This case was last updated from Los Angeles County Superior Courts on 05/31/2019 at 06:51:15 (UTC).

CARLOS RUSSO VS GEORGE MA MD ET AL

Case Summary

On 03/03/2017 CARLOS RUSSO filed a Personal Injury - Medical Malpractice lawsuit against GEORGE MA MD. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MARC D. GROSS. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1924

  • Filing Date:

    03/03/2017

  • 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 Judge

MARC D. GROSS

 

Party Details

Plaintiff

RUSSO CARLOS

Defendants and Respondents

GOOD SAMARITAN HOSPITAL

MA GEORGE M.D.

DOES 1 - 50

HWANG STEVEN K. M.D.

Attorney/Law Firm Details

Plaintiff Attorney

ANGELUCCI MARC E. ESQ.

Defendant and Respondent Attorneys

WATSON ALEXANDER M.

BLESSEY RAYMOND L. ESQ

HUGHES TRACY D. ESQ.

WATSON ALEXANDER M. ESQ.

BLESSEY RAYMOND ESQ.

CYNOWIEC JESSICA E. ESQ.

TAGGART DEBORAH S. ESQ.

 

Court Documents

DEFENDANT, GEORGE MA, M.D.?S OPPOSITION TO PLAINTIFF?S MOTION TO COMPEL FURTHER DISCOVERY RESPONSES AND REQUEST FOR SANCTIONS

12/22/2017: DEFENDANT, GEORGE MA, M.D.?S OPPOSITION TO PLAINTIFF?S MOTION TO COMPEL FURTHER DISCOVERY RESPONSES AND REQUEST FOR SANCTIONS

DEFENDANT, GEORGE MA, M.D.?S OPPOSITION TO PLAINTIFF?S MOTION FOR LEAVE TO AMEND TO ADD PUNITIVE DAMAGES, OR IN THE ALTERNATIVE, PERMIT ADDITIONAL TIME TO ASSERT PUNITIVE DAMAGES

12/22/2017: DEFENDANT, GEORGE MA, M.D.?S OPPOSITION TO PLAINTIFF?S MOTION FOR LEAVE TO AMEND TO ADD PUNITIVE DAMAGES, OR IN THE ALTERNATIVE, PERMIT ADDITIONAL TIME TO ASSERT PUNITIVE DAMAGES

Minute Order

1/9/2018: Minute Order

Proof of Service

6/12/2018: Proof of Service

Minute Order

6/18/2018: Minute Order

ANSWER TO COMPLAINT

7/9/2018: ANSWER TO COMPLAINT

NOTICE OF LODGING EXHIBITS E, F, AND G IN SUPPORT OF DEFENDANT GEORGE MA, M.D.?S MOTION FOR SUMMARY JUDGMENT

8/7/2018: NOTICE OF LODGING EXHIBITS E, F, AND G IN SUPPORT OF DEFENDANT GEORGE MA, M.D.?S MOTION FOR SUMMARY JUDGMENT

NOTICE OF ERRATA RE: DEFENDANT GEORGE MA, M.D.'S MOTION FOR SUMMARY JUDGMENT: PLAINTIFF'S FIRST AMENDED COMPLAINT

8/14/2018: NOTICE OF ERRATA RE: DEFENDANT GEORGE MA, M.D.'S MOTION FOR SUMMARY JUDGMENT: PLAINTIFF'S FIRST AMENDED COMPLAINT

NOTICE OF JURY FEE WAIVER

9/11/2018: NOTICE OF JURY FEE WAIVER

Objection

10/11/2018: Objection

Declaration

11/21/2018: Declaration

Notice of Ruling

2/25/2019: Notice of Ruling

Supplemental Declaration

3/4/2019: Supplemental Declaration

Notice

3/6/2019: Notice

SUBSTITUTION OF ATTORNEY

12/11/2017: SUBSTITUTION OF ATTORNEY

NOTICE OF CHANGE OF ADDRESS OR OTHER CONTACT INFORMATION

10/10/2017: NOTICE OF CHANGE OF ADDRESS OR OTHER CONTACT INFORMATION

SUMMONS

3/3/2017: SUMMONS

PROOF OF SERVICE OF SUMMONS AND COMPLAINT

7/24/2017: PROOF OF SERVICE OF SUMMONS AND COMPLAINT

133 More Documents Available

 

Docket Entries

  • 05/09/2019
  • Notice ( OF RULING RE PLAINTIFF'S MOTION FOR LEAVE TO AMEND THE COMPLAINT TO ADD PUNITIVE DAMAGES); Filed by Good Samaritan Hospital (Defendant)

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  • 05/08/2019
  • at 08:30 AM in Department 37; Hearing on Motion for Leave to Amend (First Amended Complaint) - Held

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  • 05/08/2019
  • Minute Order ( (Hearing on Motion for Leave to Amend First Amended Complaint)); Filed by Clerk

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  • 05/08/2019
  • Stipulation and Order to use Certified Shorthand Reporter; Filed by Steven K. Hwang, M.D. (Defendant)

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  • 05/01/2019
  • Reply (to Oppositions to Motion to Amend); Filed by Carlos Russo (Plaintiff)

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  • 05/01/2019
  • Proof of Service by Mail; Filed by Carlos Russo (Plaintiff)

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  • 05/01/2019
  • Objection (to Defendants' Evidence (Combined Evidentary Objections to Oppositions to Motion for Leave to Amend)); Filed by Carlos Russo (Plaintiff)

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  • 04/25/2019
  • Objection (EVIDENTIARY OBJECTIONS TO THE SECOND SUPPLEMENTAL DECLARATION OF CARLOS RUSSO); Filed by Steven K. Hwang, M.D. (Defendant)

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  • 04/25/2019
  • Opposition ( TO PLAINTIFF'S MOTION FOR LEAVE); Filed by Steven K. Hwang, M.D. (Defendant)

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  • 04/25/2019
  • Opposition (GOOD SAMARITAN HOSPITAL'S OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT TO ADD PUNITIVE DAMAGES); Filed by Good Samaritan Hospital (Defendant)

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232 More Docket Entries
  • 06/20/2017
  • Declaration; Filed by Good Samaritan Hospital (Defendant)

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  • 06/20/2017
  • Notice; Filed by Good Samaritan Hospital (Defendant)

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  • 06/20/2017
  • Answer; Filed by Good Samaritan Hospital (Defendant)

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  • 06/20/2017
  • DEMAND FOR JURY TRIAL

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  • 03/30/2017
  • FIRST AMENDED COMPLAINT 1. MEDICAL NEGLIGENCE, ETC

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  • 03/30/2017
  • Demand for Jury Trial; Filed by Carlos Russo (Plaintiff)

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  • 03/30/2017
  • Complaint (1st); Filed by Carlos Russo (Plaintiff)

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  • 03/03/2017
  • SUMMONS

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  • 03/03/2017
  • COMPLAINT FOR DAMAGES 1. MEDICAL NEGLIGENCE -AND- DEMAND FOR JURY TRIAL

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  • 03/03/2017
  • Complaint; Filed by Carlos Russo (Plaintiff)

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Tentative Rulings

Case Number: BC651924    Hearing Date: February 21, 2020    Dept: 37

HEARING DATE: February 21, 2020

CASE NUMBER: BC651924

CASE NAME: Carlos Russo v. George Ma, M.D., et al.

TRIAL DATE: None – Stay of Action entered on February 6, 2020

PROOF OF SERVICE: OK

MOTION: Plaintiff Carlos Russo’s Motion for Reconsideration of January 6, 2020 Ruling on Defendant Steve Hwang, M.D.’s Motion for Summary Judgment

MOVING PARTY: Plaintiff, Carlos Russo

OPPOSING PARTIES: Defendant Steve Hwang, M.D.

OPPOSITION: February 6, 2020

REPLY: None filed as of February 18, 2020

TENTATIVE: Plaintiff’s Motion for Reconsideration is DENIED. Hwang is to provide notice.

MOTION: Plaintiff Carlos Russo’s Motion to Disqualify Reback, McAndrews & Blessey LLP as Counsel for George Ma, M.D.

MOVING PARTY: Plaintiff, Carlos Russo

OPPOSING PARTIES: Defendant George Ma, M.D.

OPPOSITION: February 6, 2020

REPLY: February 13, 2020

TENTATIVE: Plaintiff’s Motion to Disqualify Defendant George Ma, M.D.’s counsel is DENIED. Ma is to provide notice.

 

MOTION FOR RECONSIDERATION

Background

This case arises from allegations that Defendants George Ma, M.D. (“Ma”) and Good Samaritan Hospital (“Good Samaritan”) negligently misdiagnosed Plaintiff Carlos Russo (“Plaintiff”) with Stevens-Johnson Syndrome (“SJS”) and failed to properly diagnose him for a fungus or infection. Plaintiff filed the Complaint on March 3, 2017 and filed the First Amended Complaint (“FAC”) on March 30, 2017. In the FAC, Plaintiff alleges one cause of action for medical negligence. On June 12, 2018, Plaintiff filed an amendment, naming Steven K. Hwang, M.D. (“Hwang”), Inc. as Doe Defendant 1.

On January 10, 2020, Hwang’s motion for summary judgment came on for hearing before Department 37 of the Los Angeles Superior Court. The court granted Hwang’s motion for summary judgment, finding that Plaintiff’s doe amendment naming Hwang as a defendant was time-barred by the one-year statute of limitations for negligence against healthcare providers. (see Minute Order of January 10, 2020.)

Plaintiff now moves for reconsideration of the court’s January 10, 2020 order. Hwang opposes the motion.

Discussion

  1. Timeliness

Code of Civil Procedure, section 1008 allows a party to move for reconsideration of an order within 10 days after service upon the party of written notice of entry of the order, based on new or different facts, circumstances, or law. (Code Civ. Proc., § 1008, subd. (a).)

Here, Hwang served notice of the court’s January 10, 2020 ruling on January 15, 2020 by U.S. mail and Plaintiff filed this motion on January 21, 2020, which is exactly one week after Hwang served his notice. Accordingly, Plaintiff’s motion for reconsideration is timely. (See Code Civ. Proc., § 1008, subd. (a).)

  1. Analysis

Code of Civil Procedure section 1008 requires the party moving for reconsideration to “state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

“The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. [ Gilberd v. AC Transit (1995) 32 CA4th 1494, 1500, 38 CR2d 626, 629-630 ; Mink v. Sup.Ct. (Arnel Develop. Co., Inc.) (1992) 2 CA4th 1338, 1342, 4 CR2d 195, 197 ; Baldwin v. Home Sav. of America (1997) 59 CA4th 1192, 1198, 69 CR2d 592, 597 ]

“The burden under § 1008 ‘is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.’ [ New York Times Co. v. Sup.Ct. (Wall St. Network, Ltd.) (2005) 135 CA4th 206, 212-213, 37 CR3d 338, 343 (emphasis added)]

“A party seeking reconsideration of a prior order based on ‘new or different facts, circumstances or law’ must provide a satisfactory explanation for failing to present the information at the first hearing; i.e., a showing of reasonable diligence. [ Garcia v. Hejmadi (1997) 58 CA4th 674, 690, 68 CR2d 228, 238 ; California Correctional Peace Officers Ass'n v. Virga (2010) 181 CA4th 30, 47, 103 CR3d 699, 714 , fn. 15 (collecting cases)—renewal motion also subject to reasonable diligence requirement.”

(Cal. Prac. Guide Civ. Pro. Before Trial, Ch. 9 ¶¶ 9:328-9:329 (Rutter 2019).)

Plaintiff points to the following to the following allegedly new facts upon which he contends the court should reconsider its January 10, 2020 ruling: (1) text messages between Hwang and Delia Noguiera (Plaintiff’s mother) regarding Plaintiff, which Noguiera allegedly “recalled” only after attending the hearing on Hwang’s motion for summary judgment and which “helped both [Noguiera] and Russo recall Hwang telling them that the cannot get Russo readmitted,” and (2) the declaration of Dr. Marin Pietruszka in support of Plaintiff’s motion to renew, which was continued to January 24, 2020. (see Notice of Motion, 1-2.)

First, Plaintiff contends that the Pietruszka Declaration constitutes “new” facts because it was reviewed by the court after the court had issued its ruling on Hwang’s motion for summary judgment. To the extent that Plaintiff does contend the Pietruszka Declaration is new for these reasons, the court disagrees. The court will not reconsider its January 10, 2020 ruling based on the Pietruszka Declaration. A review of the docket indicates that Plaintiff filed his Motion to Renew Prior Motion to Amend on December 10, 2019. As such, the Pietruszka Declaration in support of this motion was also submitted to the court on or about December 10, 2019 and is not a “new” fact or circumstance. The fact that the Motion to Renew was eventually heard subsequent to Hwang’s motion for summary judgment does not make the Pietruszka Declaration “new” facts upon which the court may reconsider its ruling.

Second, Plaintiff contends that reconsideration of the January 10, 2020 ruling is warranted because of the “new” text messages which Plaintiff and his mother, Delia Noguiera, recalled only after the January 10, 2020 hearing. Plaintiff’s mother, Delia Noguiera, attests that she was present at the hearing on Hwang’s motion for summary judgment and heard “discussion focusing on the phone conversations” with Hwang in December 2015. (Noguiera Decl., ¶ 2, Exhibit A.) Thereafter, Noguiera attests that she recalled text messages she exchanged with Hwang and located a print out of the texts in papers she had. (Noguiera Decl., ¶¶ 2-4.) Noguiera attests that in the text messages, Hwang stated that he was requesting insurance authorization for Voriconazole, an anti-fungal medication, to which she responded with thanks. (Noguiera Decl. ¶ 5.) Noguiera further attests that she text messaged Hwang to request that he transfer Plaintiff to St. Vincent’s as soon as possible. (Id.) Noguiera attests that she and Plaintiff then discussed the text messages the text messages at the time and that Huang was communicating with Russo through her. (Noguiera Decl. ¶¶ 4, 6.) Similarly, Plaintiff attests that when Noguiera discussed the text messages with him, he then recalled that Hwang specifically told him on the phone that he lacked the privileges to readmit Plaintiff to Hood Samaritan Hospital. (Russo Decl. ¶ 8.)

The foregoing shows that the “new” text messages were known to Plaintiff and Noguiera in December 2015 and that Noguiera had copies of them in her possession at the time of the hearing on the motion and likely since 2015. Thus, the text messages are not facts that were not known to the Plaintiff and could have been produced with reasonable diligence.

Therefore, the court will not grant the motion to reconsider its January 10, 2020 ruling based on these text messages. However, if it did reconsider its ruling, it would not change its ruling. As the court previously stated in its January 10, 2020 ruling, the direction provided by Woo v. Superior Court (1999) 75 Cal.App.4th 169 (Woo) Snokes v. Bolen (1991) 235 Cal.App.3d 1427 (Snokes) and related cases is clear that if a doe defendant physician in a medical malpractice action can be readily identified, then failure to name such a physician as a defendant within the one-year statute of limitations bars any claim against this physician for medical malpractice. Although the text messages Noguiera identified does constitute new information about Hwang’s interactions with Plaintiff, these text messages do not serve to establish Plaintiff’s apparent contention that he could not name Hwang as a defendant without being certain of Hwang’s liability.

Conclusion

Plaintiff’s motion for reconsideration is DENIED. Hwang is to provide notice.

MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL

Background

Dr. Jerold Dreyer retained Ma’s counsel Raymond Blessey and the law firm of Reback, McAndrews & Blessey, LLP (“Blessey”) to represent him in a professional liability action Juan Hernandez v. Daniel Made, M.D., Los Angeles Superior Court Case No. BC687442 (“Hernandez Matter”). Blessy continues to represent Dr. Dreyer. Plaintiff submitted a declaration by Dr. Dreyer in opposition to Ma’s motion for summary judgment. Plaintiff now suggests he may designate Dreyer as an expert witness for trial.

Plaintiff now moves to disqualify Ma’s counsel Raymond Blessey and the law firm of Reback, McAndrews & Blessey, LLP (“Blessey”) on the grounds that Blessey represents Plaintiff’s expert, Dr. Jerrold Dreyer, as a defendant in another matter before the Los Angeles Superior Court and it represents a conflict. Ma opposes the motion.

Discussion

“The trial court is vested with the power ‘[t]o control in furtherance of justice, the conduct of its ministerial officers.’ That power includes the disqualifying of an attorney.” (Henricksen v. Great Am. Sav. & Loan (1992) 11 Cal.App.4th 109, 113 (Henricksen).) “Whether an attorney should be disqualified is a matter addressed to the sound discretion of the trial court. [Citations.] In exercising that discretion, the trial court is required to make a reasoned judgment which complies with the legal principles and policies applicable to the issue at hand. [Citation.]” (Ibid.)

“[D]isqualification motions involve a conflict between the clients’ right to counsel of their choice and the need to maintain ethical standards of professional responsibility. [Citation.] The paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar. The important right to counsel of one’s choice must yield to ethical considerations that affect the fundamental principles of our judicial process. [Citations.]” (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1204 (Kennedy), internal quotation marks omitted.)

“When a party moves to disqualify opposing counsel based on allegedly improper contact between opposing counsel and the movant’s expert witness, “the party seeking disqualification has the burden to show that the expert possesses confidential information materially related to the proceedings before the court.” (DeLuca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671, 686.)

Plaintiff contends that disqualification of Blessey is warranted because Blessey represents Dr. Jerrold S. Dreyer in the matter Juan Hernandez v. Daniel Made, M.D., Los Angeles Superior Court Case No. BC687442 (“Hernandez Matter.”) (Motion, 1-2.) Plaintiff contends that he is “likely” to list Dr. Dreyer as an expert in the expert witness exchange and that, as a result, Blessey should be disqualified as Ma’s counsel because they would have to cross examine their own client in this action. (Id.) Plaintiff relies on Collins v. State of Calif. (2004) 121 Cal.App.4th 1112 (Collins) and DeLuca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671 (DeLuca) for the proposition that when an attorney has “had contact” with the opposing side’s consulting expert, the attorney may be disqualified.

First, in Collins, the court of appeal found that disqualification of Plaintiff’s counsel was unwarranted because Plaintiff’s counsel had no notice that defendants had hired the same windshield expert a year earlier. (Collins, supra, 121 Cal.App.4th at 1116.) The court of appeal also found disqualification to be unwarranted because the undisputed evidence demonstrated that no confidential information originating with the defendants was transmitted by the windshield expert to Plaintiff’s counsel. (Id.)

Second, DeLuca arose out of a dispute between a seafood business and its former director over ownership of a fish storage plant. (DeLuca, supra, 217 Cal.App.4th at 677.) The seafood business retained a real estate broker expert and the matter proceeded to trial, in which the trial court ruling in favor of the seafood business. (Id. at 678.) The former director appealed and the court of appeal reversed, ordering a retrial of the former director’s unlawful detainer complaint. (Id. at 678-679.) The former director hired the same real estate broker as the seafood business in connection with the retrial and the seafood business moved to disqualify the former director’s counsel due to their retention of the real estate broker. (Id. at 680.) The court of appeal concluded that the former director’s counsel should not have been disqualified because the seafood business failed to meet its burden of establishing that the real estate broker was provided “confidential information materially related to the proceedings before the court.” (Id. at 692.) The court of appeal noted that “a party moving to disqualify opposing counsel for improper contact with the moving party’s expert must establish that the expert possesses confidential information materially related to the proceedings before the court.” (Id. at 691.)

Ma contends in opposition that Plaintiff’s reliance on Collins and DeLuca is misplaced because Dr. Dreyer did not retain Blessey after Plaintiff retained Dr. Dreyer and, as such, neither Collins nor DeLuca are applicable. (Opposition, 3-5.) The court agrees with Ma.

As described above, Collins and DeLuca both hold that a party may seek to disqualify his opposing counsel based on opposing counsel’s retention of the party’s expert from a current or prior matter if the party demonstrates that the expert was provided confidential information relevant to the matter at issue during the prior matter. Here, Dr. Dreyer would have become Blessey’s client in the Hernandez Matter prior to potentially becoming designated as Plaintiff’s expert in the instant matter. There is no indication that Dr. Dreyer provided any information about this matter to Blessey, and it is not likely he would do so. Moreover, there would be no reason for Blessey to discuss anything having to do with Plaintiff’s action. There is no reason to believe Dr. Dreyer provided confidential information relevant to the instant action to Blessey.

Accordingly, the court finds that Plaintiff has failed to meet his burden as described in DeLuca to show that Dr. Jerrold Dreyer possess confidential information materially related to the instant action for purposes of disqualifying Blessey. Moreover Dr. Dreyer’s right to have counsel of his choosing prevails over Plaintiff’s right to designate a doctor represented by opposing counsel as his expert. (Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 467.)

Plaintiff’s motion to disqualify Blessey is DENIED.

Having denied Plaintiff’s motion on this basis, the court does not reach the remainder of the opposition’s arguments.

Conclusion

Plaintiff’s Motion to Disqualify Defendant George Ma, M.D.’s counsel is DENIED. Ma is to provide notice.

Case Number: BC651924    Hearing Date: January 24, 2020    Dept: 37

HEARING DATE: January 24, 2020

CASE NUMBER: BC651924

CASE NAME: Carlos Russo v. George Ma, M.D., et al.

MOVING PARTY: Plaintiff, Carlos Russo

OPPOSING PARTIES: Defendants, Good Samaritan Hospital, George Ma, Steve K. Hwang, M.D.

TRIAL DATE: March 24, 2020

PROOF OF SERVICE: OK

MOTION: Plaintiff Carlos Ma’s Motion to Renew Motion for Leave to Amend to Add Punitive Damages And For Leave to File Second Amended Complaint

OPPOSITION: December 30, 2019

REPLY: January 6, 2020

TENTATIVE: Plaintiff’s Motion to Renew Motion for Leave to Amend and Add Punitive Damages is DENIED. Defendant Ma is to provide notice.

Background

This case arises from allegations that Defendants George Ma, M.D. (“Ma”) and Good Samaritan Hospital (“Good Samaritan”) negligently misdiagnosed Plaintiff Carlos Russo (“Plaintiff”) with Stevens-Johnson Syndrome (“SJS”) and failed to properly diagnose him for a fungus or infection. Plaintiff filed the Complaint on March 3, 2017 and filed the First Amended Complaint (“FAC”) on March 30, 2017. In the FAC, Plaintiff alleges one cause of action for medical negligence. On June 12, 2018, Plaintiff filed an amendment, naming Steven K. Hwang, M.D., Inc. as Doe Defendant 1.

On May 9, 2019, Plaintiff’s motion for leave to amend the FAC was heard before Department 37 of the Los Angeles Superior Court. The court denied Plaintiff’s motion, finding that Plaintiff’s submitted evidence was only sufficient to demonstrate that subsequent medical experts disagreed with ma’s diagnosis and treatment and not Plaintiff had a “substantial probability” of prevailing on a punitive damages claim against Ma pursuant to Code of Civil Procedure section 425.13, subdivision (a). Further, as Plaintiff improperly filed multiple supplemental reply briefs containing to purported evidence and declarations, the court declined to consider this evidence pursuant to Reichardt v. Hoffman (1997) 52 Cal.App.4th 754 and advised Plaintiff that it was improper to do so.

Notably, Plaintiff first raised one of the main contentions of this motion in one of these improperly filed supplemental reply briefs, wherein he argued that Ma improperly instructed a psychiatrist to treat Plaintiff over his objections and instructed the psychiatrist to find a mental illness and prescribe medication. (May 8, 2019 Minute Order, fn. 3; March 25, 2019 Supp. Not. 3.)

On January 10, 2020, the court granted summary judgment in favor of Hwang, finding that Plaintiff’s amendment naming Hwang as a doe defendant was barred by the one-year statute of limitations. As judgment has been granted in favor of Hwang, the court will not discuss Hwang’s opposition to the instant motion.

Plaintiff now moves to renew his May 8, 2019 motion to amend the FAC to add claims for punitive damages. All Defendants oppose the motion.

Evidentiary Objections

GSH’s Objections to Marvin Pietruszka Declaration

Overruled: 1-2,

Sustained: 3-7

GSH Objections to Della Noguiera Declaration

Overruled: 9

Sustained: 8

)

GSH Objections to Exhibits

Objection 10-16: sustained, records appear to lack custodian of records declarations and as such are improperly authenticated.

Ma Objections to Peitruszka Declaration

Objection 1: overruled. The objection does not specify which portion(s) of the Peitruszka declaration it addresses and, as such, the court cannot rule on the objection.

Ma Objections to Plaintiff Declaration

Overruled: 1-2

Sustained: 3

Ma Objections to Noguiera Declaration

Objection 1: overruled,

Discussion

  1. Legal Authority

Plaintiff moves to renew his motion for leave to amend under Code of Civil Procedure section 1008, subdivision (b), which provides as follows:

“(b) A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.”

Code of Civil Procedure, section 1008 subdivision (b) does not carry a time limit for making a motion to renew by its plain language. Further, a motion to renew does not ask the court to reconsider its prior ruling but is instead a pure renewal of the first motion. (California Correctional Peace Officers Ass’n v. Virga (2010) 181 Cal.App.4th 30, 42-43 (“California Correctional”) A renewal motion can be proper even if the moving party concedes that the original ruling was right at the time, but that it is now erroneous in light of new circumstances. (Deuville Restaurant, Inc. v. Superior Court (2001) 90 Cal.App.4th 843, 848.)

  1. Timeliness

As discussed above, Code of Civil Procedure section 1008 (b) does not impose a deadline for bringing a motion to renew. Nonetheless, Ma contends that Plaintiff’s motion is untimely, as it was brought outside the “time frame related to the motion being renewed.” (Ma Opposition, 4.) Ma relies on UAS Management, Inc. v. Mater Misericordiae Hospital (2008) 169 Cal.App.4th 357 (“UAS”) in support of this proposition.

Further, GSH also contends that Plaintiff’s motion is untimely in that it is essentially a reconsideration motion, subject to Code of Civil Procedure, section 1008 (a)’s requirements. (GSH Opposition, 2-3.) GSH relies on California Correctional in support of this proposition.

First, in UAS, the court of appeal found that a motion for reconsideration was improper as a new motion for summary judgment. (UAS, supra, 169 Cal.App.4th at 367.) In making this finding, the court noted that a new motion for summary judgment was required to follow the requirements of Code of Civil Procedure section 437c and was required to provide 75 days notice of hearing and be supported by a separate statement. (Id. at 368.)

Accordingly, the court finds Ma’s contention regarding timeliness based on UAS misplaced. While the court agrees that a motion for renewal is a new motion and must follow all timeliness requirements applicable for a new motion, the court is not aware of any such requirements related to motion for leave to amend complaint. As such, UAS is not applicable because it discusses a motion for summary judgment under Code of Civil Procedure section 473c, which does contain timeliness requirements.

Second, the court also finds GSH’s reliance on California Correctional misplaced. Contrary to GSH’s contention, California Correctional stands for the proposition that a motion for renewal should be considered a motion for renewal, not for reconsideration, if the motion did not request that the court “reconsider the matter and modify, amend, or revoke the prior order.” (California Correctional, supra, 181 Cal.App.4th at 42-43.) The California Correctional court considered the second motion for attorney fees a new motion, under Code of Civil Procedure section 1008 (b), because both motions sought the same relief in the form of attorney fees. (Id. at 43.)

CCP section 425.13 provides:

a) In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code. The court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed within two years after the complaint or initial pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier.” (emphasis added.)

The complaint in this case was filed March 3, 2017. The motion heard on May 9, 2017 was filed originally on May 23, 2018.  The Third Amended Complaint was lodged on February 27, 2019.  A supplemental brief was filed on March 25, 2019. The current motion was filed on December 10, 2019. were filed more than two years after the complaint and the current motion was filed well after the two years and well within the nine month limitation.

Accordingly, the court agrees with GSH that Plaintiff’s motion is untimely. Nevertheless, the court will consider the remainder of the motion.

  1. Analysis

Code of Civil Procedure section 1008 requires the party moving for renewal to show by affidavit “what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

For the below reasons, the court finds that Plaintiff has failed to show by affidavit or declaration what “new or different facts, circumstances or law” supports a renewal of his May 8, 2019 motion for leave to amend.

Plaintiff’s main argument in support of renewing his motion for leave to amend appears to be testimony of Dr. Moeiz Khankhanian (“Khankhanian”), who Plaintiff contends is the psychiatrist that examined him at Pacific Alliance Medical Center (“PAMC”) (Motion, 2.) Plaintiff contends that Khankhanian, whose deposition was taken after the May 8, 2019 hearing, testified that Ma allegedly requested that he examine Plaintiff and allegedly requested that he find Plaintiff to have mental illness. (Id.) Plaintiff appears to contend that testimony shows Ma acted fraudulently requiring Khankhanian to examine and diagnose Plaintiff constitute malice and/or fraud for purposes of alleging punitive damages against Ma. (Id.)

Both Ma and GSH oppose the motion for renewal in part based on the contention that Khankhanian’s testimony does not constitute new fact. Both Ma and GSH also contend that permitting any sort of amendment two months prior to trial would be severely prejudicial to defendants.

First, Ma contends that Khankhanian’s testimony does not constitute new facts because (1) such an argument was presented in connection with the original motion for leave to amend, (2) any representations based on Khankhanian’s actual testimony constitute misrepresentations not supported by the actual testimony. (Ma Opposition, 5-7.) Further, Ma contends that Plaintiff has not provided an explanation for why this evidence was not presented earlier, as the PAMC records were available to Plaintiff at the time he filed the original motion. (Ma Opposition, 5.)

Second, GSH contends generally that the facts Plaintiff relies on in support of his motion for renewal were all in his possession prior to the May 8, 2019 hearing. (GSH Opposition, 5-6.) GSH also appears to contend that Plaintiff’s motion fails to explain its citations to the Pietruszka and other expert declarations, as a review of the docket indicates that the expert declarations were all largely signed and filed prior to the May 8, 2019 hearing. (Id.)

The court agrees that new evidence has not been shown. Plaintiff appears to rely on Khankhanian’s testimony in the following areas for the proposition that this testimony constitutes new evidence in support of this motion: (1) contact with Ma’s counsel, (2) instruction from Ma to examine Plaintiff, (3) alleged instruction from Ma to find that Plaintiff had mental illness, and to prescribe medication for same. Khankhanian testified as follows with regard to each topic:

Contact from Ma’s Counsel

Q: Have you had any conversations with Dr. Ma’s attorney about this deposition?

A: No.

Q: Have you had any conversations with anyone else ta this table other than your attorney about this deposition?

A: I don’t know any of the people here. Who are these people? I don’t know these people.

Q: Oh, okay. Some of them represent Dr. Ma and some represent the hospital. And I note that one of them represents one of the other doctors from the hospital.

A: Yeah, somebody called me that I had deposition. I think it was Dr. Ma’s attorney; right? I don’t’ remember….

(Exhibit 3 to December 23, 2019 Exhibit List at pp. 9:3-21.)

Instruction to Examine Plaintiff

Q: …”So, again, what would that mean if Dr. Ma’s name is there?

A: It says on the line, “ordered provider.”

Q: And what would that mean?

A: it means he is the attending physician asking me to see the patient.

(Exhibit 3 at pp.20:17-23.)

Improper Instruction to Find Mental Illness

Q: “Did Dr. Ma instruct you to make medical findings about Carlos Russo?

A: No.

Q: “So what does this mean, “Physician instructions: OCD and bipolar?”

A: As I said, you have to ask him.

Q: So you don’t know what that means?

A: No. And I never seen or be instructed by anybody more than what I talk to the patient or looking at the record.”

(Exhibit 3 at pp.22:14-23.)

The testimony does not demonstrate that Ma engaged in any wrongdoing in providing instructions to Khankhanian. At best, Khankhanian’s testimony demonstrates that Ma directly instructed him to examine Plaintiff, which does not demonstrate on its face that Ma acted with malice, fraud or oppression in providing treatment to Plaintiff. Further, as Ma asserts, Plaintiff’s citations to Khankhanian’s testimony largely misrepresent their meaning, as Khankhanian does not testify that Ma instructed him to find that Plaintiff had OCD and bipolar disorder. At most, Khankhanian’s testimony demonstrates that he did not understand Ma’s order. Further, Ma has pointed to his own testimony, given in 2017, which indicates that he ordered Khankhanian to examine Plaintiff based on nursing staff telling him that Plaintiff was anxious and requested a consultation. (Exhibit C to Ma Opposition, 175:5-25.)

Third, the court is also inclined to deny Plaintiff’s motion for renewal based on both Defendants arguments regarding prejudice. As the above demonstrates, Plaintiff had the majority of the evidence to make a motion for leave to amend prior to the May 8, 2019 hearing and has provided no explanation for why he did not present this evidence in connection with the initial motion. Despite this, the instant motion seeks leave to add multiple causes of action and add multiple new factual allegations, as evidenced by Plaintiff’s eight-page notice of motion. Further, the trial date is presently March 24, 2020, which is exactly two months following the hearing on the instant motion. Given the foregoing, the court finds that permitting Plaintiff to amend his FAC at this juncture would severely prejudice Defendants, who would undoubtedly file demurrers or motions to quash that likely could not be noticed before the trial and would have to prepare for trial and respond to over 20 new allegations on which they did not have the opportunity to conduct discovery. Accordingly, the court denies Plaintiff’s motion for renewal for the amendments other than punitive damage on this additional basis.

Conclusion

Plaintiff’s motion to renew prior motion to amend the FAC and add punitive damages is DENIED. Defendant Ma is to provide notice.

Case Number: BC651924    Hearing Date: January 10, 2020    Dept: 37

HEARING DATE: January 10, 2020

CASE NUMBER: BC651924

CASE NAME: Carlos Russo v. George Ma, M.D., et al.

MOVING PARTY: Defendant, Steve Hwang, M.D. (Doe 1)

OPPOSING PARTIES: Plaintiff, Carlos Russo

TRIAL DATE: March 24, 2020

PROOF OF SERVICE: OK

MOTION: Defendant Steve Hwang’s Motion for Summary Judgment

OPPOSITION: December 24, 2019

REPLY: January 3, 2020

TENTATIVE: Hwang’s motion for summary judgment is GRANTED. Hwang is to provide notice and prepare a proposed judgment

Background

This case arises from allegations that Defendants George Ma, M.D. (“Ma”) and Good Samaritan Hospital (“Good Samaritan”) negligently misdiagnosed Plaintiff Carlos Russo (“Plaintiff”) with Stevens-Johnson Syndrome (“SJS”) and failed to properly diagnose him for a fungus or infection. Plaintiff filed the Complaint on March 3, 2017 and filed the First Amended Complaint (“FAC”) on March 30, 2017. In the FAC, Plaintiff alleges one cause of action for medical negligence. On June 12, 2018, Plaintiff filed an amendment, naming Steven K. Hwang, M.D., Inc. as Doe Defendant 1.

Defendant Hwang now moves for summary judgment on the grounds that Plaintiff’s Doe amendment is untimely pursuant to the one-year statute of limitations on medical malpractice actions. Plaintiff opposes the motion.

Evidentiary Objections

Hwang’s Objections to Declaration of Marc E. Angelucci

Overruled: 1-2, 4, 17-18, 20, 28-30

Sustained: 3, 5-16, 19, 21-24, 25-27

Hwang’s Objections to Plaintiff’s Additional Facts in Separate Statement

Overruled: 31-36, 54, 60-63, 74-75

Sustained: 37-53, 56-59, 64-73, 76

Objection 74-76: overruled, not irrelevant.

Hwang’s Objections to Exhibits

Overruled: 77-80, 82

Sustained: 81

Factual Background

The following facts are largely undisputed and provide context for the subsequent discussion about the merits of the parties’ respective contentions in connection with the motion for summary judgment.

Plaintiff first saw Hwang at Good Samaritan Hospital (“GSH”) on December 15, 2015. (Separate Statement of Undisputed Material Facts in Support of Motion (“DSS”), ¶ 1.)[1] during which time Hwang informed Plaintiff that he probably had a fungal infection and that a surgical dermatologist, Dr. Estrada, would perform a biopsy. (DSS ¶ 1, Exhibit A (Plaintiff Deposition) at 51:1-10, Exhibit B (Consultation Report).) Plaintiff does not dispute this fact but additionally contends that he believed he was to receive IV Micafungin after the biopsy and that Ma, as the HMO doctor, would be the one to obtain approval for the biopsy and IV Micafungin. (Separate Statement in Support of Opposition (“PSS”), ¶ 81; Declaration of Plaintiff in Support of Opposition (“Plaintiff Decl.”), ¶¶ 18-19.)

On December 16, 2015, Plaintiff was seen by Hwang. (DSS ¶ 2; Exhibit A at pp. 52:1-54:1, 54:22-55:1.) Plaintiff and Hwang discussed that they were waiting for Dr. Estrada to perform the biopsy. (Id.) On December 17, 2015, Plaintiff was again seen by Hwang, during which they again discussed waiting for Dr. Estrada. (DSS ¶ 3, Exhibit A at pp. 55:10-24.)

On December 18, 2015, Plaintiff was discharged from GSH by Ma. (DSS, ¶ 4, Exhibit A at pp. 58:24-59:18.) Plaintiff does not dispute this, but additionally contends that when Ma discharged Plaintiff, he informed Plaintiff that he had SJS and instructed Plaintiff to stop taking all of his medications. (PSS ¶ 82; Plaintiff Decl. ¶ 20.)

Plaintiff spoke with Hwang on or shortly after December 18, 2015. (DSS ¶ 5.) Hwang allegedly stated during this conversation that he was surprised that Plaintiff was discharged because of the wait for a biopsy. (Id.; Exhibit A at pp. 75:19-76:15, 193:24-195:25.) Hwang did not recommend that Plaintiff be readmitted to GSH. (DSS ¶ 7; Exhibit D, response to Special Interrogatory no. 12.) Further, Hwang did not actually order IV micafungin for Plaintiff. ( DSS ¶ 8, Exhibit D, response to Special Interrogatory no. 12.) Hwang also did not recommend that Plaintiff undergo a biopsy after he was discharged. (DSS ¶ 9, Exhibit A at pp. 75:19-76:15, 193:24-195:25.) Plaintiff does not dispute these facts but additionally contends that during the conversation between Plaintiff and Hwang after discharge, Plaintiff did not know whether Hwang had the authority to order Plaintiff’s readmission or to order IV Micafungin after Ma’s order for discharge. (PSS ¶¶ 7-9.)

In or about April 2016, one of Plaintiff’s treating physicians, Dr. Simon, informed him that he had waited too long to get micafungin. (DSS ¶ 10, Exhibit A at pp. 153:17-154:7, 174:12-24.) In Plaintiff’s opinion, GSH and Ma were negligent because Ma refused to perform a biopsy and culture. (DSS ¶ 11, Exhibit A at pp. 137:13-138:2.) Further, in Plaintiff’s opinion, if he would have received a biopsy, culture and echinocandin at GSH it would have prevented him from developing dubliniensis or this condition from going deeper into the body, a condition which is resistant to oral medication. (DSS ¶¶ 12-13, Exhibit A at pp. 137:13-138:2.)

On October 4, 2018, Plaintiff first contended that Hwang should have performed a biopsy and placed him on micafungin as he originally recommended. (DSS ¶¶ 14-15; Exhibit D, response to Special Interrogatories nos. 28, 30, 32.) Plaintiff admits these facts but additionally contends that he did not know that Hwang changed his original recommendations and why Hwang made these changes until after the deposition of Hwang. (PSS ¶¶ 14-15.)

It is undisputed that Plaintiff filed his original Complaint on March 3, 2017 as a self-represented litigant. (DSS ¶ 16, Exhibit E.) It is also undisputed that Plaintiff’s original complaint names doe defendants. (Id., Exhibit E at ¶ 1.) The Complaint alleges that Plaintiff was under the care and treatment of defendants from December 15-18, 2015 and that each of them negligently examined, diagnosed and cared for him, causing him injury. (DSS ¶ 18, Exhibit E at ¶¶ 6-7.)

Plaintiff’s FAC was filed on March 30, 2017. (DSS ¶ 19, Exhibit F.) Further, the doe amendment naming Hwang was filed on June 12, 2018. (DSS ¶ 20, Exhibit G.) Hwang filed his answer on July 9, 2018, asserting the statute of limitations as an affirmative defense. (DSS ¶ 21, Exhibit H.)

On opposition, Plaintiff also submits a number of additional facts regarding his care and treatment at GSH and under both Ma and Hwang.

Plaintiff contends that on January 25, 2016, he was seen by infectious disease specialist Dr. Jerrold Dreyer (“Dreyer”), who recommended and ordered a biopsy for fungal culture of the skin and nails. (PSS ¶ 25.) In response to this request, Plaintiff received a biopsy on February 29, 2016. (PSS ¶ 26.) On March 30, 2016, the results revealed that Plaintiff had a fungal infection with candida dubliniensis, a condition resistant to oral medication. (PSS ¶ 26.) As a result of the March 30, 2016 finding, Dreyer requested authorization for IV micafungin and received authorization in September 2016, at which point he began administering it to Plaintiff. (PSS ¶¶ 27-28.)

Plaintiff contends that his condition improved on IV Micafungin, as evidenced by Dreyer’s progress note on December 6, 2016. (PSS ¶ 29.)

Plaintiff also submits a number of additional facts regarding the statute of limitations as to naming Hwang.

Plaintiff contends that he received GSH’s medical records on his treatment on or about August 18, 2017 in the course of discovery, while he was still a self-represented litigant. (PSS ¶ 33.) Plaintiff’s now attorney of record, Marc Angelucci, substituted in on September 8, 2017, although he had assisted Plaintiff in a limited capacity prior to appearing in the action. (Angelucci Decl. ¶¶ 2-3.)

On January 9, 2018, Plaintiff took the first session of Hwang’s deposition. (PSS ¶¶ 58-59.) At Hwang’s deposition, he acknowledged that certain handwritten progress notes dated December 16, 2015, which were not part of the dictated notes, were written by him. (Id., Exhibits in Support of Opposition, Exhibit 7 (Deposition of Hwang) at pp. 83:9-13.) Further, Hwang testified that his notes reflect that he changed his mind about a recommendation for a biopsy and fungal culture. (PSS ¶ 60, Exhibit 7 at pp. 89:2-90:4.) Hwang testified as follows about why he no longer recommended the biopsy:

Q: All right. And are you referring to where – the number 3 at the bottom where it says, Hold off on skin biopsy, skin BX?

A: Yes, that’s what – yes. That’s what I’m referring to.

Q: And is that what that means?

A: Yes.

Q: All right. And does that mean – so on what basis did you have to change your prior recommendation that there was a strong recommendation about a need for biopsy for fungal culture?

A: Well, I think it says in the assessment plan that the patient’s – despite being off antifungals since admission, there’s been some improvement on antibacterial antibiotic therapy. So I think that was the basis that maybe we – it wasn’t necessary at that point in time, at least in my opinion.”

(Exhibits in Support of Opposition, Exhibit 7 at pp. 89:11-90:4.) Hwang’s deposition was not complete until May 31, 2018. (PSS ¶¶ 61-64.)

Plaintiff contends that he could not have discovered facts sufficient to suggest Hwang’s negligence under the completion of his deposition at May 31, 2018 and upon review of his testimony. For example, Plaintiff contends that Hwang’s testimony on May 31, 2018 contradicts his progress notes and January 2018 testimony. For example, Plaintiff contends that Hwang’s May 31, 2018 testimony contradicts his January 2018 testimony in, among others, the following ways: (1) Hwang now admits that a biopsy for fungal culture would have included a test for bacterial infection (PSS ¶¶ 66, Exhibit 7 (May 31, 2018 Hwang Deposition) at pp. 182:23-185:1.); (2) Hwang falsely stated he was not involved in Plaintiff’s care post-discharge, when his name appears as the prescribing physician for Voriconazole (PSS ¶ 71, Exhibit 11 (Prescription).)

Finally, Plaintiff contends that he previously informed the Honorable David S. Cunningham on June 7, 2018 that he intended to add Hwang as a doe defendant at a status conference and that he was allegedly told that filing a doe amendment would be sufficient. (PSS ¶ 78.)

Discussion

I. Legal Standard

“The purpose of the law of summary judgment 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.) Pursuant to Code of Civil Procedure, section 437c, subdivision (a):

A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct…. The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.

(Code Civ. Proc., § 437c, subd. (a).) A motion for summary judgment may be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.” (Code Civ. Proc., § 437c, subd. (b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinsley).) Pursuant to Code Civ. Proc., § 437c, subdivision (p)(2):

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.

(Code Civ. Proc., § 437c, subd. (p)(2).) The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].) A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).

II. Analysis

Hwang contends that he is entitled to summary judgment because Plaintiff’s doe amendment naming him as a defendant was barred by the one-year statute of limitations governing negligence actions against healthcare providers. (Motion, 7-14.) Hwang further contends that Plaintiff’s doe amendment is improper and does not “relate-back” to the filing of his original Complaint because Plaintiff could not have been genuinely ignorant of Hwang’s identity.

The statute of limitations for a cause of action arising out of a healthcare provider’s negligence is governed by Code of Civil Procedure, section 340.5, which provides:

“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.” [emphasis added]

“Healthcare provider” means and includes physicians. (Id., Bus. & Prof. Code § 500, et seq.)

Code of Civil Procedure, section 340.5’s one-year statute of limitations has been interpreted to run from “when the plaintiff has notice or information of circumstances to put a reasonable person on inquiry or has the opportunity to obtain knowledge from sources open to his investigation.” (Sanchez v. South Hospital (1976) 18 Cal.3d 93, 101, quoting 2 Witkin, Cal.Procedure, Actions, § 339, p. 1181.)

A plaintiff need not be certain of specific facts necessary to establish her causes of action, as a “suspicion of wrongdoing is enough.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111.) In Jolly, Plaintiff learned in 1972 that her mother had ingested DES while she was in utero and that DES could cause injuries in unborn babies. (Id. at11-7.) Thereafter, Plaintiff was diagnosed with a precancerous condition and in 1978, learned of one or more lawsuits alleging that DES manufacturers were liable to for failure to warn pregnant women of DES’ side effects. (Id.) However, Plaintiff did not file her lawsuit until 1981, three years later, which the Supreme Court held was time barred given that she first learned about the DES lawsuits in 1978. (Id. at 1114.)

Further, Code of Civil Procedure section 474 permits Plaintiff to bring a lawsuit against unnamed defendants by naming them as “doe” defendants. Specifically, Code of Civil Procedure section 474 states: “when the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint . . . 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.” Defendant relies on a series of cases to support the proposition that Plaintiff’s “ignorance” under Code of Civil Procedure section 474 of a defendant physician’s name is not genuine when Plaintiff admits to being treated by that defendant physician and being in possession of medical records describing this treatment.

First, Defendant’s motion relies on Woo v. Superior Court (1999) 75 Cal.App.4th 169 (Woo). In Woo, Plaintiff filed a medical malpractice action on April 25, 1997 against a hospital and various physicians alleging that all defendants contributed to her mammogram being misinterpreted and, consequently, a surgical biopsy guide wire being incorrectly inserted. (Id. at 173.) On February 3, 1998, Plaintiff filed an amended complaint, naming a new physician defendant. (Id. at 174.) The newly named physician defendant filed a motion for summary judgment, arguing that Plaintiff’s amended complaint naming him was barred by the one-year statute of limitations. (Id. at 174-175.) In reversing the trial court’s order denying summary judgment, the Court of Appeal found that “if the defendant cannot be identified from readily available information, then section 474 is available; if the defendant can be identified from the readily available information, then section 474 is unavailable.” (Id. at 180.)

Second, Defendant’s motion relies on Snokes v. Bolen (1991) 235 Cal.App.3d 1427 (Snokes). In Snokes, plaintiff brought an action in February 1988 against an oral surgeon, alleging that she suffered injury as a result of a dental bridge procedure. (Id. at 1429.) In February 1989, plaintiff consulted with experts who advised that it could not be determined whether the oral surgeon or plaintiff’s dentist caused her injury and accordingly, plaintiff amended her complaint in April 1989 to name her dentist as a doe defendant. (Id. 1430.) The dentist moved for summary judgment on the grounds that the doe amendment was barred by the one-year statute of limitations. (Id.) In affirming the trial court’s grant of summary judgment in favor of the dentist, the Court of Appeal found that plaintiff should have named the dentist at the time she filed her original complaint because plaintiff knew that both the oral surgeon and the dentist performed dental work around the injured tooth. (Id. at 1432.)

Plaintiff contends on opposition that he did not know of Hwang’s liability until the completion of his deposition on May 31, 2018. (Opposition, 9-11.) Plaintiff contends that he could not have known until Hwang’s deposition, where he affirmatively testified that the December 16, 2015 note changing the recommendation for a biopsy was his, because he had believed that Ma, as the HMO physician, was the one with authority to change such orders. Further, Plaintiff contends that he could not name Hwang until after the May 31, 2018 session of the deposition because Hwang allegedly testified to the following, which was inconsistent with his January, 2018 deposition: (1) a biopsy for fungal culture would have included a test for bacterial infection (PSS ¶ 66, Exhibit 7 (May 31, 2018 Hwang Deposition) at pp. 182:23-185:1.); (2) he was not involved in Plaintiff’s care post-discharge, when his name appears as the prescribing physician for Voriconazole (PSS ¶ 71, Exhibit 11 (Prescription).)

Given the foregoing, the court finds Woo and Snokes instructive and grants summary judgment in favor of Hwang.

First, contrary to Plaintiff’s contention that he could not know Hwang was liable for certain until after both sessions of Hwang’s deposition, such certainty is not required to trigger the statute of limitations. A plaintiff need not be certain of specific facts necessary to establish her causes of action, as a “suspicion of wrongdoing is enough.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111.) As discussed above, it is undisputed that Ma was the physician who discharged Plaintiff from GSH, and that Hwang was the physician who initially recommended that Plaintiff receive a biopsy and possibly be started on IV Micafungin. Further, it is undisputed that Hwang saw Plaintiff each day during his stay at GSH and that they discussed waiting for Dr. Estrada to perform the biopsy. Finally, it is undisputed that when Ma discharged Plaintiff on December 18, 2015, it was without ordering that he obtain the biopsy and with an order that he stop taking his medications.

Although Plaintiff stated numerous times in his Additional Facts in support of opposition that he was ignorant of Hwang’s liability because he did not know whether Hwang had authority to change Plaintiff’s orders, this argument fails. Plaintiff has submitted no evidence or authority in support of this apparent dispute. Absent this, the court is aware of no evidence or authority which stands for the proposition that a specialist physician had no authority to change treatment or medication orders he recommended.

As such, the court finds that the facts of this action are similar to Snokes, where Plaintiff’s alleged injury could have been caused by either Ma or Hwang changing the original recommendations for a biopsy and IV Micafungin. Therefore, Plaintiff should have had a “suspicion of wrongdoing” regarding Hwang’s conduct prior to June 12, 2018 and should have named Hwang as a doe defendant prior to that time, if he intended to do so.

Because Plaintiff named Hwang as a doe defendant on June 12, 2018, more than 15 months after filing his FAC, the doe amendment is untimely. As such, Hwang is entitled to summary judgment because Plaintiff’s doe amendment is barred by the one- year statute of limitations under Code of Civil Procedure section 340.5.

Conclusion

Hwang’s motion for summary judgment is GRANTED. Hwang is to provide notice and prepare a proposed judgment.


[1] The separated statement says “October”, but all the supporting evidence says December.