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  • 11/03/2016
  • DocketPROOF OF SERVICE SUMMONS

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  • 11/03/2016
  • DocketPROOF OF SERVICE SUMMONS

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  • 11/03/2016
  • DocketPROOF OF SERVICE SUMMONS

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

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  • 09/12/2016
  • DocketComplaint

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

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  • 09/12/2016
  • DocketSUMMONS

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Tentative Rulings

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.)